LSI - Admin State Interps

Question 1

What’s the Hampton test? When is it used?

Answer 1

Use the Hamptons test to see whether Congress has delegated powers permissibly - it holds that they have if they have articulated a minimum “intelligible principle” to guide the administrative actor’s decisionmaking

Question 2

Chevron v. NRDC (1984)

Answer 2

Chevron v. NRDC (1984) (467 U.S. 837) (963-91) 1977 Amendments to the Clean Air Act (CAA) required polluters in certain areas to obtain a permit from a state regulator before building any new or modified stationary sources of air pollution. The Environmental Protection Agency (EPA) promulgated a rule interpreting the term “stationary source” to include what the agency called a “bubble policy.” Under this policy, an existing plant containing several pollution-emitting devices could install or modify one piece of equipment without a permit if the alteration did not increase the total emissions from the plant. The Natural Resources Defense Council (NRDC) (plaintiff) challenged the EPA’s interpretation of the word “source.”

• CAA: A stationary source is “any stationary facility which directly emits or has the potential to emit 100 tons per year or more of any air pollutant”
• Issue: Whether the EPA’s decision to allow states to treat all of the pollution-emitting devices within the same industrial grouping as thought were encased in a single bubble is based on a reasonable statutory construction of the term “stationary source”
  
  • MJ Stevens: When legislative intent is unclear, the question for the court is whether the agency has provided a permissible construction of the statute with respect to a statutory term

Question 3

What is the holding of Chevron? What is the two-step process for reviewing a regulation?

Answer 3

Holding: When there is a gap in the language of the statute, court owes deference to administrative agency’s interpretation so long as that interpretation is reasonable in light of the expressed purposes of the bill and the statutory language.

Steps of Chevron Doctrine: (1) Court decides whether Congress has direct spoken of the precise question at issue via the text, structure, or legislative history (2) If they haven’t, the agency’s resolution of the issue of valid so long as the interpretation is reasonable

Some Scholars argued that (1) adds no content because an interpretation can only be reasonable if Congress has not spoken on the precise issue; therefore, they interpret (1) as requiring that agency’s formulation be permissible as a matter of statutory interpretation

Question 4

How did Chevron alter the doctrine that preceded it re: reviewing admin agency decisions?

Answer 4

Departure from pre- Chevron Doctrine: Court no longer relies on whether the agency’s interpretation was contemporaneous with the statute, the idea being that Congress could not have acquiesced to that interpretation was that the case. Now, under Chevron, deference to administrative interpretation does not turn on whether it was consistent nor promulgated after the enactment of the statute.

Key Move: equating statutory silence or ambiguity with explicit delegation – implicit and explicit delegation are equivalent under Chevron – could be a reasonable presumption, but statutory ambiguities are also caused by complexity, lack of time, inability to reach consensus etc.

Question 5

What are some theoretical justifications for Chevron?

Answer 5

 Admin Agencies are more democratically accountable for policy decisions – there is an indirect electoral check

 judiciary still has review function - courts police boundaries on admin power as defined by Cong + step one can be made more important when judges have a lower threshold for finding a statute clear

 constitutionally permissible – Congress does not need to define the public’s right and duties specifically, allowed to direct administrative agencies to do so via discretional policy decisions within broad parameters so long as they satisfy the weak requirement of supplying a sufficiently intelligible principal – thus court fulfills its responsibility to say what the law is by defining the boundaries of permissible interpretations

 imputation of legislative intent based on classic Legal Process assumption that legislators are reasonable people pursuing reasonable goals – thus Congress intended Courts to presume that ambiguities were meant to be delegations to Congress because it is a good idea to do so

Question 6

What are some theoretical problems with Chevron?

Answer 6

 admin agencies are not more accountable – people are more aware of judicial decisions than they are of administrative regulations – they can pressure Congress to amend legislations if they have been interpreted poorly

 (Counter Marbury) Judiciary shouldn’t delegate judicial power to administrative agencies – a core function of a court is to interpret the law (eg using purposivism like DC Circuit Court) – this isn’t naked policymaking, rather, it is an exercise in fidelity

 Judiciary shouldn’t violate separation of powers by automatically delegating policymaking authority to agencies, and Chevron doesn’t differentiate for independent agencies with no democratic accountability – Cong can do so when such delegation is EXPLICIT, interpreting all ambiguity as delegation goes too far

 concentrates too much power in exec branch ­– Montesquieu, Federalist Papers, etc. – law interpreting and law enforcing powers supposed to be distinct

 judicial oversight legitimates delegation -

Question 7

What are some practical justifications for Chevron?

Answer 7

 Admin. Agencies are better-suited to resolve policy Qs – Chevron only defers when the statute is unclear – resolving that ambiguity requires policy judgement and agencies are (1) better informed to make policy decisions because expertise

 agencies at least have more expertise on average – and an easier-to-implement categorical rule is an acceptable reason to defer

 Administrative delegation allows greater flexibility in adapting ambiguous language to changing demands – courts are even less likely to reverse themselves on Qs of statutory interpretations, making the ambiguous policy space Cong included super static

 Incentivizes Cong to be clearer ex ante if they do not want to delegate to admin agencies – penalty default rule

 Interpretive consistency – courts of appeals could resolve interpretive Qs differently, so having the same agency interpret the act within permissible boundaries is preferable

 lightens caseload especially on lower courts without resources to second-guess admin agencies (lower courts have continued to use Chevron FW as higher courts increasingly don’t)

Question 8

Skidmore v. Swift (1944)

Answer 8

Skidmore v. Swift (1944) (323 U.S. 134) (955-60)  employees stayed at Swift & Co. facilities to be on call for potential fire alarms and claim that they were underpaid because they were only compensated for the time they spent actually responding to alarms, not for the time they were staying in the facility on call.

• MJ Jackson: no principle of law precludes waiting time from being working time – that conclusion of District Court was erroneous and is reversed - whether time falls within or without Act is Q of fact to be resolved by trial court, considering agreements between parties, nature of services and surrounding circumstances – facts may show they were engaged to wait or that they waited to be engaged.
  
  • Office of Wages and Hours Administrator – Cong created, endowed w/powers to inform himself of conditions in industries and employments subject to Act, put on him duties of bringing injunction actions to retrain violations – has experience in similar problems, knowledge of customs prevailing re: solutions – obliged to reach conclusions as to conduct w/o law – Administrator thinks probs require flexible solutions, not categorical rule – no statutory guidance informs how much, if at all, courts should defer to Administrator’s conclusions – does not make rulings based on adversary proceedings + finding facts from evidence and reaches conclusions of law
  • “while not controlling upon courts by reason of their authority” “courts and litigants may properly resort for guidance” to knowledge + experience of Administrator – weight of judgement depends on thoroughness of consideration, validity of reasoning, consistency w/earlier and later pronouncements, and all factors w/power to persuade
  • Explains sometimes in terms of A// 6^th circuit respect for 7^th circuit – not binding, but respect

Question 9

Why is Skidmore relevant today?

Answer 9

• Relevant today because of decisions like Mead (arguing Chevron only matters for formal procedures) where Skidmore style respect takes the place of Chevron-style deference

Question 10

Where is the regulatory review doctrine today?

Answer 10

• Difference in how courts treat formal procedures used by admin agencies to interpret statutes v. how discrete administrative actions show they interpret statute
• “major questions” exceptions – King v. Burwell
• Carveout, after carveout, after carveout
• 2016, around appointment of Gorsuch, start to see Court ignore Chevron – recent appointees skeptical – court has not mentioned Chevron in 4 years even in cases where Chevron is squarely applicable – only comes up in critical remarks in dissent etc.
  
  • Thomas seemed persuaded by this
• Sometimes lower courts do run through baroque Chevron doctrine
• Treat agency as persuasive authority, identify, and recognize any special expertise
• Highlight substantive expertise without attempting to trigger any deference
• No formal overruling, hard area to teach because of uncertainty