Journal on Legislation Online

Abbe R. Gluck [*]   Abstract The Supreme Court does not have a coherent theory of the Court-Congress relationship in statutory interpretation. Nevertheless, the Court overruled Chevron based on a theory of statutory-interpretation separation of powers that is inconsistent with much of its actual statutory-interpretation practice. Reading only Loper Bright, one would think the Court imagines itself in an ongoing dialogue with Congress. One would think the Court is not eager to impose its own policy values on Congress. One would think the Court is interested in effectuating legislative intent and furthering interpretive predictability. One would be wrong. Loper Bright’s…

Daniel T. Deacon[*] & Leah M. Litman[**]    I. Introduction In Loper Bright Enterprises v. Raimondo, the Supreme Court finally did what many long hoped (or feared) it would do: overrule Chevron v. Natural Resources Defense Council. Chevron instructed courts to defer to an agency’s interpretation of an ambiguous statutory provision, provided the interpretation was reasonable. Chevron, according to Justice Kagan, had “served as a cornerstone of administrative law” and “the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Not…

Donald L. R. Goodson [*]    Discretion is not deference. Many often confuse the two, but the distinction is important, especially now that the Supreme Court has eliminated the deference doctrine associated with Chevron U.S.A., Inc. v. Natural Resources Defense Council. Chevron deference concerned ambiguous statutory terms or phrases (and implicit grants of authority), while discretion often concerns unambiguously broad statutory terms or phrases (and explicit grants of authority). So even with Chevron deference gone, agencies that can point to broad terms or phrases in the statutes they administer will retain wide latitude to carry out their missions. The Supreme…

Greg Dotson [*]    I. Introduction Justice Antonin Scalia famously argued that looking at legislative history is like “walking into a crowded cocktail party and looking over the heads of the guests to pick out your friends.” His point was that relying upon legislative history for statutory interpretation allows judges to select, from a wide range of potentially conflicting materials, those materials that support that judge’s policy preferences. Justice Scalia summed up his view in Conroy v. Aniskoff: “[i]f one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one…

Sean H. Donahue & Megan M. Herzog [*]    I. Introduction The Supreme Court’s emergency docket is now a central part of federal environmental law despite being completely absent just ten years ago. As Professor Stephen Vladeck and others have documented, the Court has entertained and granted emergency relief, such as stays or injunctions of regulations and lower court rulings, far more commonly in recent years than at any other time in its history. A notable number of the Court’s recent high-profile emergency docket actions have involved rulemakings by the Environmental Protection Agency (EPA), for instance: the historic order blocking…

Patrick Jacobi & Jonas Monast [*]    I. Introduction It has been two years since the U.S. Supreme Court formally embraced the Major Questions Doctrine (“MQD”) in its groundbreaking decision in West Virginia v. EPA. On its face, the doctrine is limited to “extraordinary cases . . . in which the history and the breadth of the authority that the agency has asserted, and the economic and political significance of that assertion, provide a reason to hesitate before concluding that Congress meant to confer” the authority for the challenged regulation absent “clear congressional authorization.” In practice, however, the MQD is…

Derek P. Langhauser [*]   I. Introduction In 2005, the Westboro Baptist Church (“Westboro”) from Topeka, Kansas, began protesting the funerals of American soldiers killed in action. Typically, the protestors would carry signs with messages like “God Hates Fags” and “Thank God for Dead Soldiers.” In 2011, the Supreme Court of the United States ruled in Snyder v. Phelps that Westboro’s protests were protected under the First Amendment of the United States Constitution. Five weeks after Snyder, United States Senator Olympia J. Snowe (R-Me.) introduced a bill, the Sanctity of Eternal Rest for Veterans (“SERV”) Act, to increase protections for…

Bernard Bell [*], Cary Coglianese [**], Michael Herz [***], Margaret Kwoka [****], Orly Lobel [*****]     “Agency policies which affect the public should be articulated and made known to the public to the greatest extent feasible.”  Administrative Conference of the United States (1973) It is axiomatic that in a just society the law must be broadly accessible. This principle obviously applies to legislatures and courts, but it applies no less to administrative agencies which regularly make, interpret, and apply laws. Agencies should make the legal materials they produce open and accessible to the public. These materials include documents that…