Outline Flashcards
(380 cards)
1
Q
What is the primary method courts use to analyze statutes?
A
Text
2
Q
Besides text, what other sources do courts sometimes use to analyze statutes?
A
Purpose and legislative history
3
Q
Does the Constitution specify one correct method for statutory interpretation?
A
No
4
Q
What are the three main interpretive theories?
A
Intent, Purpose, Text
5
Q
What does “intent” refer to in statutory interpretation?
A
Subjective intentions of the enacting Congress
6
Q
What does “purpose” refer to in statutory interpretation?
A
The general goal or mischief addressed by the statute
7
Q
What does “text” refer to in statutory interpretation?
A
The actual words of the statute
8
Q
Which interpretive theory do textualists typically start with?
A
Text
9
Q
What doctrine supports sticking to past statutory interpretations?
A
Stare decisis
10
Q
Why might courts follow stare decisis?
A
Predictability, reliance, legitimacy
11
Q
When can courts overrule past interpretations under stare decisis?
A
If they are sufficiently wrong
12
Q
What is one view of a judge’s role in interpretation?
A
A faithful agent of Congress
13
Q
What is the alternative view of a judge’s interpretive role?
A
Free to adapt the statute’s meaning over time
14
Q
What does legislative history include?
A
Internal materials and discussions from bill introduction to enactment
15
Q
What are examples of legislative history?
A
Drafts, statements by legislators, committee reports
16
Q
Whose statements do courts primarily consider in legislative history?
A
Legislators
17
Q
What is the core principle of textualism?
A
Plain meaning of the words
18
Q
When do textualists consider legislative intent or purpose?
A
Only if the text is ambiguous or to confirm a clear reading
19
Q
Why do textualists emphasize strict application of the statute’s text?
A
To respect legislative supremacy and avoid judicial lawmaking
20
Q
What is the “Holy Trinity Church Problem”?
A
A case where the court ignored the statute’s plain text in favor of its spirit
21
Q
How do modern textualists view Holy Trinity?
A
As an error in ignoring clear statutory language
22
Q
What is the absurdity exception in textualism?
A
A narrow allowance to avoid bizarre results
23
Q
What tools do textualists use?
A
Statutory text, dictionaries, and sometimes legislative history if text is ambiguous
24
Q
What distinguishes Scalia’s New Textualism?
A
Emphasis on ordinary meaning, not literalism
25
What interpretive tools does New Textualism accept?
Canons of construction
26
What kind of meaning does New Textualism seek?
Objective meaning understood by a reasonable person at enactment
27
Does New Textualism allow use of legislative history?
No
28
What standard does New Textualism use for word meanings?
Plain meaning as understood by ordinary English speakers
29
Why does New Textualism reject legislative intent?
Congress lacks a single coherent intent
30
How does New Textualism enforce judicial restraint?
By tethering interpretation to enacted text
31
What’s the difference between Old and New Textualism?
Old Textualism looked to legislative intent; New Textualism rejects it
32
What’s the difference between Originalism and New Textualism?
Originalism seeks original intent; New Textualism seeks original meaning
33
What is the central idea of intentionalism?
Understand the legislature’s actual subjective intent
34
What sources do intentionalists use?
Legislative history and circumstances of enactment
35
What critique did Radin make of intentionalism?
It’s incoherent—Congress has no single intent
36
How can intentionalism lead to judicial manipulation?
Judges might falsely claim to know what Congress intended
37
What is the core principle of purposivism?
Interpret statutes to serve their underlying purpose
38
What question do purposivists ask?
Which interpretation best furthers the statute’s policy goal?
39
What is a critique of purposivism?
It risks expanding judicial power under the guise of purpose
40
What does the mischief rule ask?
What was the common law, defect, and statutory remedy?
41
What do pragmatism and dynamism consider?
Practical consequences and future implications
42
What kind of evidence do pragmatists use?
Empirical data like scientific or sociological studies
43
When are pragmatism/dynamism typically used?
When the text doesn’t clearly resolve the issue
44
What is a core idea of economic theories of interpretation?
People act to maximize utility; law should incentivize good behavior
45
How does law evolve under economic theories?
Through interactions between Congress, agencies, and courts
46
What’s the economic critique of ex post decisions?
They create rules with high social costs for future cases
47
What do ex ante approaches prioritize?
Rules that work well for average cases and incentivize good behavior
48
What was Macey’s contribution to economic theory?
Serious interpretation deters dishonest legislative behavior
49
What did Landes & Posner argue?
Courts should apply original legislative intent to preserve statutory deals
50
What is Easterbrook’s position?
The statutory text is the best evidence of the legislative deal
51
What does Public Choice Theory claim?
Legislation often benefits rent-seeking groups
52
What should courts do under Public Choice Theory?
Interpret such statutes narrowly unless public justification is clear
53
What is institutional cost-benefit analysis?
Evaluating which branch is best suited to interpret statutes
54
Why might agencies be better at updating statutes?
Greater expertise and political responsiveness
55
What is the presumption about word meaning in statutes?
Ordinary sense
56
When is technical meaning applied in statutory interpretation?
In specialized or trade subjects
57
What standard is used for interpreting ordinary meaning?
Reasonable reader standard
58
What kind of dictionaries are used for older statutes?
Older editions, including Black’s Law Dictionary
59
What case involved debate over dictionary use to interpret "interpreter"?
Taniguchi v. Kan Pacific Saipan
60
What did the majority hold in Taniguchi?
Interpreter means oral translator
61
What did the dissent argue in Taniguchi?
Interpreter includes broader practice and purpose
62
What does noscitur a sociis mean?
Known by its associates
63
What does noscitur a sociis imply about word meaning?
Ambiguous terms are clarified by neighboring words
64
What does ejusdem generis mean?
Of the same kind, class, or nature
65
What is the rule of ejusdem generis?
General terms are limited to the same class as listed specifics
66
When does ejusdem generis apply?
When general words follow or precede specific ones
67
Why is ejusdem generis used?
To give effect to all words and limit general terms
68
What does expressio unius est exclusio alterius mean?
Inclusion of one implies exclusion of others
69
What is the core idea behind expressio unius?
Words omitted are significant and not meant to be included
70
What is a key limitation of expressio unius?
It assumes legislative thoroughness, which may not exist
71
When can expressio unius be overridden?
By statutory purpose or normative context
72
What are the three approaches to punctuation in statutory interpretation?
Ignore it, use it as an aid, use it only as a last resort
73
Why was punctuation historically ignored in England?
Clerks added it after enactment
74
What is the U.S. approach to punctuation in statutes?
It is part of the statute as passed
75
What is the general rule about reading statutes with punctuation?
Read as punctuated unless it conflicts with legislative intent
76
In which case was punctuation decisive for the Court’s interpretation?
Ron Pair (1989)
77
Which case saw the Court correct a punctuation error?
U.S. Nat’l Bank (1993)
78
How are “and” and “or” usually interpreted in statutes?
“And” = all elements required; “Or” = each item stands alone
79
What did the Court decide in Garcia v. U.S. about "or"?
Each listed item stood alone
80
What did the Court decide in Chisom v. Roemer about "and"?
“And” required all elements
81
What do De Morgan’s Laws help explain?
Logical interpretation of “not (A and B)” and “not (A or B)”
82
What does “shall” usually indicate in statutes?
Mandatory obligation
83
What does “may” usually indicate in statutes?
Discretionary permission
84
Can “may” ever be interpreted as “shall”?
Yes, if legislative intent suggests a mandatory meaning
85
Which case interpreted “may” as “shall”?
In re Cartmell’s Estate
86
What’s the rule about singular and plural terms in statutes?
Singular includes plural, and vice versa
87
Where is the singular/plural rule codified?
1 U.S.C. § 1
88
How are gendered pronouns treated in statutory interpretation?
“He” includes “she” and vice versa
89
What is the Golden Rule in statutory interpretation?
Avoid absurd results even if it means modifying text slightly
90
What case is a classic example of avoiding absurdity in maritime law?
Willing v. U.S.
91
What case shows Scalia rejecting absurdity argument?
Barnhart v. Thomas
92
What is the Nietzsche Rule for interpretation?
Don’t cherry-pick or distort statutes; interpret humbly and contextually
93
What does the Last Antecedent Rule say?
Modifiers usually refer only to the last item before them
94
In what case did SCOTUS apply the Last Antecedent Rule strictly?
Jama v. ICE
95
What’s the default rule for “provided that” or other provisos?
Applies only to the clause immediately before
96
What was the issue in Lockhart v. United States?
Whether the limiting phrase applied to all listed crimes or just the last
97
How did the Court rule in Lockhart v. United States?
Limiting phrase applied only to the last item
98
What did Kagan argue in her dissent in Lockhart?
The phrase applied to all items; ambiguity should favor lenity
99
What does the “series-qualifier” rule suggest?
A modifier at the end applies to all preceding items in a list
100
What is the core idea of the Whole Act Rule?
Statutes should be read as a whole
101
What does the Whole Act Rule presume about statutory language?
Internal consistency and coherence
102
What kind of ambiguity may be clarified using the Whole Act Rule?
Ambiguity in one part clarified by other sections
103
Which case supports interpreting a statute as a whole?
United States v. Fisher (1805)
104
Can statutory titles be used to interpret ambiguous text?
Yes, but not to override plain meaning
105
Which cases used titles as interpretive tools?
Porter v. Nussle, Yates v. U.S.
106
Can misleading or political titles impact statutory interpretation?
Yes, courts should be cautious
107
What is the role of preambles or purpose clauses?
Guide interpretation if statute is ambiguous
108
Which case used a preamble to interpret “disability”?
Sutton v. United Airlines
109
How are provisos (e.g., "provided that") generally interpreted?
They apply only to the clause immediately preceding
110
What problem do model bills create for the Whole Act Rule?
They challenge assumptions of coherence
111
What example illustrates a misleading model bill title?
ALEC’s Asbestos Claims Transparency Act
112
What does the Anti-Surplusage Canon presume?
Every word in a statute has meaning
113
Which case supports avoiding redundancy in statutory interpretation?
Kungys v. U.S.
114
What is the counterpoint to the anti-redundancy rule?
Legislatures may repeat for emphasis ("belt and suspenders")
115
What is the Latin term for deliberate redundancy?
Ex abundanti cautela
116
Which case acknowledged intentional redundancy?
Freeman v. Quicken Loans
117
What does the Presumption of Consistent Usage mean?
Same word = same meaning throughout the statute
118
Which cases illustrate consistent usage?
Sullivan v. Stroop, Powerex, Gustafson
119
What does the Presumption of Meaningful Variation state?
Different words = different meanings
120
Which case supports meaningful variation?
U.S. v. Fisher (Marshall)
121
What is the “Expressio Unius” variant of meaningful variation?
Inclusion in one section implies exclusion in another
122
Which cases apply the Expressio Unius variant?
Keene Corp., Arlington Central, Gozlon-Peretz
123
What case weakens the inference of meaningful variation due to timing?
Field v. Mans
124
What does avoiding derogation mean?
Interpret statutes to prevent undermining other provisions
125
What are the three types of derogation?
Operational conflict, philosophical tension, structural derogation
126
Which case deals with structural integrity of a statute?
West Virginia University Hospitals v. Casey
127
Which case applies both structural and anti-surplusage principles?
Yates v. United States
128
What is the Rule of Lenity?
Ambiguous criminal statutes must be interpreted in favor of the defendant
129
What is the justification for the Rule of Lenity?
Fair notice and due process
130
Does the Rule of Lenity apply to civil statutes?
Yes, if they are punitive in nature
131
When does the Rule of Lenity apply?
Only after exhausting all interpretive tools and finding “grievous ambiguity”
132
What is the key quote from Muscarello v. United States?
“Where there is ambiguity... doubts are resolved in favor of the defendant—but only if ambiguity is grievous.”
133
What was the issue in Muscarello v. United States?
Whether “carry a firearm” includes in a vehicle
134
What was the holding in Muscarello?
Yes — based on ordinary meaning and legislative history
135
What was the issue in McNally v. United States?
Whether mail fraud includes deprivation of intangible rights
136
How did the Court rule in McNally?
No — lenity applied; narrow interpretation adopted
137
What is the Rule of Constitutional Avoidance?
Interpret statutes to avoid serious constitutional questions if a plausible alternative exists
138
When does the Avoidance Canon apply?
Only when a statute is genuinely ambiguous
139
What is a concern with the Avoidance Canon?
Courts may use it to rewrite statutes or over-enforce constitutional concerns
140
What case applied the Avoidance Canon to avoid First Amendment issues?
NLRB v. Catholic Bishop of Chicago
141
What was the holding in Catholic Bishop?
NLRA doesn’t apply to religious school teachers without clear congressional intent
142
What was Justice Brennan’s critique in Catholic Bishop?
There was no plausible alternative reading; canon was misused
143
What is the Clear Statement Rule in federalism cases?
Statutes altering the federal-state balance must show unmistakable congressional intent
144
What is the purpose of the Federalism Avoidance Canon?
To protect state sovereignty
145
What was the rule in Gregory v. Ashcroft?
Clear statement needed to override state control of judge qualifications
146
What was the holding in Gregory?
ADEA didn’t clearly apply to state judges—Missouri’s rule stood
147
What did the Court decide in Bond v. United States?
Federal law could not criminalize a local assault without clear congressional intent
148
What is Congressional Acquiescence?
Reenactment of a statute without change adopts prior interpretations
149
What is an example of Congressional Acquiescence in practice?
Bob Jones University v. United States
150
What doctrine did the Court apply in Babbitt v. Sweet Home?
Chevron Deference
151
What agency interpretation was at issue in Babbitt?
“Harm” under ESA includes habitat modification
152
What was the statutory term being interpreted in Babbitt?
“Take”
153
What behavior did the agency include in “harm”?
Habitat changes that kill or injure protected species
154
What interpretive tool did the majority use in Babbitt?
Whole Act Rule
155
What canon did the Court use to give “harm” independent meaning?
Anti-Surplusage Canon
156
What is statutory ratification?
Congress adopts or accepts an agency’s interpretation (expressly or implicitly)
157
Did the Court find Chevron deference appropriate in Babbitt?
Yes, due to ambiguity and reasonable agency interpretation
158
What was Scalia’s approach to “harm” in Babbitt?
Limited to direct, intentional actions
159
What canon did Scalia apply in dissent?
Noscitur a sociis
160
What was Scalia’s warning about purpose-based reasoning?
It can unjustifiably expand statutory scope
161
What is controversial about congressional inaction as ratification?
It may not reflect actual intent and is often misused
162
What doctrine was central to West Virginia v. EPA?
Major Questions Doctrine (MQD)
163
What agency action triggered MQD in WV v. EPA?
EPA’s Clean Power Plan regulating power generation mix
164
What statutory phrase was interpreted narrowly by the Court?
“Best system of emission reduction”
165
Why did the Court reject EPA’s interpretation?
It lacked clear congressional authorization for major economic change
166
What earlier case supports MQD reasoning?
FDA v. Brown & Williamson (Tobacco Case)
167
What is the "dog that didn’t bark" theory?
Congressional silence implies no intent to delegate
168
What does MQD require from Congress to authorize major agency action?
Clear and specific statutory language
169
What was Justice Kagan’s critique of MQD?
It undermines expert agencies and presumes incorrect legislative intent
170
What did Kagan say agencies are equipped to handle?
Complex and evolving issues using delegated authority
171
What was Kagan’s concern about MQD’s neutrality?
It’s anti-regulatory and politicized
172
According to Judge Kopf, what could MQD hypothetically limit?
Abolishing the Department of Education due to economic impact
173
What is the broader implication of MQD?
Courts limit agency power on major policy issues absent clear congressional delegation
174
What does the Nondelegation Doctrine prohibit?
Delegating legislative power without an intelligible principle
175
What must Congress provide when delegating authority?
An intelligible principle
176
Why does Congress delegate to agencies?
Expertise, resources, time, flexibility
177
What are potential negatives of congressional delegation?
Grandstanding, punting issues, lack of accountability
178
What test governs lawful delegation?
Intelligible Principle Test
179
What case reaffirmed the intelligible principle standard?
Whitman v. American Trucking
180
What was the agency action in Whitman v. American Trucking?
EPA setting air quality standards
181
What principle guided the EPA’s discretion in Whitman?
Protecting public health
182
Could the EPA consider costs under the Clean Air Act?
No
183
What did Whitman say about nondelegation?
Delegation was valid due to a clear public health standard
184
What was the issue in Gundy v. United States?
Whether Congress could delegate authority to the AG under SORNA
185
What did the Court hold in Gundy?
Delegation was valid—AG was guided by sufficient limits
186
Did Gundy involve pure legislative power?
No—implementation, not policy, was delegated
187
What is the central justification behind checks in the constitutional structure (per Madison)?
Ambition must be made to counteract ambition
188
Where in the Constitution is the Appointments Clause?
Article II, Section 2
189
Who appoints principal officers?
President with Senate confirmation
190
Who may appoint inferior officers (if Congress allows)?
President alone, Courts of Law, or Heads of Departments
191
What defines a principal officer?
No superior other than the President; makes final, binding decisions
192
What defines an inferior officer?
Subordinate to another official; exercises significant authority under supervision
193
What defines an employee?
Lacks significant authority; not subject to Appointments Clause
194
What is the standard for identifying “significant authority”?
Unclear — functional analysis based on case law
195
Is presidential removal power explicitly stated in the Constitution?
No
196
What clause implies the President’s removal authority?
Take Care Clause
197
Who can remove judicial officers?
Only through impeachment
198
What is Congress’s role in limiting removal?
Can impose for-cause limits via statute for some officials
199
What theory supports full presidential control of the executive branch?
Unitary Executive Theory
200
What was the removal restriction in Myers?
Senate approval required to remove a postmaster
201
What did the Court hold in Myers?
President has exclusive removal power over executive officers
202
What theory did Taft support in Myers?
Strong unitary executive — removal essential to control
203
What was Brandeis’s dissent in Myers?
History doesn’t clearly support broad removal power; Constitution is ambiguous
204
What was the agency at issue in Humphrey’s Executor?
FTC
205
What did the Court hold in Humphrey’s Executor?
For-cause removal protection is allowed for officials in independent agencies with quasi-legislative/judicial roles
206
What did the Court distinguish from Myers?
FTC not purely executive — different removal rules apply
207
Who was the officer in Morrison?
Independent Counsel
208
What was the removal condition in Morrison?
Removal only for good cause, by the AG
209
What did the Court hold in Morrison?
For-cause limit okay — didn’t unduly interfere with executive function
210
Was the Independent Counsel a principal or inferior officer?
Inferior officer
211
What was unique about the CFPB’s structure?
Single director with for-cause removal protection
212
What did the Court hold in Seila Law?
Structure unconstitutional — violated separation of powers
213
Why didn’t Humphrey’s Executor apply in Seila Law?
CFPB had a single head, not a multi-member commission
214
What was the broader effect of Seila Law?
Revived Myers; narrowed exceptions to the unitary executive model
215
What are the two exceptions to the President’s at-will removal power post-Seila Law?
Multi-member independent commissions and inferior officers with limited duties
216
Why is rulemaking now seen as executive, not quasi-legislative?
It involves binding legal authority — core executive power
217
What modern case narrowed independent agency protections?
Seila Law v. CFPB
218
What is the modern presumption regarding executive power?
Agencies with real power must be subject to presidential control
219
What statute governs federal agency procedure?
Administrative Procedure Act (APA)
220
What are the two main types of agency action under the APA?
Rulemaking and Adjudication
221
What is informal rulemaking also called?
Notice-and-comment rulemaking
222
Which APA section governs informal rulemaking?
APA §553
223
What is the other type of agency action that resembles court trials?
Adjudication
224
What section governs formal adjudication under the APA?
APA §554
225
What are the two key requirements for a valid rule?
Within statutory authority and not arbitrary and capricious
226
What must agencies do in informal rulemaking?
Provide notice, allow comment, and give reasoned explanation
227
Can agencies add justifications to the record after issuing the rule?
No — the record must be complete at time of issuance
228
What was the agency action challenged in Nova Scotia?
FDA’s rule banning smoked whitefish processing methods
229
What were the major problems with FDA’s rule?
Didn’t disclose data, respond to objections, or explain reasoning
230
What did the court say agencies must disclose?
Data/science relied upon
231
What must agencies include in their final rule?
Concise general statement of basis and purpose
232
What is the main procedural takeaway from Nova Scotia?
Notice-and-comment must be meaningful and reasoned
233
What standard do courts use to review agency rules?
Arbitrary and capricious
234
What makes a rule arbitrary and capricious?
No rational connection to facts, ignoring key issues, illogical or unexplained reasoning
235
Do agencies need to hold hearings for informal rulemaking?
No
236
What must agencies provide instead of a hearing?
Reasons, responses to major comments, and public justification
237
How much discretion do agencies have in rulemaking?
A great deal, as long as they follow required procedures
238
What ensures a rule is procedurally valid?
Transparency, explanation, and a complete record
239
What are the two primary tools agencies use under the APA?
Rulemaking and Adjudication
240
What is the nature of rulemaking?
Prospective, general rules
241
What is the nature of adjudication?
Case-by-case decision-making
242
Which APA section governs informal rulemaking?
§553
243
Why do lawyers often prefer adjudication?
Easier to defend in court, avoids broad comment response duties
244
When is rulemaking preferred?
For broader policies requiring public input or advance planning
245
Can adjudication produce binding legal rules?
Yes, but piecemeal
246
Can an agency choose adjudication over rulemaking?
Yes, unless it’s arbitrary, capricious, or contrary to law
247
What was at issue in Chenery II?
Whether the SEC could adopt a new legal standard via adjudication
248
What did the SEC prohibit in Chenery II?
Officers buying preferred stock during reorganization
249
What was Chenery’s argument?
New rules must come through prospective rulemaking
250
What did the Court hold in Chenery II?
Agencies may make rules through adjudication
251
Why was adjudication allowed in Chenery II?
The issue was novel and unforeseeable; case-specific development was reasonable
252
What standard must agency adjudication meet?
Substantial evidence and reasoned explanation
253
What rule did Chenery II establish?
Agencies can use adjudication unless doing so violates law or is arbitrary/capricious
254
What was the issue in Bell Aerospace?
Whether buyers are managerial employees excluded from NLRA protection
255
Did the Court require rulemaking in Bell Aerospace?
No
256
Why was adjudication acceptable in Bell Aerospace?
Industry variation made case-by-case adjudication more appropriate
257
What did the Court reaffirm in Bell Aerospace?
Agencies have discretion to choose between rulemaking and adjudication
258
When is adjudication preferable over rulemaking?
When the issue is fact-specific or context-dependent
259
What are the two questions courts ask in reviewing agency adjudication?
(1) Was the choice of adjudication lawful? (2) Is the substance supported by evidence and statute?
260
What level of judicial deference do agencies get in choosing adjudication?
High — unless arbitrary, capricious, or contrary to law
261
What must an agency provide to support adjudication-based rule?
A reasoned explanation and substantial evidence in the record
262
Can courts uphold agency action based on post hoc justifications?
No — only based on reasons the agency gave at the time
263
What are the three types of agency rules?
General statements of policy, interpretive rules, legislative rules
264
What is a general statement of policy?
Non-binding, forward-looking statement of agency intent
265
Are policy statements subject to notice-and-comment?
No
266
What is an interpretive rule?
Explains or clarifies existing law or regulations
267
Are interpretive rules binding on the public?
No
268
Do interpretive rules require notice-and-comment?
No (APA §553(b))
269
What is a legislative rule?
Creates new legal obligations
270
Are legislative rules binding?
Yes, on both the agency and the public
271
Do legislative rules require notice-and-comment?
Yes
272
What was the issue in Perez v. Mortgage Bankers?
Whether agencies must use notice-and-comment to change interpretive rules
273
What did the Court hold in Perez?
No — interpretive rules can be changed without notice-and-comment
274
What doctrine did the Court reject in Perez?
Paralyzed Veterans Doctrine
275
Why did the Court reject Paralyzed Veterans?
APA text doesn’t require notice-and-comment for interpretive rules
276
What kind of rule change was at issue in Perez?
Department of Labor changed interpretation of an overtime rule
277
What kind of rule was at issue in American Mining Congress?
MSHA Program Policy Letter (PPL) on diagnosing silicosis
278
What test did the court apply to determine rule type?
Four-factor legal effect test
279
What are the 4 factors for identifying legislative rules?
(1) Predicate for enforcement, (2) Published in CFR, (3) Invokes legislative authority, (4) Amends prior legislative rules
280
What was the ruling in American Mining Congress?
The rule was interpretive — no new legal obligations imposed
281
What did the EPA’s guidance on PCB risk assessment do?
Mandated risk calculation methods, limited agency discretion
282
Why did the court strike it down in GE v. EPA?
It was a legislative rule issued without notice-and-comment
283
What was the key factor in classifying the rule?
It had binding legal effect on both agency and public
284
What happens if a policy binds the agency itself?
It is likely a legislative rule
285
What type of agency action is the DOJ marijuana enforcement memo?
General statement of policy
286
Why can’t the DOJ be stopped from reversing that memo?
It’s non-binding — not a legislative rule
287
What challenge could someone bring after a reversal of such a policy?
Arbitrary and capricious challenge under APA due to reliance interests
288
What determines if a rule is legislative or interpretive?
Binding effect, intent, enforcement role, and publication
289
Can agencies evade APA requirements by labeling rules as “interpretive”?
No — courts look at substance over form
290
What distinguishes a policy statement from a rule?
A policy statement is not binding and doesn’t create enforceable duties
291
What does APA §553(b) say about interpretive rules?
They are exempt from notice-and-comment requirements
292
Is congressional oversight power explicitly stated in the Constitution?
No
293
What is the constitutional source of oversight power?
Implied from the Necessary and Proper Clause
294
What historical institution influenced this power?
British Parliament
295
Why is oversight considered essential?
Congress must inform itself before legislating
296
What tools can Congress use to request or compel information?
Letters, subpoenas
297
What can Congress do if the Executive refuses to comply?
Withhold funding, freeze appointments, seek contempt
298
What is Contempt of Congress?
Referral to the U.S. Attorney for D.C. for noncompliance
299
What is Contempt of Court in the oversight context?
If a court orders testimony and it’s ignored
300
What did Watkins v. U.S. hold?
Oversight must serve a legislative purpose, not exposure alone
301
Can Congress investigate executive powers like pardons?
No — outside Article I powers
302
What must Congress do to change a constitutional power like pardons?
Amend the Constitution
303
What triggered the oversight conflict?
Firing of U.S. Attorneys
304
What was the process of escalation?
Request → Refusal → Subpoena → Civil suit
305
What did the court decide?
White House officials must comply
306
How are most oversight conflicts resolved?
Political negotiation and accommodation
307
What is the legislative veto?
Congress attempts to overturn executive action unilaterally
308
What case declared legislative vetoes unconstitutional?
INS v. Chadha (1983)
309
Why was the legislative veto struck down?
Violated bicameralism and presentment requirements
310
What is a report-and-wait provision?
Agency must notify Congress before acting; Congress may later legislate to override
311
Are report-and-wait requirements constitutional?
Yes
312
What phrase summarizes inter-branch power struggles?
“Power is power.”
313
What enforces most congressional oversight?
Political norms and leverage, not courts
314
What is the core purpose of congressional oversight?
Supporting legislative functions
315
What limits Congress’s ability to control executive action directly?
Separation of powers and Article I boundaries
316
What is presidential oversight?
Supervision of executive agencies by the president
317
What are non-independent agencies?
Cabinet agencies under direct presidential control
318
Are non-independent agencies required to follow presidential guidance?
Yes, if it’s legal
319
What are independent agencies?
Agencies designed to operate with greater autonomy from the president
320
How did Seila Law affect independent agencies?
Gave the president more removal power, reducing their independence
321
Can the president direct agencies to perform cost-benefit analysis?
Yes
322
When is CBA prohibited for agencies?
When the statute explicitly forbids considering costs
323
Example of a statute forbidding CBA?
Endangered Species Act (“regardless of cost”)
324
When might CBA be limited or skipped?
When costs/benefits are intangible or unquantifiable
325
How are independent agencies increasingly treated?
Like non-independent agencies
326
What key normative question does this trend raise?
Should agencies follow presidential policy or their own statutory interpretation?
327
What does OMB stand for?
Office of Management and Budget
328
What agency within OMB oversees regulations?
Office of Information and Regulatory Affairs (OIRA)
329
What does OIRA do?
Reviews proposed agency actions and clears them before implementation
330
What other entities may review major agency actions?
Department of Justice and Office of Legal Counsel
331
What are the two main types of judicial review of agency action?
APA review and statutory interpretation review
332
What standard governs APA review?
Arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law
333
When does APA review not apply?
When review is precluded by statute or action is committed to agency discretion
334
What kind of scrutiny does hard look review involve?
Review of agency’s reasoning process, not outcome
335
What must the agency provide under Overton Park?
A detailed explanation based on the full record
336
When must a court set aside agency action under APA §706?
If the action is arbitrary, capricious, or unlawful based on the whole record
337
What APA section limits judicial review?
§701(a)(2)
338
What are the two exceptions to judicial review?
(1) Statute precludes review, (2) Action is committed to agency discretion by law
339
Are agency non-enforcement decisions reviewable?
Generally no
340
Why are non-enforcement decisions usually immune?
Based on prosecutorial discretion and limited resources
341
What broad policy issue does Heckler raise?
Whether agencies can adopt sweeping non-enforcement policies (e.g., DACA)
342
What did Reagan’s administration do in State Farm?
Rescinded Carter-era auto safety rule
343
What did the Court hold in State Farm?
Rescinding a rule requires same justification as enacting one
344
What standard did the Court apply?
Arbitrary and capricious
345
What was the agency’s mistake in State Farm?
Failed to consider reasonable alternatives (like airbags)
346
What agency action was at issue in FCC v. Fox?
Changing policy on “fleeting expletives”
347
What did the Court say about agency policy changes?
Agencies can change policies if the new rule is rational and follows procedure
348
Must a new policy be “better” than the old one?
No — just rational with a reasoned explanation
349
What role do statutory gaps play, according to Fox?
Agencies—not courts—may fill in gaps by defining vague terms (e.g., “indecent”)
350
What is the key concern in judicial review of agencies?
Whether the agency followed proper procedure and gave reasoned explanations
351
Can courts substitute their policy judgment for the agency’s?
No
352
What must courts ensure in APA review?
The agency examined relevant data and justified its choice logically
353
What is not required for an agency to change policy?
That the new policy be superior — just that it is reasonable and justified
354
What kind of deference is Skidmore?
Persuasive deference
355
When do courts apply Skidmore deference?
When agency interpretations are thorough, consistent, and reasoned
356
Does Skidmore require courts to accept the agency’s view?
No — courts weigh it for persuasiveness
357
What is Step 1 of Chevron?
Is the statute ambiguous?
358
What is Step 2 of Chevron?
Is the agency’s interpretation reasonable?
359
What if the statute is clear under Chevron?
Courts apply Congress’s intent — no deference
360
What is the role of agency expertise in Chevron?
Agencies may choose among reasonable interpretations based on policy
361
What is “Chevron Step Zero”?
Courts ask if Congress intended to delegate interpretive authority to the agency
362
What separation of powers argument supports Chevron?
Courts avoid policymaking by deferring to agencies
363
Why are agencies better than courts for resolving ambiguity?
Specialized expertise and policymaking role
364
Why not let judges resolve statutory ambiguity?
Policy choices should be made by politically accountable actors
365
What key precedent was cited in Loper Bright to overrule Chevron?
Marbury v. Madison — courts “say what the law is”
366
What does APA §706 say about judicial review?
Courts must decide all questions of law
367
Why did the Court say Chevron was inconsistent with the APA?
It shifted judicial responsibility to agencies
368
What was the role of legislative history in Loper Bright?
Used for historical context, not intent
369
Is Chevron a constitutional doctrine?
No — statutory only, so easier to overturn
370
Why did the Court reject reliance interests in Chevron?
Chevron was applied inconsistently, so reliance was unreasonable
371
Under Chevron, who interprets ambiguous statutes?
Agencies, if reasonable
372
Under Loper Bright, who has final say on statutory interpretation?
Courts
373
Can agencies revise interpretations under Chevron?
Yes — interpretations can change over time
374
Can courts revisit interpretations under Loper Bright?
Only if Congress changes the statute
375
What does APA require for agency rules?
Not arbitrary or capricious (APA §706(2)(A))
376
When does Chevron apply?
When agencies formally adopt statutory interpretations
377
What does the Major Questions Doctrine (MQD) say about ambiguity?
No Chevron deference for major economic or political issues
378
What does the Clear Statement Rule require?
Clear congressional intent for actions affecting state sovereignty
379
Under Chevron, how should courts handle statutory ambiguity?
Let the agency fill the gap
380
Under Loper Bright, how should courts handle ambiguity?
Dig deeper with traditional interpretation tools to resolve it themselves
