Reincarnating the "Major Questions" exception to chevron deference as a doctrine of noninterference (or why massachusetts v. EPA got it wrong)

Administrative Law Review

Volumn 60, Issue 3, 2008, Pages 593-645

  Moncrieff, Abigail R ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 79251535647     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (253)

1. 127 S. Ct. 1438 (2007).
2. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (creating a two-step inquiry for determining whether an agency's interpretation of its governing statute is entitled to deference). Under Chevron deference, the Court asks only two questions before accepting an agency's interpretation of its governing statute: whether the statute is silent or ambiguous on the question at issue (Step One) and, if so, whether the agency's interpretation of that statutory ambiguity is reasonable (Step Two).
3. Id. at 842-43.
4. See Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 231-47 (2006) (identifying, explicating, and naming the "major questions" exception but concluding that it should not be enforced).
5. 529 U.S. 120 (2000).
6. Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise (May 27, 2008) (unpublished manuscript on file with author) (arguing that the problem with EPA's decision not to regulate was, at least arguably, that the decision was based on crass political calculations rather than expert scientific judgments).
7. See Sunstein, supra note 3, at 243-45 (identifying Brown & Williamson as the clearest in a trilogy of cases that seemed to create a Step Zero exception for major questions).
8. See Freeman & Vermeule, supra note 5, at 18-19 (noting that Massachusetts and Brown & Williamson may be incompatible in this sense).
9. The question is slightly more complicated than I make it out to be here. The major questions exception comes into play only if Congress has not clearly bestowed authority in the agency. The rule, in its simplest form, is one of many "clear statement" rules, holding not that agencies are absolutely forbidden to make major decisions but rather that agencies may make such decisions only if Congress has clearly given them the authority to do so. This nuance, however, does not impact any of the analysis that follows, and I therefore set it aside for simplicity's sake.
10. 512 U.S. 218(1994).
11. The term "Step Zero" is the creation of Thomas Merrill and Kristin E. Hickman, Chevrons Domain, 89 GEO. L.J. 833, 836 (2001), later adopted and schematized by Sunstein, supra note 3 (identifying two Step Zero inquiries that the Court has adopted).
12. Sunstein, supra note 3, at 236.
13. 512 U.S. 218 (1994).
14. . 529 U.S. 120 (2000).
15. Id. at 160;
16. see also id. at 133 ("In addition, we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.").
17. 127 S. Ct. 1438 (2007).
18. MCI, 512 U.S. at 231-32.
19. Communications Act of 1934, Pub. L. No. 73416, 48 Stat. 1064 (codified at 47 U.S.C. §203 (1988 & Supp. IV 1993)).
20. Id.
21. FCC originally eliminated the tariff-filing requirement altogether for nondominant carriers. When AT&T first challenged the mandatory detariffing rule, however, FCC responded by making the filing requirement permissive. The question before the Supreme Court, therefore, was whether FCC could make tariff filing optional for new competitors. See infra note 21.
22. Although FCC claimed to exempt only those carriers that had nondominant market power, the distinction between dominant and nondominant carriers in the long-distance market "amounted to a distinction between AT&T and everyone else." MCI, 512 U.S. at 221.
23. The D.C. Circuit first vacated the detariffing policy in 1992. AT&T Co. v. FCC, 978 F.2d 727 (D.C. Cir. 1992).
24. The Supreme Court denied certiorari to the D.C. Circuit. MCI Telecomms. Corp. v. AT&T Co., 509 U.S. 913 (1993). FCC responded to the D.C. Circuit's opinion by instating a permissive (rather than mandatory) detariffing policy.
25. See MCI, 512 U.S. at 223 ("The Commission . . . determined that its permissive detariffing policy was within its authority . . . ."); In re Tariff Filing Requirements for Interstate Common Carriers, 7 F.C.C.R. 8072, 8077-78 (1992) (outlining why FCC believed it acted within its statutory authority when it passed a permissive detariffing policy).
26. The D.C. Circuit then granted summary reversal of the permissive policy, restating that a detariffing order exceeded FCC's authority.
27. See MCI, 512 U.S. at 223. To this second case, the Supreme Court granted certiorari and affirmed the D.C. Circuit in 1994, two years after the first D.C. Circuit decision and more than a decade after the first FCC order.
28. Id.
29. 47 U.S.C. §203(b)(2) (1988 & Supp. IV 1993).
30. MCI, 512 U.S. at 227-29.
31. Id. at 231-32.
32. Id. at 225.
33. Id. at 229.
34. Id.
35. Id. at 231.
36. Id. at 229.
37. See id. at 231 (holding that Congress likely did not leave "the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion").
38. See Sunstein, supra note 3, at 236-42. Sunstein notes that MCI may be one of a trilogy of Step Zero cases denying deferential review to major policy changes. The other two cases in the trilogy, according to Sunstein, are Brown & Williamson and Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).
39. Sunstein includes Babbitt in the trilogy primarily because the opinion cites the first scholarly article to have mentioned a major questions rule, an article that Justice Breyer wrote when sitting as a judge on the First Circuit. Babbitt, 515 U.S. at 703-04 (citing Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 373 (1986)). As Sunstein acknowledges, though, the Court's treatment of the major questions idea in Babbitt is limited and "cryptic." Furthermore, the Babbitt opinion does not affect my analysis here since my Dworkinian reconstruction of the "major questions" rule does not lose force even if it fails to fit and justify Babbitt. I will therefore exclude it from my analysis.
40. 529 U.S. 120 (2000).
41. 21 U.S.C. §§301-397 (2000).
42. Id. 321(g)(1)(C).
43. Brown & Williamson, 529 U.S. at 127. The FDA claimed jurisdiction over cigarettes and tobacco as "combination devices," 21 U.S.C. §353(g)(1) (2000), designed to deliver nicotine to the body. Brown & Williamson, 529 U.S. at 127.
44. See id. at 126 (describing the FDA rule).
45. Id. at 129, 131.
46. Id. at 132. Justice Scalia recently emphasized his belief that Brown & Williamson was a Step One holding. See Gonzales v. Oregon, 546 U.S. 243, 291 n.6 (2006) (Scalia, J., dissenting) ("[In Brown & Williamson] we relied on the first step of the Chevron analysis to determine that Congress had spoken to the precise issue in question. . . .").
47. See John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223, 226 (2000) (noting that the opinion's "heavy reliance on post enactment legislative history" was "puzzling" and seemed "out of character," especially given that the Justices composing the majority were Chief Justice Rehnquist and Justices O'Connor, Scalia, Thomas, and Kennedy).
48. Brown & Williamson, 529 U.S. at 144.
49. See id. at 149 (arguing that subsequent statutes demonstrated Congress's intention to reserve for itself "exclusive control" over tobacco regulation).
50. See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 154-55, 184 n.29 (1978) (outlining the Court's rejection of both the implied repeals doctrine and the use of legislative history).
51. See Manning, supra note 39, at 274-75.
52. See id. at 260 ("The ratification arguments ultimately represent an unconvincing account of legislative intent, one that the Court almost surely would have rejected in the absence of nondelegation concerns.");
53. id. at 274 ("[I]f the Court would otherwise have read the FDCA to include tobacco, its use of the specificity canon to narrow the FDA's authority might be characterized as a species of implied repeal.").
54. Brown & Williamson, 529 U.S. at 160;
55. see also id. at 133 ("In addition, we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.") (emphasis added).
56. Id. at 159.
57. See id. ("A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration." (quoting Breyer,
58. supra note 31, at 370) (internal quotation marks omitted)).
59. 127 S. Ct. 1438 (2007).
60. There were two other questions at issue in the case: whether the Commonwealth of Massachusetts had standing to challenge EPA's decision and whether EPA's refusal to exercise its statutory authority was arbitrary and capricious. The Court's holdings on those two questions are not particularly relevant here, but the Court's analysis in both sections is interesting for the current discussion. To reach its conclusions on both points, the Court ended up emphasizing the majomess of global warming as an economic and political issue. EPA had argued that Massachusetts lacked standing in part because the Commonwealth could not show that EPA's decision caused any of the alleged injury (rising sea levels and loss of coastal lands). Its argument was that the refusal to regulate new car emissions was too small a decision to cause those harms. The Court responded: "[EPA's] argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a morenuanced understanding of how best to proceed." Massachusetts, 127 S. Ct. at 1457 (emphasis added) (citations omitted). The Court thus characterized the Agency's decision as a first-step response to a massive regulatory problem.
61. 81 Stat. 499 (codified at 42 U.S.C. §7521(a)(1) (2000)).
62. Id. 7602(g).
63. Massachusetts, 127 S. Ct. at 1459.
64. 42 U.S.C. §7602(g) (2000).
65. See id. (defining "air pollutant" as "any air pollution agent" that endangers public health or welfare, "including any physical[ or] chemical. . . substance or matter which is emitted into or otherwise enters the ambient air") (emphasis added).
66. EPA argued that National Ambient Air Quality Standards (NAAQS) require the measurement of regional pollutants close to Earth but that greenhouse gases do not stay close to Earth or confined to regions. As a result, EPA argued that it would be incapable of using the CAA's statutory scheme to respond to global warming, even if it asserted jurisdiction over greenhouse gases. The Agency thus argued that Congress must not have intended for the CAA to cover greenhouse gases and global warming. If it had so intended, EPA argued, it would have provided some tool other than the NAAQS. Massachusetts, 127 S. Ct. at 1477 (Scalia, J., dissenting).
67. See id. at 1460 n.26 ("Justice Scalia does not (and cannot) explain why Congress would define 'air pollutant' so carefully and so broadly, yet confer on EPA the authority to narrow that definition whenever expedient by asserting that a particular substance is not an 'agent.' At any rate, no party to this dispute contests that greenhouse gases both 'ente[r] the ambient air' and tend to warm the atmosphere. They are therefore unquestionably 'agent[s]' of air pollution.").
68. Id. at 1446-49, 1456-57.
69. Id. at 1446 (internal citation omitted) (quoting Petition for Writ of Certiorari, Massachusetts, 127 S. Ct. 1438, 1446 (No. 05-1120), 2006 WL 558353 (Mar. 2, 2006)).
70. See Freeman & Vermeule, supra note 5 (arguing that the problem with EPA's decision not to regulate was, at least arguably, that the decision was based on crass political calculations rather than expert scientific judgments).
71. Massachusetts, 127 S. Ct. at 1463.
72. See Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2596 (2006) (noting that the delegation fiction rests on "intensely pragmatic" considerations of institutional choice).
73. See Breyer, supra note 31, at 369 (discussing the reasons that courts presume that Congress intended for judges to defer to an agency's interpretation);
74. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 516-17 ("Chevron, however, if it is to be believed, [is] an across-the-board presumption that, in the case of ambiguity, agency discretion is meant.");
75. see also Robert A. Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 YALE J. ON REG. 1, 4 (1990) ("The touchstone in every case is whether Congress intended to delegate to the agency the power to interpret with the force of law in the particular format that was used.") (emphasis added);
76. John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612, 623-27 (1996) (describing Chevron as a judicial presumption about Congress's intended delegate);
77. Merrill & Hickman, supra note 10, at 872-73 (exploring the relationship between Chevron and congressional intent).
78. Scalia, supra note 62, at 517.
79. See Breyer, supra note 31, at 365, 397 (noting that the pre-Chevron body of administrative law represented a "skewed . . . view of institutional competence" and justifying deference on the ground that it plays to courts' and agencies' relative expertise).
80. See generally Sunstein, supra note 3, at 198-205 (summarizing the key arguments in support of the implied-intent reading, put forth by Justices Breyer and Scalia in the 1980s). As Sunstein describes, Justices Breyer and Scalia, though they disagreed as to the appropriate scope of mandatory deference, agreed that the implied-intent reading of Chevron was best. But, as Sunstein points out, both based their support of that reading on pragmatic considerations about relative institutional competence.
81. See Jacob E. Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 YALE LJ. 676, 689-90 (2006) (casting Chevron as an acknowledgement by the Justices of the limits of the Judiciary);
82. David M. Hasen, The Ambiguous Basis of Judicial Deference to Administrative Rules, 17 YALE J. ON REG. 327, 357 (2000) (referring to Chevron deference as "a prudential doctrine that the courts have elected to apply independent of congressional or statutory mandates");
83. Douglas W. Kmiec, Judicial Deference to Executive Agencies and the Decline of the Nondelegation Doctrine, 2 ADMIN. LJ. 269, 270 (1988) ("[C]ourts owe deference to agency interpretation because the agency-court relationship is not supervisory ... but more akin to one of respect or noninterference indicative of coequal branches.");
84. Richard J. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 GEO. L.J. 2225, 2229-30 (1997) (listing and explaining several practical benefits of placing policymaking power in the hands of agencies);
85. Kenneth W. Starr, Judicial Review in the Post-Chevron Era, 3 YALE J. ON REG. 283, 309-10 (1986) (discussing agency expertise); Sunstein, supra note 61, at 2595-96 (arguing that Chevron deference arises from judicial recognition that policymaking properly rests in the Executive).
86. See Kmiec, supra note 66, at 269 (arguing that mandatory deference arises from "a coalescing of the separation of powers" and the courts' rejection of a constitutional nondelegation doctrine);
87. Pierce, supra note 66, at 2229 (arguing that the Chevron opinion "anchored" the deference doctrine "securely in the Constitution").
88. See Gersen & Vermeule, supra note 66, at 687-88 (advocating Chevron as a voting rule in order to take better advantage of the doctrine's practical benefits);
89. Sunstein, supra note 61, at 2596 ("The foundations oí Chevron ... are intensely pragmatic ....").
90. See Sunstein, supra note 3, at 232-33 (noting that "[b]y hypothesis," Chevron is in play only when "the only question is whether to accept an agency's resolution or instead to rely on the interpretation chosen by a federal court").
91. Breyer, supra note 31, at 370.
92. Id.
93. In later years, Justice Breyer has indicated that he intended "majorness" to be only one of many factors that judges should consider when determining whether Congress had, in fact, delegated the relevant question to the agency.
94. Sunstein, supra note 3, at 232-33.
95. The question in Chevron was whether EPA could interpret the term "stationary source" as used in the CAA's emissions restrictions to refer to an entire factory rather than an individual smokestack. This simple reinterpretation had enormous practical consequences.
96. See Sunstein, supra note 3, at 232 (arguing that the bare majorness line fails to distinguish the major questions cases from Chevron because the policy at issue in Chevron also had major economic and political consequences).
97. See id. at 233 (arguing that "the line between interstitial and major questions is thin").
98. The same can be said of Brown & Williamson. If the question had been whether criminalizing the tobacco industry is a major policy change, then the Court clearly was right that it is. But if the question had been whether an incremental increase in advertising and sales restrictions on cigarettes and smokeless tobacco constitutes a major policy change, then the Court's decision seems much more dubious.
99. See Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 CORNELL J.L. & PUB. POL'Y 203, 261 (2004) (defining "major questions" as those that implicate "the issue of the reach of [the agency's] own regulatory authority");
100. Ernest Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 CARDOZO L. REV. 989, 1015-16 (1999) (casting the distinction between major and minor questions as a distinction between statutory constructions that involve a "detail in a statute whose general application is undisputed" (minor questions) and statutory constructions that involve a "fundamental issue of the limits of administrative jurisdiction" (major questions));
101. Merrill & Hickman, supra note 10, at 844-45 (defining major, or "extraordinary," questions as those in which "issues about the scope of the agency's jurisdiction are concerned").
102. See Sunstein, supra note 3, at 234-36 (considering the argument that agencies should not be allowed to determine "the scope of their own authority").
103. See Armstrong, supra note 78, at 261 (describing Brown & Williamson as a nonaggrandizement holding);
104. Merrill & Hickman, supra note 10, at 844 (arguing that the majorness language in Brown & Williamson is best understood as indicating jurisdictional concerns).
105. Of course, this explanation does not fit Massachusetts, in which the Court encouraged EPA to expand its jurisdiction.
106. See Miss. Power & Light Co. v. Mississippi, 487 U.S. 354, 387 (1988) (Brennan, J., dissenting) ("[W]e cannot presume that Congress implicitly intended an agency to fill 'gaps' in a statute confining the agency's jurisdiction, since by its nature such a statute manifests an unwillingness to give the agency the freedom to define the scope of its own power." (citations omitted)).
107. See id. (stating that the "Court has never deferred to an agency's interpretation of [its] jurisdiction").
108. See Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 932-34 (2005) (disputing the theory that executive bureaucrats' selfinterest will lead them to push for larger budgets and larger jurisdiction by noting a host of plausible incentives that might lead bureaucrats to favor optimal or even suboptimal money and power).
109. But see Armstrong, supra note 78, at 209-11 (asserting that agencies' jurisdictional expansions arise from agency "self-interest").
110. See generally DAVID KESSLER, A QUESTION OF INTENT: A GREAT AMERICAN BATTLE WITH A DEADLY INDUSTRY (2001) (describing FDA's decisionmaking process in concluding it could assert jurisdiction over cigarettes and tobacco).
111. See generally Scott M. Schoenwald, Regulating Competition in the Interexchange Telecommunications Market: The Dominant/Nondominant Carrier Approach and the Evolution of Forbearance, 49 FED. COMM. L.J. 367, 370-73 (1997) (discussing FCC's considerations in whether to regulate telecommunications).
112. See Levinson, supra note 84, at 932-34 (recognizing that political figures and not "career bureaucrats" ultimately run an agency).
113. Cf. Sunstein, supra note 3, at 235 ("If an agency is asserting or denying jurisdiction over some area, it is either because democratic forces are leading it to do so or because its own specialized competence justifies its jurisdictional decision.").
114. See generally Armstrong, supra note 78, at 245-46 (exploring differences between determining how to regulate and determining when to regulate);
115. Merrill & Hickman, supra note 10, at 909-14 (considering the kinds of jurisdictional issues to which Chevron applies).
116. See Miss. Power & Light Co. v. Mississippi, 487 U.S. 354, 381 (1988) (Scalia, J., concurring) (arguing that the distinction between jurisdictional and nonjurisdictional questions is fuzzy at best).
117. Manning and Sunstein share this view, though both ultimately conclude that the nondelegation understanding is normatively troubling. See Manning, supra note 39, at 223-24 (representing the Brown & Williamson case as an example of the weakness of the nondelegation doctrine);
118. Sunstein, supra note 3, at 245-46 (listing the problems with the nondelegation doctrine).
119. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 528-30 (1935) (enforcing the nondelegation doctrine as a constitutional rule).
120. See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989) (indicating that the Court enforces nondelegation by "giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional");
121. Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 315 (2000) (arguing that the nondelegation doctrine is now enforced through "a set of nondelegation canons, which forbid executive agencies from making certain decisions on their own").
122. See Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1723 (2002) (claiming that the nondelegation doctrine is "undead").
123. See Manning, supra note 39, at 260 (suggesting that the weak arguments in Brown & Williamson are understandable in light of background nondelegation concerns).
124. See Sunstein, supra note 93, at 329 ("[A] very strong version of the nondelegation doctrine would suggest that agencies can ... do nothing [if Congress has not spoken clearly as to the scope of their authority] because the underlying grant of power is effectively void.").
125. See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928) (explaining that as long as Congress provides intelligible principles to guide agency action then there is no abuse of legislative power).
126. See generally Richard B. Stewart, Beyond Delegation Doctrine, 36 AM. U. L. REV. 323, 324-28 (1987) (addressing the problems in determining whether a given delegation is appropriate).
127. See id. at 325 (acknowledging the challenge of distinguishing between permissible and impermissible delegations);
128. Sunstein, supra note 93, at 326 ("[T]he line between a permitted and a prohibited delegation is one of degree, and inevitably so.").
129. See Stewart, supra note 98, at 324 (noting the "absence of judicially manageable and defensible criteria to distinguish permissible from impermissible delegations").
130. Cf. Sunstein, supra note 93, at 333 (noting that certain categories of "clear statement" rules, such as the canon against extraterritorial application, constitute clear and easily administered constitutional constraints that can be enforced against Congress through Chevron exceptionalism).
131. 102. Peter H. Schuck, Delegation and Democracy: Comments on David Schoenbrod, 20 CARDOZO L. REV. 775, 792-93 (1999).
132. See Sunstein, supra note 61, at 2601-02 (rooting Chevron in a realist account of judicial decisionmaking);
133. Sunstein, supra note 93, at 329 (calling Chevron a " prodelegation" doctrine);
134. see also Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 880-81 (2006) (presenting empirical evidence of the political nature of judicial decisionmaking in Chevron decisions).
135. See Posner & Vermeule, supra note 94, at 1723 (questioning the constitutional foundation of the nondelegation doctrine).
136. See, e.g., David Schoenbrod, Delegation and Democracy: A Reply to My Critics, 20 CARDOZO L. REV. 731, 731-32 (1999) (discussing the constitutionality of legislative responsibility);
137. DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION 99 (1993) ("When the elected lawmakers delegate, the people lose. . . .").
138. See Sunstein, supra note 93, at 330 (noting that Chevron is in play only when Congress has necessarily delegated either to the Judiciary or to the Executive).
139. See Gersen & Vermeule, supra note 66, at 725 (suggesting the "voting rule" version of Chevron as a means of decreasing the "strain" that the Chevron doctrine has come under in the last two decades);
140. Manning, supra note 39, at 227-28 (arguing that Brown & Williamson undermined Chevron's laudable goals);
141. Sunstein, supra note 61, at 2582 (defending "the law-interpreting authority of the Executive Branch").
142. See Breyer, supra note 31, at 371-72 (questioning why the courts should ever defer);
143. Merrill & Hickman, supra note 10, at 836 (arguing for narrowing Chevron's scope).
144. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 234 (1994)
145. (internal quotation marks omitted) (quoting Armour Packing Co. v. United States, 209 U.S. 56, 82 (1908)). Interestingly, Armour Packing predates Chevron by more than seven decades.
146. See infra Part IV (noting that one of Chevron's fundamental assumptions is that Congress is no longer actively involved in the regulatory regime).
147. MCI, 512 U.S. at 234 (internal quotations and citations omitted).
148. Although the Court's language about "considerable debate in other forums" does not refer directly to congressional debate, the Legislature is the only alternative forum that should matter to Chevron analysis. A Chevron enthusiast (such as Justice Scalia, the author of the MCI majority) surely would be unimpressed by debate in, say, academic institutions or political think tanks. Furthermore, as I will describe fully in the next section, Congress certainly fits the description of an "other forum" that was debating deregulation at the time the Court decided MCI.
149. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 149 (2000).
150. See id. at 151 (quoting S. REP. NO. 94-251, at 43 (1975) (providing the additional views of Sens. Hartke, Hollings, Ford, Stevens, and Beall)).
151. Id. at 152-53 (quoting Action on Smoking & Health v. Harris, 655 F.2d 236, 243 (D.C. Cir. 1980)).
152. See MARTHA DERTHICK & PAUL J. QUIRK, THE POLITICS OF DEREGULATION 183-87 (The Brookings Institution 1985) (describing AT&T's involvement with FCC and describing Congress's reaction).
153. Id.
154. Id. at 179.
155. Another nonserious bill was introduced in 1978, id. at 187; H.R. 13015, 95th Cong. (1978), which sparked lengthy hearings, Communications Act of 1978: Hearings on H.R. 13015 Before the Subcomm. on Communications of the H. Comm. on Interstate and Foreign Commerce, 95th Cong. (1978), but did not make it to a vote in either chamber.
156. DERTHICK & QUIRK, supra note 116, at 187.
157. Competitive Carrier Notice of Inquiry and Proposed Rulemaking, 77 F.C.C.2d 308, 308-09 (1979);
158. Competitive Carrier First Report and Order, 85 F.C.C.2d 1, 3-5 (1980).
159. H.R. 3333, 96th Cong. (1979).
160. H.R. 6121, 96th Cong. (1980).
161. Pub. L. No. 97-130, 95 Stat. 1687 (repealed 1994).
162. FCC issued six reports implementing its detariffing policy, finalizing and releasing the last report in January of 1985. See Schoenwald, supra note 86, at 390-402 (providing a historical account of the evolution of the competitive carrier approach); Competitive Carrier Sixth Report and Order, 99 F.C.C.2d 1020 (1985) (noting the regulatory streamlining done between 1979 and 1984).
163. See Status of Competition and Deregulation in the Telecommunications Industry: Hearings Before the Subcomm. on Telecommunications, Consumer Protection, and Finance of the H. Comm. on Energy and Commerce, 97th Cong. (1981) (recording the views of industry leaders on deregulation);
164. AT&T Proposed Settlement: Hearings Before the S. Comm. on Commerce, Science, and Transportation, 97th Cong. (1982) (considering AT&T divestiture pursuant to a Department of Justice consent decree);
165. The Economic Issues of a Changing Telecommunications Industry: Hearings Before the Subcomm. on Agriculture and Transportation of the J. Economic Comm., 98th Cong. (1983) (discussing the economic issues surrounding the deregulation of the telecommunications industry).
166. E.g., Telecommunications Competition and Deregulation Act of 1981, S. 898,97th Cong. (1981);
167. Telecommunications Act of 1981, H.R. 5158, 97th Cong. (1981);
168. Federal Telecommunications Policy Act of 1986, S. 2565, 99th Cong. (1986).
169. See Monopolization and Competition In the Telecommunications Industry: Hearings Before the S. Comm. on the Judiciary, 97th Cong. (1981) (considering a provision of the Telecommunications Competition and Deregulation Act of 1981 that would have legislatively designated AT&T as a "dominant carrier" under FCC regulations);
170. FCC Authorization Legislation - Oversight: Hearing on H.R. 2755 Before the Subcomm. on Telecommunications, Consumer Protection, and Finance of the H. Comm. on Energy and Commerce, 98th Cong. (1983) (discussing FCC's handling of major mass media and common carrier issues);
171. Universal Telephone Service Preservation Act of 1983, S. 1660, 98th Cong. (1983) (proposing to amend the FCC regulations to ensure continued universal access to basic telephone services);
172. Impact of Recent FCC Decisions on Telephone Service: Hearing on H.R. 4102 Before the Subcomm. on Telecommunications, Consumer Protection and Finance of the H. Comm. on Energy and Commerce, 98th Cong. (1983) (discussing the effect of deregulation on rural communities);
173. Federal Communications Commission Oversight: Hearing Before the Subcomm. on Telecommunications, Consumer Protection and Finance of the H. Comm. on Energy and Commerce, 98th Cong. (1984) (reviewing the amount of contribution FCC required that long-distance carriers provide to local phone companies);
174. Reauthorization and Oversight of the FCC: Hearing Before the Subcomm. on Communications of the S. Comm. on Commerce, Science, and Transportation, 99th Cong. (1985) (considering the efficacy of several FCC rulemakings).
175. The Federal Telecommunications Policy Act of 1986, S. 2565, 99th Cong. (1986), was the last bill introduced until the
176. Telecommunications Policy Act of 1990, 101st Cong. (1990). Neither bill was serious enough to emerge from the initial committee process.
177. AT&T Co. v. FCC, 978 F.2d 727, 735-37 (D.C. Cir. 1992).
178. MCI Telecomms. Corp. v. AT&T Co., 510 U.S. 989 (1993).
179. The Telecommunications Policy Act of 1990 was not a significant proposal: serious bargaining began again with the introduction of the Telecommunications Infrastructure Act of 1993, S. 1086, 103d Cong. (1993).
180. See JAMES K. SHAW, TELECOMMUNICATIONS DEREGULATION AND THE INFORMATION ECONOMY 27 (2d ed. 1998) (claiming that "Congress seriously debated a restructuring of the Communications Act of 1934 beginning in 1993").
181. Pub. L. No. 104-104, 110 Stat. 56 (1996).
182. See Schoenwald, supra note 86, at 449-52 (discussing Congress's intent in passing the Telecommunications Act of 1996).
183. 529 U.S. 120, 137-39 (2000).
184. See id. at 137-38 (listing six pieces of tobacco-related legislation that Congress passed between 1965 and 1992).
185. E.g., Cigarette Labeling and Advertising: Hearings Before the H. Comm. on Interstate and Foreign Commerce, 88th Cong. (1964);
186. Public Health Cigarette Amendments of 1971: Hearings Before the Consumer Subcomm. of the S. Comm. on Commerce, 92d Cong. (1972);
187. Cigarettes: Advertising, Testing, and Liability: Hearings Before the Subcomm. on Transportation, Tourism, and Hazardous Materials of the H. Comm. on Energy and Commerce, 100th Cong. (1988);
188. Health Consequences of Smoking: Nicotine Addiction: Hearings Before the Subcomm. on Health and the Environment of the H. Comm. on Energy and Commerce, 100th Cong. (1988).
189. FDA launched its official investigation with a letter to the Coalition on Smoking or Health, which it sent on February 25, 1994. KESSLER, supra note 85, at 87-92. Immediately following the agency's announcement, Congress passed a bill that increased funding for public school programs designed to curb youth smoking, a key target of FDA's proposed regulations.
190. Improving America's Schools Act of 1994, Pub. L. No. 103-382, 108 Stat. 3518 (1994). Just one year later, Congress banned the sale of cigarettes in vending machines in or around federal buildings, a limited version of another FDA proposal.
191. Prohibition of Cigarette Sales to Minors in Federal Buildings and Lands Act, Pub. L. No. 104-52, § 636, 109 Stat. 507 (1995).
192. In the next three years, Congress also increased excise taxes on tobacco and cigarette papers, Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251 (1997), passed a second law funding school programs that target youth smoking,
193. Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277, 112 Stat. 2681 (1998), and passed two laws facilitating document requests in the mass tort suits pending against the tobacco industry,
194. Tobacco Production and Marketing Information, Pub. L. No. 10647, 113 Stat. 228 (1999);
195. Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, Pub. L. No. 10678, 113 Stat. 1135 (1999).
196. FDA published its jurisdictional statement and regulations on August 28, 1996.
197. Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374 (M.D.N.C. 1997) (decided on April 25, 1997).
198. Universal Tobacco Settlement Act, S. 1415, 105th Cong. (1997) (introduced Nov. 7, 1997).
199. See generally C. Stephen Redhead & Joy Austin-Lane, Tobacco Legislation in the 105th Congress: Side-by-Side Comparison of S. 1415, S. 1530, S 1638, S. 1889, H.R. 3474, and H.R. 3868, CRS Report for Congress (Aug. 19, 1998) (laying out the congressional events surrounding the Universal Tobacco Settlement Act).
200. Redhead & Austin-Lane, supra note 140, at 1.
201. See id. at 7-12 (listing the other tobacco bills introduced during the 105th Congress).
202. Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155 (4th Cir. 1998) (argued June 9, 1998).
203. See KESSLER, supra note 85, at 363-66 (describing the oral arguments).
204. See Adam Clymer, Legislators Planning Response to Justices' Ruling on F.D.A., N.Y. TIMES, Mar. 24, 2000, at A19 (discussing Congress's reconsideration of a plan to give FDA a greater scope of power).
205. Of course, there is a sense in which the Court did not and could not restore the status quo ante. To recreate both the substantive and jurisdictional regulatory realities that existed before FDA intervened, the Court needed to issue a binding interpretation of the FDCA. It thereby created certainty where none had existed before as to the meaning of the FDCA and as to the authority of FDA. Thinking more concretely, though, the Court's holding accomplished two important returns to the status quo ante: it reversed FDA's jurisdictional assertion (reinstituting FDA's antecedent position that it lacked jurisdiction), and it vacated FDA's substantive rules (reinstituting the antecedent substantive regulatory reality).
206. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
207. See generally Caleb Nelson, Preemption, 86 VA. L. REV. 225, 303-04 (2000) (arguing that obstacle preemption has no grounding in the Supremacy Clause).
208. See R.R. Comm'n v. Pullman Co., 312 U.S. 496, 497 (1941) (holding that federal courts should decline to exercise jurisdiction if (1) the case raises state law questions that should be decided by state courts and (2) the decision of the state law question might allow federal courts to avoid deciding a constitutional question).
209. See generally ERWIN CHEMERINSKY, FEDERAL JURISDICTION §§12.1-13.4 (5th ed. 2003) (providing background information on the circumstances under which federal courts abstain).
210. See, e.g., La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 29 (1959) (applying Pullman abstention even in the absence of a significant constitutional question on the grounds that the state's interest in deciding the state law question was unusually strong);
211. Burford v. Sun Oil Co., 319 U.S. 315, 327 (1943) (holding that federal courts should abstain from reviewing state administrative agencies' orders because such federal review would cause "[d]elay, misunderstanding of local law, and needless federal conflict with the state policy").
212. See Younger v. Harris, 401 U.S. 37, 43 (1971) (holding that federal courts should not enjoin state court proceedings because there is a "longstanding public policy against federal court interference with state court proceedings").
213. See Atl. Coast Line R.R. v. Bhd. of Locomotive Eng'rs, 398 U.S. 281, 295 (1970) (interpreting the anti-injunction statute as allowing federal courts to enjoin state court proceedings when necessary "to prevent a state court from so interfering with a federal court's consideration or disposition of a case as to seriously impair the federal court's flexibility and authority to decide that case").
214. See generally RICHARD J. PIERCE, JR. ET AL., ADMINISTRATIVE LAW AND PROCESS § 5.7.2 (3d ed. 1999) (discussing various applications of the exhaustion doctrine in case law).
215. DAVID P. CURRIE, FEDERAL JURISDICTION IN A NUTSHELL 179-80 (4th ed. 1999).
216. PIERCE, JR. ET AL., supra note 154, §5.8. 157.
217. Freeman & Vermeule, supra note 5, at 1.
218. The term "expertise-forcing" is Freeman and Vermeule's. Id.
219. Massachusetts v. EPA, 127 S. Ct. 1438, 1448 (2007)
220. (citing National Climate Program Act, Pub. L. No. 95-367, 92 Stat. 601 (1978)).
221. Id.
222. (citing Global Climate Protection Act, Pub. L. No. 100-204, 101 Stat. 1407 (1987)).
223. Id.
224. See Natural Gas Vehicle Incentives Act of 1996, H.R. 4288, 104th Cong. (1996). These numbers come from a search of THOMAS, the Library of Congress's internet search engine, http://thomas.loc.gov. A search of bills in each Congress from the 101st to the 110th, which are the ones that are searchable through THOMAS, using "greenhouse gas emissions" as the search term yielded 32, 24, 0, and 1 in the 101st, 102d, 103d, and 104th Congresses respectively. Using "global warming" produces slightly different results but a similar trend, showing 139, 60, 18, and 2 in the same Congresses. Using "climate change" shows 160, 99, 18, and 34 in the same Congresses. The drop-off is therefore clear regardless of which search terms one uses: the 103d Congress did very little work on the issue compared to its predecessors.
225. See Massachusetts, 127 S. Ct. at 1448-49 (citing S. Treaty Doc. No. 102-38, Art. 2, p. 5 (1992) (UNFCCC), and S. Res. 98, 105th Cong. (1997) (as passed) (Senate Resolution expressing the Senate's sense that the U.S. should not enter the Kyoto Protocol).
226. Fourteen of those proposals reached the floor, and one reached the President's desk. See supra note 162 (explaining the methodology used to obtain these numbers).
227. Massachusetts, 127 S. Ct. at 1449.
228. The numbers for the 106th, 107th, 108th, and 109th Congresses are 44, 51, 57, and 64 bills respectively, for an average of 54 proposals per session. Ninety-eight of those bills reached the floor, and 9 of them reached the President's desk. See supra note 162 (explaining the methodology used to obtain these numbers).
229. 2 a Pollutant and Does EPA Have the Power to Regulate It?: Hearing Before H. Comm. On Government Reform and H. Comm. On Science, 106th Cong. (1999);
230. Clean Air Act: Risks from Greenhouse Gas Emissions: Hearing Before S. Comm. on Environment and Public Works, 107th Cong. (2002);
231. Clean Air Act Oversight Issues: Hearing Before S. Comm. on Environment and Public Works, 107th Cong. (2001).
232. A causal claim is harder to make here than in the tobacco case. The 110th Congress was also the first Congress since 1994 to be controlled by the Democratic Party, which may be a more compelling explanation for the significantly increased activity. There was no such regime-change in the tobacco case.
233. Remember, this number compares to an average of about 30 proposals per Congress in the preceding nine Congresses and a maximum of 64 proposals in any given Congress from 1989 to 2006. Also, the number of proposals in the 110th Congress increases to 223 if one uses "climate change" rather than "greenhouse gas emissions" as the search criterion. Of the 185 bills
234. See Lieberman-Warner Climate Security Act of 2008, S. 3036,110th Cong. (2008);
235. see also Climate Action in the Senate; Sadly, Even Having a Debate Is Progress, WASH. POST, June 2,2008, at A12 (describing the bill's chances as "worse than 50-50").
236. See, e.g., Clean Fuels and Vehicles Act of 2007, S. 1073, 110th Cong. (2007);
237. Safe Climate Act of 2007, H.R. 1590, 110th Cong. (2007);
238. National Low-Carbon Fuel Standard Act of 2007, S. 1324, 110th Cong. (2007).
239. See, e.g., Climate Stewardship Act of 2007, H.R. 620, 110th Cong. (2007);
240. Greenhouse Gas Accountability Act of 2007, H.R. 2651, 110th Cong. (2007);
241. National Greenhouse Gas Registry Act of 2007, S. 1387, 110th Cong. (2007).
242. See Massachusetts v. EPA, 127 S. Ct. 1438, 1448, 1460-61 & n.28 (2007).
243. Id. at 1460.
244. Id.
245. Freeman & Vermeule, supra note 5, at 1.
246. This point is not the primary focus of Freeman and Vermeule's article, however. They view the depoliticization of EPA decisionmaking as a good in itself without reference to EPA's ability to inform an ongoing congressional project.
247. See supra Part III.B.
248. See Freeman & Vermeule, supra note 5, at 3-10 (discussing the Executive Branch's influence on climate change policy);
249. Juliet Eilperin, Climate Findings Were Distorted, Probe Finds; Appointees in NASA Press Office Blamed, WASH. POST, June 3, 2008, at A02.
250. See supra notes 173-75 and accompanying text.
251. See Allegations of Political Interference with Government Climate Change Science: Hearing Before the H. Comm. on Oversight and Government Reform, 110th Cong. (2007).
252. Massachusetts v. EPA, 127 S. Ct. 1438,1461 (2007).
253. Sunstein, supra note 61, at 2589.