Law Commons^™

Four Futures Of Chevron Deference, Daniel E. Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

What Would Happen To All Of The Prior Chevron Cases In A Non-Chevron World?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Brief Of Amici Curiae Administrative And Federal Regulatory Law Professors In Support Of Respondents, Andrew F. Popper

Amicus Briefs

Amici write to address the first question presented: whether Chevron should be overruled. Properly understood, it should not. Chevron has been much discussed but not always understood. On the one hand, courts have sometimes misapplied the doctrine or failed to understand its legal foundations. On the other, courts and commentators alike have criticized Chevron, often as a result of such aggressive applications. This case provides an opportunity for the Court to clarify what Chevron does and does not entail, while reaffirming the essential role that judicial recognition of constitutionally delegated policymaking authority plays in federal statutory programs. Many of …

Temporary Nuclear Waste Siting Is A Major Problem But Not A Major Question, Dylan Cohen

Michigan Journal of Environmental & Administrative Law

Mitigating global warming requires robust change in the country’s energy policy. One area ripe for such change is nuclear waste storage, which has long confounded the federal government. The Nuclear Regulatory Commission (NRC) seems to have found a solution. It empowered private industry. But it might have run into a problem: the major questions doctrine. Though the major questions doctrine can indeed operate to constrain overzealous agencies, the NRC has acted within its authority, and private industry—by virtue of its Executive-branch grant of authority—should be allowed to help.

Statutory Interpretation And Agency Disgorgement Power, Caprice Roberts

St. John's Law Review

(Excerpt)

In recent decades, the Supreme Court has showed enhanced interest in equitable principles and remedies. What began as periodic cases featuring one jurist’s idiosyncratic and sometimes misguided interpretations has manifested a broader, significant trend. A consequential theme emerges across varied cases: a revival in the Court’s emphasis on the jurisprudence of equitable remedies. The Court’s recent and current docket continues this momentum. Scholars are tracking the developments and advocating for a system of equity; focusing on historical constraints and federal equity power; and generating a restitution revival.

What happens when obstacles foreclose claims and threaten to leave parties without …

The Exoskeleton Of Environmental Law: Why The Breadth, Depth And Longevity Of Environmental Law Matters For Judicial Review, Sanne H. Knudsen

Articles

Environmental law is pragmatic, inevitable, and intentional. In the aggregate, the numerous federal environmental statutes are not simply a patchwork of ad hoc responses or momentary political breakthroughs to isolated public health problems and resource concerns. Together, they are a group of repeated, legislatively-backed commitments to embrace self-restraint for self-preservation.

Self-restraint and discipline are the essence of environmental law. Indeed, if one studies the patterns and repeated choices in environmental law 's many statutory texts, one can start to appreciate environmental law 's indispensable role in society: it serves as an enduring "exoskeleton," a sort of protective armor created over …

Antitrust Rulemaking: The Ftc’S Delegation Deficit, Thomas W. Merrill

Faculty Scholarship

The Federal Trade Commission’s (FTC’s) recent assertion of authority to engage in legislative rulemaking in antitrust matters can be addressed in terms of three frameworks: the major questions doctrine, the Chevron doctrine, and as a matter of ordinary statutory interpretation. The article argues that as a matter of ordinary statutory interpretation the FTC has no such authority. This can be seen by considering the structure and history of the Act and is confirmed by the 1975 Federal Trade Commission Improvements Act. Given that the result follows from ordinary statutory interpretation, it is unnecessary for courts to consider the other two …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

All Faculty Scholarship

Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …

Medical Necessity Of Residential Treatment For Anorexia: Can Parity Be Achieved?, Abbey Derechin

Northwestern Journal of Law & Social Policy

This Note examines the statutory landscape of mental health parity in the United States. The lens of this Note is through the mental illness of anorexia. Parity laws mandate analogous limitations between mental and physical illness. Therefore, because anorexia has many physical manifestations, it serves as a nice juxtaposition to physical illnesses. This Note will argue for broad interpretation of the Mental Health Parity and Addiction Equity Act (MHPAEA) through comparative analysis of counterpart statute, the California Mental Health Parity Act (CMHPA). It will explore how courts have interpreted the CMHPA broadly to suggest that the MHPAEA should be interpreted …

The New Major Questions Doctrine, Daniel Deacon, Leah Litman

Law & Economics Working Papers

This article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the majorness of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October 2021 term, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes do …

Taking Appropriations Seriously, Gillian E. Metzger

Faculty Scholarship

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not …

The Case Against Prosecuting Refugees, Evan J. Criddle

Northwestern University Law Review

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

Unplanned Obsolescence: Interpreting The Automatic Telephone Dialing System After The Smartphone Epoch, Walter Allison

Michigan Law Review

Technology regulations succeed or fail based upon their ability to regulate an idea. Constant innovation forces legislators to draft statutes aimed at prohibiting the idea of a device, rather than a specific device itself, because new devices with new capacities emerge every day. The Telephone Consumer Protection Act (TCPA) is a federal statute that imposes liability based on the idea of an automatic telephone dialing system (ATDS). But the statute’s definition of the device is ambiguous. The FCC struggles to coherently apply the definition to new technologies, and courts interpret the definition inconsistently. Federal circuit courts have split over these …

Legitimacy And Agency Implementation Of Title Ix, Samuel R. Bagenstos

Articles

Title IX of the Education Amendments of 1972 prohibits sex discrimination by programs receiving federal education funding. Primary responsibility for administering that statute lies in the Office for Civil Rights of the Department of Education (OCR). Because Title IX involves a subject that remains highly controversial in our polity (sex roles and interactions among the sexes more generally), and because it targets a highly sensitive area (education), OCR’s administration of the statute has long drawn criticism. The critics have not merely noted disagreements with the legal and policy decisions of the agency, however. Rather, they have attacked the agency’s decisions …

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Georgetown Law Faculty Publications and Other Works

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. Chevron as construction is supported by powerful arguments; it …

Uncovering Wholesale Electricity Market Principles, Michael Panfil, Rama Zakaria

Michigan Journal of Environmental & Administrative Law

This paper examines, enunciates, and makes explicit a set of market principles historically relied upon by the Federal Energy Regulatory Commission (FERC) to regulate wholesale electricity markets as required under the Federal Power Act (FPA). These identified competitive market principles are supported by policy and legal foundations that run through a myriad of FERC orders and court decisions. This paper seeks to make that history and those implicit market principles explicit by distilling and organizing Commission Orders and court decisions. It concludes that five market principles, each with multiple subprinciples, can be identified as elemental to how FERC understands and …

Symmetry's Mandate: Constraining The Politicization Of American Administrative Law, Daniel E. Walters

Michigan Law Review

Recent years have seen the rise of pointed and influential critiques of deference doctrines in administrative law. What many of these critiques have in common is a view that judges, not agencies, should resolve interpretive disputes over the meaning of statutes—disputes the critics take to be purely legal and almost always resolvable using lawyerly tools of statutory construction. In this Article, I take these critiques, and the relatively formalist assumptions behind them, seriously and show that the critics have not acknowledged or advocated the full reform vision implied by their theoretical premises. Specifically, critics have extended their critique of judicial …

Pepperdine University School Of Law Legal Summaries, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Examining The Administrative Unworkability Of Final Agency Action Doctrine As Applied To The Native American Graves Protection And Repatriation Act, Adam Gerken

Michigan Journal of Environmental & Administrative Law

The application of the Administrative Procedure Act (“APA”) to the Native American Graves Protection and Repatriation Act (“NAGPRA”) creates unique practical and doctrinal results. When considering the application of the current law concerning judicial review of final agency action under the APA to NAGPRA, it is evident that the law is simultaneously arbitrary and unclear. In the Ninth Circuit’s holding in Navajo Nation v. U.S. Department of the Interior, the Court applied final agency action doctrine in a manner that was legally correct but administratively unworkable. The Court’s opinion contravenes both the reasoning behind the APA final agency action …

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …

Agency Statutory Abnegation In The Deregulatory Playbook, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

If an agency newly declares that it lacks statutory power previously claimed, how should such a move—what this article calls agency statutory abnegation—be reviewed? Given the array of strategies an agency might use to make a policy change or move the law in a deregulatory direction, why might statutory abnegation be chosen? After all, it is always a perilous and likely doctrinally disadvantageous strategy for agencies. Nonetheless, agencies from time to time have utilized statutory abnegation claims as part of their justification for deregulatory shifts. Actions by agencies during 2017 and 2018, under the administration of President Donald J. Trump, …

Language's Empire: A Counter-Telling Of Administrative Law In Canada, Nicholas Hooper

LLM Theses

This thesis renders the unstated assumptions that animate statutory interpretation in the administrative state. It argues that the current approach is a disingenuous rhetorical overlay that masks the politics of definitional meaning. After rejecting the possibility of structuring principles in our (post)modern oversaturation of signs, the thesis concludes with an aspirational account of interpretive pragmatism in the face of uncertainty.

Judge Kavanaugh, Chevron Deference, And The Supreme Court, Kent H. Barnett, Christina L. Boyd, Christopher J. Walker

Popular Media

How might a new U.S. Supreme Court Justice Brett Kavanaugh review federal agency statutory interpretations that come before him on the Court?

To find at least a preliminary answer, we can look to his judicial behavior while serving on the U.S. Court of Appeals for the D.C. Circuit—and there is plenty of relevant Kavanaugh judicial behavior to observe. Since starting his service on the D.C. Circuit in 2006, Judge Kavanaugh has participated in the disposition of around 2,700 cases and has authored more than 300 opinions. Over a third of those authored opinions involved administrative law.

In Defense Of A Little Judiciary: A Textual And Constitutional Foundation For Chevron, Terence J. Mccarrick Jr.

San Diego Law Review

This Article hopes to help fill that “important gap in the administrative law literature.” And it proceeds in three parts. Part II offers a brief history of the Chevron doctrine and its discontents. It traces the doctrine’s origin and scope and ends by articulating the textualist and originalist critique of Chevron described above. Part III grapples with that criticism and offers a textualist and originalist defense of Chevron. Section III.A describes the textual footing for Chevron in the APA and argues that Chevron—if not commanded by the APA—does not upset the role it envisions for courts. Section III.B describes the …

Both Sides Of The Rock: Justice Gorsuch And The Seminole Rock Deference Doctrine, Kevin O. Leske

Michigan Journal of Environmental & Administrative Law

Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case.

Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the …

The Role Of The Courts In Guarding Against Privatization Of Important Public Environmental Resources, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

Drinking water, beaches, a livable climate, clean air, forests, fisheries, and parks are all commons, shared by many users with diffuse and overlapping interests. These public natural resources are susceptible to depletion, overuse, erosion, and extinction; and they are under increasing pressures to become privatized. The Public Trust Doctrine provides a legal basis to guard against privatizing important public resources or commons. As such, it is a critical doctrine to counter the ever-increasing enclosure and privatization of the commons as well as ensure government trustees protect current and future generations. This Article considers separation of powers and statutory interpretation in …