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September 6, 2006

Chevron, OIRA, and Rulemaking

I stumbled across a recent, interesting article on ssrn for anyone interested in Chevron deference (the deference that courts give to agency interpretations of statutes).  Professor Lisa Heinzerling of Georgetown Law Center wrote a piece entitled Statutory Interpretation in the Era of Oira.  She explains that in recent years a department of the OMB has given statutes that relate to particular agencies (e.g., the EPA), its own interpretation, and, to use her words, has "foisted" its interpretation of the statute on them.  Her point:  this is not entitled to Chevron deference, since the reason for the deference -- administrative expertise -- is not implicated when it's OIRA and not the agency itself interpreting the statute.  The article is soon to be published, and is quite an interesting read.  In some ways, it echoes the "signing statements" discussion below.

September 6, 2006 in Current Affairs | Permalink


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"The paper trail in the cooling water tower case makes clear that OIRA foisted on EPA an nterpretation of the Clean Water Act that EPA itself had not developed."

"Thus, not only OIRA’s aggressive involvement in EPA’s interpretive choices, but also the agency’s lack of care in making these choices, counsel in favor of withholding Chevron deference to EPA’s interpretation in the rule on cooling water towers."

"OIRA's pointed involvement in this rulemaking proceeding, and in others like it, eliminates any argument for interpretive deference under Chevron."

Sigh. Seems like yet another attempt to elevate subjective intent over duly enacted law.

Do we care that the Ways & Means Committee ultimately controls all revenue bills which may be considered by the House (and later, the Senate)? Gosh, revenue bills are really controlled by Ways & Means-- judges should never defer to Congress's tax statutes, because those are ultimately controlled by a Congressional committee! To use the author's language, the Ways & Means committee "foists" its views on all of Congress!

What's wrong with leaving rules that undergo the democratic process alone? If an agency has complied with 553, leave its regs alone. If Congress delegates rulemaking authority to the Secretary, and the Secretary duly promulgates regulations, can't we respect the text? My gosh, should we start inquiring into the "intent" of regulations by examining the minutes of committee meetings within an agency? God forbid a mid-level staffer pronounce reservations about a regulation-- do we need to give effect to his subjective feelings? If the Secretary does not wish to promulgate regulations, he does not have to-- if OIRA is breathing too heavily down his neck, the Secretary has the ultimate decision whether to issue regulations, no?

It's bad enough that we've elevated subjective intentions to "law" in the legislative branch. Now, it seems like we're making inquiry into subjective intentions in the executive branch, as well. What's next, are we going to ask for Microsoft Word documents of judicial opinions? (after all, using the "Track Changes" function, we can get an idea of what the judge *really* intended when he issued an opinion! or maybe we can look at the emails before the judge and his clerk!). I'm cringing.

Another step backward in the development of American law. If judges start psychoanalyzing agency personnel, I'm quitting my legal job and just hopping to an investment bank. Wall Street seems like a less dirty career if we continue this farce. It's bad enough that I must examine "legislative history" every day to make sure that the statute is right-- if I have to start doing the same for Treasury regulations, I'm quitting ASAP. This has just become too much to bear. My heart goes out to the ordinary americans who potentially cannot rely on statutes and regulations, but now must hire a lawyer to discover the "intent" behind them. Sad.

I have no objections to the author's statutory analysis, but arguing that OIRA took too big a role in the regulations bothers me greatly.

On a positive note, at least I have an idea for another law review article :).

Posted by: andy | Sep 6, 2006 6:41:48 PM

I can see the criticism, but I also think her point actually supports your position. Congress enacts text; agencies interpret it; we defer to agency text when it's in line with the text; and, pertinent here, we defer when the text is ambiguous and the agency with expertise has interpreted it reasonably (we defer because of the expertise). So, you and she agree, I think: we ought to enforce the text. But the reason for deference to defering to a third party is gone when the third party isn't expert.

Aren't you all in heated agreement?

Posted by: David Hricik | Sep 7, 2006 1:56:56 AM

"Aren't you all in heated agreement?"

Nicely said :). I certainly express no objections regarding the first part of her analysis-- she cogently argues that the statute demands technology-based regime, and not a cost-benefit one. It certainly sounds like she's right, but it would take me a long time to come anywhere close to having the knowledge required to determine what's plain and not plain in the Clean Water Act.

I do have a very strong objection to the suggestion that a "paper trail" reveals that OIRA was "really" behind the regulations, and thus Chevron deference cannot apply. So long as the Secretary has the ultimate control to issue regulations, backdoor conversations with some political hacks at OMB cannot remove the deference owed to him. This seems to me no different from saying that "The Framers vested the legislative power in Congress, and not lobbyists, but I can prove that lobbyists all influenced the congressmen who voted on the bill. Thus, the statute is invalid."

The proper method to strike down these regs is, I think, based on her cogent argument in part 1-- Congress has spoken on the issue, and the agency does not have a gap to fill.

Alternatively, if 553's procedural requirements have not been met, then certainly the agency's rules cannot have the force and effect of law.

But the suggestion that a "paper trail" betrays that OIRA has "foisted" upon the Secretary its own views, and thus the regulations cannot be accorded deference, is too much to bear. Do we now need to examine if a few judicial clerks were too adamant in chambers with their judges, such that those clerks "foisted" their views on the judges? Or, as I suggested before, that because the Ways & Means committee controls what tax legislation reaches the floor, that it "foists" its views on Congress?

At the end of the day, Congress has the ultimate power to vote on legislation, the courts can issue opinions, and the Secretary can issue regulations. There are procedural minimums for each to follow (e.g. notice and comment, bicameralism/presentment, etc.) but never before have I seen anything that suggests that become someone or something "foisted" its own views on the party ultimately responsible for the decision that the decision is not entitled to respect. It is perhaps a sad commentary of our legal system that it's not just agency regulations, but also Congressional statutes which are the result of "foisting" by interested parties, but as far as i know, "foisting" is not adequate grounds to challenge a statute or regulation.

As a practical matter, I'm troubled by the further obfuscating of the Chevron doctrine (not that it hasn't been obfuscated beyond recognition already). According to the author, to determine the degree of deference owed to an agency, it is not enough to wander through the miserable "interpretative/legislative" distinction. Now, private parties must hire attorneys to examine the "paper trail" to determine if the Secretary's regulations really reflect what he was thinking, as opposed to what OIRA was thinking? I hope to god that this view does not catch on. May as well just disband Chevron altogether. On the bright side, demanding analysis of the "paper trail" means more high-paying legal work for me, so maybe I should keep my mouth shut.

The proper manner to challenge agency regulations is to argue that Congress has already spoken, that 553's requirments have not been met, or perhaps that the Secretary has acted arbitrarily and capriciously (within the meaning of 706). Perhaps there are some other accepted methods that elude me right now, but arguing that the Secretary caved into OMB does not strike me as a legitimate one (unless such caving in can be described as evidence that e.g. the secretary acted arbitrarily and capriciously, but the DOJ memo seems to refute that, for whatever it's worth). Certainly, "foisting" cannot stand on its own as a cause of action.

If one takes issue with EO 12291, then, by all means, take whatever legal routes are available to challenge that EO. But trying to negate an EO in this "backdoor" fashion-- by arguing that the Secretary has had views "foisted" upon him-- will cause more confusion than clarity.

Posted by: andy | Sep 7, 2006 3:35:43 PM

Thanks - good argument. I'm not sure what I think now that I've read your thoughts. I doubt, though, that as a practical matter her views will be followed by the current Supreme Court, at least.

Posted by: David Hricik | Sep 8, 2006 8:59:11 AM

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