Greg Magarian for Legislation in Spring of 2016

Exam Overview
o 2 issue spotters (1,100 words each)
o 1 question to defend proposition (800 words)
o 3000 words total
o Organize/outline before you start writing
o Write for 5-6 hours of the 24 hour period
1964 Civil Rights Act
o Originated with Kennedys Justice Department
Must be introduced by member of Congress
Descriptive and Normative Theories of Legislation (38-60)
Descriptive
Interest Group/Pluralism Public Choice
Proceduralism
Vetogates
Deliberation
(institutions)

Normative
Pluralism
Liberal
Republican

o Public Choice
Horse Trading
Concentrated benefits and dispersed costs
Intensity of Preference ex.: NRA/Gun control
Most people dont care, but gun people with freak the fuck out
o Proceduralism
Vetogates make it harder to pass legislation
Libertarian kind of thinking
Conservative view, in modern terms
o (Classical liberalism)
Deliberation can inform the public and legislators, as well as influence
or change legislation
Classical Republicans want to refine and enact public interest legislation
Focuses on generating good legislation, not minimizing legislation
Title VII as Applied: Interpretive Issues (pp. 61, 69-110, 114-116)
o Griggs v. Duke Power Co. (1970) page 70
Issue 703(h) Whether professionally developed tests must be job
related, and if non-job related tests are prohibited if they have a disparate
impact on a protected racial class
Text of 703(h) says nothing about job-relatedness, only that tests
must be professionally developed
Lower court rules test is ok
Senator Towers (sponsor of 703) indicated he included the
provision in response to the Motorola case, which found Motorola
in violation of Title VII because of a general intelligence test

Point here is textualism/ambiguity vs congressional purpose

o Intent is specific, purpose is general
Courts defer to agencies & administrative bodies like the EEOC in order
to keep litigation manageable
Political environment is relevant when considering motives or
interpretation of agencies (Bushs EPA or Obamas EEOC)
Supreme Court overrules lower court and creates disparate impact doctrine
(which prohibits unintentional discrimination)
o United Steelworkers v. Weber (1979) page 80
5 out of 273 craft workers were black
Management started a training program with a 50% black quota
White guy sued alleging racial discrimination
Court says purpose of law is not to put employers in between a rock and a
hard place; quota is fine
o Santa Clara County (1987) page 96
Brennan stresses Weber
Weber must have been right since Congress hasnt changed anything
Scalia shreds this argument; argues for textualism
Scalia brings up working class white guys getting screwed
Straight up precedent/ stare decisis carries the day
Held that a public employer's decision to promote a female applicant
pursuant to a voluntary affirmative action plan was fully consistent with
Title VII's purpose of eliminating the effects of discrimination in the
workplace and that Title VII should not be read to thwart such efforts.

II. POLITICAL DETERMINANTS OF LEGISLATION

Representational Structures: Political Equality; Racial Vote Dilution (pp. 117-141)

o Legislature is supposed to represent the people
Legislature is only as legitimate as process that elects it
o Theoretical language about representation
Accuracy
Want representation to be accurate - **inherent goal of republican
government
Descriptive theory Microcosm of the collective (page 117)
Cant get it perfect
One way to approach descriptive representation is to look at issues
rather than irrelevant factors (Irish vs. Croatians)
Agency theory Representative is agent of the constituency (117)
Follow orders; should attempt to act as constituents want the
representative to act
Goes with pluralism normative evaluation

o Accounts for interest groups

Trusteeship theory Representatives should exercise their judgment
when making decisions/voting (117)
Use best judgment
Wisdom of representative
Republican
Voting Right of aggregation districting issues describes right of an interest
group not to get cut up into multiple districts and effectively nullify their
representation
Voting Rights Act effectively guaranteed African Americans the right to vote
Gerrymandering
cracking Splits a district in order to split a constituency (split
up a city)
packing Put all of a constituency in one district (90% in one
district 60% in 2 districts)
stacking example: At large voting on all city councils where
city is 60% white and 40% black
City of Mobile vs. Bolden
Stacking case (at large voting)
Thornberg v. Gingles (139) cracking case
Section 2 of Voting Rights Act
Section 2 of the Voting Rights Act of 1965 prohibits any
jurisdiction from implementing a "voting qualification or
prerequisite to voting, or standard, practice, or procedure ... in a
manner which results in a denial or abridgement of the right ... to
vote on account of race," color, or language minority status.
Supreme Court had held there is a private right of action
3 Gingles factors Plaintiffs must show to demonstrate minority vote
dilution (on page 139)
The racial or language minority group "is sufficiently numerous
and compact to form a majority in a single-member district;
The minority group is "politically cohesive" (meaning its members
tend to vote similarly); and
The "majority votes sufficiently as a bloc to enable it ... usually to
defeat the minority's preferred candidate."
City of Rome (1966)
Georgia Preclearance Case (5/4(b) of Voting Rights Act)
Rule - Congress has the authority to regulate state and local voting through
the provisions of the Voting Rights Act, as the Fifteenth Amendment
supersedes contrary exertions of state power, and this act is an appropriate
means for carrying out Congress constitutional responsibilities under the
Fifteenth Amendment. Congress also has the power to regulate practices

that it sees are discriminatory, even if no evidence of past discrimination is

in the present record.
o Shelby County v. Holder (2013)
Court ruled by a 5-to-4 vote that Section 4(b) is unconstitutional because
the coverage formula is based on data over 40 years old, making it no
longer responsive to current needs and therefore an impermissible burden
on the constitutional principles of federalism and equal sovereignty of the
states.[2][3] The Court did not strike down Section 5, but without Section
4(b), no jurisdiction will be subject to Section 5 preclearance unless
Congress enacts a new coverage formula.
Representational Structures: Redistricting Designed to Ensure Minority Representation;
Political Gerrymandering (pp. 142-171)
o Right of Aggregation Right of people to vote for representatives as a group, as
opposed to populations being split or cracked
o Shaw v. Reno (1993)
2 majority black, gerrymandered districts in North Carolina
Supreme Court says weird shape
Cant draw districts for racial reasons
Like affirmative action
North Carolina was trying to comply with 2 of the Voting Rights Act
Stephens dissent
Require compact districts?
Direct Democracy as an Alternative to Republican Government (pp. 367-415)
o Types of Direct Democracy
Recall Recently in Wisconsin and 10 years ago in California
Referendum legislature submits proposal; voters decide whether to
approve
Initiatives brought by voters; can be approved by either legislature or
voters
Any of the above requires signatures to initiate
o Buckley v. American Constitutional Law Foundation (1998) (page 372)
Legislature imposing constraints on direct democracy
Legislature said petition gatherers had to be registered to vote
Real concern was special interests paying to get issues on the ballot
Law requiring name tags or voter registration violated first amendment
o Need money for direct democracy same issues as representative democracy
o Doe v. Reed (2010) (page 377)
Made petition signers names public
Legislature said it would let the public check accuracy of petition lists in
order to prevent fraud

III. LEGISLATIVE DELIBERATION

Rules of Legislative Deliberation; Legislative Immunities (pp. 261-263, 306-314, 327346)

o Legislative Process Rules
Goals for agency pluralist view
Let interest groups do logrolling putting a law together out of a bunch
of proposals by special interests groups; also known as a Christmas tree
bill
o Goals from Republican/Trustee view
Strong anti-corruption rules or mechanisms
Equal time/ability for each representative to speak (Deliberation/debate is
key/important)
o Committee referral
Focuses expertise and interest
Hold hearings and create records to inform other representatives
Important vetogate
Slows things down
o Due process of law making
Laws should be debated & there should be careful deliberation
o Single Subject/Generality requirement
Laws must be general, rather than apply to specific individuals or interest
groups
Laws can only deal with one subject
Agency/pluralist
Reduces ability of interest groups to compromise
Intensity of preferences extremely relevant
Efficiency concerns
Republican/Trustee single subject rules are good and interest group
compromises are bad
o Speech or debate clause (pages 327-328
Helstotski 338
Rep. NJ, indicted for receiving money from non-citizens in return
for introducing private bills in Congress that would suspend the
application of U.S. immigration laws so that they could remain in
the United States. Lower Court rules that government could not
introduce evidence of the performance of a past legislative act on
the part of the defendant. Holding: relying on Clauses language,
that Members shall not be questioned in any other place, Court
upholds lower court ruling.
But, promise to perform future legislative act is not immunized.
Gravel v. U.S - Pentagon Papers scandal. Senator Gravel (ALASKA) and
his assistant Leonard Rodberg the target of an investigation by Justice
Dept. into the leaking of classified documents (the Pentagon Papers.)
Gravel had PP entered into the record of the Senate, then struck a deal via

Rodberg with M.I.T. Press for their commercial publication. Question

here was 1) Did S&D Clause reach to aides? And 2) Did it reach far
enough to cover commercial publication? Majoritys Test: S&D Clause
covers the official acts of a legislator and her quintessential activities as a
legislator, as well as those with close legislative aides, insofar as they are
integral part of the deliberative and communicative processes by which
Members participate in committee and House proceedings with respect to
the consideration and passage or rejection of proposed legislation or with
respect to other matters which the Constitution places within the
jurisdiction of either House.
The Line-Item Veto (pp. 314-327)
o Allows executive to veto parts of a bill instead of the whole bill
Many interpretations of what is permissible
Can be anything from a specific section to a single letter
Usually used in a budget context (budget restraint)
Reasons for this ^^^
o Single subject rules usually dont apply to budgets
o anti-logrolling
Disfavored from an agency/pluralist perspective
Favored from a trustee/republican perspective
o Rush v. Ray (1985)
See dissent
Governor vetoed restrictions on spending within a bill; majority opinion
said no/impermissible
o Clinton v. City of New York (page 321)
Clinton used item veto and those affected objected. Majority: item veto
implicated presentment clause by making President into lawmaker.
Constitutionally the president can only accept or reject the whole bill.
This is a separation of powers problemwe dont want President acting
independently of Congress. Concurrence: Not a presentment issue b/c
changes only made after the bill is passed and signed. Not a separation of
powers issue either, but a delegation issue b/c Congress gave the President
the power. Problem is that the power to impound is different from the
power to canceldelegation is too great. Dissent: its not enough for
something to be almost unconstitutional. The delegation here is
reasonable and limited b/c Congress retains sufficient control. Not only is
it clearly within bounds, but even if it were questionable, the Court should
be hesitant to use its power to interfere with Congress intent, especially if
there is accord between the legislative and executive branches.
Regulating Corrupt Deliberation (pp. 263-280)
o People ex rel Dickinson v. Van de Carr (1903) (page 266)
Exchanged favors (funds for horses in exchange for rehiring fired
employee)

Synopsis of Facts Alderman of NYC charged w/ bribery. Commissioner

of street cleaning wrote him to say if he would give him more money for
projects, the case of Covino would be reconsidered. Alderman wrote back
and said if he would reinstate Covino, he would vote and otherwise help to
obtain the needed money for the projects.
1. Result Since the benefit defendant was to receive was the
reinstatement of Covino, this would be embraced within the meaning of
the statute, since it would constitute a bribe.
2. Rational It is demoralizing to public service and against the spirit of
the statute for a legislator or other public official to bargain to sell his vote
or official action for a political or other favor or reward as it is for money
o Conflicts of Interest
Honorariums/outside income
(276) U.S. v. National Treasury Employees Union
Court overturned law preventing low-level treasury employees
from accepting speaking fees.
Lobbying (pp. 280-306)
o Speech and Debate Clause (BIG THEME)
Lobbying petition the government for redress of grievances
Direct vs. Indirect lobbying
o Direct Constituent hires lobbyist or directly contacts
representative
o Indirect (Grass roots) Write your congressman and
similar
Possible solutions to lobbying problems
o Disclosure (primary way it has worked)
o Limit who can be a lobbyist
o Limit how much time & access lobbyists have
o revolving door restrictions
Lobbying is constitutionally protected
o (284) U.S. v. Harris
Rewrote FLRA (Federal Lobbying Regulation Act)
Doctrine of Constitutional Avoidance relevant
Court desperately wanted to save statute since Congress was unlikely to
pass another one
HUAC/communist concerns
First Amendment protects non-citizen lobbying
o (291) Lobby Disclosure Act of 1995
Definitions critical
Applies to lobbying for laws, nominations, executive or administrative
acts, and regulation
Wednesday, Feb. 24
Structural Due Process of Lawmaking (pp. 346-365)

o Article I, 2 Presentment and bicameralism

o (352) U.S. v. Munoz-Flores
Stevens = Political Question Doctrine
Crime Victims Fund Not a tax, so origination clause doesnt apply
(Contrast with ACA/Obamacare
Scalia Enrolled Bill Rule operates as formal line in the sand Bill is
certified by the House. The end.
o (357)Hampton v. Mow Sun Wong (1976)
Representation Reinforcing Review When legislature undermines its
legitimacy, judicial restraint no longer applies/is relevant
Facts - Civil service made a rule that they wouldnt hire non-citizens
Not an equal protection case; based on fact that civil service didnt have
any responsibility for immigration or foreign policy
IV. STATUTES AS A SOURCE OF PUBLIC POLICY AND LEGAL PRINCIPLE

Friday, Feb. 26
Statutes as Principled Law (pp. 417-442)
o Statutes in derogation of common law
o Blackstone Common law is principled; statutes should be construed narrowly
because legislators fuck up our coherent system
o Common law formalism Judges dont make law; the law has always been there
and judges only apply it
o Legal Realism - a naturalistic and positive (or descriptive) theory of adjudication.
Realists believe that there is more to adjudication than the mechanical application
of known legal principles to uncontroversial fact-finding as legal formalism
believes. Some realists believe that one can never be sure that the facts and law
identified in the judge's reasons were the actual reasons for the judgement,
whereas other realists accept that a judge's reasons can often be relied upon, but
not all of the time. Realists believe that the legal principles that legal formalism
treat as uncontroversial actually hide contentious political and moral choices.
o Legal Positivism - a philosophy of law that emphasizes the conventional nature of
lawthat it is socially constructed. According to legal positivism, law is
synonymous with positive norms, that is, norms made by the legislator or
considered as common law or case law. Formal criteria of laws origin, law
enforcement and legal effectiveness are all sufficient for social norms to be
considered law. Legal positivism does not base law on divine commandments,
reason, or human rights. As an historical matter, positivism arose in opposition to
classical natural law theory, according to which there are necessary moral
constraints on the content of law.
Legal positivism does not imply an ethical justification for the content of
the law, nor a decision for or against the obedience to law. Positivists do
not judge laws by questions of justice or humanity, but merely by the ways
in which the laws have been created. This includes the view that judges

make new law in deciding cases not falling clearly under a legal rule.
Practicing, deciding or tolerating certain practices of law can each be
considered a way of creating law.
Justice Holmes Law is power
o Legal Process building body of law; opposite of received common law; sets the
agenda now
o (427) Moragne v. States Marine Lines Inc.
Guy got killed; vessel was unseaworthy
No cause of action for wrongful death in this context; would have had a
cause of action had he only been injured
Lower court ruled there was no cause of action because of the felony
merger doctrine from England no civil cause of action for wrongful
death under English law because felonies were punishable by death and
forfeiture of all property, so nothing was left to satisfy a judgment
Harlan used policy justifications to create a cause of action for Moragne
Legal process doctrine Statutory and Judicial law are principled and gap
filling is appropriate to create a coherent and consistent body of law
Vertical Versus Horizontal Legal Coherence (pp. 443-461)
o Legal realism looks forward - horizontal coherence
o Legal Process Era vertical coherence
o Flood v. Kuhn (1972) 445
Baseball decision antitrust baseball only sport exempt from Sherman
Act; court reasoned that although earlier decision (Fed Baseball) was
wrong, congressional inaction indicated Congresss intent, so the Court
allowed Fed Baseball to stand
Somehow, MLB is not interstate commerce
Reasons to deviate from Stare Decisis
Inconsistency/horizontal coherence
When a past decision is wrong
Retroactivity of Statutes (pp. 461-475)
o Retroactivity
Judicial opinions are retroactive; imposes high cost on opinions, which
constrains the judiciary
Legislation is not retroactive unless explicitly stated
No constitutional problem with retroactivity
o Doctrine of Constitutional Avoidance
Judges should interpret laws in such a way that they avoid rending them
unconstitutional
o Ex Post Facto not allowed
o When a court overrules a previous opinion striking down a law, the legal fiction is
that the overruled decision never happened, and the law was in effect the whole
time
o 466 Langraff v. USI Film Products (1994)

P worked the night shift at a plant, was subject to sexual harassment

fellow employee. Landgraf quit the job, filed a complaint with the EEOC,
which found USI had created a hostile work environment in violation of
Title VII. Landgrafs lawsuit was dismissed according to a long line of
precedents, but while appeal was pending, the Civil Rights Act of 1991
was signed into law explicitly overruling those precedents. The Court of
Appeals refused to apply the new law retroactively, even though Ps
appeal was not yet granted when Act signed. Statutory Question: Did Civil
Rights Act of 1991 retrospectively grant the new right of action against
employers providing hostile work environments, so that Landgraf could
sue under the new law? No, statutory language on retroactivity not clear,
legislative history suggests no retroactivity intended.
Scalia concurrence: absent clear statement in statute, presume against
retroactivity.
Dissent: no reliance problem, ergo no retroactivity problem.

V. THEORIES OF STATUTORY INTERPRETATION

Wednesday, Mar. 9
From Eclecticism to Systematic Theory (pp. 477-497)
o Have to keep in mind that courts may only resolve the case or controversy at
hand; decide whether the law applies to the case at hand, NOT general
interpretation
o Deductive Interpretive Theories
Textualism
Intentionalist Intention of the legislature (specific)
Issues: Grandstanding & committee reports
Purposivism (distinguished from intent; general)
Ex:14th amendment
o Principled equality, but D.C. schools still segregated by
Congress
Always be skeptical of objectivity of judges
o 483 - Holy Trinity Church v. U.S.
Bower ignores text of statute and focuses on purpose & intent
Constitutional Avoidance 1st amendment
Contracts to import labor were forbidden by Federal law, and specifically
by the Alien Contract Labor Law, an Act of Congress passed in 1885
prohibiting "the importation and migration of foreigners and aliens under
contract or agreement to perform labor or service of any kind in the United
States, its territories, and the District of Columbia."[2]
The court held that a minister was not a foreign laborer under the statute
even though he was a foreigner.
Legal Process Statutory Interpretation Part 1 (pp. 497-545)
o Legal Process/Purposive interpretation

Still starts with the text

At the margin, purpose matters more than text still want to be within text
except in extraordinary circumstances
Allowance/encouragement within legal process thinking (good law)
Imaginative reconstruction figure out what the legislature was trying
to do
Incoherent inquiry because courts are addressing cases not
contemplated by legislatures
o 508 Shine v. Shine
Correcting legislative errors
Guy declared bankruptcy and tried to get out of alimony & child support
Conflicting purposes:
Bankruptcy purpose=clean slate
Alimony & child support not a debt but a duty
Case is problematic because support agreement came later (after original
divorce agreement with no support)
scriveners error Always a tension between potential errors and actual
intent
Legal Process Statutory Interpretation Part 2: Critiques and Responses (pp. 551567, 625-633)
o Problems with legal process interpretation
Judiciary making policy
Counter Of course they make policy; theyve always made
policy; theres no absolutely objective interpretation of law
Legal process goal Give effect to legislative purpose or intent
o 554 TVA v. Hill
Burger stop building the dam so we can save some stupid goddamn fish
(snail darter)
repeals by implication PRINCIPLE/CANON OF STATUTORY
CONSTRUCTION we dont repeal statutes based on inferences (this is
heavily disfavored)
o 558 Griffin v. Oceanic Contractors, Inc. (1982)
Guy got hurt on an oil rig. Company owes him $400, which turns into a
$300,000 judgment/penalty under the text of the statute
Court says he gets the $300,000
The New Textualism (pp. 568-593); additional reading: King v. Burwell (U.S. June
25, 2015)
o Scalias new textualism (King v. Burwell)
Give effect to every word in the statute
Distinction with regard to legal process Scalia is going to work hard at
finding a plain meaning; legal process thinker/jurist will not look that hard
BE VERY AFRAID to look outside text
DONT look at legislative history

 Give reasonable effect to legislative terms

o King v. Burwell
Follow up to ACA/Sebelius/Obamacare
Established by the state IS ambiguous
Chevron deference
IRS says any exchange
Too important for Chevron deference
Majority needed to establish ambiguity in order for majoritys
interpretation to work
VI. DOCTRINES OF STATUTORY INTERPRETATION

Introduction to the Canons of Construction: Ordinary Meaning Rules and Textual

Canons (pp. 643-690)
o MOST IMPORTANT
Canon of Constitutional Avoidance
Presumption that Congress does not intend to violate the
constitution
Canon that Congress does not intend to abrogate state authority or
otherwise limit state power unless there is good evidence (Federalism
Canon)
o Canons of construction are not law (descriptive/terms of art?)
Trying to capture certain descriptive patterns about how legislation works
Based on observing patterns of legislation and legislative purpose
Also work in the shadow of constitutional concerns
o Minor Canons:
Presumption that Congress does not intend to make excessive grants
Tax code to b construed generously in favor of taxpayer
Has been eroded (IRS Buzzsaw)
Courts should narrowly construe laws limiting Native American
Sovereignty
Presume Congress does not intend to violate treaties or International laws
& agreements
EVERYONE starts with the text
Textualist purist
Purposivist/legal process thinkers cant be purists
Substantive Canons; the Rule of Lenity (pp. 690-712)
o Canon of Constitutional Avoidance
Civil Rights Statutes construed broadly (remedial statutes & provisions)
o Rule of Lenity application of statute can be unconstitutional if criminal statute
does not give notice because of vagueness or ambiguity
o Clear Statement Rule Congress must clearly state a specific rule where the
general rule may present a constitutional problem

Quasi-Constitutional Law and the Canons (pp. 712-748)

o 713 - NLRB v. Catholic Bishops of Chicago
NLRB asserted jurisdiction over Catholic Schools; Court says they lacked
jurisdiction
Magarian says avoided expending institutional capital by not making a 1st
amendment ruling but essentially rling on 1st amendment grounds
o 730 - Gregory v. Ashcroft
(US 1991): Age Discrimination In Employment law questioned for
modifying tenure rules of appointed State judges. Because no clear
statement that it meant to impose such burdens, Court rules that it does not
apply to the bench without a clear textual reading to the contrary.
Friday, Apr. 8
Legislative History: Committee Reports (pp. 776-777, 786-811, 813-826)
o Committee reports written by the experts following debate (consensus) most
probative
Other legislative history less persusive
Wednesday, Apr. 13
Legislative History: Records of Legislative Deliberations (pp. 829-848, 853-857)
o Montana Wilderness v. US Forest Service (1981)
Pre-Scalia and new textualism
Uses garbage legislative history (floor debates, etc)
dog that didnt bark doctrine If it isnt mentioned, then interpretation
is void
Drawing an inference from the absence of something
Text of statute has to be ambiguous before it is appropriate to look at or
analyze legislative history
Presumption against repealing laws canon
833 Notwithstanding any other provision of law
More weight given to sponsors/authors/primary opponents of the bill
Interpreting Statutes in Light of Other Statutes (pp. 859-876)
o 860 - Lorillard v. Pons (1978)
Plaintiff wanted a jury trial under 7th amendment for an ADEA claim
FLSA provides a jury trial, unlike Title VII, Congress says use procedures
from FLSA for ADEA Court says Congress incorporated judicial
opinions along with FLSA statutory provisions
o Borrowed statutes (common)
Typically state borrows federal statute language
o 867 Smith v. Bayer (2011)
State Courts can follow federal decisions or not; federal decisions are
persuasive but not mandatory authority; states are free to ignore federal
decisions
o 869 Morton (1974)

The issue is in the case was whether the hiring preference policy within
the BIA constituted invidious racial discrimination in violation of the Fifth
Amendment of the United States Constitution.
The hiring preference given here was not "racial discrimination" nor was it
even a "racial" preference. The court compared it to the requirement of a
Senator being from the state that she represents, or a city council member
being required to reside in the area he represents. The Court said, "The
preference, as applied, is granted to Indians not as a discrete racial group,
but rather, as members of quasi-sovereign tribal entities whose lives and
activities are governed by the BIA in a unique fashion." Saying also, "the
BIA is truly sui generis." The Court also noted that this preference was
reasonably and directly related to a legitimate nonracially based goal, thus
preventing it from violating the Constitution.
Friday, Apr. 22
Judicial Deference to Agency Interpretation (pp. 1073-1094)
o Pros: Expertise
o Cons: Agency Capture
o 1082 Chevron v. NRDC (1984 CHEVRON DOCTRINE)
Is the statute ambiguous?
If it is, is the interpretation a reasonable interpretation?
Express delegation arbitrary, capricious, or manifestly contrary
to the statute (EXTREMELY deferential to agency)
No express delegation a gap
o Less deferential reasonableness standard
o Still pretty deferential
Court of Appeals did not defer did de novo review instead Supreme
Court says Court of Appeals used the wrong standard
o 1087 MCI v. AT&T (1994)
Scalias new textualist pushback against Chevron