b'Proposed Agency Interpretation of \xe2\x80\x9c Federal Means-Tested\nPublic Benefit[s]\xe2\x80\x9d Under Personal Responsibility and Work\nOpportunity Reconciliation Act of 1996\nT he interpretation o f the phrase \xe2\x80\x9c federal m eans-tested public benefit[s]\xe2\x80\x9d in the Personal R esponsibility\nand W ork O pportunity Reconciliation Act o f 1996 proffered by the D epartm ents o f H ealth and\nH um an Services and H ousing and U rban D evelopm ent \xe2\x80\x94 that it applies only to m andatory (and\nnot discretionary) spending p rogram s\xe2\x80\x94 constitutes a perm issible and legally binding construction\no f the statute.\n\nJanuary 14, 1997\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nD e p a r t m e n t o f H e a l t h a n d H u m a n S e r v ic e s\n\nYou have requested the views of the Office of Legal Counsel regarding a\nconstruction, proffered by the Departments of Health and Human Services\n( \xe2\x80\x9c HHS\xe2\x80\x9d ) and Housing and Urban Development (\xe2\x80\x9c HUD\xe2\x80\x9d ), of the scope of the\nphrase \xe2\x80\x9c federal means-tested public benefit[s]\xe2\x80\x9d contained in the Personal Respon\xc2\xad\nsibility and Work Opportunity Reconciliation Act of 1996 (\xe2\x80\x9c PRA\xe2\x80\x9d or \xe2\x80\x9c Act\xe2\x80\x9d ).1\nIn particular, HHS and HUD have concluded that this phrase is best construed\nto apply only to mandatory (and not discretionary) spending programs.2 Both\ndepartments have determined that this construction of the PRA \xe2\x80\x9c best balances\n[their] other statutory obligations with Congressional goals embodied in the\n[PRA].\xe2\x80\x9d 3 We further understand that the Departments of Agriculture, Education,\nLabor and Veterans Affairs and the Social Security Administration all concur in,\nor defer to, the HHS and HUD proffered interpretation of the PRA.4\nAs explained more fully below, we believe that the proffered interpretation is\na permissible construction of the statute. The PRA was enacted as a budget rec\xc2\xad\nonciliation bill, and, accordingly, must be construed against the backdrop of the\nCongressional Budget Act of 1974 ( \xe2\x80\x9c CBA\xe2\x80\x9d ).5 Under the CBA, budget reconcili\xc2\xad\nation legislation is subject to expedited procedures in both the Senate and the\nHouse. To counterbalance these expedited procedures, the CBA permits a member\nof the Senate to raise a point of order against any material included in the legisla\xc2\xad\ntion that is extraneous to the budget reconciliation process. Here, through applica\xc2\xad\ntion of this procedure, a broad definition of the phrase \xe2\x80\x9c federal means-tested\n\'P u b L No 104-193, 110 Stat 2105\n2 See Letter for Christopher H Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, from Harriet\nS Rabb, General Counsel, Department o f Health and Human Services (Dec. 13, 1996) ( \xe2\x80\x9c Rabb Request\xe2\x80\x9d )\n3 See. e g., Letter for Arthur Fried, General Counsel, Social Security Administration, from H am et S Rabb, General\nCounsel, Department o f Health and Human Services and Nelson A Diaz, General Counsel, Department o f Housing\nand Urban Development (Nov 21, 1996) ( \xe2\x80\x9c Rabb/Diaz Letter\xe2\x80\x9d )\n4 Rabb Request at 1 Since receiving your letter of December 13, 1996, we have received oral advice from your\noffice that the Social Security Administration concurs in the proffered definition\n5 Pub L. No 93-344, 88 Stat 297 (1974) (codified as amended in scattered sections of 2 U.S.C ).\n\n21\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\npublic benefit\xe2\x80\x9d was struck from early versions o f the bill that ultimately became\nthe PRA. Significantly, the broad definition was struck because it reached discre\xc2\xad\ntionary spending programs, which, in this context, lay beyond the proper scope\nof the reconciliation process.\nIn light o f this history, and the absence of a sufficiently clear indication that\nCongress intended, notwithstanding the CBA, to reach discretionary spending pro\xc2\xad\ngrams, we conclude that the meaning of the phrase \xe2\x80\x9c federal means-tested public\nbenefit\xe2\x80\x9d is, at the very least, ambiguous. We further conclude that the HHS/HUD\nproffered definition is a reasonable construction of the statute, that the agency\ninterpretation is entitled to judicial deference, and that, accordingly, the proffered\ndefinition should govern.\nDISCUSSION\nTitle IV of the Personal Responsibility and Work Opportunity Reconciliation\nAct o f 1996, 110 Stat. at 2260, imposes various restrictions on aliens\xe2\x80\x99 eligibility\nfor public benefits in the United States. A number of provisions in title IV estab\xc2\xad\nlish restrictions with respect to aliens\xe2\x80\x99 receipt o f \xe2\x80\x9c federal means-tested public\nbenefit[s].\xe2\x80\x9d These restrictions fall into three general categories: (1) provisions that\ndeny \xe2\x80\x9c federal means-tested public benefit[s]\xe2\x80\x9d to qualified aliens for the first five\nyears after their entry into the United States;6 (2) provisions that require certain\ngroups o f aliens who seek federal and state public benefits to prove that they\ncan be credited with 40 qualifying quarters of work under title II of the Social\nSecurity Act ( \xe2\x80\x9c SSA\xe2\x80\x9d ) and have not received any \xe2\x80\x9c federal means-tested public\nbenefit\xe2\x80\x9d during any of those quarters;7 and (3) provisions that establish and define\nsponsor-to-alien deeming rules to be applied to aliens seeking \xe2\x80\x9c federal meanstested public benefit[s].\xe2\x80\x9d 8\nThe PRA contains no statutory definition of the phrase \xe2\x80\x9c federal means-tested\npublic benefit.\xe2\x80\x9d HHS and HUD, however, have concluded that the restrictions\non federal means-tested public benefits contained in tide IV should apply only\nto mandatory spending programs, i.e. programs for which funding is not subject\nto a definite appropriation.9 Under this construction of the Act, for example, newly\narrived qualified aliens would be ineligible for benefits under mandatory programs\nfor the first five years after their anrival in this country, but they would remain\neligible for benefits under discretionary spending programs. The rationale of HHS\nand HUD for this approach is that \xe2\x80\x98 \xe2\x80\x98affected departments should hesitate to apply\n6 See \xc2\xa7 403(a) & (c), 110 Stat. at 2265-66.\n7 See \xc2\xa7\xc2\xa7402(a)(2)(B )(ii)(II), 402(b)(2)(BMH)(Il). 412(b)(2XBXii), 435; 110 Stat. at 2262-63. 2264-^5, 2269. 227576.\n*See \xc2\xa7 4 2 1(a), (b)(2)(B), (c), (d), 110 Stat. at 2270-71.\n9 W hile w e have not been provided with a com prehensive list o f which programs would be subject to these title\nIV restrictions under the HHS/HUD interpretation, we understand that Medicaid, food stamps. Supplemental Security\nIncome ( \xe2\x80\x9c SS I\xe2\x80\x9d ), and Tem porary Assistance for Needy Families ( \xe2\x80\x9c TA N F\xe2\x80\x9d ) are included within the mandatory cat\xc2\xad\negory.\n\n22\n\n\x0cProposed Agency Interpretation o f \xe2\x80\x9cFederal Means-Tested Public B enefit[sj\xe2\x80\x9d Under Personal\nResponsibility and Work Opportunity Reconciliation Act o f 1996\n\nthe term \xe2\x80\x98federal means-tested public benefit\xe2\x80\x99 broadly in a manner that would\ndeny qualified aliens more benefits than Congress may have clearly intended.\xe2\x80\x9d\nRabb/Diaz Letter, attachment at 4. HHS and HUD assert that \xe2\x80\x9c this reading of\nthe term best balances our Departments\xe2\x80\x99 other statutory obligations with Congres\xc2\xad\nsional goals embodied in [the PRA],\xe2\x80\x9d Rabb/Diaz Letter at 1, and that \xe2\x80\x9c sound\nlegal and policy considerations support a conclusion that the term is limited to\nmeans-tested mandatory spending programs.\xe2\x80\x9d Rabb/Diaz Letter, attachment at 1.\nIn evaluating the construction proposed by HHS and HUD, we are guided by\nthe Supreme Court\xe2\x80\x99s landmark opinion, Chevron U.S.A. v. Natural Resources\nDefense Council, Inc., 467 U.S. 837 (1984), which explains the proper approach\nfor reviewing the construction of statutes by the agencies that administer them.\nThe first step in the Chevron analysis is to determine \xe2\x80\x9c whether Congress has\ndirectly spoken to the precise question at issue.\xe2\x80\x9d 467 U.S. at 842. If congressional\nmeaning, as discerned through \xe2\x80\x9c traditional tools of statutory construction,\xe2\x80\x9d id.\nat 843 n.9, is clear, then no further inquiry is necessary, for the \xe2\x80\x9c unambiguously\nexpressed intent of Congress\xe2\x80\x9d must control. Id. at 843. See also United States\nv. Alaska, 503 U.S. 569, 575 (1992). If the statute is silent or ambiguous with\nrespect to the issue posed, then, under the second step in the Chevron analysis,\nthe questions become whether Congress has implicitly or explicitly delegated to\nthe agency the authority to resolve the ambiguity and, if so, whether \xe2\x80\x9c the agency\xe2\x80\x99s\nanswer is based on a permissible construction of the statute.\xe2\x80\x9d Chevron, 467 U.S.\nat 843. See also Alaska, 503 U.S. at 575.\nI. Chevron Step I\nThe starting point in determining whether \xe2\x80\x9c Congress had an intention on the\nprecise question at issue,\xe2\x80\x9d Chevron, 467 U.S. at 843 n.9, is, of course, the lan\xc2\xad\nguage of the statute itself. See Kaiser Aluminum & Chem. Corp. v. Bonjomo,\n494 U.S. 827, 835 (1990); Consumer Prod. Safety Comm\xe2\x80\x99n v. GTE Sylvania, Inc.,\n447 U.S. 102, 108 (1980). Ordinarily, if the terms of the statute are plain, they\ncontrol and that is the end of the matter. See Chevron, 467 U.S. at 843; Holly\nFarms Corp. v. NLRB, 517 U.S. 392, 398 (1996).\nAt the same time, it is well-established that a provision in one act o f Congress\nshould be read in conjunction with other relevant statutory provisions and not\nin isolation. See Jett v. Dallas Indep. School Dist., 491 U.S. 701, 712-13, 72236 (1989); id. at 738-39 (Scalia, J., concurring in part and concurring in the judg\xc2\xad\nment); see also Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995). Thus, courts\nregularly construe statutory language in light of both other provisions o f the same\nlaw and relevant provisions from other laws. See, e.g., Quackenbush v. Allstate\nIns. Co., 517 U.S. 706, 711-12 (1996); Sullivan v. Everhart, 494 U.S. 83, 92\n(1990); cf. Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concur\xc2\xad\nring) (meaning of later enacted statute may affect interpretation of \xe2\x80\x9c previously\n23\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nenacted statute, since statutes in pari materia should be interpreted harmo\xc2\xad\nniously\xe2\x80\x9d ). The fact that different statutory provisions may employ similar terms\nin varying contexts, for example, m ay give insight as to the meaning of the term\nin the particular context that is under review. See Medtronic, Inc. v. Lohr, 518\nU.S. 470, 487-89 (1996) (plurality opinion). Similarly, the possibility that the\nadoption of a seemingly plain statutory meaning may cause a direct conflict with\na different statutory provision, even if in a different law, may trigger application\nof the presumption against repeals by implication. See Watt v. Alaska, 451 U.S.\n259, 266 (1981); FAA v. Robertson, 422 U.S. 255, 263 (1975); Silver v. New\nYork Stock Exchange, 373 U.S. 341, 357 (1963). Moreover, courts commonly rely\nupon a general interpretive statute, the Dictionary Act, 1 U.S.C. \xc2\xa7 1, in construing\nspecific statutory language that, but for the otherwise-codified definitional provi\xc2\xad\nsion, might suggest a different meaning. See Rowland v. California M en\xe2\x80\x99s Colony,\n506 U.S. 194, 199-200, 209-10 (1993); id. at 212-13, 222 (Thomas, J., dis\xc2\xad\nsenting); Wilson v. Omaha Indian Tribe, 442 U.S. 653, 666 (1979); United States\nv . A & P Trucking Co., 358 U.S. 121, 123 (1958).\nThe general rule that the meaning of particular statutory provisions should be\ndetermined with reference to the broader legislative landscape provides significant\nguidance here. As reconciliation legislation, the PRA must be interpreted in the\ncontext of both the Congressional Budget Act of 1974, which establishes general\nrules that govern the enactment of budget reconciliation measures, and congres\xc2\xad\nsional actions taken pursuant to that statutory regime. Just as courts, when consid\xc2\xad\nering a term that has been defined in the Dictionary Act, read that term in light\nof the Dictionary Act definition, so too, here, the rules set forth in the CBA pro\xc2\xad\nvide important guidance in discerning the meaning of the relevant provisions of\nthe PRA.\nA.\nThe PRA was brought to the floor of the Senate as a reconciliation bill, and\nas such was subject to the special rules that govern the reconciliation process\nset forth in section 313 of the CBA. See 2 U.S.C. \xc2\xa7644 (1994); Robert Keith\n& Edward Davis, The Senate\xe2\x80\x99s \xe2\x80\x9cByrd R ule\xe2\x80\x9d Against Extraneous Matter in Rec\xc2\xad\nonciliation Measures 1-2 (Congressional Research Service 1995). Section 313\nserves to facilitate the expedited consideration of reconciliation legislation by pro\xc2\xad\nviding a mechanism for restricting the content of such legislation to provisions\nthat are material to the reconciliation process. See Allen Schick, The Federal\nBudget: Politics, Policy, Process 82\xe2\x80\x9486 (1995). Over time, these subject matter\nrestrictions have become known as the \xe2\x80\x9c Byrd rule,\xe2\x80\x9d after Senator Robert Byrd\no f West Virginia, their principal proponent. The basic purpose of the Byrd rule\nis twofold: to protect the effectiveness of the reconciliation process by excluding\nextraneous material that has no significant budgetary effect, and to preserve the\n24\n\n\x0cProposed Agency Interpretation o f \xe2\x80\x9cFederal M eans-Tested Public Benefit[s]\xe2\x80\x9c Under Personal\nResponsibility and Work Opportunity Reconciliation Act o f 1996\n\ndeliberative character of the Senate by exempting from expedited consideration\nall legislative matters that should properly be debated under regular procedures.10\nSection 313 establishes the general framework that governs the nation\xe2\x80\x99s budg\xc2\xad\neting process and shapes the content of the legislation that Congress enacts\nthrough the reconciliation process. Indeed, the Byrd rule has been deemed suffi\xc2\xad\nciently important to the fashioning of the nation\xe2\x80\x99s budget that it is not merely\nan internal rule of Senate procedure but, as we have noted, a statute duly passed\nby both houses of Congress and signed by the President. The meaning of a par\xc2\xad\nticular provision of reconciliation legislation, therefore, such as the phrase \xe2\x80\x9c fed\xc2\xad\neral means-tested public benefit\xe2\x80\x9d in the PRA, must be construed in light of\ncongressional actions taken pursuant to the CBA.\nSpecifically, the CBA provides:\nWhen the Senate is considering a reconciliation bill or a reconcili\xc2\xad\nation resolution . . . upon a point of order being made by any Sen\xc2\xad\nator against material extraneous to the instructions to a committee\nwhich is contained in any title or provision of the bill or resolution\nor offered as an amendment to the bill or resolution, and the point\nof order is sustained by the Chair, any part of said title or provision\nthat contains material extraneous to the instructions to said Com\xc2\xad\nmittee as defined in subsection (b) of this section shall be deemed\nstricken from the bill and may not be offered as an amendment\nfrom the floor.\nPub. L. No. 93-344, tit. Ill, \xc2\xa7313 (codified at 2 U.S.C. \xc2\xa7 644(a)). Section\n313(b)(1) outlines six categories of \xe2\x80\x9c extraneous\xe2\x80\x9d provisions, the most significant\nof which, for purposes of this analysis, is (b)(1)(D), which states that a provision\nshall be considered extraneous \xe2\x80\x9c if it produces changes in outlays or revenues\nwhich are merely incidental to the non-budgetary components of the provision.\xe2\x80\x9d\n2 U.S.C. \xc2\xa7 644(b)(1)(D). The rule, as set forth in section 313, is enforced by a\nSenator raising a point of order against some provision or provisions of the bill,\non the ground that that provision deals with subject matters extraneous to the\nlegislation.\n10The Byrd rule was adopted in 1986, following years o f struggle on the Senate floor over the inclusion of\nextraneous provisions in budget reconciliation legislation. Originally enacted as section 20001 of the Consolidated\nOmnibus Budget Reconciliation Act o f 1985, Pub L. No. 99-272, \xc2\xa720001, 100 Stat 82, 390-91 (1986), it was,\nin 1990, incorporated as section 313 o f the Congressional Budget Act of 1974 See Budget Enforcement Act of\n1990, enacted as Title XIII o f Omnibus Budget Reconciliation Act o f 1990, Pub. L No. 101-508, \xc2\xa7 13214(b)(1),\n104 Stat 1388, 1388-622. As Senator Byrd explained in introducing the amendment that ultimately bore his name:\nMr President, the Senate is a deliberative body, and the reconciliation process is not a deliberative\nprocess . . Such an extraordinary process, if abused, could destroy the Senate\xe2\x80\x99s deliberative nature\nSenate committees are creatures o f the Senate, and, as such, should not be in the position o f dictating\nto the Senate as is being done here By including mater[i]al not in their jurisdiction or matter which\nthey choose not to report as separate legislation to avail themselves of the nondeliberative reconciliation\nprocess. Senate committees violate the compact which created both them and the reconciliation process\n131 Cong. Rec. 28,968 (1985)\n\n25\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nThe PRA\xe2\x80\x99s original definition o f \xe2\x80\x9c federal means-tested public benefit,\xe2\x80\x9d con\xc2\xad\ntained in both the Senate and House bills, encompassed an expansive range of\nbenefit and assistance programs and did not distinguish between those that were\nmandatory and those that were discretionary. When the Senate bill reached the\nfloor, Senator Exon invoked the Byrd rule to raise an omnibus point of order\nagainst a number of provisions of the legislation, including the definition of \xe2\x80\x98\xe2\x80\x98fed\xc2\xad\neral means-tested public benefit.\xe2\x80\x9d 142 Cong. Rec. 18,296-97 (1996). His objec\xc2\xad\ntion to this provision was based upon section 313(b)(1)(C) of the CBA, i.e. the\nprovision was not within the Finance Committee\xe2\x80\x99s jurisdiction. Id. at 18,297.\nThe Parliamentarian upheld Senator Exon\xe2\x80\x99s Byrd rule objection on the grounds\nthat the provision was outside the Finance Committee\xe2\x80\x99s jurisdiction and that, to\nthe extent the definition encompassed discretionary programs, its impact on the\nbudget was \xe2\x80\x9c merely incidental.\xe2\x80\x9d 11 Rules determining eligibility for discretionary\nprogram benefits within a reconciliation bill have no direct effect on the budget.\nRather, reducing the size of a discretionary program is accomplished by Congress\nreducing the appropriation for the program, which the proposed definition of \xe2\x80\x98\xe2\x80\x98fed\xc2\xad\neral means-tested public benefit\xe2\x80\x9d did not do. By contrast, so-called entitlement,\nor mandatory, programs, generally operate under indefinite appropriations; the size\nof the program is not determined based on a fixed appropriation, but rather on\nexpenditures incurred for all eligible program participants. Thus expenditures\nunder mandatory programs can be directly reduced by restricting eligibility and\nthereby reducing the number of people receiving benefits.\nThe ruling sustaining Senator E xon\xe2\x80\x99s objection was not appealed by any other\nSenator. As a result, the definition of \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d was\nstruck from the Senate bill. Moreover, the House acceded to the Senate deletion\nand agreed to remove its own expansive definition of the term \xe2\x80\x9c federal meanstested public benefit\xe2\x80\x9d in conference. The conference committee acknowledged the\ndeletion of the definition under the Byrd rule. 142 Cong. Rec. 20,484 (1996).\nThis legislative record provides strong evidence that the phrase \xe2\x80\x98\xe2\x80\x98federal meanstested public benefitfs],\xe2\x80\x9d as used in the PRA, should be construed to reach only\nmandatory (and not discretionary) spending programs. In keeping with section\n313, a Byrd rule objection was made and sustained, a definition was dropped\nfrom the bill in response to the objection, and the House acceded to the Senate\nversion of the bill in light of the Byrd rule objection. To ignore these events\n11 The Parliamentarian upheld the objection on the basis o f both sections 313(b)(1)(C) (not within Finance Commit\xc2\xad\ntee\xe2\x80\x99s jurisdiction) and 313(b)(1)(D) (prohibition against policy changes with \xe2\x80\x9c merely incidental\xe2\x80\x9d budgetary impact).\nSee 142 Cong Rec 20,975 (1996) (statement o f Senator Graham dunng consideration of conference report on H R.\n3734), see also id at 20,979 (statement o f Senator Chafee) Although Senator Exon\xe2\x80\x99s specific objection to the defini\xc2\xad\ntion, as itemized in his list, was jurisdictional only, he raised that objection in an omnibus point of order based\ngenerally upon section 313(b)(1), which permitted the Parliamentarian to consider any basis under (b)(1) for\nupholding the objection In any event, in this case it ultimately makes no difference to the analysis whether Senator\nExon\xe2\x80\x99s objection was sustained on jurisdictional grounds alone or on both grounds because any jurisdictional objec\xc2\xad\ntion under section 313 is based upon the fact that the Senate committee considering a reconciliation bill would\nonly have jurisdiction over mandatory programs. S ee Schick, The Federal Budget 83 (1995) (under current practice,\n\xe2\x80\x9c reconciliation instructions are given only to com m ittees that have jurisdiction over revenues or direct (mandatory)\nspending program s\xe2\x80\x99\xe2\x80\x99). Thus, the underlying reasoning for objections under (b)(1)(C) and (b)(1)(D) is the same.\n\n26\n\n\x0cProposed Agency Interpretation o f \xe2\x80\x9cFederal Means-Tested Public Benefit[s]\xe2\x80\x9d Under Personal\nResponsibility and Work Opportunity Reconciliation Act o f 1996\n\nin determining the meaning of the phrase \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d\nwould be to disregard the purpose and language of section 313 itself, which serves\nto facilitate the budgeting process by providing a mechanism by which the scope\nof reconciliation legislation may be contained.12\nB.\nSeveral aspects of the text and legislative history of the PRA, when viewed\nin isolation, arguably support a broad interpretation of \xe2\x80\x9c federal means-tested\npublic benefit\xe2\x80\x9d that would include discretionary programs. Ultimately, however,\nwe find little evidence that Congress, in passing the final version of the bill,\nintended to reintroduce the very definition that had been struck through the oper\xc2\xad\nation of section 313 of the CBA. What evidence does exist is at best ambiguous,\nand thus, in our view, does not foreclose HHS and HUD, two of the agencies\ncharged with administering the Act, from construing the PRA in the manner that\nthey propose.\nAs previously noted, the PRA, as enacted, contains no definition of the phrase\n\xe2\x80\x9c federal means-tested public benefit.\xe2\x80\x9d Had Congress intended for this phrase to\ninclude discretionary spending programs, over the sustained objection of a member\nof the Senate, it could have reinserted the deleted definition or similar language\nin the final version. Indeed, the conference committee did reintroduce a number\nof other provisions that also had been struck from the Senate bill through Senator\nExon\xe2\x80\x99s omnibus Byrd rule objection, and Congress ultimately voted to retain these\nprovisions in the final version of the PRA. See \xc2\xa7816, 110 Stat. at 2318 (caretaker\nexemption; originally \xc2\xa7 1126 of S. 1956, 104th Cong. (1996)); \xc2\xa7838, id. at 2331\n(expedited coupon service; originally \xc2\xa7 1148 of S. 1956; \xc2\xa7 850, id. at 2336-37\n(waiver authority; originally \xc2\xa7 1159 of S. 1956); \xc2\xa7 729(d), id. at 2303 (WIC pro\xc2\xad\ngram/drug abuse; originally \xc2\xa7 1259(d)(1) of S. 1956); \xc2\xa7912, id. at 2353\xe2\x80\x9454\n(abstinence education; originally \xc2\xa7 2909 of S. 1956); compare with S. 1956 (July\n16, 1996 and July 24, 1996 versions). The decision of the conference not to\nreintroduce the deleted definition of \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d leaves\n12 Some language in one appellate decision might be read to suggest that courts should distinguish between proce\xc2\xad\ndural and substantive legislative motivations in inferring congressional intent. See Elizabeth Blackwell Health O r.\nfo r Women v. K n o ll 61 F 3d 170, 180 (3d Cir. 1995), cert denied. 516 U S 1093 (1996) The appellees in Elizabeth\nBlackwell Health Center argued that Congress, by using a rule o f House parliamentary procedure to eliminate a\nprovision in the 1994 Hyde Amendment requiring victims of rape or incest to report the cnm e to the police pnor\nto seeking publicly funded abortions, intended to prohibit state statutes imposing such reporting requirements. The\nThird Circuit rejected that argument slating that, \xe2\x80\x9c [a]t most, the rejection [of the provision] is a sign that Congress\ndid not wish to mandate reporting requirements on the states,\xe2\x80\x9d and lhat Congress\xe2\x80\x99s rejection of mandatory reporting\nrequirements \xe2\x80\x9c on procedural grounds provides no basis for any inference regarding Congress\xe2\x80\x99s views about the\nsubstantive provisions o f the legislation \xe2\x80\x9d 61 F.3d at 180 Unlike here, the procedural objection made in Elizabeth\nBlackwell Health Center did not in any way suggest that Congress intended the specific interpretation offered in\nthat case. The procedural objection raised to the reporting provision was based upon a House rule of parliamentary\nprocedure that prohibited attempts to \xe2\x80\x9c legislate\xe2\x80\x9d on an appropriations bill. Id at 174 The basis for this objection\nbore no relationship to the substantive interpretation appellees urged. In contrast, here the definition proffered by\nHHS and HUD is based upon a budgetary distinction between mandatory and discretionary programs, precisely\nthe same basis upon which Senator Exon\xe2\x80\x99s Byrd rule objection was made\n\n27\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nthe PRA without the most obvious textual guidance that Congress might have\nprovided had it wished to adopt the previously stricken definition.\nThe PRA does, however, define the related phrase \xe2\x80\x9c federal public benefit\xe2\x80\x9d\nbroadly, and in a manner that appears to draw no distinction between mandatory\nand discretionary programs.13 The phrase \xe2\x80\x9c means-tested,\xe2\x80\x9d moreover, though not\ndefined in the statute, is defined in the dictionary.14 It could be argued that these\ntwo phrases combine to produce a phrase that is sufficiently plain to make clear\nthat, in enacting the bill, Congress effectively overruled the prior Byrd rule dele\xc2\xad\ntions.\nAlthough not entirely without force, we find this argument inconclusive. First,\neven assuming that the phrases \xe2\x80\x9c federal public benefit\xe2\x80\x9d and \xe2\x80\x9c means-tested\xe2\x80\x9d are\nfree o f ambiguity, the proposition that combining plain terms necessarily results\nin an equally plain phrase is not at all self-evident.15 See, e.g., Smiley v. Citibank,\n517 U.S. 735, 746\xe2\x80\x9447 (1996). It is not clear, therefore, that, even ignoring the\ndeletion of the broad definition pursuant to the CBA, the bill\xe2\x80\x99s final language\nis so free from ambiguity as to be deemed plain.\nMore important, as we have explained, the PRA was enacted as reconciliation\nlegislation, and thus can be understood only in light of the special rules that Con\xc2\xad\ngress set forth in the CBA and the congressional action taken pursuant to those\n13 Section 401(c)(1) defines \xe2\x80\x9c federal public benefit\xe2\x80\x9d as\n(A) any grant, contract, loan, professional license, or commercial license provided by an agency\no f the United States or by appropriated funds o f the United States, and\n(B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education,\nfood assistance, unemployment benefit, o r any other similar benefit for which payments or assistance\nare provided to an individual, household, o r family eligibility unit by an agency of the United States\no r by appropriated funds o f the United States\n110 Stat at 2262\nl4The dictionary defines \xe2\x80\x9c means test\xe2\x80\x9d as \xe2\x80\x9c any examination o f (he financial state of a person as a condition\nprecedent to receiving social insurance, public assistance benefits, o r other payments from public funds,\xe2\x80\x9d Webster\'s\nThird N ew International Dictionary 1399 (3d ed 1986) See also Random House Dictionary o f the English Language\n1192 (2d ed 1987) ( \xe2\x80\x9c means test\xe2\x80\x9d is \xe2\x80\x9c an investigation into the financial position of a person applying for aid\nfrom public funds\xe2\x80\x9d ) Despite this definition, precisely what constitutes a \xe2\x80\x9c means test\xe2\x80\x9d in the context of federal\nprograms that distribute benefits on the basis of need is not clear Som e federal programs look to both an applicant\xe2\x80\x99s\nincome a n d his or her resources to determine eligibility See, e g , Medicaid program, 42 U S C. \xc2\xa7\xc2\xa7 1396\xe2\x80\x941396v\n(1994 & Supp II 1996^, Supplemental Security Income program, 42 U S C. \xc2\xa7\xc2\xa7 1381\xe2\x80\x94138la (1994), Food Stamp\nprogram, 7 U S .C \xc2\xa7\xc2\xa72011-2032 (1994 & Supp U 1996) Others look only to income without any inquiry into\nresources. See, e g . National School Lunch program, 42 U S C \xc2\xa7\xc2\xa7 175l-1769h (1994 & Supp II 1996); Women,\nInfants & Children program, 42 U S .C \xc2\xa71786 (1994 & Supp 11 1996) Still others presume need on the basis\no f area o f residence, enrollment in another welfare program, or some other factor See, e.g., Indian health services,\n42 C F R. \xc2\xa7 3 6 12 (eligibility based upon area o f residence). Commodity Supplemental Food Program, 7 U S C .\n\xc2\xa7 612c note (1994) (eligibility based upon enrollment in another government benefil program for low-income persons),\nChapter 1 migrant education program, 20 U S.C. \xc2\xa7 6398 (1994) (presumption of need for migrant children)\n15 An unrelated provision of the PRA itself hints at the ambiguity of the phrase \xe2\x80\x9c federal means-tested public\nb e n e fit\xe2\x80\x9d Section 911 o f the PRA ensures that individuals whose benefits have been reduced because of an act\no f fraud by the individual may not receive increased benefits under \xe2\x80\x9c any other means-tested welfare or public assist\xc2\xad\nance program for which Federal funds are appropriated\xe2\x80\x9d as a result o f such reduction. \xc2\xa7 9 1 1(a), 110 Stat. at 2353.\nThe provision then defines the phrase \xe2\x80\x9c means-tested welfare or public assistance program for which Federal funds\nare appropriated\xe2\x80\x9d to include \xe2\x80\x9c the food stamp program\n, any program of public or assisted housing under title\nI of the U nited States Housing Act o f 1937\n., and any State program funded under part A of title IV of the\nSocial Security A ct.\xe2\x80\x9d \xc2\xa7 9 1 1(b), 110 Stat at 2353 T he provision does not slate whether these programs are intended\nto be exhaustive or exemplary, but, in any event, th e fact that Congress concluded that it was necessary to provide\na definition o f some sort suggests that Congress did not believe that the meaning of the defined phrase was plain.\n\n28\n\n\x0cProposed Agency Interpretation o f "Federal Means-Tested Public Benefit/s]\xe2\x80\x9d Under Personal\nResponsibility and Work Opportunity Reconciliation A ct o f 1996\n\nrules. Therefore, the critical question is not whether the phrase \xe2\x80\x9c federal meanstested public benefit\xe2\x80\x9d is plain when read in isolation, but rather whether the phrase\nreveals that Congress intended to incorporate the definition that the Senate had\ndeleted, with the House\xe2\x80\x99s acquiescence, as a consequence of its compliance with\nthe budgetary rules established by section 313. The PRA\xe2\x80\x99s definition of \xe2\x80\x9c federal\npublic benefit\xe2\x80\x9d does not reveal such an intention. That same definition was\nalready in the bill at the time Senator Exon raised his point of order objecting\nto the definition of \xe2\x80\x9c federal means-tested public benefit.\xe2\x80\x9d Its inclusion in the\nfinal bill, therefore, cannot reasonably be viewed as a rejoinder to Senator Exon\xe2\x80\x99s\nobjection.\nMoreover, even apart from the operation of section 313, it is a well-settled\ncanon of interpretation that \xe2\x80\x9c where the final version of a statute deletes language\ncontained in an earlier draft, [it may be presumed] that the earlier draft is incon\xc2\xad\nsistent with ultimate congressional intentions.\xe2\x80\x9d In re Town & Country Home\nNursing Servs., Inc., 963 F.2d 1146, 1153 (9th Cir. 1991); see also Russello v.\nUnited States, 464 U.S. 16, 23-24 (1983); G ulf Oil Corp. v. Copp Paving Co.,\n419 U.S. 186, 200 (1974) (Congress\xe2\x80\x99s deletion of provision \xe2\x80\x9c strongly militates\nagainst a judgment that Congress intended a result that it expressly declined to\nenact\xe2\x80\x9d ); cf. INS v. Cardoza-Fonseca, 480 U.S. 421, 442\xe2\x80\x9443 (1987) ( \xe2\x80\x9c \xe2\x80\x98Few prin\xc2\xad\nciples of statutory construction are more compelling than the proposition that Con\xc2\xad\ngress does not intend sub silentio to enact statutory language that it has earlier\ndiscarded in favor of other language.\xe2\x80\x99 \xe2\x80\x9d ) (citations omitted). That canon surely\napplies with particular force in a context such as this, in which the deletion occurs\nby reason of an independent congressional statute that governs the nation\xe2\x80\x99s budg\xc2\xad\neting process.\nA second textual argument that could be made in support of a broader definition\narises from the list of exceptions to \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d pro\xc2\xad\ngrams in section 403(c)(2) of the PRA. The inclusion of some discretionary pro\xc2\xad\ngrams in this list of exceptions would be unnecessary unless the term itself\nincluded such programs. As an initial matter, we note that the logic of this argu\xc2\xad\nment proves too much, particularly in light of other drafting flaws that appear\nin the Act. The same provision that excepts certain discretionary programs from\nthe limitation on eligibility for \xe2\x80\x9c federal means-tested public benefit[s],\xe2\x80\x9d for\nexample, also excepts certain programs specified by the Attorney General that\nare not conditioned on \xe2\x80\x9c the individual recipient\xe2\x80\x99s income or resources.\xe2\x80\x9d\n\xc2\xa7 403(c)(2)(G), 110 Stat. at 2266. The view that Congress would not have excepted\na program that was not otherwise covered would erroneously suggest that \xe2\x80\x9c meanstested\xe2\x80\x9d must be a more expansive term than the phrase \xe2\x80\x9c condition[ed] . . . on\nthe individual recipient\xe2\x80\x99s income or resources.\xe2\x80\x9d\nMore to the point, the list of exceptions included in section 403(c)(2) is quite\nplausibly understood as an inconsistency resulting from the proper operation of\nthe Byrd rule itself. The remedy provided in section 313 is a blunt instrument\n29\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\noffering a basis for striking extraneous material in a reconciliation bill, but no\nmechanism for re-drafting remaining legislative provisions to conform them to\nthe legislation as revised by application of the Byrd rule. Indeed, there was no\ncareful mark-up of the bill following the deletion of the definition of \xe2\x80\x9c federal\nmeans-tested public benefit,\xe2\x80\x9d where inconsistent provisions might have been\nbrought into conformity.16\nMoreover, it is unlikely that members of Congress would have seen the list\nof exceptions as obviously inconsistent with the PRA as revised by application\nof the Byrd rule. The categorization o f particular programs as mandatory or discre\xc2\xad\ntionary is not at all obvious, and it is likely that many, if not most, members\ndid not know precisely which programs fell into which category.17 In addition,\nthe list of exceptions can be seen as Congress\xe2\x80\x99s attempt to safeguard certain pro\xc2\xad\ngrams from any definitional skirmishes and ensure their exception.18\nWe are also unpersuaded that the legislative history of the PRA supports the\nconclusion that Congress intended to enact extraneous material through the rec\xc2\xad\nonciliation process over the sustained objection of a member of the Senate.\nAlthough noting that the definition o f \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d was\ndeleted from the bill through operation of section 313, the conferees\xe2\x80\x99 report on\nthe PRA nonetheless asserts that \xe2\x80\x9c [i]t is the intent of the conferees that [the\ndeleted] definition be presumed to be in place for purposes of this title.\xe2\x80\x9d 142\nCong. Rec. 20,484 (1996). We believe that this statement in the conferees\xe2\x80\x99 report\ncannot be taken as controlling.\nAs noted above, \xe2\x80\x9c \xe2\x80\x98[f]ew principles of statutory construction are more compel\xc2\xad\nling than the proposition that Congress does not intend sub silentio to enact statu\xc2\xad\ntory language that it has earlier discarded in favor of other language.\xe2\x80\x99 \xe2\x80\x9d CardozaFonseca, 480 U.S. at 442\xe2\x80\x9443 (citations omitted). Here, this rule cannot plausibly\ngive way to contrary legislative history. Both houses of Congress deleted the defi\xc2\xad\nnition of \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d : the Senate did so on the basis\nl6SimiIar inconsistencies appear in other provisions of the PRA as a result o f Byrd rule deletions For example,\nthe family cap provision of S 1956, see \xc2\xa7 103 o f July 16 version o f S 1956 (establishing new section 408(a)(2)\no f TANF program), was deleted through a Byrd rule objection The conference report notes this deletion and the\nprovision does not appear in the final version of the PRA 142 C ong Rec 20,459 (1996) Nevertheless, a reference\nto the family cap provision remains, in \xc2\xa7103 o f the PRA (establishing new \xc2\xa7402(a)(7) of title IV of the SSA),\nwhich permits states to waive program requirements in cases of domestic violence. 110 Stat. at 2112, 2115\n17 In fact, dunng Senate consideration o f the conference version o f the bill. Senator Graham confirmed, for himself\nand for any other members that might not have analyzed the list o f excepted programs, that the post-conference\nversion o f the bill was consistent with the Senate\xe2\x80\x99s earlier Byrd rule objections, defining \xe2\x80\x9c federal means-tested\npublic benefit\xe2\x80\x9d as applicable only to mandatory program s See infra note 20\n18 As a result, we do not believe it to be significant that the final version of the PRA also included exceptions\nfor two discretionary programs that did not appear in the Senate version of the PRA from which the broad definition\no f \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d had been deleted Specifically, the Head Start and Job Training programs\nwere only included in the H ouse\xe2\x80\x99s final list of exem pted programs, and not the Senate\xe2\x80\x99s, even though they do\nappear in the final version o f \xc2\xa7 403(c)(2) 110 Stat. at 2266. The inclusion of these two additional exceptions does\nnot change our conclusion because there is no reason to believe that the inclusion of exceptions for these particular\ndiscretionary programs, more than the exceptions fo r the other discretionary programs, was intended to do more\nthan safeguard them from further definitional disagreements In any event, the inclusion in the final bill o f two\nadditional discretionary programs seems to us a m ost oblique means for Congress to reinsert a definition of \xe2\x80\x9c federal\nmeans-tested public benefit\xe2\x80\x9d that had previously been struck\n\n30\n\n\x0cProposed Agency Interpretation o f "Federal Means-Tested Public Beneftt[s] \xe2\x80\x9d Under Personal\nResponsibility and Work Opportunity Reconciliation Act o f 1996\n\nof the CBA, and the House acceded to the Senate. A conference committee cannot\nessentially overrule those decisions by including contrary language in its report.\nTo permit this to occur not only would run counter to the canon against construing\na statute to include terms that Congress had earlier discarded, id., but, even more\nfundamentally, would undermine the rules that were established with such care\nin section 313, which permit a Senator to object to extraneous material that the\nconference might include in the legislation itself, but provide no mechanism for\ncorrecting the conference\xe2\x80\x99s explanatory statement.19 Finally, subsequent Senate\ncolloquy \xe2\x80\x94 admittedly an insubstantial grounding for legislative intent if standing\nalone \xe2\x80\x94 confirms the understanding that a definition that would have extended\nthe term to encompass discretionary programs was deleted because it was outside\nthe subject matter scope of the reconciliation process.20\nWe thus conclude that the legislative record provides strong support for the\nproffered construction of the PRA and that the inconsistencies noted above, while\ngiving rise to some ambiguity, are insufficient to rebut the evidence that Congress\nintended to reach only mandatory spending programs. We, accordingly, turn to\nthe second step of the Chevron inquiry.\n\n>9Section 313 permits a Byrd rule objection to be made at various points throughout the legislative process,\nincluding after the bill has been reported out o f conference. 2 U.S.C. \xc2\xa7 644(c). Thus, the statute allows for the\npossibility that Congress might attempt to reinsert a deleted provision into a bill during conference, and provides\nthe Senate with the opportunity to renew its Byrd rule objection if it insists upon the deletion However, because\na Byrd rule objection can be raised only against legislative language, not against explanatory statements in the con\xc2\xad\nference report, see \xc2\xa7 644(a), allowing a conference repon statement to act as the equivalent of legislative language\neffectively abolishes the statutory mechanism established to ensure the integrity o f the Byrd rule process\n20 Specifically, in the debate over the conference report on the Senate floor. Senator Graham sought to confirm\nthe exact scope o f the term \xe2\x80\x9c federal means-tested public benefit.\xe2\x80\x9d After reviewing the history of the Byrd role\nobjection and the Parliamentarian\xe2\x80\x99s ruling. Senator Graham engaged Senator Kennedy in the following colloquy.\nMr. Graham . . . [WJould the Senator agree (hatr when the Senate struck these sections as violating\nthe Byrd rule, the Senate\xe2\x80\x99s intent was to prevent the denial of services in appropriated programs such\nas those that provide services to victims o f domestic violence and child abuse, the maternal and child\nhealth block grant, social services block grant, community health centers and migrant health centers?\nMr. Kennedy Yes. Under the Byrd rule, the budget reconciliation process cannot be used to change\ndiscretionary spending programs. Only mandatory spending is affected.\n142 Cong. Rec. 20,975 (1996).\nSenator Graham subsequently asked Senator Exon, who was one of the Senate conferees on the bill, whether\n\xe2\x80\x9c the version o f the bill recommended in this conference report is consistent with this understanding.\xe2\x80\x9d Id Senator\nExon confirmed that it was. Later during the debate. Senator Graham raised this issue again with another conferee,\nSenator Chafee:\nMr. Graham 1 wonder if my colleague could address one point on this bill. I notice that the term\n\xe2\x80\x9c Federal means-tested public benefit\xe2\x80\x9d was defined in previous versions of the bill However, in this\nconference report, no definition is provided.\nM r Chafee . . [W]hen the bill was considered in conference, 1 understand that there was an inten\xc2\xad\ntional effort to ensure this provision complied with [the] Byrd rule by omitting the definition o f that\nparticular term.\nIn other words, then, the term \xe2\x80\x9c Federal means-tested public benefit\xe2\x80\x9d \xe2\x80\x94 if it is to be in compliance\nwith the Byrd rule\xe2\x80\x94 does not refer to discretionary programs.\nId at 20,979.\n. -\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nII. Chevron Step II\nUnder the second step of the Chevron analysis, two questions arise. First, it\nis necessary to determine whether Congress intended for agencies or courts to\nresolve the ambiguity that Congress, either intentionally or inadvertently, failed\nto resolve. See Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (\xe2\x80\x9c [a] pre\xc2\xad\ncondition to deference under Chevron is a congressional delegation of administra\xc2\xad\ntive authority\xe2\x80\x9d ); see also Johnson v. United States R.R. Retirement Bd., 969 F.2d\n1082, 1088 (D.C. Cir. 1992) (\xe2\x80\x9c If agencies are simply interpreting a statute, but\nhave not been granted the power to \xe2\x80\x98administer\xe2\x80\x99 it, the principle of deference\napplies with less force.\xe2\x80\x9d ), cert, denied, 507 U.S. 1029 (1993). Second, if Congress\nintended for agencies to resolve the ambiguity, then it is necessary to determine\nwhether the proposed agency interpretation is \xe2\x80\x9c permissible.\xe2\x80\x9d Chevron, 467 U.S.\nat 843.21 If Congress intended for the agencies to resolve the interpretive ambi\xc2\xad\nguity, and the agency resolution is permissible, then the agency construction is\nbinding.22 See id.\nA,\nCongress need not expressly authorize agencies to construe ambiguous statutory\nterms in order for courts to be bound by agency constructions. In Chevron itself,\nfor example, the Court deferred to an Environmental Protection Agency (\xe2\x80\x9c EPA\xe2\x80\x9d )\nconstruction of the Clean Air Act, even though no statutory language expressly\nempowered that agency to impose a binding interpretation of the term \xe2\x80\x9c stationary\nsource.\xe2\x80\x9d The Court simply inferred that Congress must have intended for the EPA,\nas the agency entrusted with administering the Clean Air Act, to resolve the policy\nchoices that inhere in the interpretation of ambiguous statutory language. See\nChevron, 467 U.S. at 843. The Court explained that this inference was reasonable\nbecause agencies generally possess superior expertise and greater political\naccountability than courts. See id. at 865-66.\nOn the other hand, Congress may impliedly authorize courts to interpret a par\xc2\xad\nticular statutory provision, even though an agency has been generally charged with\nadministering the statute as a whole. In Adams Fruit Co., for example, the Court\nrefused to defer to the Department o f Labor\xe2\x80\x99s resolution of the question whether\nexclusivity provisions in state worker compensation laws trumped a federal private\nright of action under the Migrant and Seasonal Agricultural Worker Protection\n21 Although the Court stated in Cardoza-Fonseca that Chevron-deference does not apply to pure questions of\nlaw, such as the one at issue here, it has subsequently retreated from this position Our memorandum proceeds\non the assumption that Chevron applies to such questions. Cardoza-Fonseca\xe2\x80\x9e 480 U.S at 454-55 (Scalia, J., concur\xc2\xad\nring)\n22 Even if Congress has not entrusted the interpretative function to an agency, courts should still give careful\nconsideration to agency constructions that are based on expertise and to which they have consistently adhered. See,\ne g ., Atchison, Topeka and Santa Fe Ry. v. Pena, 4 4 F 3d 437, 445 (7th Cir. 1994) (Easterbrook, J , concurring),\na j f d sub nom, Brotherhood o f Locomotive Engineers v Atchison, Topeka & Santa Fe Ry , 515 U S 1141 (1995).\n\n32\n\n\x0cProposed Agency Interpretation o f \xe2\x80\x9cFederal Means-Tested Public Benefit[s]\xe2\x80\x9c Under Personal\nResponsibility and Work Opportunity Reconciliation Act o f 1996\n\nAct, 29 U.S.C. \xc2\xa7\xc2\xa7 1801-1872 (1994 & Supp. I 1995) (\xe2\x80\x9c Worker Protection Act\xe2\x80\x9d ).\nEven though the Department was responsible for administering the Worker Protec\xc2\xad\ntion Act generally, the Court concluded that Congress intended for the judiciary,\nnot the agency, to construe the contours of the private right of action that the\nWorker Protection Act created. See Adams Fruit Co., 494 U.S. at 649. The Court\nbased that conclusion primarily on the fact that the Department was not required\nto interpret the private right of action provisions as an incident of its general\nadministration of the Worker Protection Act, as those provisions established a\nparallel and independent enforcement mechanism. See id. at 649-50.\nIn our view, the delegation question presented here is more analogous to\nChevron than to Adams Fruit Co. Although the PRA does not expressly delegate\ngeneral administrative authority to HHS, HUD, or, for that matter, to any other\nparticular agency, the PRA effectively amends the statutes that establish the assist\xc2\xad\nance programs over which HHS, HUD and other federal agencies have already\nbeen delegated administrative authority. Because those agencies possess general\nadministrative authority to interpret eligibility criteria set forth in statutes enacted\nprior to the PRA, we believe it to be a fair inference that Congress intended\nfor the changes effected by the PRA to be administered in the same manner.\nIn an analogous context, the Third Circuit deferred to HHS\xe2\x80\x99 construction of\nthe Hyde Amendment, even though, as the dissent in that case pointed out, the\nHyde Amendment does not expressly delegate administrative authority to any\nagency. Compare Elizabeth Blackwell Health Ctr. fo r Women, 61 F.3d at 182,\nwith id. at 196 (Nygaard, J., dissenting). The court concluded that HHS\xe2\x80\x99 authority\nto administer the Medicaid statute necessarily included the authority to construe\nlegislation that amended the Medicaid statute\xe2\x80\x99s eligibility requirements. Id. at 182;\nsee also Fort Wayne Community Schools v. Fort Wayne Educ. A ss\xe2\x80\x99n, 977 F.2d\n358, 365 (7th Cir. 1992) (deferring to Postal Service\xe2\x80\x99s construction of a criminal\nstatute on the ground that it was \xe2\x80\x9c intimately connected\xe2\x80\x9d to the purposes of the\nstatute that Postal Service was charged with administering), cert, denied, 510 U.S.\n826 (1993); Associated Third Class Mail Users v. United States Postal Serv., 600\nF.2d 824, 826 n.5 (D.C. Cir.), cert, denied, 444 U.S. 837 (1979) (same).\nThe case for deference is even stronger here, moreover, because the PRA not\nonly amends the eligibility requirements for the programs that these agencies\nadminister, but also expressly assigns these agencies the responsibility of\ninforming the public of the changes in those eligibility requirements that the PRA\neffects. Section 404(a) of the PRA requires federal agencies that administer assist\xc2\xad\nance programs to provide the public with information about how the PRA changes\nthe eligibility requirements for those programs.23 This assignment, we believe,\nimpliedly delegates to these agencies the authority to resolve the meaning of the\n23 \xe2\x80\x9c Each Federal agency that administers a program to which section 401, 402, or 403 applies shall, directly\nor through the States, post information and provide general notification to the public and to program recipients\nof the changes regarding eligibility for any such program pursuant to this subtitle \xe2\x80\x9d 110 Stat. at 2267\n\n33\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nphrase \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d : agencies must first interpret the\nmeaning of the term \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d in order to comply\nwith section 404(a)\xe2\x80\x99s mandate to inform the public of the PRA\xe2\x80\x99s impact on eligi\xc2\xad\nbility requirements. Only by determining whether that term applies to both manda\xc2\xad\ntory and discretionary assistance programs (among other questions of application)\nwill agencies be able to determine who is eligible for the programs that they\nalready administer pursuant to separate statutory delegations. Section 404(a)\xe2\x80\x99s\nnotification requirement serves a useful function, moreover, only to the extent\nthat the agencies are able to provide accurate information about the eligibility\nchanges that the PRA mandates. If courts are free to reject reasonable agency\ninterpretations of that term, then agencies will be forced to risk providing inac\xc2\xad\ncurate eligibility information or to refrain from providing complete eligibility\ninformation altogether. Because neither result seems consistent with the purpose\nbehind section 404(a), it is proper to infer that Congress intended for the agencies\nto provide the authoritative construction of the term \xe2\x80\x9c federal means-tested public\nbenefit\xe2\x80\x9d when it assigned them the notification task set forth in section 404(a).\nIn light of the agencies\xe2\x80\x99 statutorily assigned responsibilities, the agencies cannot\nfairly be viewed as \xe2\x80\x9c trying to \xe2\x80\x98bootstrap\xe2\x80\x99 [themselves] into an area in which [they\nhave] no jurisdiction\xe2\x80\x9d in seeking deference for their construction of the term \xe2\x80\x9c fed\xc2\xad\neral means-tested public benefit.\xe2\x80\x9d Wagner Seed Co. v. Bush, 946 F.2d 918, 923\n(D.C. Cir. 1991), cert, denied, 503 U.S. 970 (1992) (citation omitted). Rather,\nthey are offering an interpretation that results from the \xe2\x80\x9c intimate connection\xe2\x80\x9d\nbetween the purposes of the statutes that the agencies already administer and those\nof the PRA generally, Fort Wayne Community Schools, 977 F.2d at 365, and that\narises in connection with the \xe2\x80\x9c special duty\xe2\x80\x9d that section 404(a) of the PRA\nassigns them. See FLRA v. Department o f Treasury, 884 F.2d 1446, 1451 (D.C.\nCir. 1989), cert, denied, 493 U.S. 1055 (1990).\nWe are aware of those cases that assert that courts should not defer to statutes\nthat are \xe2\x80\x9c general\xe2\x80\x9d in nature or that are subject to interpretation by more than\none agency. See, e.g., Johnson v. United States R.R. Retirement Bd., 969 F.2d\nat 1088 (citing cases). We do not believe that this rule of construction should\napply here. The rule has been invoked primarily in cases in which agencies seek\nChevron deference for their construction of statutes that have been expressly\nentrusted to other agencies for administration, see id.; Cheney R.R. Co. v. Railroad\nRetirement Bd., 50 F.3d 1073, 1073-74 (D.C. Cir. 1995), that are designed to\nensure that agencies remain publicly accountable or proceed in a fair manner,\nsee, e.g., Professional Reactor Operator Soc\xe2\x80\x99y v. United States Nuclear Regulatory\nC omm\xe2\x80\x99n, 939 F.2d 1047, 1051 (D.C. Cir. 1991); see Air North Am. v. Department\no f Transp., 937 F.2d 1427, 1436 (9th Cir. 1991), or that are not intimately con\xc2\xad\nnected to the mission of the agency that seeks deference. See, e.g., Professional\n34\n\n\x0cProposed Agency Interpretation o f "Federal Means-Tested Public Benefit[s)" Under Personal\nResponsibility and Work Opportunity Reconciliation Act o f 1996\n\nAirways Sys. Specialists v. FLRA, 809 F.2d 855, 857 n.6 (D.C. Cir. 1987). The\nresults in these cases are, therefore, best explained as particular applications of\nthe justifiable presumption that Congress does not intend for courts to be bound\nby agency constructions that are beyond agency expertise, see, e.g., Colorado\nNurses Ass\'n v. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988), or that concern\nprovisions that are designed to ensure agencies proceed in a fair and accountable\nmanner, see Air North Am. -v. Department o f Transp., 937 F.2d at 1436. These\ncases do not establish, in our view, a general presumption in favor of judicial\nresolution of all statutory ambiguities that confront more than a single agency.\nIndeed, Chevron\'s emphasis on the greater political accountability of agencies\ncounsels against a rule of construction that would afford judges the last word\non the meaning of any statute that does not authorize a single agency to administer\nit. See Chevron, 467 U.S. at 865-66. Where, as here, a statute assigns a group\nof agencies a particular task that is related to the duties that the agencies already\nhave been assigned by their governing statutes, Congress may be presumed to\nhave intended for these agencies to resolve any ambiguities that may arise. That\nthe PRA does not assign any particular agency primary interpretive responsibility\ndoes not change the analysis. Congress may have intended for the courts to resolve\nthe meaning of the term \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d in the event of\nunresolved interpretive conflicts among the agencies identified by section 404.\nThere is no reason to suppose, however, that Congress intended for unelected\njudges to countermand a unanimous resolution of the policy question by the agen\xc2\xad\ncies closest to it. Cf. American Fed\xe2\x80\x99n o f G ov\xe2\x80\x99t Employees v. FLRA, 2 F.3d 6,\n10 (2d Cir. 1993) (\xe2\x80\x9c [W]hen two agencies, each examining statutes they are\ncharged with administering, agree as to the interplay of the statutes, there is no\nmore reason to mistrust their congruent resolutions than there is to mistrust action\ntaken by a single agency.\xe2\x80\x9d ); see also Salleh v. Christopher, 85 F.3d 689 (D.C.\nCir. 1996) (suggesting that joint agency interpretations may deserve deference);\nc f Lieberman v. FTC, 111 F.2d 32, 37 (2d Cir. 1985) (declining to defer to joint\nagency construction but noting that Congress may delegate \xe2\x80\x9c dual lawmaking\nauthority\xe2\x80\x9d ). So long as the agencies identified by section 404(a) concur in their\ninterpretation of the term \xe2\x80\x9c federal means-tested public benefit,\xe2\x80\x9d therefore, we\nbelieve that courts would be bound to accord that interpretation Chevron def\xc2\xad\nerence.\nFinally, we do not believe that the deference that the agencies receive under\nChevron should turn on whether their construction of the term \xe2\x80\x9c federal meanstested public benefit\xe2\x80\x9d would be deemed an \xe2\x80\x9c interpretative\xe2\x80\x9d or \xe2\x80\x9c legislative\xe2\x80\x9d rule\nunder the Administrative Procedure Act. We agree with those courts that have\nconcluded that Chevron deference turns solely on whether the agency\xe2\x80\x99s interpreta\xc2\xad\ntion may fairly be understood to be one for which Congress intended judicial\ndeference to apply, see, e.g., Elizabeth Blackwell Health Ctr. fo r Women, 61 F.3d\nat 182; id. at 190-96 (Nygaard J., dissenting) (reviewing conflicting caselaw);\n35\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nKelley v. EPA, 15 F.3d 1100, 1108 (D.C. Cir. 1994), cert, denied, 513 U.S. 1110\n(1995); see generally Robert A. Anthony, Which Agency Interpretations Should\nBind Citizens and the Courts?, 1 Yale J. on Reg. 1 (1990), and not on whether\nthe proposed construction is \xe2\x80\x9c interpretative\xe2\x80\x9d or \xe2\x80\x9c legislative\xe2\x80\x9d in nature.24 The\nlatter determination, in our view, relates only to the procedural question whether\nthe agency\xe2\x80\x99s rule may be promulgated outside the process of notice and comment\nrulemaking. That determination should have no bearing on the entirely separate\nquestion whether Congress intends for courts or agencies to resolve the interpre\xc2\xad\ntive ambiguity at issue.25\n\nB.\nGiven that Congress impliedly delegated to the agencies the responsibility for\nresolving the interpretive question raised by the PRA\xe2\x80\x99s use of the phrase \xe2\x80\x9c federal\nmeans-tested public benefit,\xe2\x80\x9d the only remaining issue under step two of the\nChevron analysis is whether the answer provided by the agencies \xe2\x80\x9c is based on\na permissible construction of the statute.\xe2\x80\x9d Chevron, 467 U.S. at 843. If it is, that\nconstruction is binding. Id.\nA definition of the term \xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d that includes\nonly mandatory assistance programs is manifestly \xe2\x80\x9c permissible.\xe2\x80\x9d The second step\nof the Chevron analysis arises only if Congress failed to resolve whether the term\n\xe2\x80\x9c federal means-tested public benefit\xe2\x80\x9d applies to discretionary assistance pro\xc2\xad\ngrams. The conclusion that Congress left that question open is possible only if\nthe phrase admits of the proffered construction. The same reasons that led us\nto conclude that there is strong evidence to support the HHS and HUD proffered\ndefinition of \xe2\x80\x9c federal means-tested public benefit,\xe2\x80\x9d see infra pp. 22-31, therefore,\nalso show that the proffered definition is a \xe2\x80\x9c permissible\xe2\x80\x9d one. Moreover, HHS\nand HUD assert that their reading \xe2\x80\x9c best balances our Departments\xe2\x80\x99 other statutory\nobligations with Congressional goals embodied in the [PRA].\xe2\x80\x9d Rabb/Diaz Letter\nat 1. Under Chevron, agency constructions based on reasonable assessments of\nstatutory purposes are entitled to deference. See Chevron, 467 U.S. at 858.\n\n24 The Supreme Court has stated in post-Chevron dicta that interpretive rules are entitled to less weight than\n\xe2\x80\x9c norms that derive from the exercise o f the Secretary\xe2\x80\x99s delegated lawmaking pow ers.\xe2\x80\x9d See Martin v. Occupational\nSafety & Health Review C om m \'n, 499 U S 144, 157 (1991) More recently, however, the Court has intimated that\ninterpretive rules may be entitled to Chevron-style deference See Reno v Koray, 515 U S 50, 60-61 (1995).\n25 O f course, there are clearly some instances in which informal agency interpretations may be presumed to be\nundeserving o f full Chevron deference There are sound reasons, for example, to presume that Congress does not\nintend for courts to defer to agency litigating positions See Bowen v. Georgetown Umv H o s p 488 U S. 204, 21213 (1988) Here, however, the agencies proffer their construction outside the litigation context. Moreover, we note\nthat the very existence o f the Bowen rule, which precludes the application of Chevron deference to agency litigating\npositions, would be unnecessary if all \xe2\x80\x9c interpretative\xe2\x80\x9d rules\xe2\x80\x94 including those fashioned outside the litigation pro\xc2\xad\ncess\xe2\x80\x94 were already precluded from receiving such deference\n\n36\n\n\x0cProposed Agency Interpretation o f \xe2\x80\x9cFederal Means-Tested Public Benefit[s]\xe2\x80\x9d Under Personal\nResponsibility and Work Opportunity Reconciliation Act o f 1996\n\nCONCLUSION\nWe accordingly conclude that the HHS/HUD proffered definition constitutes\na permissible and legally binding construction of the PRA.\nDAWN E. JOHNSEN\nActing Assistant Attorney General\nRANDOLPH D. MOSS\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n37\n\n\x0c'


b'June 8, 1977\n\n77-35\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL OF THE DEPARTMENT\nOF DEFENSE\nRental Fees for Spaces in Military Trailer Parks\n\nThis is in response to your letter requesting our opinion whether 5\nU.S.C. \xc2\xa7 5911 authorizes the Office of Management and Budget (OMB)\nto determine that the rental fee for trailer spaces in military trailer\nparks are to be based upon the prevailing rates for comparable private\nfacilities.\nIn our opinion, OMB has correctly concluded that 5 U.S.C. \xc2\xa75911,\nand OMB Circular A-45, require the Department of Defense (DOD) to\nbase the rental fee for these trailer parking spaces on their \xe2\x80\x9creasonable\nvalue,\xe2\x80\x9d determined by comparison with comparable private trailer\ncourts.\nThe mobile home parks in question consist of hard-surface trailer\nspaces, streets, curbs, gutters, and utility hookups on military installa\xc2\xad\ntions. Military personnel, primarily enlisted men in the lower grades,\npark their mobile homes there, and occupy them as personal residences.\nIt has been D O D \xe2\x80\x99s practice to charge the occupants a rate sufficient to\namortize the space over a 15-year period.\nSection 5911(c) provides that the rental rate for \xe2\x80\x9cquarters\xe2\x80\x9d occupied\nby a member of the uniformed services shall be based on the \xe2\x80\x9creason\xc2\xad\nable value of the quarters and facilities to the . . . member concerned,\nin the circumstances under which the quarters and facilities are pro\xc2\xad\nvided, occupied, or made available.\xe2\x80\x9d Section 5911(a)(5) defines \xe2\x80\x9cquar\xc2\xad\nters\xe2\x80\x9d for the purpose of the section as \xe2\x80\x9cquarters owned or leased by the\nGovernment.\xe2\x80\x9d\nThus, the disputed issue is whether the term \xe2\x80\x9cquarters\xe2\x80\x9d includes\ntrailer facilities consisting of a parking space, streets, curbs, gutters, and\na utility hookup. We conclude that it does.\nAlthough the legislative history of \xc2\xa75911 does not explicitly define\nthe term \xe2\x80\x9cquarters\xe2\x80\x9d (beyond a repetition of the statutory definition), it\ndoes, as both D O D and OMB recognize, show that Congress used the\nterm \xe2\x80\x9cquarters\xe2\x80\x9d as a synonym for \xe2\x80\x9chousing.\xe2\x80\x9d S. Rep. No. 829, 88th\n137\n\n\x0cCong., 2d Sess.; H.R. Rep. No. 1459, 88th Cong., 2d Sess. Likewise, the\ncomments from the then Bureau of the Budget that were set forth at\nlength in each committee report use \xe2\x80\x9chousing\xe2\x80\x9d and \xe2\x80\x9cquarters\xe2\x80\x9d inter\xc2\xad\nchangeably. Accordingly, Congress\xe2\x80\x99 construction of the word \xe2\x80\x9chous\xc2\xad\ning\xe2\x80\x9d provides some guidance for determining the proper construction\no f the term \xe2\x80\x9cquarters.\xe2\x80\x9d\nAlthough OMB has draw n our attention to the use of the term\n\xe2\x80\x9chousing\xe2\x80\x9d in several recent Acts, the uses of this term by the 88th\nCongress (which enacted \xc2\xa75911) are, we believe, the most pertinent.\nThe Military Construction Authorization Act, Pub. L. No. 88-390, 78\nStat. 341, is closely related to the subject matter of \xc2\xa7 5911. In Title V,\ncaptioned \xe2\x80\x9cMilitary Family Housing,\xe2\x80\x9d Congress authorized the Secre\xc2\xad\ntary to construct \xe2\x80\x9cfamily housing units and trailer court facilities.\xe2\x80\x9d\n\xc2\xa7501. Section 505 made the inclusion of trailer facilities in \xe2\x80\x9chousing\xe2\x80\x9d\neven more explicit; it provided that funds were authorized \xe2\x80\x9c(a) for\nconstruction and acquisition of fam ily housing, including . . . construc\xc2\xad\ntion and acquisition of trailer court facilities. . . . \xe2\x80\x9d [Emphasis added.]\nM oreover, as the more recent Military Construction Authorization Acts\ncited by OMB demonstrate, Congress consistently has continued to\nemploy a broad construction of the term \xe2\x80\x9chousing\xe2\x80\x9d\xe2\x80\x94explicitly includ\xc2\xad\ning trailer facilities\xe2\x80\x94in the context of military housing. Section 508 of\nPub. L. No. 93-552, 88 Stat. 1745, Section 509 of Pub. L. No. 92-545,\n86 Stat. 1145.*\nWe believe that Congress intended the term \xe2\x80\x9cquarters\xe2\x80\x9d to be given a\nsimilarly broad construction in \xc2\xa7 5911. One of the primary purposes of\nthe legislation was to ensure the uniform application of what the House\ncommittee termed \xe2\x80\x9cthe equitable principle that the Government should\ncharge its employees the \xe2\x80\x98reasonable value\xe2\x80\x99 of quarters and related\nitems furnished to them.\xe2\x80\x9d H.R. Rep. No. 1459, 88th Cong., 2d Sess. 3\n(hereinafter House report). T he enactment of \xc2\xa7 5911 clarified the appli\xc2\xad\ncability of this principle to military personnel and to persons who were\nnot Governm ent employees (such as employees of contractors). House\nreport at 2, 3-4. Congress also sought to ensure \xe2\x80\x9cuniform and equitable\napplication\xe2\x80\x9d and \xe2\x80\x9cuniform implementation\xe2\x80\x9d by authorizing the Presi\xc2\xad\ndent to issue regulations to carry out the Act, 5 U.S.C. \xc2\xa7 5911(0- House\nreport at 6-7.* The only indication of any exception to the \xe2\x80\x9cgeneral\nprinciple\xe2\x80\x9d of the A ct was \xc2\xa7 7, now \xc2\xa7 5911(g), which provides\xe2\x80\x94\n1 D O D cites several statutory exam ples to support its con trary argum ent that Congress\nhas consistently view ed \xe2\x80\x9c quarters\xe2\x80\x9d as lim ited to room s, bedroom s, shelter, etc. In view o f\nthe recen t expressions o f congressional intent ju st noted, w e question the pertinence o f\nthe th ree statutes enacted in 1922 o r earlier, at least 40 years before the enactm ent o f\n\xc2\xa7 5911. T h e rem aining provision, 10 U.S.C. \xc2\xa7 2684, w as enacted in 1973 as \xc2\xa7 509(a) o f the\nM ilitary C o nstruction A uthorization A ct, Pub. L. N o. 93-166, 87 Stat. 661. Section 511(1)\no f the same A c t authorized funds fo r \xe2\x80\x9c family housing, including . . . construction and\nacquisition o f m obile hom e facilities . . .\n\xe2\x80\xa2\nT h e President delegated this au th o rity to O M B in \xc2\xa7 9(1) o f E xecutive O rder No.\n11609, 3 C F R 586 (1971-1975 Com pilation).\n\n138\n\n\x0cSection 3 of this Act shall not be held or considered to repeal or\nmodify any provision of law authorizing the provision of quarters\nor facilities, either without charge or at charges or rates specifical\xc2\xad\nly fixed by law.3\nDO D, however, suggests that Congress has authorized the present\nrental rates, which amortize the construction costs of the trailer facili\xc2\xad\nties over a 15-year period. It relies upon the Senate report on the 1962\nMilitary Construction Appropriation Act, which states the committee\xe2\x80\x99s\nconclusion that the \xe2\x80\x9cparking rate\xe2\x80\x9d should be based upon an amortiza\xc2\xad\ntion period of 15 years rather than 28 years. S. Rep. No. 732, 87th\nCong., 1st Sess. 4-5.\nIn our view, this expression of intent is no longer controlling. One of\nthe primary purposes of the enactment of \xc2\xa7 5911, as described above,\nwas to clarify the applicability of the reasonable value rental principle\nto members of the uniformed services. As the House committee ob\xc2\xad\nserved, the legislation would \xe2\x80\x9cprovide a basis for fixing rental rates and\nrelated charges for rental housing occupied by members of the uni\xc2\xad\nformed services. . . . \xe2\x80\x9d House report at 2. Prior statutory provisions\nauthorizing occupancy of certain quarters by military personnel, in\ncontrast, \xe2\x80\x9cdid not specify how the rental rates were to be determined.\xe2\x80\x9d\nHouse report at 4. When Congress enacted \xc2\xa7 5911 in 1964, it not only\nextended the \xe2\x80\x9creasonable value\xe2\x80\x9d rental concept to the armed services,\nbut also provided an exception from this rule only where another rate\nwas set by statute (Le., \xe2\x80\x9cspecifically fixed by law\xe2\x80\x9d). Thus, the 1962\nexpression of the Senate committee\xe2\x80\x99s view is no longer controlling.\nNor are we persuaded that the various dictionary definitions cited by\nDOD require a contrary conclusion, because Congress is in no way\nrestricted to a particular dictionary definition; moreover, the cited defi\xc2\xad\nnitions are sufficiently broad to encompass trailer park facilities. Al\xc2\xad\nthough one common thread in the definitions is a shelter or a space\nwithin a shelter, Le., a building or rooms within a building, another\nthread common to these definitions is a \xe2\x80\x9c[p]lace of lodging\xe2\x80\x9d or \xe2\x80\x9c[p]lace\nof residence.\xe2\x80\x9d Webster\xe2\x80\x99s New International Dictionary (2d ed. 1954),\nWebster\xe2\x80\x99s New Collegiate Dictionary (1956), American College Dic\xc2\xad\ntionary (1970). A trailer park space may be such a place of residence or\nlodging.\nIn conclusion, we believe that construing the term \xe2\x80\x9cquarters\xe2\x80\x9d to\ninclude trailer facilities is consistent with Congress\xe2\x80\x99 intent to broaden\nthe application of the equitable principle that Government housing\nshould be rented to employees for its reasonable value. Civilian employ\xc2\xad\nees, contractors\xe2\x80\x99 employees, and members of the military all were to be\ncovered. Quarters, whether owned by the Government or leased by it,\n1 T he language o f this section was altered slightly in the general nonsubstantive\nrecodification o f T itle 5 in 1966; it now provides:\nSubsection (c) o f this section does not repeal o r modify any provision o f statute\nauthorizing the provision o f quarters o r facilities, either w ithout charge o r at rates or\ncharges specifically fixed ey statute.\n\n139\n\n\x0cwere to be subject to this principle. 5 U.S.C. \xc2\xa75911(a)(5). \xe2\x80\x9cFacilities\xe2\x80\x9d\nmade available in connection with the rental of quarters\xe2\x80\x94such as\nhousehold furniture and equipment, garage space, utilities, subsistence,\nand laundry service\xe2\x80\x94w ere also covered by \xc2\xa75911. 5 U.S.C.\n\xc2\xa7 5911(a)(6).\nThe President was authorized to promulgate regulations to ensure\nuniform enforcement. 5 U.S.C. \xc2\xa75911(0- An arbitrary exemption from\nthe application o f the principle in favor of military employees living in\ntrailer parks would be contrary to Congress\xe2\x80\x99 intention. DO D has urged\nthat the majority of those affected are junior enlisted members, who are\nthe least able to afford adequate housing. It does not appear, however,\nthat Congress was persuaded to make an exception in their favor.\nJo hn M. H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n140\n\n\x0c'


b'October 12, 1979\n\n79-76\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR OFFICE OF MANAGEMENT AND\nBUDGET\nBonneville Power Administration\xe2\x80\x94Authority to\nConduct Pilot Conservation Programs (16 U.S.C.\n\xc2\xa7\xc2\xa7 832, 838)\n\nThis responds to your request for the views of this department whether\nthe Bonneville Power Administration (BPA), an agency within the Depart\xc2\xad\nment of Energy, would be authorized to engage in four energyconservation pilot programs outlined in the letter to you from the\nSecretary of Energy dated August 10, 1979. These programs would be con\xc2\xad\nducted in the fields of residential insulation, solar water heaters, irrigation\npump testing, and small wind energy conversion systems.\nThe Department of Energy believes that the BPA has the authority to\ncarry out those programs as long as they remain in the nature and within\nthe dimensions of testing or pilot programs designed to determine the\nfeasibility of full-scale implementation. The latter, the Department of\nEnergy believes, would have to be authorized by Congress. It is our opin\xc2\xad\nion that BPA is authorized to engage in and to expend funds on the pro\xc2\xad\ngrams as proposed by the Department of Energy, if the BPA Admin\xc2\xad\nistrator considers them to be necessary.\nThe basic functions of the BPA are to operate and maintain the Federal\nelectric power transmission system in the Pacific Northwest and to market\nthe electric power generated by the Federal generating plants in that area.\nAct of August 20, 1937, \xc2\xa7 2(b) 50 Stat. 732, 16 U.S.C. \xc2\xa7 832(a) (b) (Bonne\xc2\xad\nville Act); Federal Columbia River Transmission Systems Act, \xc2\xa7\xc2\xa7 2(b), 8,\n16 U.S.C. \xc2\xa7\xc2\xa7 838, 838f, 88 Stat. 1376, 1377.\nAt first blush the conservation of electricity and the development of\nalternative sources of power may appear to have the effect of decreasing\nthe demand for electric power and thus to be inconsistent with the\nstatutory purposes of an entity established to transmit and market the\npower generated by the Federal hydroelectric installations in the Pacific\nNorthwest. According to information furnished to us by the Department\n419\n\n\x0cof Energy, this would not be the effect of the conservation measures or of\nthe development of alternative sources of energy. There is now a shortage\nof hydroelectric power in the Pacific Northwest, which, it is said, will last\nat least until 1983. Hence, not all demands for electricity can be filled from\nthe Federal hydroelectric generating plants in the Northwest. Moreover,\n\xc2\xa7 4(b) of the Bonneville Act, 16 U.S.C. \xc2\xa7 832c(b), requires that priority be\ngiven to domestic and rural consumers. The proposed conservation of\nelectricity by domestic and rural consumers and the development of alter\xc2\xad\nnative sources of power for the use of those consumers, therefore, would\nnot lessen the overall demand for electricity. Instead, it would make more\nenergy available for the use o f nonpreference\xe2\x80\x94usually in\xc2\xad\ndustrial\xe2\x80\x94customers; in other words it would be the equivalent of\ngenerating additional energy.\nThis effort to make the greatest use of the energy generated by the\nFederal hydroelectric generating facilities in the Northwest would be con\xc2\xad\nsistent with \xc2\xa7 2(b) of the Bonneville Act, 16 U.S.C. \xc2\xa7 832a(b), \xe2\x80\x9c to en\xc2\xad\ncourage the widest possible use of all electricity energy that can be\ngenerated and marketed and to provide reasonable outlets therefore,\xe2\x80\x9d and\nwith \xc2\xa7 4(d) of Pub. L. No. 93-454, 16 U.S.C. \xc2\xa7 838(b)(d), providing that\nthe Secretary of Energy through the Bonneville Administrator shall\n\xe2\x80\x9c maintain the electrical stability and electrical reliability of the Federal\nsystem.\xe2\x80\x9d\nMoreover, \xc2\xa7 2(0 o f the Bonneville Act, 16 U.S.C. \xc2\xa7 832a(f), confers on\nthe BPA Administrator extremely broad powers. That section authorizes\nthe Administrator \xe2\x80\x9c [s]ubject only to the provisions of this Act * * * to\nenter into such contracts, agreements, and arrangements * * * as he may\ndeem necessary.\xe2\x80\x9d It gives very wide discretion to the Administrator. The\nComptroller General noted in his letters of September 21, 1951\n(B-105397), to the Secretary of the Interior, and of July 19, 1979\n(B-11485B), to Representative Weaver that the legislative history of that\nprovision\n*\n* * indicates that its purpose was to free the Administration\nfrom the requirements and restrictions ordinarily applicable to\nthe conduct o f Government business and to enable the Admin\xc2\xad\nistrator to conduct the business o f the project with a freedom\nsimilar to that which has been conferred on public corporations\ncarrying on similar or comparable activities. In view of such broad\nauthority, it appears that the scope of the activities contemplated\nunder the act and the appropriate means of accomplishing same,\nare matters for determination by the Administrator * * *.\nHowever, as broad as the authority of the Administrator may be, it is cir\xc2\xad\ncumscribed by the basic statutory functions of the EPA, i.e., to transmit\nand market the power generated by the Federal hydroelectric power proj\xc2\xad\nects in the Northwest. It is not his office to increase the amount of\navailable power, at least not on a permanent basis. That would require\ncongressional action.\n420\n\n\x0cOn the other hand, \xc2\xa7 11 of Pub. L. No. 93-454, 16 U.S.C. \xc2\xa7 8381, which\nestablishes a revolving fund for the BPA, permits expenditures from this\nfund without further appropriation for a number of purposes, including:\n(3) electrical research, development, experimentation, tests,\nand investigation related to construction, operation, and\nmaintenance of transmission systems and facilities; and\n* * * * * * *\n(6) purchase of electric power (including the entitlement of\nelectric plant capability) (i) on a short-term basis to meet tem\xc2\xad\nporary deficiencies in electric power which the Administrator is\nobligated by contract to supply * * * .\nWe have been advised that the programs that BPA intends to undertake\nare in the nature of research and pilot programs designed to determine\nwhether conservation measures, such as home insulation and irrigation\npump testing, and new methods of generating energy, such as solar heaters\nand small wind-energy conversion systems, would be more efficient\nmethods of filling the energy gap in the Northwest than the building of\nnew dams or purchasing power from thermal or nuclear power plants.\nMoreover, BPA analogizes the saving of energy to the generation or ac\xc2\xad\nquisition of additional energy. Section 11(b)(6) of Pub. L. No. 93-454, 16\nU.S.C. \xc2\xa7 838i(b)(6), authorizes BPA to expend funds for that purpose on a\nshort-term basis.\nWe therefore conclude that if the Administrator o f BPA determines that\nit is necessary to engage in the four pilot programs mentioned in the letter\nof the Secretary of Energy, BPA would be authorized to conduct them.\nL a r r y L . S im m s\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n421\n\n\x0c'


b'July 18, 1979\n\n79-53\n\nMEMORANDUM OPINION FOR THE\nSECRETARY OF LABOR\nImmigration and Nationality Act\xe2\x80\x948 U.S.C.\n\xc2\xa7 1101(a)(15)(H)\xe2\x80\x94Nonimmigrant Aliens\xe2\x80\x94Soccer\nStrike\n\nThis is in response to your request to the Attorney General for recon\xc2\xad\nsideration o f this Office\xe2\x80\x99s April 18 memorandum dealing with the status o f\nnonimmigrant alien soccer players during a strike affecting the soccer\nleague in which they play. That mem orandum considered whether the\nplayers, temporarily employed in the United States by the N orth American\nSoccer league on so-called \xe2\x80\x9c H visas,\xe2\x80\x9d 8 U .S.C . \xc2\xa7 1101(a)(15)(H), could\nlawfully continue to work during the strike, and whether those who chose\nto honor the strike might lawfully remain in the United States. It con\xc2\xad\ncluded that the Immigration and Nationality Act (INA) and applicable\nregulations o f the Immigration and Naturalization Service (INS) neither\nrequired deportation o f those who chose not to work during the strike nor\nbarred players from continuing to work if they chose to do so.\nYou take issue with this conclusion, pointing out that it has been \xe2\x80\x9c long\xc2\xad\nstanding immigration policy\xe2\x80\x9d to bar the use o f temporary alien labor\nwhenever a labor dispute involving a work stoppage is in progress. You\nstate that under INS regulations no nonimmigrant workers may be ad\xc2\xad\nmitted into the United States during the pendency o f a strike at their place\no f prospective employment; and that nonimmigrants already in employ\xc2\xad\nment at the beginning o f the strike are required to discontinue work. You\nbelieve that the interpretation o f these regulations in our memorandum\nwill have \xe2\x80\x9c deleterious consequences outside the instant soccer dispute in\nthat employers will be encouraged to stockpile docile alien labor\xe2\x80\x9d as in\xc2\xad\nsurance against a strike by their domestic workers. In addition, you note\nthe possible collateral foreign policy consequences if injury or other harm\nto alien strikebreakers should occur.\nAt the A ttorney General\xe2\x80\x99s request, we have undertaken additional\nresearch into the legal issues presented. We have reviewed a num ber of\n294\n\n\x0cdocuments (including those discussed in your request) that were not\navailable to us at the time our original memorandum was prepared and are\nhelpful in understanding the position that INS has taken over the years.\nOn the basis o f the materials that we now have, we are inclined to agree\nthat INS has indeed interpreted its regulations in the way you suggest, that\nis, INS has interpreted them to mean that nonimmigrant aliens tem po\xc2\xad\nrarily employed in this country must leave their employment in the event\no f a strike.\nThe INS regulation appears in P art 214 o f title 8 o f the Code o f Federal\nRegulations (\xe2\x80\x9c Nonimmigrant Classes\xe2\x80\x9d ) at \xc2\xa7 214.2(h)(10); it reads as\nfollows:\nA petition [for admission] shall be denied if a strike or other\nlabor dispute involving a work stoppage or layoff o f employees is\nin progress in the occupation and at the place the beneficiary is to\nbe employed or trained; if the petition has already been ap\xc2\xad\nproved, the approval o f the beneficiary\xe2\x80\x99s employment or training\nis automatically suspended while such strike or other labor\ndispute is in progress.\nThere are similar prohibitions in the regulations against employment o f\nnonimmigration students during a strike, \xc2\xa7 214.2(f)(6), and o f nonim \xc2\xad\nmigrant intra-company transferees \xc2\xa7 124.2(l)(3a). In addition, the regula\xc2\xad\ntions provide that resident alien commuters, so-called \xe2\x80\x9c green-card\xe2\x80\x9d com\xc2\xad\nmuters, will not be permitted to reenter the United States to work at a\nplace where a labor dispute involving a work stoppage is in progress.\n\xc2\xa7 211.5(d).1\nThe regulation applicable to nonimmigrant aliens on H visas was pro\xc2\xad\nmulgated in 1965. According to a memorandum prepared by an INS staff\nmember at the time, it was designed to bring the regulations governing\ntemporary workers into accord with those applicable to students. The\nrestriction on student employment, promulgated a few m onths earlier,\nprovided that permission for a student to work would be \xe2\x80\x9c automatically\nsuspended during the period when a strike or other labor dispute involving\na work stoppage or layoff o f regular employees occurs at his place of\nemploym ent.\xe2\x80\x9d The memorandum states:\nIt is believed that the Regulations relating to H nonimmigrants\nshould contain a similar provision so that it is clear that the Serv\xc2\xad\nice does not authorize the use o f H workers in situations involv\xc2\xad\ning strikes or labor disputes. [Emphasis added.]\nAs you correctly point out, \xc2\xa7 214.2(h)(10) has not been limited by INS to a\nprohibition on an alien\xe2\x80\x99s continuing to work during a labor dispute, but\nhas also been broadly construed by that agency to prohibit an alien\xe2\x80\x99s par\xc2\xad\nticipating in a strike.\n\n1 This regulation was struck down by the C ourt o f Appeals for the N inth Circuit in Sam\nAndrews\xe2\x80\x99 Sons v. Mitchell, 457 F. (2d) 745 (1972), as an abuse o f the A ttorney G eneral\xe2\x80\x99s\ndiscretion under the Immigration and Nationality Act (INA).\n\n295\n\n\x0cIn light o f this history o f administrative construction o f the regulation,2\nwe have reassessed our conclusions, focusing now not on the meaning o f\nthe regulation but rather on its validity as so construed. After careful con\xc2\xad\nsideration, we continue to have serious doubt whether \xc2\xa7 124.2(h)(10)\nwould be upheld if applied to require that nonimmigrant alien employees\ncease working in a situation like the soccer strike. This is so for two related\nreasons, both o f which were touched on in our mem orandum. First, the\nbroad and unconditional requirement that an employee withhold his serv\xc2\xad\nices during a work stoppage would appear to impinge on the individual\xe2\x80\x99s\nrights under \xc2\xa7 7 o f the National Labor Relations Act (NLRA), and, poten\xc2\xad\ntially, to upset the balance struck by Congress under that Act between\nlabor and management, without serving any discernible purpose under the\nImmigration and Nationality Act. As you recognize, the two laws must be\nconstrued in a m anner calculated to minimize conflict between them.\nSecond, while the Attorney General\xe2\x80\x99s authority under \xc2\xa7 214(a) o f the\nINA, 8 U .S.C . \xc2\xa7 184(a) to impose conditions upon a nonim migrant\xe2\x80\x99s visa\nis certainly very broad, at least in the absence o f some more specific fac\xc2\xad\ntual inform ation about how this regulation relates to the purposes o f the\nINA in a case like the soccer strike, we question whether his authority ex\xc2\xad\ntends this far. As we noted in our m em orandum , the conditions imposed\nmust have some reasonable relationship to ends that are permissible under\nthe INA, particularly in cases where those conditions are inconsistent with\nother constitutional or statutory guarantees. C f , Kleindienst v. Mandel,\n408 U.S. 753, 769 (1972) (violation o f visa terms on previous visit suffi\xc2\xad\ncient grounds for exclusion o f applicant for admission under \xc2\xa7 212(a)(28)\nand (d)(3)). We have been pointed to no specific instance o f employer\n\xe2\x80\x9c stockpiling\xe2\x80\x9d or other abuse o f the tem porary worker system that en\xc2\xad\nforcement o f this regulation could resolve.\nThat the present regulation can be enforced only through the institution\no f deportation proceedings adds to our concern. The purpose for which an\nH worker is adm itted is to fill a gap in the domestic labor market for the\nbenefit o f the employer. A rule that triggers deportation without some\nfinding that the conditions o f entry no longer exist or that there are some\nstatutory grounds for deportation seems to us likely to be held\nunreasonable in many situations. We think it would present particularly\ntroublesome issues if invoked to deport an individual solely because he\nengaged in concerted activity against his employer.\nThe theory underlying the present regulation, as we understand it, was\nto preserve as neutral a role as possible between INS and the tem porary\nalien worker in a labor dispute. Recognizing that the goal o f neutrality\n\n2 Section 214.2(h)(10) has been actually enforced on only one occasion since its prom ulga\xc2\xad\ntion\xe2\x80\x94in connection with the 1976 baseball strike. It is our understanding, however, that\nnone o f the nonimm igrants involved in that situation had actually entered the United States\nat the time o f the strike. There is thus no precedent for the regulation\xe2\x80\x99s application to in\xc2\xad\ndividuals actually at work in this country at the time a labor dispute arises.\n\n296\n\n\x0cis an appropriate one for INS, and at the same time that there may be\nmany situations in which it would be equally appropriate under the INA to\nlimit alien involvement in domestic labor disputes, we have undertaken to\nassist INS in drafting a regulation that would be more precisely tailored to\nthe purposes o f the INA and less likely to precipitate conflicts with the\nNLRA.\nYou have closed by offering the assistance o f your Solicitor\xe2\x80\x99s Office in\nreconsidering this Departm ent\xe2\x80\x99s interpretation o f the regulation. At a\nmeeting called to discuss this matter last week, we were informed by your\nSolicitor\xe2\x80\x99s Office that while the Departm ent o f Labor was interested in be\xc2\xad\ning informed o f any proposed changes in the INS regulations, it was not\ninterested in participating in their development. We would indeed ap\xc2\xad\npreciate whatever assistance those knowledgeable in your Department\nhave to offer, and we would particularly find it valuable to have its active\ninvolvement in considering the preparation o f a new regulation.\nJo h n M . H a rm on\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n297\n\n\x0c'