Hiding nondelegation in mouseholes

Administrative Law Review

Volumn 62, Issue 1, 2010, Pages 19-68

  Loshin, Jacob ^a   Nielson, Aron ^a  

^a LLP ^*  (United States)

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EID: 79959458134     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (392)

1. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 468 (2001).
2. LEWIS CARROLL, THE ANNOTATED ALICE 25 (2000).
3. 467 U. S. 837 (1984).
4. Id. at 842.
5. Id. at 843.
6. Id.
7. Texas Coal, of Cities for Util. Issues v. FCC, 324 F.3d 802, 807 (5th Cir. 2003)
8. (quoting Chevron, 467 U. S. at 844).
9. 531 U. S. 457, 468 (2001).
10. This means the Chevron two-step is side-stepped, as the elephants-in-mouseholes doctrine does "not say that courts, rather than agencies, will interpret ambiguities. [It] announce[s], far more ambitiously, that ambiguities will be construed so as to reduce the authority of regulatory agencies."
11. Cass R. Sunstein, Chevron Step Zero, 92 VA. L. REV. 187, 244 (2006).
12. See, e.g., Charles Fried, Constitutional Doctrine, 107 HARV. L. REV. 1140, 1149 (1994) (defining judicial doctrine as rules that "order[] a course of conduct not by commanding an external goal, but, like an argument, by developing from within that course of conduct, lending to or acknowledging in that conduct a structure whose statement is not exhausted by the statement of the goal to which it may be directed").
13. See Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009) (discussing the authority of the EPA to use "cost-benefit analysis when setting regulatory standards");
14. see also Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct. 2458 (2009) (assessing the authority of the EPA under the Clean Water Act to allow mines to classify slurry as "fill material").
15. See, e.g., Michael Herz, The Rehnquist Court and Administrative Law, 99 NW. U. L. REV. 297, 346 (2004)
16. ("The most likely example of pro-industry, anti-regulation conservatism run amok is Brown & Williamson, [529 U. S. 120 (2000), an elephants-inmouseholes case] setting aside the FDA's effort to regulate tobacco cigarettes.... What is suspicious is that all the Justices largely abandoned their usual methodological preferences.... The convenient methodological shifts do suggest that the result was driven by the individual Justices' sympathy, or lack thereof, toward the FDA's undertaking.").
17. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U. S. 607 (1980) (considering whether the Secretary of Labor had the authority to promulgate regulations related to occupational exposure to benzene).
18. See Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. CAL. L. REV. 405, 455 n. 240 (2008) (listing other cases where the Court has construed statutes narrowly to avoid nondelegation concerns).
19. 549 U. S. 497, 497 (2007) ("[T]he Clean Air Act... requires that the EPA 'shall by regulation prescribe... standards applicable to the emission of any air pollutant from any class... of new motor vehicles... which in [the EPA Administrator's] judgment cause[s], or contribute[s] to, air pollution... reasonably... anticipated to endanger public health or welfare.'" (alterations in original)).
20. See generally Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 316 (2000) (arguing that some canons of statutory interpretation are nondelegation canons because "they forbid administrative agencies from making decisions on their own").
21. See generally John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP. CT. REV. 223 (2001) (noting that the use of nondelegation canons creates "significant pathologies").
22. See Fried, supra note 10, at 1140;
23. see also Richard J. Pierce, Jr., The Supreme Court's New Hyperterxtualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 762 (1995) (explaining the Supreme Court's "managerial role" over the lower federal courts).
24. See 531 U. S. 457, 468 (2001) (adopting the elephants-in-mouseholes doctrine).
25. See Chevron U. S. A. Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 843 (1984) (noting that where a "statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute").
26. See Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 VA. L. REV. 597, 598 (2009) (noting that a Chevron analysis "calls for a single inquiry into the reasonableness of the agency's statutory interpretation").
27. See id. at 599 ("If an agency's construction of the statute is contrary to clear congressional intent... on the precise question at issue, then the agency's construction is a fortiori not based on a permissible construction of the statute. Step One is therefore nothing more than a special case of Step Two, which implies that all Step One opinions could be written in the language of Step Two." (internal quotations and footnote omitted)).
28. E.g., Pharm. Research & Mfrs. of Am. v. Thompson, 251 F.3d 219, 224 (D. C. Cir. 2001) (noting that at Step One, courts must employ all "traditional tools of statutory interpretation", such as "text, structure, purpose, and legislative history").
29. Chevron, 467 U. S. at 840.
30. Id.
31. Id. at 842-43 (footnotes omitted).
32. Id. at 843-44.
33. Id. at 865.
34. Id. at 865-66.
35. See, e.g., Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823 (2006) (discussing the role of political judgments injudicial review of agency interpretations of law due to the ambiguities of statutory language in congressional provisions).
36. See, e.g., Ward Farnsworth, Dustin F. Guzior & Anup Malani, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, J. LEGAL ANALYSIS (forthcoming), available at SSRN: http://ssrn. com/abstract=1441860 (investigating how ambiguity in statutes affect judicial review and statutory interpretations based on the policy preferences of judges themselves).
37. See id. at 4.
38. See Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies That Attempt to Understand the Factors Affecting Appellate Decisionmaking, 58 DUKE L. J. 1895, 1974 app. B (2009) (compiling data in a table titled A Sample of Unanimous Decisions Involving "Mixed Panels " Reviewing Complicated and Important Administrative Agency Actions September 2000-July 2008);
39. id. at 1943 n. 184 ("Administrative Office of the Courts data on the D. C. Circuit show that dissent rates hover from below 5 percent to 10 percent of cases for which opinions were written. ").
40. It is beyond the scope of this Article to delve too deeply into the issue of ambiguity. There are, of course, well-documented theoretical difficulties with an ambiguousness standard.
41. See, e.g., Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 379 (1986). It is not this Article's intent to wade into those issues. It is sufficient for our purposes that the elephants-in-mouseholes doctrine seems to be doing something more than the Court's ordinary tests for ambiguousness.
42. See Manning, supra note 17, at 233 (asserting that the Court exercises a certain policymaking discretion when reviewing an agency's interpretation of a statute).
43. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 468 (2001).
44. See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1817 (2009) (Scalia, J., concurring) ("There is no reason to magnify the separation-of-powers dilemma posed by the Headless Fourth Branch by letting Article III judges-like jackals stealing the lion's kill-expropriate some of the power that Congress has wrested from the unitary Executive." (citation omitted));
45. Morrison v. Olson, 487 U. S. 654, 699 (1988) (Scalia, J., dissenting) ("Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf").
46. See generally Charles Fried, Manners Makyth Man: The Prose Style of Justice Scalia, 16 HARV. J. L. & PUB. POL'Y 529, 530 (1993) (praising Justice Scalia for the "magical conciseness" he exhibits in his opinions).
47. See supra Part I. B.
48. Compare Am. Bar Ass'n v. FTC, 430 F.3d 457, 469 (D. C. Cir. 2005) (finding an elephant-in-mousehole where Federal Trade Commission claimed authority under financial consumer privacy statute to regulate attorneys in the practice of law)
49. with Am. Fed'n of Gov't Employees, AFL-CIO v. Gates, 486 F.3d 1316, 1324-25 (D. C. Cir. 2007) (finding no elephant-in-mousehole where Department of Defense claimed authority under National Defense Authorization Act to curtail collective bargaining with civilian employees)
50. and NISH v. Rumsfeld, 348 F.3d 1263, 1269 (10th Cir. 2003) (holding "[w]e simply do not see the elephant in the mousehole" where the military claimed statutory authority to give blind vendors priority in awarding mess hall contracts).
51. 512 U. S. 218 (1994).
52. 529 U. S. 120 (2000).
53. Neil M. Richards, The Supreme Court Justice & "Boring " Cases, 4 GREEN BAG 2D 401, 403 (2001) (defining "boring cases" as those "requiring technical legal analysis such as statutory interpretation and doctrinal analysis" without much impact on "interesting" areas of law and commenting on some examples of such cases).
54. 512 U. S. at 220.
55. Id.
56. Id.
57. Id. Indeed, "some urged that the continuation of extensive tariff filing requirements served only to impose unnecessary costs on new entrants and to facilitate collusive pricing."
58. Id.
59. Id. at 221.
60. Id. at 225.
61. Id.
62. Id. at 225-28 & n. 8 (citation omitted).
63. This aspect of the decision has been severely criticized as contrary to the principles of Chevron.
64. See, e.g., Pierce, supra note 18, at 757-58.
65. 512 U. S. at 229 (citations omitted).
66. Id.
67. Id. at 231.
68. Id. at 234.
69. Id. at 235 (Stevens, J., dissenting)
70. (quoting 47 U. S. C. § 151 (1994)).
71. Id.
72. Id. at 237.
73. Id. at 241.
74. Id. at 241-42 (footnote and citation omitted).
75. Id. at 244 (footnote omitted).
76. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000).
77. Id. at 126
78. (quoting 21 U. S. C. § 321 (1994)) (first alteration in original) (citation omitted).
79. Id.
80. See, e.g., Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2248 (2001) ("Faced... with a hostile Congress... Clinton... turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals [including tobacco regulation].").
81. Brown & Williamson, 529 U. S. at 126.
82. Id. at 127.
83. Id. at 128 ("The access regulations prohibit[ed] the sale of cigarettes or smokeless tobacco to persons younger than 18;
84. require[d] retailers to verify through photo identification the age of all purchasers younger than 27;
85. prohibit[ed] the sale of cigarettes in quantities smaller than 20;
86. prohibit[ed] the distribution of free samples; and prohibit[ed] sales through self-service displays and vending machines except in adult-only locations.").
87. Id. at 128-29 ("The promotion regulations require[d] that any print advertising appear in a black-and-white, text-only format unless the publication in which it appears is read almost exclusively by adults;
88. prohibit[ed] outdoor advertising within 1, 000 feet of any public playground or school;
89. prohibit[ed] the distribution of any promotional items, such as T-shirts or hats, bearing the manufacturer's brand name; and prohibit[ed] a manufacturer from sponsoring any athletic, musical, artistic, or other social or cultural event using its brand name.").
90. Id. at 129.
91. Id.
92. (quoting 21 U. S. C. § 360 j (e) (2000)).
93. Id.
94. See Manning, supra note 17, at 226 (questioning the Court's textual analysis of the Food, Drug, and Cosmetic Act (FDCA) in Brown & Williamson);
95. see also id. at 234 ("Perhaps most strikingly, the Court found that Congress had spoken to the precise question at issue, not on the basis of the FDCA, but on the basis of implied 'intent' from legislative acts occurring decades after the FDCA's enactment.").
96. Brown & Williamson, 529 U. S. at 132.
97. See, e.g., Maxwell O. Chibundu, Structure and Structuralism in the Interpretation of Statutes, 62 U. CIN. L. REV. 1439, 1443-44 (1994) ("[R]esort to structure and structuralism as interpretive tools is increasingly becoming the approach of choice by judges on the bench-at least when faced with seemingly difficult issues of statutory interpretation. ") (footnote omitted).
98. Brown & Williamson, 529 U. S. at 133.
99. Id.
100. Id. at 137
101. (quoting 7 U. S. C. § 1311 (a) (2000)).
102. Id.
103. Id. at 138;
104. see also id. at 144 (noting that during the period after the adverse health effects of tobacco use were known, "Congress considered and rejected bills that would have granted the FDA such jurisdiction", and thus it would seem that "Congress' tobacco-specific statutes have effectively ratified the FDA's long-held position that it lacks jurisdiction under the FDCA to regulate tobacco products").
105. Id. at 142.
106. Id. at 159-60 (citation omitted) (emphasis added).
107. Id. at 161 (Breyer, J., dissenting).
108. Id. at 162.
109. Id. at 163.
110. Id. at 181.
111. Justice Breyer explained, [O]ne might claim that courts, when interpreting statutes, should assume in close cases that a decision with "enormous social consequences", should be made by democratically elected Members of Congress rather than by unelected agency administrators. If there is such a background canon of interpretation, however, I do not believe it controls the outcome here.
112. Insofar as the decision to regulate tobacco reflects the policy of an administration, it is a decision for which that administration, and those politically elected officials who support it, must (and will) take responsibility. And the very importance of the decision taken here, as well as its attendant publicity, means that the public is likely to be aware of it and to hold those officials politically accountable.
113. Id. at 190 (citations omitted).
114. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 462 (2001).
115. 42 U. S. C. § 7409 (2006).
116. Am. Trucking Ass 'ns, 531 U. S. at 463
117. (citing Am. Trucking Ass'ns v. EPA, 175 F.3d 1027, 1034 (D. C. Cir. 1999)).
118. Id.
119. Id.
120. Id. at 464-65.
121. Id. at 465
122. (quoting 42 U. S. C. § 7409 (b) (1) (2006)).
123. Id. at 466.
124. Id. at 468.
125. Id. at 469.
126. Id. at 473.
127. Id. at 474.
128. Id. at 475
129. (quoting Am. Trucking Ass'ns v. EPA, 175 F.3d 1027, 1034 (D. C. Cir. 1999)).
130. Id. at 487 (Thomas, J., concurring).
131. Id.
132. Id. at 88 tevens, J., concurring).
133. Id.
134. Id. at 490.
135. Id. (Breyer, J., concurring).
136. Id.
137. 546 U. S. 243, 248-49 (2006).
138. Id. at 249 (citation omitted).
139. Id. at 250-51
140. (quoting 21 U. S. C. §§ 822 (a) (2), 824 (a) (4) (2006)).
141. Id. at 250
142. (quoting 21 C. F. R. § 1306.04 (a) (2005)).
143. Id. at 249.
144. Id.
145. Id. at 258.
146. Id. at 267.
147. Id. at 267-68 (citation omitted).
148. Id. at 290 (Scalia, J., dissenting) (citation omitted).
149. Id. at 291.
150. Id. (citation omitted).
151. In Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008), an Employee Retirement Income Security Act (ERISA) case, Justice Breyer, joined by Justices Stevens, Ginsburg, Souter, and Alito, analogized the case to American Trucking "to support the claim Congress did not intend courts to review de novo 'the lion's share of ERISA plan claims denials, '" for "[h]ad Congress intended such a system of review,... it would not have left to the courts the development of review standards but would have said more on the subject."
152. Id. at 2350-51. None of the other opinions touched on the elephants-in-mouseholes doctrine.
153. See id. at 2352 (Roberts, C. J., concurring);
154. id. at 2355-56 (Kennedy, J., concurring in part and dissenting in part);
155. id. at 2356-57 (Scalia, J., dissenting).
156. 128 S. Ct. 831 (2008).
157. Id. at 833.
158. 28 U. S. C. § 2680 (c) (2006).
159. Ali, 128 S. Ct. at 835.
160. Id. at 837.
161. Id. at 839.
162. Id.
163. Id. at 840 (citation omitted).
164. Id. at 841 (Kennedy, J., dissenting).
165. Id.
166. Id. at 843.
167. Id. at 849 (Breyer, J., dissenting).
168. Id.
169. Id. at 849-50.
170. Id. at 850
171. (quoting Circuit City Stores, Inc. v. Adams, 532 U. S. 105, 115 (2001)).
172. Id. at 851-52
173. (quoting Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 468 (2001)).
174. 129 S. Ct. 1498 (2009).
175. 33 U. S. C. § 1326 (b) (2006).
176. See Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007)
177. rev "d sub nom. Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009).
178. Entergy Corp., 129 S. Ct. at 1510.
179. Id. at 1505.
180. Id. at 1506
181. (quoting WEBSTER'S NEW INTERNATIONAL DICTIONARY 258 (2d ed. 1953)).
182. Id.
183. (quoting 33 U. S. C. § 1251 (f) (2006)) (citation omitted).
184. Id.
185. Id. at 1508.
186. Id.
187. Id. at 1512 (Breyer, J., concurring).
188. Id. at 1512-13.
189. Id. at 1513 (citation omitted).
190. Id. at 1514.
191. Id. at 1516 (Stevens, J., dissenting).
192. Id.
193. Id.
194. Id. at 1517.
195. Id. at 1517-18
196. (quoting Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 468 (2001)).
197. Coeuer Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct. 2458, 2463 (2009).
198. Id.
199. Id.
200. Id.
201. Id. at 2467.
202. Id. at 2469.
203. Id. at 2477 (Breyer, J., concurring).
204. Id. at 2480 (Ginsburg, J., dissenting).
205. Id. at 2484 (citations omitted).
206. O. W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 457 (1897).
207. Network IP, LLC v. FCC, 548 F.3d 116, 122 n. 5 (D. C. Cir. 2008)
208. (citing GEORGE ORWELL, ANIMAL FARM (1946)).
209. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. Rev. 1175, 1179 (1989).
210. See Manning, supra note 17, at 235.
211. Ali v. Federal Bureau of Prisons, 128 S. Ct. 831, 849-52 (2008) (Breyer, J., dissenting) (describing how Justice Breyer would have approached the issue in question in Ali using a purposive interpretative method).
212. See id. at 850-51 (noting that different canons of construction contradict each other and concluding that the Latin canons are not helpful in this situation).
213. See supra Part I. B.i.l.
214. See supra Part I. B.i.2.
215. See supra Part I. B.iii. 1.
216. See supra Part I. B.iii.2.
217. See supra Part I. B.iii.3.
218. See supra Part I. B.iii.4.
219. See supra Part I. B.ii.1.
220. See, e.g., Neal Devins, Explaining Grutter v. Bollinger, 152 U. PA. L. REV. 347, 349-50 (2003) ("On issues of social policy and federalism, Rehnquist Court decision making is largely defined by two Justices-Sandra Day O'Connor and Anthony Kennedy.").
221. Chief Justice Rehnquist was replaced by Chief Justice Roberts before Gonzales was decided, so we do not know whether he would have sided with Justices Scalia and Thomas or Justices O'Connor and Kennedy, the other members of the majority in MCI and Brown & Williamson.
222. Scalia, supra note 166, at 1179 ("Even in simpler times uncertainty has been regarded as incompatible with the Rule of Law.").
223. See supra Part I. B.i.l.
224. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133, 160 (2000).
225. See supra Part I. B.i.2.
226. See supra Part I. B.iii. 1.
227. See supra Part I. B.ii. 1.
228. Ne. Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166-67 (D. C. Cir. 1990) (holding arbitrary and capricious the FCC's waiver of financial qualification for cellular company because the agency did "not articulate any standard by which [the court could] determine the policy underlying the waiver").
229. See Manning, supra note 17, at 247-48 (describing the implications of narrow construction of statutes on the legislative process).
230. See, e.g., Marjorie O. Rendell, 2003-A Year of Discovery: Cybergenics and Plain Meaning in Bankruptcy Cases, 49 VILL. L. REV. 887, 887 (2004) ("We are all textualists now. No doubt the major methodological development in Supreme Court jurisprudence over the last few decades has been the ascendancy of the plain meaning approach to interpreting statutes.").
231. Abbott Labs. v. Young, 920 F.2d 984, 994 (D. C. Cir. 1990).
232. Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U. S. 361, 373-74 (1986).
233. Almost all statutes are compromises, and the cornerstone of many a compromise is the decision, usually unexpressed, to leave certain issues unresolved. Whether these issues have been identified (so that the lack of their resolution might be called intentional) or overlooked (so that the lack of their resolution is of ambiguous portent) is unimportant. What matters to the compromisers is reducing the chance that their work will be invoked subsequently to achieve more, or less, than they intended, thereby upsetting the balance of the package.
234. Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 540 (1983). Modern textualism, which emerged in the late twentieth century, maintains that, contrary to the tenets of strong intentionalism, respect for the legislative process requires judges to adhere to the precise terms of statutory texts. In particular, textualists argue that the (often unseen) complexities of the legislative process make it meaningless to speak of 'legislative intent' as distinct from the meaning conveyed by a clearly expressed statutory command.
235. John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2390 (2003).
236. Dimension Fin. Corp., 474 U. S. at 374.
237. Id.
238. Lisa Schultz Bressman, Chevron's Mistake, 58 DUKE L. J. 549, 552 (2009);
239. see also John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 685 (1997) ("Intent is elusive for a natural person, fictive for a collective body." (Pubitemid 127436838)
240. (quoting Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J. L. & PUB. POL'Y 61, 68 (1994)));
241. Frank H. Easterbrook, Legal Interpretation and the Power of the Judiciary, 7 HARV. J. L. & PUB. POL'Y 87, 92 (1984).
242. See, e.g., ANTONIN SCALIA, A ID. ATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 22 (1997) ("It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.").
243. Then-Judge Scalia's opening in Community Nutrition Institute v. Block is only funny because this complexity is so well understood.
244. See 749 F.2d 50, 51 (D. C. Cir. 1984) ("This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that 'No man should see how laws or sausages are made.'").
245. To be clear, we cast no aspersions towards these "political" aspects of the legislative process. Legislation, after all, may have its faults, but "critical analysis is misleading if it proceeds on the premise that those defects should be measured by the 'nirvana' standard, where any deviation from an unobtainable ideal is grounds for criticism."
246. Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L. J. 31, 109-110 (1991). Instead, the true basis for putting one's faith in the democratic process is not a naive belief that it will always produce the best results, but a lack of naivete about the alternatives. Or, as Winston Churchill once put it, "democracy is the worst form of Government except all those other forms that have been tried from time to time."
247. Id. at 110
248. (quoting OXFORD DICTIONARY OF MODERN QUOTATIONS 55 (Tony Augarde ed., 1991)).
249. See, e.g., Steve R. Johnson, The Dangers of Symbolic Legislation: Perceptions and Realities of the New Burden-of-Proof Rules, 84 IOWA L. REV. 413, 477 & n. 281 (1999) (noting "legislators will try to shift blame to the IRS for the embarrassment of Congress's own making" as "Senators and Representatives vote to add new incentives, subsidies, antiabuse rules, exemptions, transitional rules, and obscurities to the law-then thunder against the complexity of the 'IRS Code', as if the IRS, not Congress, enacted those complexities");
250. Peter H. Aranson, Ernest Gellhorn & Glen O. Robinson, A Theory of Legislative Delegation, 68 CORNELL L. REV. 1, 56-57 (1982) ("But by having an agency enforce the regulation the congressman can shift some degree of both the credit and blame to the agency. The degree to which a legislator succeeds in shifting credit or blame to the agency can vary, and will determine his choice of agency or judicial enforcement. If he succeeds in shifting to the agency a preponderantly large part of the blame, then the legislator will prefer agency regulations to judicially enforced statutes. Conversely, if delegation shifts credit for the benefits to the agency, then the legislator will prefer the judicially enforced statutes to regulation by agency.")
251. See, e.g., John M. Baker, Dr. Strangebill or How the Last Congress Learned to Stop Worrying and Love Substantive Due Process, 54 FED. LAW., Oct. 2007, at 42
252. (explaining how a clause directing courts to apply a robust substantive due process doctrine in property rights cases passed the House of Representatives, with speculation that some unidentifiable person-a staff member, a developer, a lobbyist, or perhaps even a member of Congress-had included th[e] language in the takings bill... hoping that the unusual political dynamics created by the Kelo [v. City of New London, 545 U. S. 469 (2005)] backlash and an election year, plus the congressional Republicans' renowned party discipline, created a once-in-a-lifetime opportunity to pull a fast one. Indeed, the failure of this provision to attract any flak from any member of the majority party during the subcommittee hearing or floor consideration-and the unwillingness of any member of any party to offer any amendments to the bill on the House floor-make such a strategy seem brilliant, (endnote omitted)).
253. Indeed, if conduct of this sort did not happen, the lobbyists who read carefully the countless iterations of bills being debated during the legislative process may be doing so for no real reason and clients may be paying those lobbyists for no real reason. We will trust the market on this one. Moreover, consistent with "the interest-group branch of public choice theory, which argues that legislation is an economic good purchased by interest groups", many consider "[a]ctual statutory language [to be] the dearest legislative commodity" up for grabs.
254. Manning, supra note 192, at 687 (emphasis added) (citing, inter alia
255. William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J. L. & ECON. 875, 877 (1975);
256. George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. & MGMT. SCI. 3 (1971)).
257. See, e.g., Sunstein, supra note 9, at 232 ("The most plausible source of the idea that courts should not defer to agencies on larger questions is the implicit delegation principle accompanied by an understanding of what reasonable legislators would prefer. Judge Breyer appeared to think that Congress should be understood to want agencies to decide interstitial questions, but to prefer that courts resolve the larger ones, which are necessary to clarify and stabilize the law.");
258. see also Bressman, supra note 192, at 555-56 (arguing that the majority's approach in Gonzales was "based on realistic assumptions about legislative behavior").
259. See Manning, supra note 17, at 228 ("Narrowing a statute in this way... threatens to unsettle the legislative choice implicit in adopting a broadly worded statute.").
260. See Glen Staszewski, Avoiding Absurdity, 81 IND. L. J. 1001, 1006 (2006) (suggesting that the Judiciary should not allow individual rights to be subjected to the public policies implemented by Congress through these sort of behind-the-scenes deals).
261. Ali v. Fed. Bureau of Prisons, 128 S. Ct. 831, 850-51 (2008) (Breyer, J., dissenting).
262. See supra Part I. B.ii.1.
263. Eric Posner and Adrian Vermeule have argued there is no constitutional basis for this doctrine.
264. See Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. CHI. L. REV. 1721, 1723 (2002);
265. Eric A. Posner & Adrian Vermeule, Nondelegation: A Post-mortem, 70 U. CHI. L. REV. 1331, 1331 (2003) ("[T]he standard nondelegation doctrine has no real pedigree in constitutional text and structure"). This argument, unsurprisingly, has not gone unrefuted.
266. See, e.g., Larry Alexander & Saikrishna Prakash, Reports of the Nondelegation Doctrine's Death Are Greatly Exaggerated, 70 U. CHI. L. REV. 1297, 1328 (2003) (supplying "some reasons for doubting" the theory put forth by Posner and Vermeule);
267. Gary Lawson, Discretion as Delegation: The "Proper" Understanding of the Nondelegation Doctrine, 73 GEO. WASH. L. REV. 235, 237 (2005) (arguing that the Constitution does contain limitations on the extent to which Congress can delegate discretion to agencies). Though not necessary for our purposes (it is not relevant whether we believe in the constitutional foundation of the nondelegation doctrine, only that the Court does), we think, for the reasons set forth in this Part, the doctrine is more than just "a controversial theory that floated around the margins of nineteenth-century constitutionalism-a theory that wasn't clearly adopted by the Supreme Court until 1892, and even then only in dictum."
268. Posner & Vermeule, Interring the Nondelegation Doctrine, supra, at 1722.
269. Mistretta v. United States, 488 U. S. 361, 371-72 (1989) (citations and internal quotation marks omitted).
270. Field v. Clark, 143 U. S. 649, 692 (1892). Indeed, as Justice Scalia has put it: It is difficult to imagine a principle more essential to democratic government than that upon which the doctrine of unconstitutional delegation is founded: Except in a few areas constitutionally committed to the Executive Branch, the basic policy decisions governing society are to be made by the Legislature. Our Members of Congress could not, even if they wished, vote all power to the President and adjourn sine die.
271. Mistretta, 488 U. S. at 415 (Scalia, J., dissenting). Justice Scalia's formulation of the doctrine, focusing as it does on the legislative branch making policy with the executive branch having a limited role, invites the question of the judiciary's role as recipient of delegated power. Margaret Lemos recently has offered a compelling argument that the nondelegation doctrine should also apply when the federal judiciary makes important policy decisions, such as in the antitrust context.
272. See Lemos, supra note 14, at 463-64 (arguing that Courts provide the content and substantive meaning of the Sherman Act and, in doing so, contravene "the formal nondelegation doctrine").
273. Sunstein, supra note 16, at 318.
274. Justice Rehnquist observed, [T]he nondelegation doctrine serves three important functions. First, and most abstractly, it ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will. Second, the doctrine guarantees that, to the extent Congress finds it necessary to delegate authority, it provides the recipient of that authority with an "intelligible principle" to guide the exercise of the delegated discretion. Third, and derivative of the second, the doctrine ensures that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards. Indus.
275. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U. S. 607, 685-86 (1980) (Rehnquist, J., concurring) (citations omitted).
276. JOHN LOCKE, SECOND TREATISE OF GOVERNMENT 75 (C. B. Macpherson ed., 1980) (1690).
277. Lawson, supra note 204, at 236
278. (quoting Wayman v. Southard, 23 U. S. (10 Wheat.) 1, 43 (1825)).
279. Sunstein, supra note 16, at 320.
280. Sunstein, supra note 9, at 246.
281. Sunstein, supra note 16, at 320.
282. John F. Manning, Lawmaking Made Easy, 10 GREEN BAG 2D 191, 198 (2007).
283. Id. at 199.
284. Manning, supra note 17, at 240.
285. See Sunstein, supra note 16, at 320.
286. Id.
287. Id. at 317.
288. Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 474 (2001)
289. (citing Panama Refining Co. v. Ryan, 293 U. S. 388 (1935);
290. A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935)).
291. Id.
292. (citing Yakus v. United States, 321 U. S. 414, 420 (1944)).
293. Id.
294. (citing Nat'l Broad. Co. v. United States, 319 U. S. 190, 225-27 (1943);
295. N. Y. Cent. Secs. Corp. v. United States, 287 U. S. 12, 24-25 (1932)).
296. Id.
297. (citing Am. Power & Light Co. v. SEC, 329 U. S. 90, 104 (1946)).
298. Sunstein, supra note 16, at 322.
299. Justice Scalia has argued that it is a misunderstanding of the nondelegation doctrine to distinguish between "unconstitutional delegations of legislative authority" and "lawful delegations of legislative authority", because "the latter category does not exist."
300. Loving v. United States, 517 U. S. 748, 776-77 (1996) (Scalia, J., concurring). Instead, "[l]egislative power is [always] nondelegable", but Congress can "assign responsibilities to the Executive... as the agent of the People", though "[a]t some point the responsibilities assigned can become so extensive and so unconstrained that Congress has in effect delegated its legislative power."
301. Id. at 777. This position has not gone unrebutted.
302. See, e.g., Whitman v. Am. Trucking Ass'ns, 531 U. S. 457, 490 (2001) (Stevens, J., concurring) ("[W]hen Congress enacted § 109, it effected a constitutional delegation of legislative power to the EPA.").
303. Mistretta v. United States, 488 U. S. 361, 415 (1989) (Scalia, J., dissenting). Just as the theory of the nondelegation doctrine has a long-standing pedigree, the practice of actual delegation has been occurring since the earliest days of the Republic. For instance, "The first Congress granted military pensions, not pursuant to legislative guidelines, but 'under such regulations as the President of the United States may direct.'"
304. Sunstein, supra note 16, at 322
305. (citing An Act Providing for the Payment of the Invalid Pensioners of the United States, 1 Stat. 95 (1789)).
306. Sunstein, supra note 16, at 321.
307. Mistretta, 488 U. S. at 415-16 (Scalia, J. dissenting)
308. (quoting J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928)). This is similar to Justice O'Connor's statement in Brown & Williamson that courts "must be guided to a degree by common sense" in determining whether "Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency."
309. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000).
310. Whitman v. Am. Trucking Ass'ns, 531 U. S. at 474-75
311. (quoting Mistretta, 488 U. S. at 416 (Scalia, J., dissenting)).
312. Sunstein, supra note 16, at 321;
313. see also id. at 327 (noting that giving the Judiciary power to enforce the nondelegation doctrine might itself violate the principles of the nondelegation doctrine, as there are no "clear standards" the Judiciary can employ when exercising this power "to second-guess legislative judgments").
314. Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 YALE L. J. 1399, 1419 (2000).
315. See Sunstein, supra note 16, at 315-16 (arguing that the nondelegation doctrine is. thriving and still used by federal courts, albeit as a series of smaller, specific rules rather than as a doctrine per se).
316. Mistretta, 488 U. S. at 373 n. 7.
317. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U. S. 607 (1980);
318. see also Lemos, supra note 14, at 455 n. 240 (citing other cases decided along similar grounds, i.e., constructing textually broad statutes narrowly so as to avoid nondelegation problems).
319. Benzene, 448 U. S. at 612.
320. Id. at 613.
321. See Manning, supra note 17, at 244 (describing § 6 (b) (5) of the Occupational Safety and Health Act as containing "very open-ended regulatory criteria").
322. Benzene, 448 U. S. at 614-15
323. (citing 28 U. S. C. § 652 (8) (2000)).
324. Id. at 645-46.
325. Sunstein, supra note 16, at 315.
326. Id. at 316 (explaining that in these circumstances the agency's own judgment is not relevant to the determination of the meaning of the treaty or statute).
327. Id. at 331-32, 334.
328. Id. at 334-35 (footnote omitted).
329. Id. at 315.
330. Id. at 332.
331. Bressman, supra note 231, at 1411-12.
332. Sunstein, supra note 16, at 335.
333. Id. David Driesen argues, with some force, that it is improper to characterize most of Sunstein's normative canons as nondelegation canons.
334. David M. Driesen, Loose Canons: Statutory Construction and the New Nondelegation Doctrine, 64 U. PITT. L. REV. 1, 24 (2002). For instance, he contends these canons "reflect no particular concern with the problem that Sunstein focuses upon, delegation to administrative agencies"; instead, they implicate substantive values, "regardless of whether an agency has an interpretative role."
335. Id. (citation omitted). Though this point is well taken, we think Sunstein's canons can be deemed to reflect nondelegation concerns as well. In particular, because the interests implicated by these canons are important, the Court will allow them to be set aside, but only if Congress itself so states. In other words, the Court has determined that these questions are for Congress alone to decide.
336. David C. Vladeck & Alan B. Morrison, The Roles, Rights, and Responsibilities of the Executive Branch, in THE REHNQUIST COURT: JUDICIAL ACTIVISM ON THE RIGHT 169, 175 (Herman Schwartz ed., 2002).
337. See Pierce, supra note 18, at 780 n. 185.
338. Herz, supra note 12, at 342.
339. See, e.g., id. at 338 (noting that prior to becoming a judge, Justice Scalia was the editor of Regulation magazine and his "strong deregulatory convictions... were on prominent display"). Though Scalia expressed muscular criticisms of many federal laws
340. see, e.g., JAMES B. STAAB, THE POLITICAL THOUGHT OF JUSTICE ANTONIN SCALIA 15 (2006) (As editor of Regulation, Scalia labeled an amendment to the Freedom of Information Act as "the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost/Benefit Analysis Ignored."
341. (quoting Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, Mar.-Apr. 1982, at 15)), it is, of course, an unfair caricature-to be clear, not one we ascribe to Professor Hertz-to say Justice Scalia categorically opposes all federal regulation.
342. See, e.g., Antonin Scalia, The Two Faces of Federalism, 6 HARV. J. L. & PUB. POL'Y 19, 22 (1982) (There is an "unfortunate tendency of conservatives to regard the federal government, at least in its purely domestic activities, as something to be resisted, or better yet (when conservatives are in power) undone, rather than as a legitimate and useful instrument of policy. Such an attitude is ultimately self-defeating, since it converts the instrument into a tool that cuts only one way.").
343. Herz, supra note 12, at 342.
344. Sunstein, supra note 16, at 327.
345. Sunstein, for instance, has articulated his theory of "major questions"-which omits Gonzales and American Trucking-but does not reference this two-part test. See Sunstein, supra note 9, at 236-47. Likewise, in her excellent article on the major question doctrine, Abigail Moncrieff does not address this feature of the Court's doctrine, in fact failing to mention elephants-in-mouseholes at all.
346. See Abigail R. Moncrieff, Reincarnating the "Major Questions" Exception to Chevron Deference as a Doctrine of Noninterference (or Why Massachusetts v. EPA Got It Wrong), 60 ADMIN. L. REV. 593, 607-20 (2008).
347. See Manning, supra note 17, at 244.
348. See, e.g., Lisa Schultz Bressman, Deference and Democracy, 75 GEO. WASH. L. REV. 761, 773 (2007) (noting that in both cases the Court "considered subsequent legislative history").
349. FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000).
350. In fact, applying the elephants-in-mouseholes doctrine may actually encourage broad delegations. If Congress wants to delegate with confidence, it will be forced to "use meaningless standards in statutes that delegate power to agencies in order to avoid the high risk of judicial interpretations inconsistent with Congress's intent."
351. Pierce, supra note 18, at 777.
352. 549 U. S. 497 (2007).
353. Moncrieff, supra note 255, at 603.
354. See, e.g., WILLIAM W. BEACH ET AL., HERITAGE FOUND. CTR. FOR DATA ANALYSIS, THE ECONOMIC COSTS OF THE LIEBERMAN-WARNER CLIMATE CHANGE LEGISLATION (2008), http://www.heritage.org/Research/EnergyandEnvironment/cda08-02.cfm (estimating the costs of EPA regulation of greenhouse gases to be "at least $1.7 trillion and [up to] $4.8 trillion by 2030 (in inflation-adjusted 2006 dollars) ").
355. 549 U. S. at 512;
356. see also Moncrieff, supra note 255, at 603-07 (discussing EPA's argument for refusing to regulate greenhouse gases).
357. Massachusetts v. EPA, 549 U. S. at 558-60 (Scalia, J., dissenting).
358. 42 U. S. C. §§ 7521 (a) (1), 7602 (g) (2000).
359. Abigail Moncrieff argues that Massachusetts "unceremoniously killed [the] fledgling" Brown & Williamson line of cases because "[t]he substantive logic in Massachusetts is, in the end, fundamentally incompatible" with the Court's "major question" doctrine. See Moncrieff, supra note 255, at 595, 598. This is not necessarily true, if Massachusetts is seen as a non-mousehole case and thus distinguishable from Brown & Williamson. Of course, it is difficult to find the statutory language in Brown & Williamson to be a mere mousehole, so this distinction may not be warranted.
360. Sunstein, supra note 16, at 335, 339.
361. See Manning, supra note 17, at 238 (noting that the nondelegation doctrine prevents Congress from delegating its legislative powers to the Judiciary).
362. For instance, as noted by Kenneth Bamberger, it is well accepted that methods of statutory interpretation "also implicate a variety of background norms-like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and separation of powers-inspired, not by Congress's command, but by the substantive and structural concerns of the Constitution. "
363. Kenneth A. Bamberger, Normative Canons in the Review of Administrative Policymaking, 118 YALE L. J. 64, 66 (2008).
364. SCALIA, supra note 193, at 29;
365. see also Manning, supra note 17, at 256 ("[I]f the Court alters the meaning of an open-ended statute in order to avoid nondelegation concerns, it apparently disturbs whatever choice or compromise has emerged from that process. This creates the perverse result of attempting to safeguard the legislative process by explicitly disregarding the results of that process.").
366. SCALIA, supra note 193, at 29.
367. See Wayman v. Southard, 23 U. S. (10 Wheat.) 1, 42-43 (1825) (holding that Congress cannot delegate to the courts those "powers which are strictly and exclusively legislative").
368. Sunstein, supra note 16, at 341 (noting that the nondelegation canon is generally "no longer reflected in current law").
369. Id. at 341-42.
370. See Sunstein, supra note 9, at 244 (explaining that if the Court construes ambiguities as against regulatory authority, the major questions doctrine can be viewed as outside the Chevron framework altogether).
371. Id. (describing the nondelegation canons as "easily administrable, pos[ing] a less severe strain on judicial capacities, and risk[ing] far less in the way of substantive harm").
372. Id. at 332
373. (citing Bowen v. Georgetown Univ. Hosp., 488 U. S. 204, 208 (1988)).
374. Moncrieff, supra note 255, at 600.
375. See, e.g., MCI Telecomms. Corp. v. AT&T, 512 U. S. 218, 229 (1994) (holding that the FCC does not have the power to make tariff filing optional because the tariff-filing requirement is "the heart of the common-carrier section of the Communications Act.").
376. 143 U. S. 457 (1892).
377. See SCALIA, supra note 193, at 18-23 (criticizing Church of the Holy Trinity by stating "Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former.").
378. See Manning, supra note 17, at 227 n. 24 (likening an elephant-in-mousehole case to Church of the Holy Trinity).
379. Bressman, supra note 257, at 765.
380. Id.
381. See Moncrieff, supra note 255, at 596, 9642-45 (2008) (explaining that courts should not defer when there are "simultaneous efforts" by "the Executive and in Congress to effect change[] in a single regulatory domain", and should consider what Congress was doing before the agency's announced action, after the actual action, and the substance of agency oversight).
382. Bressman, supra note 257, at 773-81 (describing factors the Court should consider in answering these challenging questions).
383. Id. at 782.
384. Bressman, supra note 192, at 598.
385. Bressman, supra note 257, at 784-85.
386. Id. at 788.
387. Manning, supra note 192, at 675.
388. 462 U. S. 919, 944-59 (1983) (holding that the congressional veto provision is unconstitutional).
389. For instance, what if Congress intended the President to interpret statutes according to the preferences of a congressional committee? Such a possibility seems squarely foreclosed by Chadha. If so, what is the principled difference between that scenario and one where Congress intends the President to interpret statues according to the preferences of a later Congress?
390. Bressman, supra note 257, at 797-98 (considering the role public opinion played in recent Supreme Court decisions).
391. See, e.g., Posting of Eoin O'Carroll to Bright Green Blog, http://features. csmonitor.com/environment/2009/02/16/us-considers-pika- protection-due-to-warming/(Feb. 16, 2009) (explaining the debate over whether to classify the pika-what you get if you "cross a rabbit with a hamster, make it very sensitive to heat, and deposit it on mountains throughout the western United States"-as an endangered species due to global warming affecting its habitat).
392. Chevron U. S. A. Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 865-66 (1984).