“Necessary” Discretion: A Primer for Non-Lawyers, by Kara McKenna Rollins
This post is part of Notice & Comment’s symposium on the Senate Post-Chevron Working Group Report. For other posts in the series, click here.
It has been nearly a decade since Justice Elena Kagan summarized the judicial interpretation zeitgeist by noting that “[w]e’re all textualists now.”[1] And while it may be that textualism is a predominate form of statutory interpretation, and Congress is presumed to give words their plain meaning, those words—perhaps to the surprise of their drafters—are not always provided their ordinary meaning. This can lead to anomalies in the law, where a statute’s plain meaning appears obvious to the legislative drafter but is interpreted in a manner that they may not have considered or understood. This scenario often occurs in the context of discerning congressional grants of agency discretion. Consequently, statutes may be interpreted as providing significant discretionary authority that legislative drafters did not intend.
As Senator Eric Schmitt’s Post-Chevron Working Group Report observes, there are several words and terms that are consistently used by Congress to signal grants of discretionary rulemaking authority.[2] Those include words like “necessary” and “appropriate” and the oft-used combinations of “necessary and appropriate” and “necessary or appropriate.”[3] These words and terms may also be coupled with others that appear to further limit agency action, like “reasonably necessary or appropriate”[4] or “necessary and appropriate in the public interest[.]”[5] Each of these formulations is understood to grant some amount of discretion to the agency in how it goes about enacting and enforcing its statutory obligations and policy preferences. While the Report recognizes that they are “judicially recognized trigger word[s] for agency discretion,” it does not explain why that is.[6] Understanding the “why” is important for both legislative drafting and agency rulemaking purposes.
A helpful way to consider statutory terms like “necessary” and “appropriate,” and their many combinations, is to consider congressional grants of agency discretion as existing on a spectrum. On one end of the spectrum the amount of agency discretion authorized is constrained and on the other end it is maximized. “Necessary” lies at the maximized end of this spectrum, where courts have determined that Congress has granted the agency substantial discretion. Formulations like “necessary and appropriate” lie at the other end. “Necessary or appropriate” lies somewhere in the middle.
To those not as familiar with administrative law, this description may seem less than intuitive. Surely, an agency could take some action that is “appropriate” given its statutory authority but not “necessary” in the strictest sense. That would suggest that the “necessary or appropriate” formulation would lead to a greater degree of discretion than “necessary” on its own. But that is not the way these phrases have been interpreted over time. Both “necessary and appropriate” and “necessary or appropriate” place higher obligations on an agency as they are understood to “limit the authorization contained in [a] provision.”[7] As the Fifth Circuit has observed, statutes that include these formulations “at a minimum require[] that [a rule’s] benefits reasonably outweigh its costs.”[8] This requirement exists even if cost-benefit analysis is not explicitly provided for by statute.
Critically, for those involved in legislative drafting, or implementing policies at an agency, the amount of discretion granted by a given word or phrase is not always consistent with its plain meaning. This may lead to inconsistencies between the amount of discretion Congress intended to provide, what the agency claims, and what a court ultimately determines was provided in each provision. The Sixth Circuit’s decision in a COVID-19-era OSHA mandate case provides one example of how this interpretation issue plays out.[9] There, some of the petitioners argued that the OSH Act’s requirement that emergency temporary standards be “necessary to protect employees from such danger” meant that the emergency standards were “absolutely required.”[10] But the court, relying on earlier cases from the Third and Fifth Circuits interpreting the same provision, determined that “necessary” did not mean “strictly necessary.” Writing in dissent, Judge Joan Larsen observed that “necessary, in legal vernacular, is a tailoring word.” Given the tailoring nature of “necessary” and the common understanding of the word, she noted that context plays a role in the word’s meaning within a given statute. Ultimately, she reasoned that in the context of the OSH Act “necessary” is “a word of limitation, not enlargement.”[11] Post-Loper Bright, this type of in-depth approach to discerning the meaning of “necessary” may become more prevalent as it grounds the analysis in the context of the statute, i.e., the approach helps define “the outer statutory boundaries” of agency discretion.
The words and phrases identified in the Report appear to have become trigger words for agency discretion because they are not always interpreted consistent with their plain meaning, or courts fail to consider their statutory context. But that does not mean that legislative drafters need to jettison these terms altogether, as the Report seems to suggest. If legislative drafters want “necessary” to carry its plain meaning, i.e., that the agency action is “absolutely needed,” then all drafters need to do to avoid the word’s other interpretations is to define it as such. That would provide much-needed clarity for courts and litigants, all while providing a clearer outer boundary for agency discretion.
Kara McKenna Rollins is Senior Litigation Counsel at the New Civil Liberties Alliance.
[1] Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015).
[2] Report at 46–47.
[3] A simple search of the U.S. Code for these words and phrases in relation to a grant of rulemaking authority returns hundreds of hits.
[6] Report at 46.
[7] Mexican Gulf Fishing Co. v. United States Dep’t of Com., 60 F.4th 956, 965 (5th Cir. 2023).
[8] Id.
[9] In re MCP NO. 165, 21 F.4th 357 (6th Cir. 2021), application for stay granted by NFIB v. OSHA, 595 U.S. 109 (2022) (per curiam).
[10] In re MCP No. 165, 21 F.4th at 380.
[11] See also In re MCP No. 165, 20 F.4th 264, 276–77 (6th Cir. 2021) (Sutton, C.J., dissenting from the denial of initial hearing en banc).
