Leg Reg Pt. 2

The statute delegated power to the EPA to set air quality standards "requisite to protect the public health." Leaves tremendous discretion to the agency when executing the statute. The D.C. Circuit says the delegation was too broad but kicks it down to the EPA to allow it to cabin its own discretion.

Scalia majority holds that an agency limiting its own discretion is not a valid cure for an overbroad delegation. But, dictionary definition of "requisite" indicates that it is sufficiently precise to constitute an intelligible principle.

Stevens concurrence says this is a broad delegation, but that this is permitted by article I.

Non-delegation doctrine.

Gundy challenged SORNA's delegation of power to the Attorney General "to specify the applicability" of the Act to pre-act offenders.

Kagan's majority looks at the language, context, and statutory history to find that the AG's discretion is appropriately cabined - limited in scope.

Alito would be open to revisiting intelligible standard.

Gorsuch in dissent looks only to the text itself and finds no limiting principle, would overturn intelligible principle in general because broad delegations of legislative power are unjustified.

New York had given the Public Health Council the authority to "deal with any matters affecting the public health." The PHC banned smoking in a wide variety of indoor areas that were open to the public. The court looked at whether the delegation was valid and whether PHC exceeded the scope of its authority.

The Court found the delegation to be valid, but that the PHC had exceeded its mandate. Established a four-factor test to determine whether an action exceeded delegable authority.
-Balancing costs & benefits of regulations (e.g. by exempting certain businesses on economic grounds) was a policy task that should be legislative.
-PHC wrote on a blank slate as opposed to "filling in the details" of a legislative policy.
-The legislature had tried and failed to pass similar bans through the legislative process -- indication of limited mandate.
-The regulation did not require expertise in the way delegated tasks usually did.

The NYC Board of Health had capped the size of cups used for sugary drinks at 16 oz. Court modifies the first Boriali factor to acknowledge that an agency should take cost into account, but that the comparison of different costs required legislative guidance.

President Wilson had appointed Myers to a four year term as Postmaster in Portland, Oregon. However, before his term was up, Wilson demanded his resignation. At that point a statute required that removals been done with the A&C of the Senate.

Taft majority held the limitation of the president's removal power to be unconstitutional, basing its conclusion in the vesting and take care clause.

FTC commissioners were protected from removal by an inefficiency, neglect-of-duty, or malfeasance clause. President Roosevelt asked Commissioner Humphrey to resign, and when Humphrey refused, FDR fired him. The issue was clearly political, and FDR did nothing to justify the termination as INM.

The court held that congress can constitutionally create a body independent of the president. Allowed INM removal limitation on removing FTC commissioners.

Statute aimed at cutting the federal deficit creates the GAO and the Comptroller General. GAO is a Congressional agency, but the CG was nominated by the President from a list of three suggestions from Congress. The CG had a long fixed term, protected by INM, removal required joint resolution from Congress before President could remove.

Majority found that the executive functions of the CG were significant, and that therefore granting congress exclusive removal power was a violation of SoP.

Ethic in Government Act allowed for the appointment of an independent counsel to investigate high-level executive officials. Congress could ask the AG to appoint someone, and once the AG agreed, a panel of judges would appoint the IC. The AG could remove the IC only for cause.

Rhenquist majority upheld the for-cause removal of independent counsel on the basis of them being "inferior officers" empowered only to perform limited functions. The court distinguishes it holding from Myers and Bowsher because congress is not reserving removal power for itself. Though affirming the principle of Humphrey's Executor, the court moves away from the "quasi-legislative" framework and asks instead if the limitation intrudes on the president's core article II functions.

Sarbenes-Oxley Act created a Public Company Accounting Oversight Board to regulate the accounting industry. The Board consisted of five members appointed to staggered five-year terms by the SEC. Part of the Act provided for "for-cause" removal by the SEC. Since the SEC commissioners are also protected by "for-cause" provisions, this created a "dual for-cause limitation" on the President's ability to direct the PCAOB.

Roberts majority considers this as a case of first impression because of the double insulation feature of the PCAOB. Court finds that the second layer of protection alters the nature of presidential review and makes board members too insulated.

CFPB sole director held wide authority and served a 5-year term with INM removal. An administrative law judge (ALJ) for the CFPB issued a recommended decision sanctioning PHH Corporation (plaintiff). The director affirmed the sanction. PHH filed suit arguing that the CFPB's structure, with limited oversight, limited accountability to the executive branch, and limited removal powers, violated the separation-of-powers doctrine.

Majority upholds the structure but the decision is abrogated by Seila Law.

Dodd-Frank Act created the CFPB which is headed by a single director with a five year term. He is removable by the President but protected by INM for-cause removal provision. The constitutionality of the CFPB was challenged based on the for-cause removal protection of a single director.

Roberts majority held that Congress may not restrict the President's power to remove such officers, except for a multimember body of experts who were balanced along partisan lines or for an inferior officer. Neither applied here, and the court declined to recognize a further exception.

If a "subordinate body" makes a decision that impacts a particular group of people, the people being affected have a right to be heard. Due Process requires agency adjudicative action to include a hearing.

State-wide increase of tax valuations on all property was challenged on due process grounds. There was no due process right to be heard in person if it affects everyone. Only check is electoral pressure. A rule of general effect does not require a hearing.

Court declared a legislative veto in immigration law to be an unconstitutional violation of the constitution's bicameralism and presentment requirements.

Pros
-Congress ought to be able to attach "strings" to delegations - particularly when it allows democratic oversight.
-Provides flexibility in governmental mechanisms that the Framers could not have foreseen the need for.
-Congress does not have the capacity to oversee everything that the administrative agencies do, but it need to reserve authority to review rules and acts.
Cons (Brubaker)
-Distorts the legislative process by allowing dissenters to join the majority to pass a bill (appearing to be addressing difficult issues) while obstructing the agency's ability to implement the statute.
-Makes the agencies much more concerned about the views of the current Congress and members of committees and subcommittees, which means they may abandon the mission of the enacting Congress altogether.
-Encourages broad delegations of power because Congress can exert continued control over the agencies as they exercised their delegated authority.

Noel Canning attacked an NLRB enforcement action by asserting the illegitimacy of three NLRB members. The D.C. Circuit held that recess appointments could only be made if the vacancy and the filling of the position took place during the same recess. Also, concluded that "recess" only meant the period of time between two sessions of Congress, and these appointments had taken place while the 112th Congress was in session (if at home).

Breyer majority held that pro-forma sessions are a valid way of preventing recess appointments.

Law that gives Congress the opportunity to overrule agency actions within 60 legislative days of the rule's issuance.

Relatively unused (only once before the Trump Administration), it has gotten a lot of action in the Trump Administration.

Democrats have called for its repeal, but bipartisan efforts have appeared to overturn the FCC's recent net neutrality rule.

Set the modern framework for OIRA review of agency action. Reviews "significant regulatory actions" of agencies (not independent agencies), prior to the start of notice and comment, in order to facilitate interagency cooperation and efficiency.

Defines rulemaking under the APA. General notice of rulemaking shall be published in the Federal Register. If the statute requires rules "to be made on the record after an opportunity for agency hearing," gets sent to S. 556-7 for procedural requirements.

Formal Adjudications

Informal adjudications

Rules for Hearings

Rules of decision

Arbitrary and capricious review

judicial review of actions in excess of statutory authority

judicial review of actions unsupported by substantial evidence in a case subject to APA sections 556 and 557.

Railroads challenged the Interstate Commerce Commission's implementation of a per diem incentives program aimed at resolving a chronic freight car shortage. The railroads challenged because it was imposed without a formal hearing. The question came down to whether this was a Londoner-style adjudication or a Bi-Metallic-style rule-making process.

Rehnquist majority construed "after hearing" language of the ICC statute narrowly to exclude the "on the record" requirement of the APA. Without the magic words, the notice and comment process of 553 is sufficient.

The court identified three factors that determine the requirements of due process in an informal adjudication.
(1) the private interest
(2) risk of erroneous deprivation by procedures used
(3) the governments interests and the cost of greater procedures.

The FDA had issued rules requiring particular processes to be followed in cooking all types of fish. NSFP did not follow the new rule, and this case came to the Second Circuit on appeal of an enforcement action against NSFP. The issue was whether the enforcement action could stand. The analysis turned on whether the FDA had followed proper procedures in issuing its rule.

Court held that the FDA failed to disclose all pertinent research material used when making the rule, and thereafter failed to materially respond to criticism. Agency must also make clear why it chose one path over the other.

The FDA had issued rules requiring particular processes to be followed in cooking all types of fish. NSFP did not follow the new rule, and this case came to the Second Circuit on appeal of an enforcement action against NSFP. The issue was whether the enforcement action could stand. The analysis turned on whether the FDA had followed proper procedures in issuing its rule.

Gurfein court held that the agency must disclose all pertinent information used to make its decision so that interested parties can comment as to the validity of the science. The failure to present such data limited parties' ability to comment. An agency must also respond to material criticism in such a way that makes clear why it chose one path over another.

Unless the agency can modify the final rule after comment, there is no purpose in having a comment period. The modification must not be so extreme as to have prevented those affected by the final rule to have had the chance to comment. Agencies can modify a rule based on comments as long as the new rule is a logical outgrowth of the old rule.

The Second Circuit had applied State Farm to overturn the agency's order against Fox that rested on treating "expletive" and "literal" uses of the f-word differently. The agency had called the previously existing distinction artificial and had ruled against Fox. The Second Circuit said that the FCC had not adequately explained why it had changed its longstanding rule.

Scalia plurality held that State Farm only stands for the proposition that rescission of an existing rule only requires more of an explanation than would declining to act in the first instance. Changing positions does not alone require more searching review - an agency must acknowledge it is changing its position, but it need not demonstrate why the new position is better.

FCC provided sufficient justification based on changing technology to satisfy arbitrary and capricious review.

Key Concept: there is no different standard of review between independent and executive agencies.

States, local governments and private organizations file petition with EPA asking it to begin a rulemaking under the Clean Air Act to deal with the climate warming caused by auto emissions of greenhouse gases (GHGs). EPA has authority to set standards for motor vehicle emission of air pollutants. EPA issues order denying the rulemaking petition. In its view, rejecting former general counsel opinions, it does not have authority under Clean Air Act to address climate change - Act preceded awareness of climate change, and Congress has passed other measures re climate change, so GHGs are not "air pollutants" (cf Brown & Williamson, FDA regulation of tobacco). Even if it had authority, there is too much uncertainty re nexus of human activity and warming, and EPA regulation would be inconsistent with the President's "comprehensive approach" to the problem.

Stevens majority found that the denial of a petition, unlike a decision not to pursue an enforcement action (as in Heckler) is reviewable under a highly deferential standard. The petition has already triggered an "action" for APA purposes. Once EPA has responded to a petition for rulemaking its reasons for action or inaction must conform to the authorizing statute.

The SEC was dealing with the reorganization of a company in which the directors purchased chunks of stock to maintain control and to profit form the reorganization. The SEC's first decision did not have a legal basis, so on remand it issued a new ruling (the same result) basing its decision on broad statutory interpretation rather than on judicial opinions. The issue was whether the SEC could issue a new standard through adjudication rather than rulemaking when there is no rule on point.

Murphy majority held that "the function of filling in the interstices of the Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future." However, an agency can adjudicate a case of first impression and promulgate a new standard through that adjudication. Review of such an order is no different from other APA review - Arbitrary and capricious.

The NLRB was faced with the question of whether certain sales staff were management or labor. Although they had historically been treated as management, in this adjudication the NLRB reversed itself and defined them as labor. Bell challenged that this was the type of change that needed to be made through rulemaking.

Powell majority, relying on similar reasoning and on Chenery to a great extent, held that the NLRB could use adjudication to define terms this way. The choice between adjudication and rulemaking is discretionary and unreviewable.

NRC adopts new rules for the conduct of APA on-the-record hearings held as part of the nuclear reactor licensing process. Case formally a 706 review of whether the rules are arbitrary and capricious. Substantively it addresses what procedures the APA requires at a formal adjudication hearing, and which ones, typical for a judicial trial can be reduced.

Selya majority holds that court cannot require more than is required by the "skeletal" APA and due process - no inherent right under either for, eg., cross examination. An agency is free to change its own rulemaking procedures as long as such a change is reasoned and not arbitrary and capricious.

Issue is whether an agency reversing itself on its interpretation of a regulation requires notice-and-comment. Paralyzed Veterans required notice-and-comment when an agency promulgated a rule that deviated significantly from a regulation it had previously adopted. The MBA was trying to extend that precedent to the current situations.

Sotomayor majority found Paralyzed Veterans to be inconsistent with the APA. The exception of interpretive rules from notice and comment requirements in 553(b)(A) is "fatal." There is no notice-and-comment requirement for changing interpretations.

Issue is deciding whether a particular agency communication is an interpretive rule or a legislative rule requiring notice-and-comment.

Williams majority sets out a four part test;
(1) inadequate alternative basis for an enforcement action?
(2) Published in the Code of Federal Regulations
(3) Explicit invocation of general legislative authority?
(4) did the agency effectively amend a prior rule?

EPA regulation allows parties to dispose of certain waste in a manner of their choosing as long as they submit a satisfactory risk assessment. EPA release a guidance document specifying two appropriate forms of risk assessment, but one was prohibitively expensive.

The DC Circuit found that the guidance document was in effect binding on the parties, because it facially requires applicants to use one of two methods, one of which is prohibitively expensive. Because it is binding, the court finds the rule to have the force of law. It therefore should have gone through notice and comment.

DAPA extended DACA coverage to certain illegal aliens who were the parents of American citizens or permanent residents. Couched in the same prosecutorial discretion framework as DACA, DAPA was framed as a policy statement describing the way the DHS would approach these cases. By its own terms, DAPA did not grant individuals any legal status. However, it did say that people under DAPA could be "lawfully present" in the U.S., suggesting some sort of quasi-legal status.

Smith majority upheld a preliminary injunction against DAPA as substantive policymaking. Systematic policy on non-enforcement moves the policy out of the "agency discretion" sphere and into the rulemaking sphere. Because it confers substantive rights and is binding on parties, it is likely that a court will find it to be a rule requiring notice and comment. Injunction upheld.

APA S. 706(e) creates a "substantial evidence" requirement for formal adjudication. Judicial precedent unclear about whether this requires an assessment of the totality of evidence.

Frankfurter majority holds that holds that substantiality of the evidence must take into account whatever in the record fairly detracts from its weight. Courts do not review findings de novo, merely require that full record be taken into account.

The Secretary of Transportation approved a plan that ran I-40 through a park in Memphis. While the Secretary's opinion was essentially a concurrence with local authorities, it was not accompanied by any factual record describing the decision-making process. Part of the problem was identifying the appropriate standard of review. The second issue was deciding whether the lower courts had appropriately applied that standard.

Marshall majority established the "hard look" doctrine for arbitrary and capricious review, holding that the substantial evidence test was limited to 556

...

"Soft glance" as opposed to hard look. Concerns that aggressive review of agency policy would lead to ossification because second guessing by non-expert courts undermines their ability to act decisively on important policies. Shift mostly occurs at the circuit level.

Rhenquist majority upheld refusal by the FDA to investigate the applicability of the federal food and drug standards to lethal injections. Agency decision not to prosecute or enforce is committed to an agency's absolute discretion—complicated balancing of resources, factors, expertise. Based on notion that such decisions were presumptively unreviewable under the common law, that it was Congress' intention under the APA to codify the common law, and that therefore such a presumption should be sustained under the APA.

Decision not to cover lethal injections committed to agency discretion.

Nuclear power plant licensing case - dispute over the procedure used in AEC's rulemaking proceeding concerning how to consider the environmental hazards posed by fuel reprocessing or disposal. DC Circuit "examined the rulemaking proceedings and [although] . . . the agency employed all the procedures required by 5 USC § 553 and more the court determined the proceedings to be inadequate and overturned the rule." DC Circuit appeared to "only examining the sufficiency of the evidence" but also called for "further procedural devices" - found that the agency's procedures were insufficient "to ventilate the issues."

Rhenquist majority held that reviewing courts cannot made mandate procedures beyond those required by the APA or constitutional due process. Once the APA and DPC are satisfied "the very basic tenet of administrative law [is] that agencies should be free to fashion their own procedures."

The NHTSA had gone back and forth on regulations requiring passive restraints in vehicles throughout the Johnson, Nixon-Ford, Carter, and Reagan administrations. Going into the 1980s, the regulation required all cars to be built with passive restraints—either automatic seatbelts or airbags. When the Reagan Administration realized that the vast majority of manufacturers were going for automatic seatbelts rather than airbags—meaning that the measures were easier to defeat—the NHTSA rescinded the standard altogether.

White majority held that arbitrary and capricious if:
-The agency relied on factors which Congress had not intended for it to consider.
-It entirely failed to consider an important aspect of the problem.
-It offered an explanation for its decision that ran counter to the evidence before the agency.
-The decision is so implausible that it could not be ascribed to a difference in view or the produce of agency expertise.

SEC promulgated a regulation requiring proxy access for shareholders proposing directors. The Business Roundtable sued on the ground that the SEC rule was arbitrary and capricious.

Court found rule to be A+C because it failed to undertake empirical analysis of costs.

The DOC is in charge of the census, and the Secretary added a citizenship question to the 2020 census, justifying its decision on the basis that the DOJ had requested citizenship data to better enforce the NRA. Several states sued on the basis that this would produce undercounts in several states with high non-citizen populations. They asserted that the decision was arbitrary and capricious on two grounds. First, that there was no factual basis in the record to support the decision. Second, that the reasons given were pretextual and thus invalid. The government argued that the Secretary's decision was not reviewable.

Roberts majority found that, though the DoC had satisfied arbitrary and capricious review, the court found the stated grounds to be pretextual.

Pretextual exception to otherwise valid A+C review.

Are three-ring bound "day planners" within the category of "diaries, notebooks, and address books, bound; memorandum pads . . . and similar articles" or "Other: registers, account books, and receipt books" for purposes of determining the tariff on imports. Title 19 provides that the US Customs Service under rules and regulations prescribed by the Secretary of the Treasury fix the classifications and rates for merchandise subject to tariffs. From 1989 to 1993, the USCS treated the day planners as no-tariff Other, then by "ruling letter" reclassified them as 4%-tariff diaries.

Souter majority holds that Chevron deference is triggered by Congress to agency to "speak with the force of law"—expressly or implicitly. However, Skidmore deference can still apply even if action outside the scope of Chevron.

1996 Amendment to the Communications Act requires that state and local governments act on wireless siting applications "within a reasonable period of time after the request is filed" 47 USC 332(c)(7)(B)(ii). FCC issues a reg under 332(c)(7)(B)(ii) defining reasonable period as presumptively 90 days for a new antenna and 150 days for all other applications.

Scalia majority holds that "jurisdictional" and merits questions are inseparable - really a matter of semantics over whether the agency has been given power to act or has used its power improperly. Issue is only "whether the statutory text forecloses the agency's assertion of authority or not."

The issue was whether the Attorney General could regulate, through an interpretive rule, the prescription of drugs for physician assisted suicide as legalized under Oregon law. Since the AG asserted Chevron deference, the Court focused on whether Congress had given the AG authority to regulate the particular behavior at issue.

Kennedy majority uses Mead to conclude that AG had no delegated authority to regulate area. Regulation of medical practice in terms of drug rehabilitation shared with Secretary of HHS, and AG has small role. Delegation would be too broad for Congress to have delegated this power implicitly. Congress delegated the power, but not to this agency.

Longstanding unofficial policy was to define auto service advisors as salesmen under the FLSA exception from overtime rules. The agency maintained that stance from 1987 until 2008, when it issued a proposed rule to formalize that interpretation. However, in 2011, it reversed its original position and said that service advisors did not fall under the exception. The 9th Circuit Chevron-deferred to the 2011 rule, but the Supreme Court reversed.

Kennedy majority held that an agency must display awareness that it is changing position, including being cognizant of the fact that longstanding policies may have created reliance issues (FCC v. Fox), and that unexplained inconsistency is a reason for concluding a policy is A&C (Brand x).

Arbitrary and capricious rules are not entitled to Chevron deference.

CAA directs EPA to regulate power plant emissions of hazardous air pollutants whenever it "finds such regulation is appropriate and necessary" 42 USC § 7412(n)(1)(A). EPA issues "emission floor standards" for power plants because it finds them to be create a substantial risk of harm to humans and the environment and they can be controlled. It explicitly declined to consider cost.

Scalia majority held that a failure to consider cost rendered the rule arbitrary and capricious.

Statute delegated rulemaking concerning the tax credits to the IRS, which used notice and comment rule-making to determine that credits are available for federal exchange purchases. Assuming, as the Court concludes, that the statute is ambiguous, shouldn't the IRS rule get Chevron deference - Mead is satisfied with both a clear delegation and a formal process.

Roberts majority denies the IRS Chevron deference absent an explicit delegation of a question of such importance. In short, unlikely congress would have delegated essential question of health policy to IRS rulemaking.

Birth of a "major questions" exception to Chevron - with links to Brown & Williamson, MCI and Gonzales.

Corps included intrastate gravel ponds in their definition of navigable waters under their migratory bird rule. Question was whether this interpretation receives chevron deference.

Rhenquist majority rejects Chevron deference where the interpretation in question would raise constitutional concerns. Adopts a constitutional avoidance doctrine exception to Chevron.

Congress provides federal funding for family planning services. Secretary of HHS to promulgate regulations setting conditions on recipients to ensure that "grants will be effectively utilized for the purposes for which made." Section 1008 prohibits use of grant funds in programs where abortion is a method of family planning. 1971 regs implement that; don't regulate counseling or the provision of information. 1988 - new regulations prohibit the use of Title X funds to "provide counseling concerning the use of abortion as a method of family planning" or refer for abortion. Challenged on both APA and constitutional grounds.

Court finds no need to apply the constitutional avoidance exception to Chevron where it was clear that congress intended to push the envelope on constitutional issues.

In a labor dispute, the DOL filed an amicus brief with the Supreme Court describing the way the DOL had interpreted the underlying statute. The agency's practices and recommendations are not binding on a court, but the question was whether they should be afforded some deference.

Jackson majority held that agency interpretations of statutes are entitled to respect because they "constituted a body of experience and informed judgment" on the matter at hand.

The weight of the agency's opinion depends on:
-The thoroughness evident in its consideration.
-The validity of its reasoning.
-The consistency with earlier and later pronouncements.
-All those factors which give it power to persuade, if lacking power to control.

EPA had allowed states to define a single "stationary source" as a broader existing plant containing several pollution-emitting devices. This allowed installation or modification of polluting devices as long as they did not increase the pollution of the larger plant. The question before the Court was whether the EPA's decision to allow "bubble" treatment of "stationary source" was legal.

Stevens majority establishes 2-step doctrine of Chevron deference.

Scalia majority denies deference to an FCC abolition of tariffs for non-dominant carriers through an extensive dictionary investigation of the word "modify." Basically a reasonableness analysis under Chevron step II.

Court leaves Chevron ecosystem when what is being interpreted is an Agency regulation.

Under Auer, if an agency could show that it was interpreting an existing Chevron-eligible rule, the interpretation was considered controlling unless plainly erroneous or inconsistent with the regulation. The issue in Kisor was whether to overrule Auer altogether.

Kagan majority performs a "stepification" of Auer, bringing it closer to Chevron.
-Underlying regulation must be a candidate for Chevron and must be ambiguous after full exhaustion of statutory interpretation.
-Agency interpretation must fall within the zone of ambiguity
-Interpretation must be authoritative, must implicate agency's interpretation, must reflect fair and considered judgement.

Plaintiffs brought a negligence action against Honda under D.C. tort law for failure to equip its cars with airbags that would have prevented the plaintiff's injuries in an accident. The issue was whether federal regulation allowing companies to choose either airbags or other passive restraints preempted state regulation of the issue through tort law.

Breyer majority finds that there is a conflict between a "no airbags" tort action and the federal regulatory scheme that had rejected a mandatory airbags rule. Conflict preemption.

FDA argued that the company's compliance with FDA labeling requirement insulated it from state tort duty to warn claim, but court found that the higher requirements of a state tort duty would not interfere with the ability to comply with FDA regulations. Critical issue is that labels can be modified without FDA approval.

Wyeth except now the FDA says that the manufacturer needs FDA approval to change the drug label; This time the agency gets deference and the state tort suit preempted. State liability would interfere with company's ability to comply with federal regulations.

Dispute stems from the FCC's differential treatment between internet service providers providing internet access via telephone lines (subject to common-carrier regulations) and ISPs using cable modem service technology. The Ninth Circuit had ruled against the agency since it had precedent on point defining cable modem services as a telecommunications service subject to common-carrier law. The issue is whether a court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference.

Judicial interpretations cannot bind agencies otherwise entitled to Chevron deference. A contrary ruling would lead to ossification and a race between courts and agencies to define a term.

Although ambiguity traditionally is an indicator of implicit congressional delegation, SCOTUS finds that even though there is ambiguity in this statute, the agency's action is impermissible because Congress has a separate statutory scheme (like Brown & Williamson) regulating the matter and thus there was no delegation in the first place. So, ambiguity as an indicator for implicit delegation of authority is just a rebuttable presumption.

Ambiguity can be overcome by existence of separate statutory scheme.

On national security matters, congress is much more deferential than even Chevron in that it does not require any congressional delegation. If Congress has not expressly preempted action in a particular arena dealing with foreign affairs, the President can act.

8 USC 1182(f): Whenever the President finds that the entry of any aliens or class of aliens . . . would be detrimental to the interests of the US, he may . . . for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Was the President's Proclamation No. 9645 restricting entry of nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen a valid exercise of that power? What standard of review?

Court holds that 1182(f) finding obligations are considerably narrower than what is required by A&C review under the APA.

State take on Chevron that uses plain meaning and whole act to deny ambiguity in the statute and thereby strike down an agency interpretation stating that canned hunts cannot be regulated as wildlife.