Linear approach (moderate textualist)

1. ID the language of statute at issue:

-What do you want it to mean?
-What does opponent want it to mean?
2. Determine ordinary or technical meaning of the lang:
-Choose which is appropriate.
3. Determine whether ordinary meaning is ambiguous:
-Ambiguity- two or more equally plausible meanings.
4. Determine whether there is a reason to avoid ord.
meaning:
-Absurdity-Narrow def (frustrate purpose/intent)
-Broad def (would should general common sense)
-Scriveners Error, or Constitutional Avoidance Doctrine.
5. See if other Intrinsic Sources are relevant to the
meaning:
-Grammar & Punctuation (unless they contradict each
other).
-Semantic Canons-In pari materia.
-The presumption of consistent usage and meaningful
variation.
-Rule against redundancy.
-Noscitur a sociis, ejusdem generis, or expressio unius
-Textual Structure: titles, preambles, findings, purpose
clauses.
6. See if Extrinsic sources are relevant to meaning:
-Other Laws-Conflicting statutes canons
-Harmonize if possible, if not:
-Specific statutes > General statutes & Later >
earlier ones.
-Timing-Pre-enactment-Social context
-LH: Bicameral passage, conference commitee
reports,
committee reports, Statements.
-Post-enactment
-Subsequent LH, strong stare decisis & legislative
acquiescence
-Deference to A Interpretation.
-Regulations
-Statutes
-Skidmore- Power to Persuade Test, or
-Chevron- 2 step.
ambiguous.
-Noscitur a sociis- A word has an ambiguous meaning
that meaning.

-Ordinary Meaning- "The Plain Meaning" Rule- Courts presume

that words in a statute have their plain or ordinary meaning.
Differs from definitional meaning.
-Use Dictionaries assist with determining the meaning (only
use as aids, not as evidence). Or use colloquial meaning.
-Ways to avoid Ordinary meaning:
-Tech. meaning- A word or phrase that has acquired a
technical or unique meaning in a specific context has
that meaning if the word/phrase is used in that context.
-If word has ordinary & tech. meanings:
-Whether surrounding words are technical.
-Whether statute was directed to a technical
audience.
-When in doubt, interpret in favor of citizen.
-New Textualists criticisms of LH- Illegitimate unless
product of bicameralism, can't know if it represents
everyone's intent, lack of review (congressman don't pay
attention; they rely on advisors too, not just reports),
Unreliability (political bias and lobbyist wooing),
Congress could use history to manipulate system and
separation of powers if they knew judges would use LH in
interpreting.
- Uses: Shed light on intent of enacting legislature or
identify statutory purpose. Determine specialized
meanings.
-Semantic Canons-Ever canon has an equal/opposite counter canon.
-In pari meteria- A section of an act should not be read in
isolation, and new statutes should be interpreted in
harmony with existing statutes.
-Presumption of Consistent Usage- Identical words in
different parts of the same act are intended to have the
same meaning.
-Avoid redundancy.
-Expressio Unius- The expression of one implies exclusion
of others.
-Criticism: Might be examples and not exclusive.
-Use only when items are members of a group or series
justifies that terms were deliberately left out.
-Ejusdem generis- "Of the same kind"- When there is a
list of terms followed by a "catch all" term, this canon
gives the last term a narrow meaning so it encompasses
only things similar to items specifically mentioned.
-Criticism: figuring out the shared characteristics of the
terms that limit the last term can be difficult.
-Two approaches: Use to int. text, or see if its
(usually broad or narrow), then surrounding terms can give clues to

-Criticism: When a broad term appears in a list with narrow

terms, its meaning could be narrowed.
-Avoidence Canon- Avoid interpreting statutes in a way that would raise a constitutional issue.
-Modern- Avoid interpretation if it would lead to a doubt of constitutionality.
-If it is reasonable or fairly possible (Brennan)
-If Congress wants to cross close to unconstitutionality line,
they must explicitly say it, or the canon will be applied
(Majority).
-Not definite unconstitutionality- creates a wider protectiveness
around the constitutional question.

-Formal RM is required if rule is required to be on

the record after agency hearing. Not required to
allow oral testimony.
LH:
Conf comm, comm reports, Sponsor statements, floor
-Language trigger on the record or after
statements, Hist & Subsequent LH, L Acquiescence (C agrees
hearing.
with it
because failed to amend, problematic) & Ratification (new leg
-If statute merely directs rule to be made
to
overturn judicial decision, given more weight).
after hearing then it does not necessitate
-The
Regulatory Process:
formal RM.
-Why
Delegate? Expertise, Ability to change things quickly, less
-Informal RM- N&C RM. Requirement 3 has been
partisan.
expanded and must include all significant
Procedures- Improve A of A decision-making (ensure relevant
comments, must answer vital Qs. Courts look at
info is
considered, guard against capture, and prevent hasty
this statement to determine if its arbitrary and
action.
Con- slower d-making, $$$, not accountable.
capricious.
-APA:
The APA sets minimum procedural standards for agency
-Preference for RM over ADJ because: The
proceedings.
efficiency implicit in its generality; The fairness
arising from more opp of participation by affected;
The accountability from openness; The tech quality
-Rule:
An agency statement of general or particular applicability and
that can result from its deliberateness; And its
future
effect, designed to implement, interpret, or prescribe law or
prospectivity, since adj is meant for applying
policy
or describing the organization, procedure, or practice
existing law/policy.
requirements of an agency. Formal/Informal RM. Rulemaking is
-Ct more likely to interpret a statute as
future
oriented. Typically about prescribing new law/policy.
requiring formal proceedings when the action in
Q is adjudication.
-Order:
Any authorization other than a rule. Formal/Informal
-Executive Control: Appoints Officer.
Adjudication.
-Removal: Exec. As- Appear under Pres in
organizational chart & run by officials who can be
fired at will. Independent As- Heads serve fixed
-Formal
RM- 556,557. Adversarial hearing (Agency v. Opposition),
terms in staggered years and are removable by
where
A has burden of proof on contested issues. Must show rule is:
Pres only for good cause (not subject to plenery
Reliable
and probative, provide substantial evidence, and the record
compiled in the process must support the rule. Affected parties have right to participate, be present, & cross examine.
-Overseen by Admin Law judge.
-Informal RM- 553. N&C RM. Does not require elaborate public hearing process. Three requirements: 1) Agency proposing rule
must give public notice by publishing notice. Notice must include: A) Statement of time, place, & nature of proceedings, B) Ref to
legal authority for proposed rule, C) Either terms/substance of proposed rule or description of subjects/issues involved. 2) Agency
must provide public with opp to comment on proposal, and 3) If it finalizes a rule, it must publish explanation; must: incorporate
in the rules adopted a concise general statement of their basis and purpose.
-Exemptions: Military & Foreign Affairs; Matters related to A management or personnel, or public property, loans, grants,
benefits, or contracts; Good Cause- RM is unnecessary (routine insignificant inconsequential determination), impracticable
(emergency situation making delay intolerable), or contrary to public interest (may induce undesireable anticipatory behavior on
part of the parties affected).

-Adjudication- Concerns past events; application of laws,

rules, policy, to factsJudicial aspect of rule-making.
Licensing and stuff.
-Formal Adjudication- 556, 557. Involve adversarial
hearings that involve an agency looking to impose a
penalty or resolve a dispute on a regulated party or
parties. MUST allow interested parties to make oral
presentation of their evidence.
-Give agencies flexibility b/c problems can be particularly
specialized & unique, it makes sense to be able to handle
them on a case-by-case basis rather than having to make
rules to try and anticipate everything.
-Chenery 1- A ct reviewing an agency action will consider
only the basis for that action proffered by the agency in
the rule or at issue. The rule/order must be made ahead of
time.
-Chenery 2- Agency has broad authority to make
rules/policy as it sees fit through adjudication or RM.
-5 factors to assess of legality of retroactive actions: 1)
Whether case is of 1st impression, 2) is new rule a far
departure from established practice, 3) the extent to
which the party relied on former rule, 4) degree of burden
on the party, 5) the statutory interest in applying new rule
anyway.
-Informal Adjudication: Agency decisions made w/o formal
trial-like procedures, using inspections, conferences, and
negotiations.
-No real specific procedural requirements, subject to
procedural restrictions from other statutes, and virtually
left to agency discretion.
-General Statements of Policy- An agencys memo, letter,
speech, press release, manual, or official delcaration of its
policy priorities or plans of how it will exercise its
discretionary authority. Provide advance warning of how it
is likely to resolve problems before it.
-Interpretive Rule-A declaration of how agency interprets
an ambiguous statute or regulation. No force of law.
Quantitative, Regulates conduct.
-The Force of Law Test"- Substantive rule has the force of
law and is more stringent. Policy statements do not, are
more broad. Rules have a practical binding effect on
parties.
-Judicial Review of Agency Rules:
-Ct may strike down agency action if it decides that its
decision was so unreasonable as to be Arb/Cap. Applies to
ANY change in policy. The same standard of review will be
applied to repeal of a regulation as it will be to the
enactment of one.
-A ct cannot add to agencys min standards, but the
standards can be added to other ways (by statutes,
constitution, and agency rules themselves. (VT Yankee).
-Policy: 1) Cts continuously monitor
procedures/proceedings to get correct results every time,
judicial review would be unpredictable Since agencies
cant predict, they will respond defensively and use overly
burdensome procedures (Formal RM) to guard against
judicial overruling (ossification of rulemaking proucess)
APA was a compromise to facilitate rulemaking &
unwarranted procedures would undermine that.
2) Agencies should be able to fashion their own rules or
persue inquiry to allow them to discharge their duties and
exericise their admin discretion in trying to find evidence
for their proceedings.
-Statefarm-Modern Hard Look Review- A must
examine the relevant data and articulate a satisfactory
explanation. The scope of rev under A/C standard is
narrow and a ct is not to substitute its judgment for that of
the agency. Agencies must examine the relevant data and
articulate a satisfactory explanation for its action.
-Satisfactory Explanation: 1) Agencies must examine
the relevant data and articulate a satisfactory
explanation for its action; 2) Include a rational
connection between the facts found and choice made;
3) The ct must consider whether decision was based

-Judicial Review of Statutory Interpretation

(Chevron):
-CHEVRON TWO-STEP:
-Chevron applies when Agency interprets a statute that it
administers.
-Step 1) Has C directly addressed the precise question at
issue (is the txt clear or ambig)?
-Decide using traditional tools of statutory interpretation.
-If YES, & cong. intent is clear A must implement as
written.
-If NO, or C is silent on the issue, then proceed to Step 2.
-Step 2) If the statute is ambiguous, is the A interpretation
reasonable?
-A/C standard.
-Hard Look Review
-Cts must review not based on whether the As
interpretation is a reasonable/permissible one.
-Textualists examine more thoroughly using all tools of int in
Step 1, leading to a clear meaning more often and
reaching Step 2 less often.
-What is an ambiguity?: Exhaustive efforts undermine values
of Chevron and likely wont produce more accurate account
of intent than As own int.
-Justification for Chevron: Cs silence = implicit delegation of
power to A.
-One view- Good, it enhances Cs ability to fix it, because
more accountability with As. Counter-view- Allows C to skirt
responsibility, knowing it will be left to A to interpret. They
can influence to make it do what it wants. If statute were
interpreted by the judge, then C has little influence over
their decision-making.
-Difference between CHEVRON and Hearst/Skidmore:
-Move from multifactor standard based approach to a rule
based approach.
-Doesnt distinguish between mixed/pure questions.
Significant because that line of cases gave deference to Qs
that were at least partly factual.
-Early Cases:
1) If Q of Law No Deference. Review is de novo.
- If Q of Pure Fact Defer to A.
2) If Q of Law and Fact Some deference.
-Hearst- Mixed Qs afforded substantial deference to As
conclusions as long as based on reasonable basis of law &
sufficient evidentiary support. Review only to ensure a
rational basis in the law and warrant in the record.
-Skidmore- Heart deference distinguished: 1) In Hearst,
there was formal adj with lots of procedural safeguards,
while here just an admin opinion. 2) Hearst opinion had
force of law as a legal decision.
-If A has appropriate power and goes through formal RM,
Hearst substantial deference applies.
-If No formal proceedings, or if A lacked Congressionallymandated power, then the A can get Skidmore Respect, but
not deference. [The rulings, interpretations, and opinions of
A not controlling, but do constitute a body of experience and
informed judgment. The wt of such judgment depends on
Factors: Was there some adversarial proceeding where it
heard evidence and tried to discern facts? How technical is
the material? As interpretation that is close in time to the
enacting of statute is given more deference. Thoroughness
of consideration, valid reasoning, consistency.] Applies to
non-binding statements such as opinion letters, guidance
docs, and interpretive rules. Respect due to As expertise
and experience.
-Mead: For informal adj only, formal proceedings always
pass Mead.
1) Admin implementation of statute qualifies for Chevron
deference when it appears that C delegated authority to the
A generally to make rules carrying Force of Law, & that
interpretation claiming deference was made pursuant to
that authority. 2) Delegation may be shown a variety of
ways, as by an As power to engage in adj or N&C RM, or
some other indication of a comparable congressional intent.
-Express delegation: C left gap for A to fill Such a ruling