Statutes and Regulations

All words should be given effect;
Every word has a unique meaning

Words used several times in a single statute have the same meaning

Each term or provision is viewed as part of an integrated whole

The same word in different statutes enacted with the same purpose may have a common meaning

Expression of one excludes all others;
I.e. Including some things as banned innately means others are not

A thing is known by its associates; a word is defined by the company it keeps

Of the same kind; specific defines the general
i.e. A specific list followed by a "catch-all" phrase

Congress does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions

(1) Whenever possible, legislation should be interpreted in such a way as to avoid constitutional questions;
(2) Courts shall not address a constitutional issue if there is another means by which the question can be answered

Courts should defer to the legislature because the legislature is democratically elected and directly accountable to the people

Vague or ambiguous statutory language should be interpreted in favor of those in violation of the statute

"Any person who receives, possesses, or transports in commerce any firearm"
Rule stating that "in commerce" only applies to transports because it was the last thing stated

"Any person who receives, possesses, or transports in commerce any firearm"
Rule stating that "in commerce" would apply to each portion of the statute individually

Statutes are presumed not to apply retroactively unless otherwise stated. Congress has the ability through explicit wording to apply a statute retroactively

The principle in administrative law that congress cannot delegate its legislative powers to agencies

Congress cannot delegate its legislative power to agencies outright, but must provide some "intelligible principle" on which the agency can base its regulations

Congress must define:
(1) The general policy the agency must pursue
(2) The boundaries of the agency's authority in pursuing that policy

(1) Plain or natural meaning (Dictionary)
(2) Colloquial Meaning (Conversational meaning)

If a statute addresses a particular community or is a term of art within a community, then word may be interpreted with a specialized meaning

A provision may be disregarded or corrected if failing to do so would render an absurd legal result.

Plain language of the statute, and nothing else, should control because it has weather the legislative process of bicameralism

Text plus; will utilize the plain language of a statute in addition to any documented legislative history

Text plus; legislative history; in addition to policy & purposes section, structure of the statute, title, mischief rule, and other canons of construction

Purposivist rule which dictates that legislatures pass rules in order to combat some "evil" or "mischief" in society

Until 1892: Against legislative history
1892-1940: Purpose Theory
1940-1980: Intentionalism
1980:-present: Strict or "New" Textualism

Permits a "person suffering a legal wrong or adversely affected under a statute because of agency action [to seek] judicial review"
APA creates cause of action where congress does not
Waives sovereign immunity of agencies
Only remedy to be granted is an injunction

Governed by §553 of the APA
Requires agencies to:
(1) Provide public notice of proposed agency action
(2) Provide an opportunity for public comment
(3) Publish an explanation of the rule should the agency decide to finalize a rule

(1) Provide notice
(2) Have a hearing
(3) Making an on-the-record decision

"Arbitrary and Capricious"- APA §706

Required by APA §706
Utilized in the process of judicial review, a "deferential", but "thorough and probing" review is required of the entire record—even where one policy is in question

The final rule resulting from a period of public notice and comment must be a "logical outgrowth" from the originally proposed rule.
(1) Changes must be in character with the original scheme
(2) Courts assess whether the parties should have anticipated the change
(3) Challengers win if they would have had to "divine the agency's unspoken thoughts"

(1) Failure to disclose all relevant data
(2) Failure to disclose the reasoning
(3) Failure to respond to significant comments

Agencies must:
(1) Explain motivation or reasoning behind a change of policy or action
(2) Agencies may not defend a decision on new grounds not set forth in the original decision (No post-hoc reasoning or rationale for policy change)

APA §706 Requires an Administrative Record

Courts may not impose additional requirements to the agency's rule making process where the agency complies with both the APA and statutory regulations
(1) Leads to consistency
(2) Courts have access to less information than agencies
(3) Agencies are experts in the specific area their agency operates in

Courts may engage in a "hard look" analysis at an agency's reasoning. Factors Include:
(1) Did the agency rely on factors Congress did not intend?
(2) Did the agency entirely fail to consider important aspects of the problem?
(3) Did the agency offer an explanation for its decision that runs counter to the evidence before the agency?
(4) Did the agency come to a decision so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Agencies are not required to show that a new policy is preferable to the old one.
Agency must however acknowledge the change in policy and demonstrate the new policy is not arbitrary and capricious
Special circumstances exist where rationale for new policy contradicts old policy or new policy poses harm to individuals previously governed by the old policy.
Considerations for special circumstances include:
(1) Did the agency have good reason?
(2) Was the agency aware of the change?
(3) Did the agency consider reliance interests?
(4) Did the agency explain any contradiction

Agencies are required to explain their reasoning for rescinding a rule. If found arbitrary or capricious, agency may:
(1) Provide more information and explain any non post-hoc reasoning; or
(2) Agency can pass a new rule or act

If no Chevron deference Step 0, then assess Skidmore Respect
(1) Thoroughness of investigation (level of detail, length, etc.)
(2) Validity of reasoning
(3) Consistency of interpretation (Consistent and longstanding interpretation noted by the court)
(4) All other facts in agency's power to persuade (Expertise, experience, etc.)

Chevron assumes that statute's silence or ambiguity constitutes an implicit delegation from congress.
King v. Burwell requires that:
In extraordinary cases of either:
(1) Major economic; or
(2) Major political questions
Statutes cannot be reasonably interpreted as a congressional deferment
(Major question factors include # of people/industries affected, political salience of the issue [news, elections, etc.], role of agency claiming right to deference)

Did Congress delegate authority to the agency to makes rules with the force of law? (yes or no)
[If no, no Chevron deference, instead assess Skidmore]

Did the agency actually act with the force of law?
Factors:
(1) Who the statute authorizes to approve interpretation?
(2) Whether the statute implies interpretation as precedential or not;
(3) How often are interpretations or agency decisions sent out?
Did the agency utilize official procedures in adopting an interpretation?
The more official the procedure, the more opportunity for review and revision, the more likely agency acted with the force of law
[If no, no Chevron deference, instead assess Skidmore]

Does the plain language of the statute address the situation in question? Is it ambiguous?
[Statutory interpretation done at this step (Text, intent, purpose)]

If statute ambiguous, was the agency interpretation reasonable? Some courts use a "soft glance" approach (is agency interpretation within the realm of possible interpretations) others use a "hard look" approach asking questions such as:
(1) Are the experts truly experts?
(2) How were the experts selected?
(3) Is the sample size actually meaningful?
(4) Is the % of experts who agree meaningful?
(5) What were the other options available and considered?

(1) Legislative Primacy
(2) Properly authorized congressional intent
(3) Agencies are experts in their fields
(4) Agencies have better access to greater amount of info
(5) Consistent interpretation of federal law if done by one agency body compared numerous courts
(6) It's literally their job

(1) Executive agencies subject to political winds
(2) Executives agencies "subbing in" [Gorsuch] for the job of the judiciary
(3) Courts bound by stare decisis, agencies are not
(4) Intelligible principle test
(5) Incentivizes congress to do a sloppy job

(1) Is there genuine ambiguity in the regulation
(2) Agency reading must reasonable (must be consistent with first interpretation)
(3) Does the character and context of the agency interpretation entitle it to Auer/Kisor deference?
(Did the interpretation "at least emanate from those actors, using those vehicles, understood to make authoritative policy in the relevant context?)
(1) Agency interpretation must be one actually made by the agency (authoritative or official position)
(2) Agency interpretation must in some way implicate its expertise
(3) Agency reading of a rule must reflect "fair and considered judgment" (Courts cannot defer where agency interpretation creates "unfair surprise" to litigating parties

(1) Did the agency take a hard look at relevant factors
(2) Did the agency make a clear error in judgment