61 F.

3d 170
64 USLW 2072, 48 Soc.Sec.Rep.Ser. 450,
Medicare & Medicaid Guide P 43,994,
Medicare & Medicaid Guide P 44,022

ELIZABETH BLACKWELL HEALTH CENTER FOR

WOMEN; Greater
Philadelphia Women's Medical Fund; CHOICE, on behalf of
themselves and the Medicaid-eligible women of the
Commonwealth of Pennsylvania to whom they provide
financial,
health care and counseling services, Appellees,
v.
Catherine Baker KNOLL, Treasurer of the Commonwealth of
Pennsylvania, in her official capacity; Karen F. Snider,
Secretary of Public Welfare of the Commonwealth of
Pennsylvania, in her official capacity; Sherry Knowlton,
Deputy Secretary of the Office of Medical Assistance of the
Commonwealth of Pennsylvania, in her official capacity;
Robert P. Casey, Governor of the Commonwealth of
Pennsylvania, in his official capacity, and their successors.
Catherine Baker Knoll, Karen F. Snider, Sherry Knowlton and
Robert P. Casey, Appellants.
No. 94-1954.

United States Court of Appeals,

Third Circuit.
Argued Jan. 13, 1995.
Decided July 25, 1995.
Judge Nygaard's Dissent Amended Aug. 3, 1995.
Rehearing In Banc Denied Aug. 24, 1995.

Sandra W. Stoner (argued), Office of Atty. Gen. of Pa., Harrisburg, PA,

for appellants Catherine Baker Knoll, Karen F. Snider, Sherry Knowlton,
Robert P. Casey.

Mary A. McLaughlin (argued), Dechert, Price & Rhoads, Philadelphia,

PA, for appellees Elizabeth Blackwell Health Center for Women, Greater
Philadelphia Women's Medical Fund, CHOICE, on behalf of themselves
and the Medicaid-eligible women of Com. of Pa. to whom they provide
financial, health care and counseling services.
Frank W. Hunter, Asst. Atty. Gen., Michael R. Stiles, U.S. Atty., Barbara
C. Biddle, Alfred Mollin, Attys., Appellate Staff, Civ. Div., Washington,
DC, for U.S. as amicus curiae.
Before: COWEN, NYGAARD and ALITO, Circuit Judges.
OPINION OF THE COURT
COWEN, Circuit Judge.

The Elizabeth Blackwell Health Center for Women, a comprehensive

reproductive health care facility that provides first-trimester abortions, the
Greater Women's Medical Fund, a non-profit agency that provides financial
assistance to low-income women in order to obtain abortions, and CHOICE, a
telephone hot-line which provides information and referrals to its callers on
many issues, including family planning and abortion (collectively, the
"Providers"), ask this Court to declare invalid and enjoin the enforcement of
sections 3215(c) and 3215(j) of the Pennsylvania Abortion Control Act, 18 Pa.
Cons.Stat.Ann. Secs. 3201-3220 (1983 & Supp.1994), Pennsylvania's reporting
and physician certification requirements for publicly-funded abortions under
the Medicaid program. The Governor of Pennsylvania, the State Treasurer, the
Secretary of the Pennsylvania Department of Public Welfare, and the Deputy
Secretary for Medical Assistance (collectively, "the Commonwealth") appeal
from the order of the district court granting the Providers' motion for summary
judgment. The district court based its holding on the Providers' claim that the
Pennsylvania statute is preempted by the Hyde Amendment.

We conclude that the Secretary of Health and Human Services is owed

deference regarding her interpretation of the Hyde Amendment mandates.
Because the Secretary has determined that reporting requirements are
permissible under the Medicaid Act, as modified by the Hyde Amendment,
only if they contain a waiver provision, and since the Pennsylvania Abortion
Control Act contains no such provision, we find Sec. 3215(j) of the
Pennsylvania statute directly in conflict with federal law, and thus, invalid to
the extent that it conflicts with the Secretary's interpretation. Furthermore,
because the second-physician certification requirement pursuant to Sec. 3215(c)

is contrary to a federal regulation, it is also invalid to the extent that it goes

beyond the scope of that regulation.
I.
3

This action concerns Title XIX of the Social Security Act, commonly known as
the Medicaid program, 42 U.S.C. Secs. 1396-1396u (1988 & Supp. V 1993).
The purpose of the Medicaid program is to help provide medical treatment for
low-income people. Under the program, the state receives federal financial
assistance in return for administering a Medicaid program that the state
develops within parameters established by federal law and regulations. 42
C.F.R. Sec. 430.0 (1994).

Establishment of a Medicaid program is voluntary on the part of each state.

While states are not obligated to participate in the Medicaid program, each state
that chooses to do so is required to develop its own state plan which must be
approved by the Secretary. In order to receive federal funds, a state's plan must
conform, both on its face and as applied, with various federal requirements. 42
U.S.C. Sec. 1396a, 1396c; see Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct.
2671, 2680, 65 L.Ed.2d 784 (1980); New Jersey v. Department of Health and
Human Services, 670 F.2d 1284, 1286 (3d Cir.), cert. denied, 459 U.S. 824, 103
S.Ct. 56, 74 L.Ed.2d 60 (1982).

Under Title XIX, certain categories of medical care are mandatory, and must be
provided by every state Medicaid plan, while other categories of care are
optional, and each state has the discretion to cover the service. See 42 U.S.C.
Sec. 1396a(a)(10). By law, states are required to fund medically necessary
physician services. 42 U.S.C. Secs. 1396a(a)(10)(A), 1396d(a). Participating
states must establish eligibility requirements that are "consistent with the
objectives" of Title XIX. 42 U.S.C. Sec. 1396a(a)(17). "Title XIX's broadly
stated primary objective [is] to enable each State, as far as practicable, to
furnish medical assistance to individuals whose income and resources are
insufficient to meet the costs of necessary medical services." Beal v. Doe, 432
U.S. 438, 444, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464 (1977) (citing 42 U.S.C.
Secs. 1396, 1396a(a)(10)). "A further objective is that policies governing
eligibility be in the 'best interests' of the recipient." Hodgson v. Board of
County Commissioners, County of Hennepin, 614 F.2d 601, 607 (8th Cir.1980)
(citing 42 U.S.C. Sec. 1396a(a)(19); 45 C.F.R. Sec. 206.10(a)(11)). The state
must also provide safeguards to assure that its Medicaid plan will be
administered "in a manner consistent with simplicity of administration." 42
U.S.C. Sec. 1396a(a)(19). On the other hand, the state must "provide such
methods and procedures relating to the utilization of, and the payment for, care

and services available under the plan ... as may be necessary to safeguard
against unnecessary utilization." 42 U.S.C. Sec. 1396a(a)(30)(A).
6

In addition, federal regulations require that each covered service be "sufficient

in amount, duration, and scope to reasonably achieve its purpose," 42 C.F.R.
Sec. 440.230(b) (1994), and mandate that states "may not arbitrarily deny or
reduce the amount, duration, or scope of a required service ... to an otherwise
eligible recipient solely because of the diagnosis, type of illness, or condition."
42 C.F.R. Sec. 440.230(c).

If, after a hearing, the Secretary finds that an approved state plan no longer
complies with the provisions of the Medicaid Act, or that the state had failed to
comply substantially with any applicable federal requirement, the Secretary
may notify the state that federal financial participation will be withheld or
limited. 42 U.S.C. Sec. 1396c.

In 1976, Congress passed what is commonly called the Hyde Amendment,

which prohibits federal reimbursement for abortions except in the narrow
circumstances that Congress deems to be medically necessary. Since 1976,
Congress has added the Hyde Amendment to annual appropriations bills for the
U.S. Department of Health and Human Services ("HHS"). While its provisions
have varied to some degree from year to year, the effect of the Hyde
Amendment has been to withdraw federal funding under Medicaid for most
abortions. 1

The Hyde Amendment for fiscal year 1994 permitted, for the first time since
1981, expenditure of federal funds for abortions when "the pregnancy is the
result of an act of rape or incest" as well as when "necessary to save the life of
the mother." Pub.L. No. 103-112, Sec. 509, 107 Stat. 1082, 1113 (1993). The
full version of the 1994 Hyde Amendment provides:

10 of the funds appropriated under this Act shall be expended for any abortion
None
except when it is made known to the Federal entity or official to which funds are
appropriated under this Act that such procedure is necessary to save the life of the
mother or that the pregnancy is the result of an act of rape or incest.
Id.2
11

This Court has previously held that the Medicaid statute, as modified by the
Hyde Amendment, requires participating states to fund those abortions for
which federal reimbursement is available. Roe v. Casey, 623 F.2d 829, 836-37

(3d Cir.1980). See also Hodgson, 614 F.2d at 605; Preterm, Inc. v. Dukakis,
591 F.2d 121, 134 (1st Cir.), cert. denied, 441 U.S. 952, 99 S.Ct. 2182, 60
L.Ed.2d 1057 (1979). We are bound by that precedent here. Accordingly, under
Medicaid, funding for rape and incest abortions is mandatory for participating
states.
12

The 1994 Hyde Amendment was reported out of committee with a provision
requiring women seeking reimbursement for rape and incest abortions to report
the crimes to the appropriate law enforcement officials. 139 Cong.Rec. H4304
(daily ed. June 30, 1993) (Sec. 207). However, a point of order was raised that
the Hyde Amendment language violated parliamentary procedure of the House
of Representatives, which prohibits attempts to "legislate" on an appropriations
bill. The point of order was conceded and the entire amendment stricken from
the bill. 139 Cong.Rec. H4307-08.

13

The Secretary of HHS has delegated her authority to oversee and enforce the
Medicaid program to the Health Care Financing Administration ("HCFA"). 49
Fed.Reg. 35,247, 35,249 (1984). HCFA has promulgated a regulation that
provides:

14
[Federal
funding] is available in expenditures for an abortion when a physician has
found, and certified in writing to the Medicaid agency, that on the basis of his
professional judgment, the life of the mother would be endangered if the fetus were
carried to term.
15

42 C.F.R. Sec. 441.203 (1994).

16

In addition, on December 28, 1993, HCFA issued a directive to state Medicaid

directors, explaining:

17 purpose of this letter is to notify [state Medicaid directors] about a recent

The
Congressionally enacted revision to the "Hyde Amendment" which affects the
Medicaid program and to tell you how this revision in the law is to be implemented.
....
18
19 with all other mandatory medical services for which Federal funding is available,
As
States are required to cover abortions that are medically necessary. By definition,
abortions that are necessary to save the life of the mother are medically necessary. In
addition, Congress this year added abortions for pregnancies resulting from rape and
incest to the category of medically necessary abortions for which funding is
provided. Based on the language of this year's Hyde Amendment and on the history

of Congressional debate about the circumstances of victims of rape and incest, we

believe that this change in the text of the Hyde Amendment signifies Congressional
intent that abortions of pregnancies resulting from rape or incest are medically
necessary in light of both medical and psychological health factors. Therefore,
abortions resulting from rape or incest should be considered to fall within the scope
of services that are medically necessary.
20 definition of rape and incest should be determined in accordance with each
The
State's own law. States may impose reasonable reporting or documentation
requirements on recipients or providers, as may be necessary to assure themselves
that an abortion was for the purpose of terminating a pregnancy caused by an act of
rape or incest. States may not impose reporting or documentation requirements that
deny or impede coverage for abortions where pregnancies result from rape or incest.
To insure that reporting requirements do not prevent or impede coverage for covered
abortions, any such reporting requirement must be waived and the procedure
considered to be reimbursable if the treating physician certifies that in his or her
professional opinion, the patient was unable, for physical or psychological reasons,
to comply with the requirement.
21

....

22 March 31, 1994, all States must ensure that their State Plans do not contain
By
language that precludes [federal funding] for abortions that are performed to save
the life of the mother or to terminate pregnancies resulting from rape or incest.
23

Letter, from Sally K. Richardson, Director, Medicaid Bureau, to All State

Medicaid Directors (Dec. 28, 1993) (emphasis added), App. at 92-93.3

24

However, under the Pennsylvania Abortion Control Act, no federal or state

funds can be provided for the termination of pregnancies caused by rape or
incest unless the state agency: (1) obtains a statement from the physician
performing the abortion that the woman was a victim of rape or incest and that
she personally reported the crime to the appropriate law enforcement agency
together with the name of the offender; (2) obtains from the physician the
woman's signed statement to that effect; and (3) verifies the reporting of the
crime with the appropriate law-enforcement agency. 18 Pa.Cons.Stat.Ann. Sec.
3215(j) (Supp.1994).4 The Pennsylvania Abortion Control Act does not contain
a waiver provision.

25

In addition, in cases where carrying the fetus to term would endanger the life of
the mother, the Pennsylvania Act provides that no state or federal funds can be
expended unless the danger is certified by a physician who is not the physician

who will perform the abortion and who has no financial interest in the
procedure. 18 Pa.Cons.Stat.Ann. Sec. 3215(c) (Supp.1994).5
26

The Providers commenced this challenge to sections 3215(c) and 3215(j) of the
Pennsylvania Abortion Control Act, on their own behalf and on behalf of
Medicaid-eligible rape and incest victims and Medicaid-eligible women whose
lives are endangered but who cannot obtain second-physician certification. The
Providers argued in the district court that the Commonwealth's reporting and
certification requirements are inconsistent with the Hyde Amendment, and
therefore invalid under the Supremacy Clause of the United States
Constitution.6

27

The district court granted the Providers' motion for summary judgment on the
Supremacy Clause claim. Elizabeth Blackwell Health Center for Women v.
Knoll, No. 94-0169, slip op. at 5, 1994 WL 512365 (E.D.Pa. Sept. 15, 1994).
Relying on our decision in Roe v. Casey, 623 F.2d 829 (3d Cir.1980), the
district court first acknowledged that Pennsylvania must cover all abortions for
which federal reimbursement is provided under the Hyde Amendment. The
court then reasoned:

28
whereas
the Hyde Amendment restricts abortion funding to cases of rape or incest,
or where continuation of the pregnancy would endanger the life of the mother, the
Pennsylvania statute imposes additional limitations. To the extent of these additional
limitations, therefore, the Pennsylvania statute is invalid, under familiar pre-emption
principles.
29

Id. at 3.

30

The district court also found support for its holding in the fact that "the same
kinds of reporting and certification requirements set forth in the Pennsylvania
statute had appeared in earlier versions of the Hyde Amendment. They were
removed in the current version, and efforts by abortion opponents to include
them were rejected by Congress." Id. at 4 (citation omitted). The district court
thus concluded that the legislative history indicates congressional intent to
eliminate the reporting requirements. Id. at 5. Further, the district court also
held that the crime-fighting and other interests advanced by the Commonwealth
to justify the challenged provisions were inconsistent with the purposes of the
Medicaid Act and were therefore impermissible. Id. at 4.

31

The district court enjoined the Commonwealth from enforcing sections 3215(c)
and 3215(j) of the Pennsylvania Abortion Control Act. This appeal followed.

This Court granted the Commonwealth's motion to stay the order of the district
court pending appeal, and the Providers' request to expedite this appeal. We
requested the Secretary of HHS to address as amicus the issue of the extent to
which a state can require reporting and second-physician certification under the
Medicaid Act and the Hyde Amendment in order for a woman to be entitled to
an abortion.II. REPORTING REQUIREMENTS FOR RAPE OR INCEST
32

The Secretary of HHS, who administers the Medicaid program, has interpreted
the Medicaid statute as modified by the 1994 Hyde Amendment, to provide
that, absent a waiver provision, reporting requirements for rape or incest
abortions unduly impede or deter a woman's exercise of her right to the
medically necessary procedure. Letter, (Dec. 28, 1993), App. at 93; Letter,
(Mar. 25, 1994), App. at 117. The Secretary does not regard reporting
requirements as per se invalid. Id. If this judgment is a reasonable exercise of
the Secretary's discretion, it is entitled to due deference. Our inquiry is
therefore focused upon whether the Secretary's interpretation warrants our
deference.

A.
33

The Commonwealth disputes both the Secretary's and the district court's
interpretations of the Hyde Amendment mandates regarding reporting
requirements. The Commonwealth maintains that its requirements are valid and
should be upheld in their entirety.

34

The Commonwealth acknowledges that under the Medicaid program, states are
free to participate or not as they see fit, but if a state does elect to participate, it
must comply with the conditions that Congress has set. The Commonwealth,
however, citing Pennhurst State School and Hospital v. Halderman, 451 U.S. 1,
17, 101 S.Ct. 1531, 1540, 67 L.Ed.2d 694 (1981), argues that in setting those
conditions, "Congress [must] speak with a clear voice." It contends that a
program like Medicaid:

35much in the nature of a contract: in return for federal funds, the States agree to
is
comply with federally imposed conditions.... There can, of course, be no knowing
acceptance if a State is unaware of the conditions or is unable to ascertain what is
expected of it. Accordingly, if Congress intends to impose a condition on the grant
of federal moneys, it must do so unambiguously. [Pennhurst, 451 U.S. at 17, 101
S.Ct. at 1540 (citation and footnote omitted).]
36

The Commonwealth maintains that on its face, the 1994 Hyde Amendment is a
simple prohibition on the use of federal money for certain specified purposes. It

sets neither requirements nor prohibitions on the states; it says nothing explicit
about reporting or certification procedures. The Commonwealth concludes that
the principles articulated in Pennhurst, when applied to this case, require that
the district court's holding be reversed because it cannot reasonably be said that
Congress has "unambiguously" forbidden reporting and certification
requirements such as those contained in the Pennsylvania law.
37

The Commonwealth's reliance on Pennhurst is misplaced. Pennhurst involved

the obligations of states under the federal Developmentally Disabilities
Assistance and Bill of Rights Act, 42 U.S.C. Secs. 6000-6081 ("DDABRA"). In
reversing our holding that the "bill of rights" provision of the DDABRA
created enforceable rights and obligations, the Supreme Court found no
evidence that Congress intended to condition the grant of federal funds on the
states' "assum[ing] the high cost of providing 'appropriate treatment' in the 'least
restrictive environment' to their mentally retarded citizens." 451 U.S. at 18, 101
S.Ct. at 1540. The Court reasoned that because Congress failed to speak clearly
regarding the state's obligations, it could not "fairly say that the State could
make an informed choice" about participation in the joint program. Id. at 25,
101 S.Ct. at 1544.

38

Here, the Medicaid Act by its terms requires state Medicaid plans to cover all
medically necessary services that fall within the mandatory areas of care. See
42 U.S.C. Sec. 1396a(a)(10)(A). Moreover, nearly fifteen years ago, we made
clear in Roe v. Casey, that states participating in the Medicaid program must
provide the abortion services that are enumerated in the Hyde Amendment. 623
F.2d at 836-37. The 1994 Hyde Amendment plainly puts participating states on
notice of their obligations to fund abortions where necessary to save a woman's
life or where the pregnancy is the result of rape or incest. Accordingly, the
Commonwealth was given clear notice that, if it elected to continue to
participate in the Medicaid program, it was obligated to provide funding for
such abortions. Furthermore, any participating state should have realized that
reporting requirements could be so onerous as to defeat Congress' intent that
Medicaid funding be provided for the categories of abortions in question.
Unlike the claims of the defendants in Pennhurst, the Commonwealth cannot
reasonably claim that it was unaware of its obligations under the Medicaid Act,
as modified by the Hyde Amendment and its implementing regulations. As
such, the Secretary is reasonable in interpreting the Hyde Amendment to
prohibit reporting requirements that operate as additional coverage
requirements to deny or impede some women from receiving the mandated
abortion services.

39

The Commonwealth further maintains that other provisions of Title XIX

authorize the challenged provisions. Participating states are required to adopt

"reasonable standards ... for determining eligibility for and the extent of
medical assistance." 42 U.S.C. Sec. 1396a(a)(17). States are likewise required
to adopt "such safeguards as may be necessary to assure that eligibility for care
and services under the plan will be determined, and such care and services will
be provided, in a manner consistent with simplicity of administration and the
best interests of the recipients." 42 U.S.C. Sec. 1396a(a)(19). Additionally,
states must "provide such methods and procedures relating to the utilization of,
and the payment for, care and services available under the plan ... as may be
necessary to safeguard against unnecessary utilization." 42 U.S.C. Sec.
1396a(a)(30)(A). Moreover, the current version of the Hyde Amendment
requires states to "make known" to the Secretary that the abortion for which
funding is sought is one in which the life of the mother is endangered or where
the pregnancy resulted from rape or incest. The Commonwealth argues that
Pennsylvania's reporting and certification procedures further these statutory
mandates.
40

In her amicus brief, the Secretary acknowledges that Congress intended that
states be allowed flexibility in developing procedures for administering their
statutory obligations under the Medicaid statute and their state plans. Amicus
Brief at 20 (citing Schweiker v. Hogan, 457 U.S. 569, 590-93, 102 S.Ct. 2597,
2610-11, 73 L.Ed.2d 227 (1982) (a state has the option to provide partial
benefits to the medically needy); Mississippi Hospital Ass'n, Inc. v. Heckler,
701 F.2d 511, 515 (5th Cir.1983) (Congress intended states to be free to
experiment with methods and standards of payment under their Medicaid
plans)). The Secretary's regulations have long recognized that states have
discretion to impose reasonable coverage limits, consistent with the objectives
of the Act, on the amount, duration, and scope of services, particularly with
respect to ensuring "utilization control." 42 C.F.R. Sec. 440.230(b), (d). Indeed,
the Secretary acknowledges that while states are not required to adopt reporting
requirements, properly tailored reporting requirements can serve the purposes
of the Medicaid Act and the Hyde Amendment.

41

However, in reconciling these eligibility requirements of the Medicaid statute

with the language and history of the Hyde Amendment, and with the other
purposes of the Medicaid program, the Secretary maintains that stateestablished reporting requirements "may not serve as an additional coverage
requirement to deny or impede payment for abortions where pregnancies result
from rape or ince[s]t." Letter, (Mar. 25, 1994), App. at 117. The Secretary has
thus concluded that reasonable reporting requirements are valid only if they
contain a waiver provision.

B.
42

The Providers argue that the district court correctly held that the Supremacy
Clause requires the invalidation of Pennsylvania's reporting and secondphysician certification requirements because they directly conflict with federal
law. The Supremacy Clause requires invalidation of any state constitutional or
statutory provision that conflicts with federal law, see Reynolds v. Sims, 377
U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964), and compels
compliance by participants in Title XIX federal aid programs with federal law
and regulations. King v. Smith, 392 U.S. 309, 316-17, 88 S.Ct. 2128, 2133, 20
L.Ed.2d 1118 (1968); Roe v. Casey, 623 F.2d at 837.

43

The Providers maintain that the district court properly relied on Roe v. Casey in
holding that all state Medicaid programs must fund all abortions for which
federal funds are available. In Roe v. Casey, we invalidated an earlier version
of Pennsylvania's Medicaid funding restriction that proscribed coverage of
abortions except when necessary to save the life of the pregnant woman. The
then-applicable Hyde Amendment, like the 1994 Hyde Amendment, permitted
the expenditure of funds for abortion where a pregnancy resulted from rape or
incest, as well as in life-threatening circumstances. We reasoned:

44 XIX, as now modified [by the current Hyde Amendment], requires the states to
Title
fund abortions in two categories: where the mother is endangered and where the
pregnancy was the result of rape or incest. Pennsylvania ... would not fund the
second category. Because Pennsylvania's statutes are not consistent with the
modified Title XIX it is clear that, as written, they cannot stand.
45

Id. at 836-37.

46

The Providers argue that the district court correctly concluded that
Pennsylvania's effort to restrict its Medicaid coverage of abortion to cases of
reported rape and incest and dually-certified life endangerment runs directly
contrary to Roe v. Casey's mandate that Pennsylvania must fund all abortions
for which federal funds are available. According to the Providers, the
Pennsylvania reporting requirements would be invalid under Roe v. Casey even
if they contained a waiver provision.

47

We agree that Roe v. Casey holds that the Hyde Amendment establishes a
mandatory floor of required services, below which states may not fall. Under its
ruling, all women who are eligible must receive the benefits that have been
made available to them by Congress. The question with which we are faced

today focuses on the issue of eligibility requirements that are utilized by states
to determine whether a woman is entitled to the services enumerated in the
Hyde Amendment. Roe v. Casey indicates that these eligibility requirements
cannot be so onerous that they inhibit or deter women who are eligible to
receive the abortion services from receiving them. Roe v. Casey does not,
however, per se invalidate all reporting requirements used for eligibility
purposes.
48

The Providers further argue that the legislative history provides a clear
indication of congressional intent to prohibit the reporting and certification
requirements contained in the Pennsylvania statute. The Providers note that in
past versions of the Hyde Amendment, Congress had specifically included
reporting requirements for rape and incest victims, and contained secondphysician requirements for abortions in cases of severe and long-lasting
physical health damage. See Pub.L. No. 96-536, Sec. 109, 94 Stat. 3166, 3170
(1980) (1981 Hyde Amendment) (providing funding for rape or incest victims
"when such rape has been reported within seventy-two hours to a law
enforcement agency or public health service"); Pub.L. No. 96-123, Sec. 109, 93
Stat. 923, 926 (1979) (1980 Hyde Amendment) (providing Medicaid funded
abortions for rape or incest victims "when such rape or incest has been reported
promptly to a law enforcement agency or public health service"); Pub.L. No.
95-480, Sec. 210, 92 Stat. 1567, 1586 (1978) (1979 Hyde Amendment)
(restricting Medicaid funding in cases of severe and long-lasting health damage
to those cases "so determined by two physicians"); Pub.L. No. 95-205, Sec.
101, 91 Stat. 1460 (1977) (1978 Hyde Amendment) (same). Additionally, in
1993, Congress considered but rejected a version of the 1994 Hyde
Amendment that contained such a requirement. See 139 Cong.Rec. H4304
(daily ed. June 30, 1993) (showing previous version of amendment which
included reporting requirement). The Providers contend that the district court
properly inferred that, in repudiating previous versions of the Hyde
Amendment, Congress clearly intended to eliminate provisions such as those at
issue here.

49

The district court's reading of the legislative history goes too far. While
Congress clearly no longer requires the states to implement reporting and
certification procedures, it does not follow that states are now forbidden to have
them. At most, the rejection of the earlier versions of the Hyde Amendment is a
sign that Congress did not wish to mandate reporting requirements on the
states. Cf. John Hancock Mutual Life Ins. Co. v. Harris Trust & Sav. Bank, --U.S. ----, ----, 114 S.Ct. 517, 524, 126 L.Ed.2d 526 (1993) (courts are guided by
the statute's words, not by discarded draft legislation). Moreover, we note that
Congress' rejection of the reporting requirements for the 1994 Hyde

Amendment was expressly based on procedural considerations. See 139

Cong.Rec. H4307-08. A rejection on procedural grounds provides no basis for
any inference regarding Congress' views about the substantive provisions of the
legislation. We are therefore left with no guidance from the legislative history.
C.
50

We are thus faced with competing interests within the Medicaid statute as
amended by the 1994 Hyde Amendment. On one hand, the Pennsylvania
reporting requirements that require a physician's averment setting forth that the
woman signed a statement that her pregnancy was the result of rape or incest
can be defended on the ground that they further the state's interest under the
Hyde Amendment in being able to "make known" to the Secretary that an
abortion was performed upon a woman's representation that the pregnancy was
the result of rape or incest. The requirement under Pennsylvania law that a
woman report the rape or incest to law enforcement agencies can be defended
as an attempt to ensure that the woman's representations are true as a part of the
state's obligation to "safeguard against unnecessary utilization." 42 U.S.C. Sec.
1396a(a)(30)(A).

51

On the other hand, however, the Supreme Court has held that a state law that
establishes benefit eligibility criteria for a federal program that are more
restrictive than the criteria established by Congress is invalid. King v. Smith,
392 U.S. 309, 333, 88 S.Ct. 2128, 2141, 20 L.Ed.2d 1118 (1968). Likewise, our
decision in Roe v. Casey sets a mandatory floor of services that must be
provided by the states under the Medicaid Act, as modified by the Hyde
Amendment, which cannot be undermined by onerous reporting requirements.
Furthermore, Sec. 1396a(a)(19) requires that the state provide safeguards to
assure that the plan will be administered "in a manner consistent with
simplicity of administration and the best interests of the recipients."7

52

It can reasonably be argued that the Pennsylvania reporting requirements are

inconsistent with this mandate because they create a formidable barrier for
some women who would otherwise be eligible to obtain abortions in cases of
rape and incest. The Pennsylvania statute creates numerous hurdles for rape and
incest victims: (1) a woman must personally report the incident of rape or
incest to state law enforcement authorities, together with the name of the
offender; (2) physicians are required to aver that they have obtained a signed
statement from the pregnant woman verifying that she is pregnant as a result of
rape or incest, that she complied with the reporting requirements, and that she is
aware that false reporting is punishable by law; and (3) the Commonwealth
must verify with a law enforcement agency or child protective service agency

that the report was made. It can reasonably be argued that these requirements
can be insurmountable for a victim of rape or incest who may be traumatized by
the event. We are aware that rape is a vastly underreported crime, and it can be
reasonably argued that reporting requirements such as Pennsylvania's can
substantially deter some women from receiving services intended to be
available to them under the statute.
53

The Secretary of HHS bears the responsibility of reconciling these competing

interests in the statute. The Supreme Court has noted that "[p]erhaps
appreciating the complexity of what it had wrought, Congress conferred on the
Secretary exceptionally broad authority to prescribe standards for applying
certain sections of the [Medicaid] Act." Schweiker v. Gray Panthers, 453 U.S.
34, 43, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460 (1981). The Secretary has
concluded that these competing interests are best reconciled if state reporting
requirements contain a waiver provision allowing a treating physician to certify
that the woman was unable to comply with reporting requirements for physical
or psychological reasons.

54

The Director of HCFA explained this point in her December 1993 directive to
all state Medicaid directors:

55 with all other mandatory medical services for which Federal funding is available,
As
States are required to cover abortions that are medically necessary.... States may
impose reasonable reporting or documentation requirements on recipients or
providers, as may be necessary to assure themselves that an abortion was for the
purpose of terminating a pregnancy caused by an act of rape or incest. States may
not impose reporting or documentation requirements that deny or impede coverage
for abortions where pregnancies result from rape or incest. To insure that reporting
requirements do not prevent or impede coverage for covered abortions, any such
reporting requirement must be waived and the procedure considered to be
reimbursable if the treating physician certifies that in his or her professional opinion,
the patient was unable, for physical or psychological reasons, to comply with the
requirement.
56

Letter, (Dec. 28, 1993), App. at 93. See also Letter, (Mar. 25, 1994), App. at
117 (reiterating the need for waiver provision in state-established reporting
requirements).

57

Under the Secretary's interpretation, physicians may take into account both the
immediate and long-term psychological consequences of reporting rape or
incest to authorities that could leave a woman unable to fulfill those reporting
requirements. A waiver thus ensures that reporting requirements do not prevent

or impede coverage for covered abortions. Without Pennsylvania's assurance

that it will waive the reporting requirements if the woman is physically or
psychologically unable to comply, the Pennsylvania Abortion Control Act
requirements comprise impermissible eligibility criteria.
58

59

The December 1993 HCFA directive constituted the Secretary's attempt to give
interpretive guidance to the states in advance of their submission of state
Medicaid plans.8 The HCFA directive is an interpretation of the Hyde
Amendment mandates as reconciled with the competing interests within the
Medicaid statute. Since the directive clarifies and explains existing law, we
deem it "interpretive." See Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir.1989)
("If the rule in question merely clarifies or explains existing law or regulations,
it will be deemed interpretive."); American Min. Congress v. MSHA, 995 F.2d
1106, 1112 (D.C.Cir.1993) (setting out factors to distinguish between
legislative and interpretive rules). As an interpretive rule, the Secretary's
pronouncements are exempted from the APA notice-and-comment
requirements. 5 U.S.C. Sec. 553(b)(A) (notice requirement does not apply "to
interpretive rules, general statements of policy, or rules of agency organization,
procedure, or practice"). This Court and the Supreme Court have upheld the
validity of interpretive rules. Bailey, 885 F.2d at 62; Shalala v. Guernsey
Memorial Hospital, --- U.S. ----, ----, 115 S.Ct. 1232, 1237, 131 L.Ed.2d 106
(1995).
Courts have long recognized that "considerable weight" must be conferred to an
executive department's construction of a statutory scheme which it is entrusted
to administer. The Supreme Court has announced that the principle of deference
to administrative interpretation:

60 been consistently followed by this Court whenever decision as to the meaning or

has
reach of a statute has involved reconciling conflicting policies, and a full
understanding of the force of the statutory policy in the given situation has depended
upon more than ordinary knowledge respecting the matters subjected to agency
regulations.... If this choice represents a reasonable accommodation of conflicting
policies that were committed to the agency's care by the statute, we should not
disturb it unless it appears from the statute or its legislative history that the
accommodation is not one that Congress would have sanctioned.
61

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837,
844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984) (citations omitted).
Such deference is appropriate here even though the Secretary's interpretation is
not contained in a "legislative rule." See, e.g., Health Insurance Ass'n of
America v. Shalala, 23 F.3d 412, 424 (D.C.Cir.1994); Hicks v. Cantrell, 803

F.2d 789, 791-92 (4th Cir.1986). Indeed, the Supreme Court recently reversed
our decision in Koray v. Sizer, 21 F.3d 558, 562-65 (3d Cir.1994), where we
had declined to defer to the Bureau of Prisons' interpretation of 18 U.S.C. Sec.
3585(b). The Supreme Court explained:
62 Bureau, as the agency charged with administering the credit statute ... has
The
interpreted Sec. 3585(b)'s "official detention" language to require credit for time
spent by a defendant under a Sec. 3142(e) "detention order".... As we have
explained, ... the Bureau's interpretation is the most natural and reasonable reading
of Sec. 3585(b)'s "official detention" language. It is true that the Bureau's
interpretation appears only in a "Program Statement"--an internal agency guideline-rather than in "published regulations subject to the rigors of the Administrative
Procedur[e] Act, including public notice and comment." 21 F.3d at 562. But BOP's
internal agency guideline, which is akin to an "interpretive rule" that "do[es] not
require notice-and-comment," Shalala v. Guernsey Memorial Hospital, 514 U.S. ----,
---- [115 S.Ct. 1232, 1239, 131 L.Ed.2d 106] (1995) (slip op., at 11), is still entitled
to some deference, cf., Martin v. Occupational Safety and Health Review Comm'n,
499 U.S. 144, 157 [111 S.Ct. 1171, 1179, 113 L.Ed.2d 117] (1991), since it is a
"permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 843 [104 S.Ct. 2778, 2782, 81 L.Ed.2d 694]
(1984).
63

Reno v. Koray, --- U.S. ----, ---- - ----, 115 S.Ct. 2021, 2026-27, 132 L.Ed.2d 46
(1995) (footnote omitted).

64

The Secretary's reconciliation of the competing interests in the Medicaid statute

and Hyde Amendment is reasonable. Because the Secretary's consistent and
contemporaneously expressed construction of the Medicaid statute as amended
by the Hyde Amendment is a reasonable one, it is accorded considerable
weight under principles announced in Chevron.

65

Accordingly, we will defer to the Secretary's interpretation of the Hyde

Amendment, and hold that because the Pennsylvania reporting requirements
lack a waiver procedure and therefore may deprive eligible women of the
benefits which Congress has made available to them, they are to this extent in
conflict with federal law and are invalid. See Louisiana Public Service Comm'n.
v. F.C.C., 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369
(1986) (under the Supremacy Clause, a federal agency acting within the scope
of its congressionally delegated authority has the power to preempt state
regulation and render unenforceable state laws). Thus, until Pennsylvania,
pursuant to state law, adopts a waiver provision in accordance with the
Secretary's directive, the Commonwealth is enjoined from enforcing its rape

and incest reporting requirements.

III. SECOND PHYSICIAN CERTIFICATION REQUIREMENTS
66
67

Like reporting requirements for abortions where pregnancies result from rape
or incest, certification requirements for abortions necessary to save the life of
the mother are not expressly addressed in the Hyde Amendment. However,
pursuant to the broad authority to promulgate regulations in administering the
Medicaid program, see, e.g., Schweiker, 453 U.S. at 43, 101 S.Ct. at 2640, the
Secretary, shortly after the passage of the first Hyde Amendment in 1977,
promulgated a regulation concerning abortions where the mother's life was
endangered. The regulation provides:

68
[Federal
funding] is available in expenditures for an abortion when a physician has
found, and certified in writing to the Medicaid agency, that on the basis of his
professional judgment, the life of the mother would be endangered if the fetus were
carried to term.
69

42 C.F.R. Sec. 441.203 (emphasis added). This regulation has not been altered
in substance since its initial promulgation.

70

The Secretary construes this regulation to provide if any physician--including a

woman's attending physician--certifies that the life of the mother would be
endangered, federal funding is "available." Consistent with our holding in Roe
v. Casey that states are required by the Medicaid Act to fund all abortion
services that are allowed under the Hyde Amendment, the Secretary concludes
that a state regulation that attempts, in effect, to require a second physician's
certification in addition to a certification given by "a physician" is inconsistent
with the regulation.

71

We must give substantial deference to an agency's construction of its own

regulation. Martin v. Occupational Safety and Health Review Comm'n, 499
U.S. 144, 150-51, 111 S.Ct. 1171, 1175-76, 113 L.Ed.2d 117 (1991); Lyng v.
Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341, 90 L.Ed.2d 921 (1986). As the
Supreme Court recently announced, courts "must defer to the Secretary's
interpretation unless an 'alternative reading is compelled by the regulation's
plain language or by other indications of the Secretary's intent at the time of the
regulation's promulgation.' " Thomas Jefferson University v. Shalala, --- U.S. ---, ---- - ----, 114 S.Ct. 2381, 2386-87, 129 L.Ed.2d 405 (1994) (quoting
Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S.Ct. 1306, 1314, 99 L.Ed.2d
515 (1988)).9

72

We believe that the Secretary's construction comports with the plain language
of the regulation. The phrase "[Federal funding] is available ... for an abortion
when a physician has found and certified [that the mother's life is endangered]"
does not limit the class of physicians who have the authority to certify. We
believe that this reading of the regulation gives the phrase "a physician" its
ordinary and natural meaning. See F.D.I.C. v. Meyer, --- U.S. ----, ---- - ----, 114
S.Ct. 996, 1001, 127 L.Ed.2d 308 (1994) ("[W]e construe a statutory term in
accordance with its ordinary or natural meaning.").

73

Further, the history of the physician certification regulation indicates that the
Secretary intended this construction at the time of the regulation's
promulgation. The 1976 Hyde Amendment provided for federal funding
"where the life of the mother would be endangered if the fetus were carried to
term." Pub.L. No. 94-439, Sec. 209, 90 Stat. 1418, 1434 (1976). The 1976
Hyde Amendment did not require a physician's certification. The Secretary
issued a notice of proposed rule-making which stated that:

74 Department will provide Federal financial participation in the cost of abortions

the
only where the attending physician, on the basis of his or her professional judgment,
has certified that the abortion is necessary because the life of the mother would be
endangered if the fetus were carried to term.
75

42 Fed.Reg. 40486 (1977) (emphasis added). The Secretary construed this

notice as meaning that "in the absence of fraud, the physician's judgment would
be conclusive." 43 Fed.Reg. 4574 (1978).

76

In enacting the 1977 Hyde Amendment, Congress retained the 1976 Hyde
Amendment language concerning funding for abortions when the mother's life
is endangered. Pub.L. No. 95-205, Sec. 101, 91 Stat. 1460 (1977). The
Secretary concluded that the failure of Congress to question the manner in
which the Secretary had previously implemented the exception, and its
reenactment without change, should be understood as congressional approval of
the Secretary's interpretation. 43 Fed.Reg. 4574. Thus, notwithstanding
Congress' silence, the Secretary's 1977 implementing regulations construed the
intent of Congress to be that certification of life endangerment by a physician
should be required. 43 Fed.Reg. 4570 (Sec. 50.304). Accordingly, the
Secretary's construction of her regulation, 42 C.F.R. Sec. 441.203, as providing
for federal funding when "any physician"--including a woman's attending
physician--certifies that the life of the mother would be endangered, is
consistent with the history of the regulation.

77

The Secretary's construction is also consistent with other requirements of Title

77

The Secretary's construction is also consistent with other requirements of Title

XIX and its implementing regulations. Section 1396a(a)(17) mandates that
states establish eligibility requirements that are "consistent with the objectives"
of Title XIX. 42 U.S.C. Sec. 1396a(a)(17). In Beal v. Doe, the Supreme Court
explained that "Title XIX's broadly stated primary objective [is] to enable each
state, as far as practicable, to furnish medical assistance to individuals whose
income and resources are insufficient to meet the costs of necessary medical
services." Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 2371, 53 L.Ed.2d 464
(1977) (citing 42 U.S.C. Secs. 1396, 1396a(a)(10)). A further objective is to
assure that state Medicaid plans are administered "in a manner consistent with
simplicity of administration and the best interest of the recipients." 42 U.S.C.
Sec. 1396a(a)(19); Hodgson, 614 F.2d at 607. The Secretary's construction of
the implementing regulation for the endangerment certification provision could
be said to further these objectives. In 1977, in promulgating 42 C.F.R. Sec.
441.203, the Secretary noted:

78 purpose of the certification requirement is not to enable the Department to

The
question physician judgment, but rather to ensure that physician judgment has in fact
been exercised. This is the most efficient manner by which a State agency or a
program or project--or the Department in conducting audits or other enforcement
reviews--may ascertain that the statutory requirements for a claim for Federal
financial participation in an abortion have been met.
79

43 Fed.Reg. 4574. Thus, we will defer to the Secretary's interpretation of her

regulation that the sufficient condition triggering eligibility for a Medicaid
funded abortion is certification by any physician that a woman's life would be
endangered by carrying the fetus to term.

80

In contrast to the Secretary's construction of the federal certification regulation,

Pennsylvania's certification requirements narrow the Secretary's criteria. The
pertinent part of Sec. 3215(c) of the Pennsylvania Abortion Control Act
provides that no state or federal funds will be expended for an abortion, except:

81
When
abortion is necessary to avert the death of the mother on certification by a
physician. When such physician will perform the abortion or has a pecuniary or
proprietary interest in the abortion there shall be a separate certification from a
physician who has no such interest.
82

18 Pa.Cons.Stat.Ann. Sec. 3215(c)(1) (emphasis added). Under the

Commonwealth's Medicaid scheme, even if the attending physician who is to
provide the abortion certifies that the procedure is necessary because of life
endangerment, there must be yet another certification. In effect, the
Commonwealth's regulation renders the certification of an attending physician

irrelevant. This reading is contrary to the Secretary's regulation, which provides

that federal funding is available under such circumstances.
83

Accordingly, because the Pennsylvania second-physician certification

requirement for abortions necessary to save the life of the mother conflicts with
a Medicaid implementing regulation as construed by the Secretary, this
requirement is invalid.

CONCLUSION
84

We hold that the Secretary's construction of the Hyde Amendment is reasonable

and requires due deference. Under the Secretary's interpretation, both Sec.
3215(c) and Sec. 3215(j) of the Pennsylvania Abortion Control Act are invalid
insofar as they (1) fail to allow for a waiver of the rape and incest reporting
requirements in accordance with the HCFA directives and (2) require
certification by a second physician in cases where the life of the mother is
endangered. Accordingly, we will affirm the order of the district court to the
extent that it enjoins the Commonwealth from (1) requiring certification by a
second physician, and (2) enforcing its rape and incest reporting requirements
until it adopts, pursuant to state law, a waiver in accordance with the HCFA
directive. In all other respects, these provisions remain enforceable. We will
remand for the entry of an order tailored in accordance with this decision.

85

NYGAARD, Circuit Judge, dissenting.

86

Today, the majority holds that, by the simple expedient of writing a letter, a
sub-cabinet-level federal bureaucrat can preempt the statutory enactment of an
elected state legislature. It bases its holding on the principle of deference set
forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and later cases. Because I
believe that what the Secretary would have us give her is not deference due, but
rather deference run amok, I reach a different result than the majority, and must
dissent.1

I.
A.
87

Federal courts are commanded by Chevron and a host of other cases to give
deference to certain legal conclusions of administrative agencies. But deference
"cannot be allowed to slip into a judicial inertia which results in the
unauthorized assumption by an agency of major policy decisions properly made

by Congress." BATF v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d
195 (1983); accord EEOC v. Arabian Am. Oil Co. ("ARAMCO"), 499 U.S.
244, 260-62, 111 S.Ct. 1227, 1237, 113 L.Ed.2d 274 (1991) (Scalia, J.,
concurring) ("deference is not abdication"); St. Luke's Hosp. v. Secretary of
Health & Human Servs., 810 F.2d 325, 332 (1st Cir.1987) (quoting BATF ). It
is therefore vital that we carefully consider each case to determine whether
deference is warranted, and, if so, how much to accord. Anything less has the
potential to be judicial abdication rather than judicial review. See Hi-Craft
Clothing Co. v. NLRB, 660 F.2d 910, 914-16 (3d Cir.1981); West v. Bowen,
879 F.2d 1122, 1134 (3d Cir.1989) (Mansmann, J., concurring and dissenting);
Hon. Joseph W. Weis, Jr., A Judicial Perspective On Deference to
Administrative Agencies: Some Grenades From the Trenches, 2 Admin.L.J.
301, 307 (1988).
B.
88

The full language of the Hyde Amendment provides as follows:

89 of the funds appropriated under this Act shall be expended for any abortion
None
except when it is made known to the Federal entity or official to which funds are
appropriated under this Act that such procedure is necessary to save the life of the
mother or that the pregnancy is the result of an act of rape or incest.
90

Pub.L. No. 103-112, Sec. 509, 107 Stat. 1082, 1113 (1993). As written, the
statutory language neither requires nor forbids state reporting requirements in
cases of rape or incest, and the majority quite correctly rejects the position of
the providers and the district court that such requirements are per se in conflict
with the Hyde Amendment (majority at 178-180). The majority then goes on to
hold that we must defer under Chevron to the interpretation of the Director of
the Medicaid Bureau that reporting and certification requirements are invalid in
the absence of a waiver provision. Id. at 183-185. I believe this to be incorrect.

C.
91

In Chevron, the Environmental Protection Agency promulgated a legislative

rule to define the statutory term "stationary source" as an entire manufacturing
plant. The Clean Air Act, while requiring permits for new or modified
stationary sources, gave no indication of how such a source should be defined.
In approaching the standard for judicial review of the agency's choice, the
Supreme Court employed a bifurcated analysis:

First, always, is the question of whether Congress has directly spoken to the precise
92

question at issue. If the intent of Congress is clear, that is the end of the matter, for
the court, as well as the agency, must give effect to the unambiguously expressed
intent of Congress. If, however, the court determines Congress has not directly
addressed the precise question at issue, the court does not simply impose its own
construction of the statute, as would be necessary in the absence of an administrative
interpretation. Rather, if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency's answer is based on a
permissible construction of the statute.
93

467 U.S. at 842-43, 104 S.Ct. at 2781-82 (footnotes omitted).

94

To recapitulate, "the appropriate level of deference due an agency's

construction of a statute that it administers depends on the clarity of the
statute." Pennsylvania v. United States Dep't of Health & Human Servs., 928
F.2d 1378, 1383-84 (3d Cir.1991). In Chevron step one, we examine the
statutory language to determine whether Congress has directly spoken to the
issue; if it has, we do not even proceed to step two. Pennsylvania Medical Soc'y
v. Snider, 29 F.3d 886, 902 (3d Cir.1994). Only if Congress has not spoken
may we apply step two of the Chevron analysis. And then we are limited to
reviewing whether the agency's construction of the statute is "permissible."
Before a reviewing court can even reach step two, however, it must find that
Congress explicitly or implicitly delegated to the agency the authority to
construe the statutory provision at issue. See Adams Fruit Co. v. Barrett, 494
U.S. 638, 649, 110 S.Ct. 1384, 1390, 108 L.Ed.2d 585 (1990) ("[A]
precondition to deference under Chevron is a congressional delegation of
administrative authority."). I simply do not believe there was a delegation here.
See infra part IV.

II.
A.
95

The majority, relying on Bailey v. Sullivan, 885 F.2d 52, 62 (3d Cir.1989) and
American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106,
1112 (D.C.Cir.1993), concludes that the letters constitute validly promulgated
interpretive rules rather than legislative rules (majority at 181).2 I agree
reluctantly that, under binding circuit precedent, the letters must be treated as
interpretive rules. Were I unfettered by precedent, however, I would conclude
that the letters are "spurious rules," entitled to no weight whatsoever, as I shall
explain shortly.

96

In Bailey, we opined that "[i]f the rule in question merely clarifies or explains

existing law or regulations, it will be deemed interpretive." 885 F.2d at 62. The
majority seems to imply that, because the two letters clarify and explain the
already-existing Medicaid Act and Hyde Amendment, they are interpretive. But
this reasoning proves too much. Indeed, it is difficult to conceive of any
nonprocedural regulation that does not in some way explain or clarify an
existing federal statute.
97

The reported decisions have been nearly unanimous in adopting a more

restricted definition of what type of rule merely clarifies or explains existing
law. If the position the agency takes in its rule flows directly from the statutory
language itself, i.e., the court would reach the same construction of the statute
even in the absence of the regulation, the rule is interpretive. On the other
hand, if the rule exercises a congressional delegation of power to make binding
rules that create rights, assign duties or impose obligations, it is legislative. This
distinction was aptly explained in Dia Navigation Co. v. Pomeroy, 34 F.3d
1255 (3d Cir.1994), where we stated, relying in part on FLRA v. Dep't of the
Navy, 966 F.2d 747, 762 n. 14 (3d Cir.1992) (in banc):

98 critical difference between legislative and interpretive rules is that the former
The
have the force and effect of law while the latter do not. Stated differently, legislative
rules have substantive legal effect, while interpretive rules typically involve
construction or clarification of a statute or regulation. If a rule creates rights, assigns
duties, or imposes obligations, the basic tenor of which is not already outlined in the
law itself, then it is substantive [legislative]. Put yet another way, "what
distinguishes interpretive from legislative rules is the legal base upon which the rule
rests. If the rule is based on specific statutory provisions, and its validity stands or
falls on the correctness of the agency's interpretation of those provisions, it is an
interpretive rule. If, however, the rule is based on an agency's power to exercise its
judgment as to how best to implement a general statutory mandate, the rule is likely
a legislative one." United Technologies Corp. v. EPA, 821 F.2d 714, 719-20
(D.C.Cir.1987).
99

34 F.3d at 1264 (some citations and internal quotation marks omitted).3 Thus,
to the extent the majority purports to hold that any rule that explains or clarifies
an existing statute or regulation is interpretive notwithstanding the fact that the
duties imposed thereby do not flow directly from the statutory language, its
holding contravenes earlier decisions of this court, in violation of Third Circuit
Internal Operating Procedure 9.1.

100 American Mining is nothing more than a refinement of the law discussed
above; that is to say, for a rule to be legislative and have the force of law,
Congress must have delegated legislative power to the agency and the agency

must have intended to exercise that power in promulgating its rule. 995 F.2d at
1109. Under this test, to determine whether a rule is legislative or interpretive, a
reviewing court uses four factors, any one of which indicates that the rule is
legislative. The first, whether in the absence of the rule the agency could not
succeed in an enforcement action, id. at 1112, simply restates the law discussed
above. The others, which include whether the agency has published its rule in
the Code of Federal Regulations, whether the agency has explicitly invoked its
legislative authority, or whether the rule amends a prior legislative rule, id., are
additional factors indicating that a rule is legislative.B.
101 Under the American Mining test, the two letters at issue here are distinctly
legislative in character. Looking only at the plain language of the statute, there
is simply no way that the Hyde Amendment itself can be construed to require
or forbid reporting and certification requirements, with or without a waiver
provision. Even the majority recognizes as much, because it relies entirely on
Chevron deference to reach its holding that Pennsylvania law is preempted. See
majority at 181-83. In the absence of the two letters, there would be no
plausible argument that Pennsylvania's reporting and certification requirements
are invalid. Accordingly, the letters fail the American Mining and Dia
Navigation tests; they are not interpretive rules.
102 Because the Secretary failed to follow the Sec. 553 notice and comment
procedure, however, her two letters, while legislative in character, have no
force of law whatsoever. See Chrysler Corp. v. Brown, 441 U.S. at 302-03, 99
S.Ct. at 1718; Alaska v. United States Dep't of Transp., 868 F.2d 441, 445
(D.C.Cir.1989); Charles H. Koch, Jr. & Ronald F. Wright, Jr., Administrative
Law and Practice Sec. 3.13, at 49 (Supp.1995). Indeed, as Professor Anthony
points out, they are not true legislative rules at all, but rather examples of
invalid "spurious rules;" that is, they are rules that go beyond mere
interpretation of existing law and purport to have binding effect, yet were not
submitted to notice and comment rulemaking. Robert A. Anthony,
"Interpretive" Rules, "Legislative" Rules and "Spurious" Rules: Lifting the
Smog, 8 Admin. L.J. 1, 9-10, 14 (1994). Discussing American Mining,
Professor Anthony argues that any rule meeting any of American Mining's four
criteria without being subjected to notice and comment is a spurious rule and
has no validity. Id. at 15-22. I agree.
103 Nevertheless, precedent constrains us to treat these two letters as interpretive
rules. In Daughters of Miriam Ctr. v. Mathews, 590 F.2d 1250, 1255-56 & n. 9
(3d Cir.1978), we stated that, because the agency's rules were not promulgated
in accordance with Sec. 553 of the Administrative Procedure Act, 5 U.S.C. Sec.
553, "they perforce must be considered interpretive rules." We also relied on

the agency's characterization of the rules as interpretive. Id. Two years later, we
followed the Mathews approach, "tak[ing] the agency at its word" that its rule
was interpretive. Cerro Metal Prods. v. Marshall, 620 F.2d 964, 981-82 (3d
Cir.1980).4 Thus, and although I strenuously disagree with the result, under
Third Circuit Internal Operating Procedure 9.1 we must treat the agency's two
letters as interpretive rules, despite their spurious character. See United States
v. Monaco, 23 F.3d 793, 803 (3d Cir.1994).5
C.
104 The fact that we are required to treat the two letters as interpretive rules does
not excuse the agency from its failure to follow the notice and comment
rulemaking procedure, however. Where, as here, a regulatory agency intends to
bind the public or the states, it is incumbent upon it to promulgate a valid
legislative rule. As we said in Dia Navigation, the purpose of the Sec. 553
notice and comment procedure is to insure public participation by and fairness
to affected parties when lawmaking authority has been delegated to unelected,
unrepresentative regulatory agencies. 34 F.3d at 1255 (quoting Batterton v.
Marshall, 648 F.2d 694, 703 (D.C.Cir.1980)). It "avoid[s] the inherently
arbitrary nature of unpublished determinations." Morton v. Ruiz, 415 U.S. 199,
232, 94 S.Ct. 1055, 1073, 39 L.Ed.2d 270 (1974). Notice and comment also
serves the salutary purpose of forcing the agency to educate itself on the facts,
issues and policy options available before issuing binding regulations. FLRA,
966 F.2d at 763 (quoting Texaco, 412 F.2d at 744); Batterton v. Marshall, 648
F.2d at 703-04 (same); accord Marshall v. Western Union Tel. Co., 621 F.2d
1246, 1254 (3d Cir.1980); Robert A. Anthony, "Well, You Want the Permit,
Don't You?" Agency Efforts to Make Nonlegislative Documents Bind the
Public, 44 Admin L.Rev. 31, 32 (1992) [hereinafter Anthony, Agency Efforts].
I can say it no better than Professor Anthony, who states:
105 Values served by the legislative rulemaking process are large ones. Fairness is
furthered by giving notice to those who are to be bound, both when the
proposed rule is about to be considered and when the final rule is definitively
published. The accuracy and thoroughness of an agency's actions are enhanced
by the requirement that it invite and consider the comments of all the world,
including those of directly affected persons who are able, often uniquely, to
supply pertinent information and analysis. The acceptability and therefore the
effectiveness of a final rule are elevated by the openness of the procedures
through which it has been deliberated and by the public's sense of useful
participation in a process that affects them. Its legitimacy rests upon all of these
considerations, as well as upon the foundational fact that the agency has
observed the procedures laid down by Congress for establishing rules with the

binding force of law. The agency's accountability for its rules is deepened by
the court-made requirement of a reasoned explanation based upon a substantial
rulemaking record.
106 Beyond all of this, the APA rulemaking requirements impose a salutary
discipline. That discipline deters casual and sloppy action, and thereby
forestalls the confusion and needless litigation that can result from such action.
And that discipline reduces tendencies toward over-regulation or bureaucratic
overreaching, and discourages low-profile attempts to create practically-binding
norms that Congress or the Administration would not have approved.
107 Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals,
and the Like--Should Federal Agencies Use Them to Bind the Public?, 41 Duke
L.J. 1311, 1373-74 (1992), also published as Administrative Conference of the
United States, Recommendations and Reports, Report for Recommendation 922, 1992 ACUS 71, 136-37.6
108 In New Jersey v. Department of Health & Human Servs., 670 F.2d 1262, 1281
(3d Cir.1981), we explained:
109 The APA notice and comment procedures exist for good reason: to ensure that
unelected administrators, who are not directly accountable to the populace, are
forced to justify their quasi-legislative rulemaking before an informed and
skeptical public. When these procedures are not followed in situations where
they are in fact applicable, a court promotes neither the agency's ultimate
mission nor respect for the law by ignoring the agency's indiscretion or
condoning the agency's shortcut.
110 There is indeed a great danger in giving Chevron deference (and often,
legislative effect) to rules promulgated without the benefit of notice and
comment rulemaking. First of all, it encourages agencies to flout the
Administrative Procedure Act and issue binding regulations in informal
formats. See Community Nutrition Inst. v. Young, 818 F.2d 943, 953
(D.C.Cir.1987) (Starr, J., concurring and dissenting) (agencies may yield to
temptation and issue rules with legislative effect in interpretive formats to avoid
scrutiny). After all, once a reviewing court defers to the agency and upholds a
rule, as the majority does here, it becomes law without the bother of the agency
taking true legislative action. Worse, it results in private parties (and, in this
case, the Commonwealth of Pennsylvania) being bound by "a proposition they
had no opportunity to shape and will have no meaningful opportunity to
challenge when it is applied to them." National Family Planning & Reprod.

Health Ass'n, Inc. v. Sullivan, 979 F.2d 227, 240 (D.C.Cir.1992) (citing
Anthony, Agency Efforts, supra, at 38; quoting Robert A. Anthony, Which
Agency Interpretations Should Bind Citizens and the Courts, 7 Yale J. on Reg.
1, 58 (1990)); see also 1 Kenneth C. Davis & Richard J. Pierce, Administrative
Law Treatise Sec. 3.5, at 119-20 (1994) (Chevron deference inappropriate for
nonlegislative rules). I find such a result both politically undemocratic and
jurisprudentially odious.
III.
The majority, while treating the two letters as interpretive rules, nevertheless
111 gives them full deference under Chevron, a case that arose in the context of a
legislative rule and quite different jurisprudential concerns. I believe that this,
too, is incorrect.
A.
112 Before Chevron, the amount of consideration to be given interpretive rules was
well-settled. The classic statement from the Supreme Court was given in
Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124
(1944):
113 We consider that the rulings, interpretations and opinions of the Administrator
under this Act, while not controlling upon the courts by reason of their
authority, do constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance. The weight of such a
judgment in a particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade, if
lacking power to control.
114 This approach was reaffirmed three decades later in General Elec. Co v.
Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976), where
the Court analyzed an EEOC guideline as an interpretive rule under the
Skidmore doctrine.7
115 Chevron, of course, was a watershed decision in the area of judicial deference
to regulatory agencies. Significantly, however, Chevron involved a properly
promulgated legislative rule. That case simply did not deal with the level of
consideration a court should give to an interpretive rule, and did not overrule
Skidmore.

116 Indeed, in the years following Chevron, the Supreme Court has reaffirmed that
Skidmore consideration is the appropriate standard of review for interpretive
rules. In Martin v. Occupational Safety & Health Review Comm'n, 499 U.S.
144, 157, 111 S.Ct. 1171, 1179, 113 L.Ed.2d 117 (1991), the Court, citing
Skidmore, opined that interpretive rules are not "entitled to the same deference
as norms that derive from the exercise of the Secretary's delegated lawmaking
powers[.]" And in ARAMCO, the Supreme Court again relied upon Skidmore
and Gilbert, not Chevron, to determine how much weight to give an interpretive
rule. 499 U.S. at 256-58, 111 S.Ct. at 1235;8 accord Public Citizen v. United
States Dep't of Justice, 491 U.S. 440, 463 n. 12, 109 S.Ct. 2558, 2571-72 n. 12,
105 L.Ed.2d 377 (1989) (interpretive rule entitled to less weight, relying on
Gilbert ). It is therefore manifest that Skidmore and Gilbert survived Chevron.
117 Recently, in dicta, four panels of this court have questioned whether Skidmore
or Gilbert were overruled by Chevron. See E.I. duPont de Nemours & Co. v.
Commissioner, 41 F.3d 130, 135-36 n.23 (3d Cir.1994); Sekula v. Federal
Deposit Ins. Corp., 39 F.3d 448, 453-54 n.13 (3d Cir.1994); Reich v. Local 30,
Int'l Bhd. of Teamsters, 6 F.3d 978, 987 n.14 (3d Cir.1993); International Raw
Materials, Ltd. v. Stauffer Chemical Co., 978 F.2d 1318, 1325 n.9 (3d
Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1588, 123 L.Ed.2d 154 (1993).
None of these opinions discussed the effect of Martin or ARAMCO.
118 In fact, in several cases decided after Chevron, we have not given Chevronstyle deference to interpretive rules. In Armstead v. United States Dep't of
Housing & Urban Dev., 815 F.2d 278, 282 (3d Cir.1987), we stated that
interpretive rules are not binding on the agency or the court. Likewise, in
American Ambulance Serv., Inc. v. Sullivan, 911 F.2d 901, 908 (3d Cir.1990),
we opined that "[i]nterpretive rules are entitled to no more weight on judicial
review than their inherent persuasiveness commands" (citing Batterton v.
Marshall, 648 F.2d at 705). Indeed, in FLRA, we applied this standard of
review to an interpretive rule announced in letter form and refused to give it
controlling weight. 966 F.2d at 762-64 & n. 14. I think the above line of cases
makes it clear that neither the Supreme Court nor this court has recognized any
erosion of Skidmore or Gilbert.
119 In Snider, we refused to apply Chevron, holding that the statute was
unambiguous under step one of the test and opining that "[c]omplexity alone is
not enough to trigger Chevron." 29 F.3d at 902. We did, however, in evaluating
the Secretary's position, look to one of the Skidmore factors to determine how
much consideration to give to her interpretation. Because the Secretary had
changed her position on the issue, we refused to give her interpretation "any
deference," id., although it is perhaps more accurate to say that we gave it

consideration but not controlling weight.9 In a similar vein is Mazza v.

Secretary of Health and Human Servs., 903 F.2d 953, 958-59 (3d Cir.1990), in
which, citing Skidmore and Gilbert, we rejected an agency interpretation that
contradicted its earlier position.
120 One of our cases contains some language that superficially seems to support the
majority's position. In Kean v. Heckler, 799 F.2d 895, 902 (3d Cir.1986), we
purported to defer under Chevron to an agency interpretation. Yet, we went on
to consider factors normally relevant only in a Skidmore- Gilbert analysis,
including the Secretary's alleged change in position, the fact that her
interpretation was contemporaneous with the enactment of the statute, and the
expertise of her agency. Id. at 902-03. Nowhere did we even intimate that
Chevron had overruled Skidmore or Gilbert. In any event, even if Kean did hold
that Chevron deference is required for agency interpretations, I conclude that it
was implicitly overruled by the Supreme Court in Martin and ARAMCO.
121 Many other courts agree that Skidmore- Gilbert is the appropriate standard of
review for interpretive rules. In Atchison, T. & S.F. Ry. v. Pena, 44 F.3d 437
(7th Cir.1994) (en banc), cert. granted, --- U.S. ----, 115 S.Ct. 2575, 132
L.Ed.2d 826 (1995), the court, while making clear that an interpretive rule is
entitled to some deference, refused to "rubber stamp" the agency's action and
rejected the contention that full Chevron deference applies to such rules. Id. at
442. Instead, it applied the Skidmore factors and held that the interpretation
deserved no deference.10 Significantly, the court also held that any deference
(consideration) due an interpretation must arise from "the agency's diligent
study of the statute and the underlying activity it seeks to regulate." Id. at 443.
122 Similarly, in Doe v. Reivitz, 830 F.2d 1441 (7th Cir.1987), a federal agency
sent a letter to state welfare authorities restricting the eligibility of certain
benefits from dependents of illegal aliens. The Secretary argued that his
regulation was entitled to Chevron deference, but the court disagreed, opining:
123 documents at issue in this case are interpretive rather than legislative in nature,
The
and under longstanding principles, agency interpretations are not entitled to the same
degree of deference commanded by the high-powered regulations in Chevron. The
Court in Chevron did not purport to alter the scope of review traditionally accorded
interpretive documents.
124 Id. at 1446 (citation omitted). It continued:
125 did not engage in notice-and-comment rule making in issuing its AFDC-UP
HHS
eligibility policy. The agency cannot now contend that courts must accord to this

policy the deference due a legislative rule when the agency has not followed the
normal procedures associated with force-of-law rule making.
126 Id. The court then went on to analyze the interpretive rule under the Skidmore
doctrine, refusing to give controlling weight to the rule on the grounds that the
interpretation was not contemporaneous with the passage of the statute and the
agency's reasoning was defective. Id. at 1447-51.11
127 Indeed, in the D.C. Circuit, the court of appeals has issued a number of
opinions to the effect that interpretive rules do not receive full Chevron
deference, but, at most, Skidmore consideration. As one panel said, "[a]
binding policy is an oxymoron." Vietnam Veterans of Am. v. Secretary of the
Navy, 843 F.2d 528, 537 (D.C.Cir.1988). In Samaritan Health Serv. v. Bowen,
811 F.2d 1524 (D.C.Cir.1987), the court stated:
128 substantive rules are typically characterized as having the force and effect of
While
law, interpretive rules enjoy a lesser deference--doubtless in part because of the
absence of public opportunity to comment.... Any deference that an interpretive rule
may claim depends on "the thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control."
129 Id. at 1529 (quoting Skidmore ) (some citations and internal quotation marks
omitted); accord American Fed'n of Labor v. Donovan, 757 F.2d 330, 341-42
(D.C.Cir.1985) (interpretive rule, while receiving "some" deference, does not
receive full deference); Batterton, 648 F.2d at 702 (nonlegislative rules carry no
more weight than their inherent persuasiveness commands).
130 The majority, however, relies on Health Ins. Ass'n of Am., Inc. v. Shalala, 23
F.3d 412, 424 & n. 8 (D.C.Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1095,
130 L.Ed.2d 1064 (1995), for the proposition that Chevron "deference is
appropriate even though the Secretary's interpretation is not contained in a
'legislative rule.' " See majority at 182.12 There, because the parties agreed that
Chevron applied, the court did not reach the issue, but stated in dictum that it
had "often applied Chevron deference to interpretive rules without comment."
Id. at 424 n. 8 (citing two cases).
131 One of the cases the Health Insurance court relied on is Wagner Seed Co. v.
Bush, 946 F.2d 918 (D.C.Cir.1991), cert. denied, 503 U.S. 970, 112 S.Ct. 1584,
118 L.Ed.2d 304 (1992), in which the EPA issued a rule in a decision letter
rather than by notice and comment rulemaking. Id. at 921. The court stated that

"it is simply not the law of this circuit that an interpretive regulation does not
receive the Chevron deference accorded a legislative regulation." Id. at 922.
Nowhere in its opinion, however, did it address its prior contrary holdings,
discussed above, and the cases it relied upon are opaque at best concerning
deference to interpretive rules. And notably, although Wagner Seed was
decided shortly after the Supreme Court's decisions in Martin and ARAMCO,
the court addressed neither of these cases in its opinion.
132 The other case cited in Health Insurance is General Motors Corp. v.
Ruckelshaus, 742 F.2d 1561, 1566-67 (D.C.Cir.1984), cert. denied, 471 U.S.
1074, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985). In that case, which was decided
only three months after Chevron, the court did apply Chevron deference to an
interpretive rule, but again, without analyzing its prior holdings to determine
whether they survived Chevron. In any event, General Motors was decided
before the Supreme Court's decisions in Martin and ARAMCO and cannot
survive them.
133 At best, then, these cases indicate an intra-circuit split of authority in the D.C.
Circuit on the question of deference to interpretive rules. Given the weight of
authority against granting Chevron deference to interpretive rules, I am not
persuaded by Health Insurance and the two cases it cites.
134 As final support for its holding that interpretive rules are entitled to Chevron
deference, the majority relies on the Supreme Court's recent decision in Reno v.
Koray, --- U.S. ----, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995), rev'g Koray v.
Sizer, 21 F.3d 558 (3d Cir.1994). See majority at 182. Careful examination of
that case reveals it to be inapposite.
135 In Koray, we held that time served by a defendant in a halfway house may
constitute time spent in official detention, entitling him to credit against his
sentence under 18 U.S.C. Sec. 3585(b). Id. at 567. We declined to grant full
Chevron deference to Bureau of Prisons internal agency guidelines. Id. at 562.
We did, however, citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983), accord
"some deference" to the extent the agency "engaged in the necessary 'reasoned'
analysis of this issue." Id. Although that inquiry bears some similarity to a
Skidmore analysis, we did not cite or apply Skidmore, Gilbert, Martin, or
ARAMCO in Koray. Then, based entirely on the plain language of the statute,
we held that the words "official detention" did not mean, as the government
argued, "official detention by the Attorney General or the Bureau of Prisons."
21 F.3d at 563-64.

136 Our analysis in Koray was entirely within Chevron step one: whether Congress
had plainly spoken to the issue, and the "deference" (really consideration) we
gave the agency interpretation was likewise an aid to our step one analysis. See
Michael Herz, Deference Running Riot: Separating Interpretation and
Lawmaking Under Chevron, 6 Admin.L.J. 187, 208-09 (1992) (Skidmore
analysis is a part of Chevron step one). We simply never reached Chevron step
two.
137 Neither did the Supreme Court. In reversing our decision, the Court examined a
number of related statutes using the phrase "official detention." --- U.S. at ---- ----, 115 S.Ct. at 2025-26. Based entirely on its construction of Sec. 3585(b) in
pari materia with the other statutes and on the legislative history, the Supreme
Court concluded that "the Bureau's interpretation is the most natural and
reasonable reading of Sec. 3585(b)'s 'official detention' language." Id. at ----,
115 S.Ct. at 2027.
138 The Supreme Court's decision in Koray is a classic Chevron step one holding;
the Court construed the statute in accordance with the clear intent of Congress,
and concluded that our construction was erroneous. Because the statute was not
ambiguous, the Court simply did not reach step two of the Chevron analysis.
The Court stated only that the agency's interpretive rule "is still entitled to some
deference, since it is a permissible construction of the statute[,]"13 id. (emphasis
added) (citations and internal quotation marks omitted), opining that "it would
be too much to say that the statute cannot bear the interpretation adopted by the
Bureau." Id. (citation and internal quotation marks omitted).14
139 It is important not to read too much into this language, however. Both courts
agreed that the agency's interpretation was entitled to "some deference." --- U.S.
at ----, 115 S.Ct. at 2027; 21 F.3d at 562. I believe all the Supreme Court told us
in Koray was that, because the agency's construction of the statute best
reflected the clear intent of Congress, we should have given it controlling
weight. Koray did not hold that the statute was ambiguous or that there was a
delegation of authority to the agency to fill a gap in the statutory scheme.
Because of that, as discussed earlier, Koray simply is not a step two case.15
140 In addition, the Koray Court did not overrule, limit or even criticize its earlier
decisions in Skidmore, Morton, Gilbert, Martin or ARAMCO. I therefore
disagree with the majority's implicit assertion that the Supreme Court in Koray
overruled all of those cases sub silentio. Had the Supreme Court intended to
make such a sweeping change in administrative law jurisprudence, it would
have done so explicitly. The Supreme Court's opinion in Koray cannot support

such a conclusion. See Neely v. Club Med Management Servs., Inc., Nos. 932069, 93-2102, --- F.3d ----, 1995 U.S.App. LEXIS 19904, * 26, 1995 WL
442169, * 9 (3d Cir. July 26, 1995) (in banc) (mere ambiguity in Supreme
Court opinion insufficient to change existing decisional law). I therefore
conclude that Skidmore and Gilbert, not Chevron step two, provide the
appropriate standard of review for interpretive rules.
B.
141 Under the standard enunciated in Skidmore, these two letters, to which we are
asked to defer, do not fare well. In Skidmore, the Supreme Court focused on
"the thoroughness evident in [the agency's] consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control." 323 U.S.
at 140, 65 S.Ct. at 164. It is also appropriate to consider whether the agency's
interpretation is contemporaneous with the passage of the statute and has been
in long use. Davis v. United States, 495 U.S. 472, 484, 110 S.Ct. 2014, 2022,
109 L.Ed.2d 457 (1990). Finally, we may examine whether the agency has
developed expertise over the subject matter at issue. See Pension Benefit Guar.
Corp. v. LTV Corp., 496 U.S. 633, 651-52, 110 S.Ct. 2668, 2679, 110 L.Ed.2d
579 (1990) (agency expertise is a principal justification for deference); Kelley,
17 F.3d at 842; Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571,
1578-79 (10th Cir.1991); West, 879 F.2d at 1136-37 (Mansmann, J., concurring
and dissenting); Capitano, 732 F.2d at 1076; Mathews, 590 F.2d at 1259.
142 First of all, it is apparent that the agency did not thoroughly consider the issue
of reporting and certification requirements. In the two letters to state Medicaid
directors, the agency provides no explanation at all why states must have a
waiver provision. Other than the explanation it offers in its amicus brief (which
we requested), the agency offers no justification for its rule. This is similar to
the situation we faced in Mathews, 590 F.2d at 1258, where we rejected the
agency's interpretation.
143 Even in her brief, the Secretary states only that lack of a waiver provision could
become an "insuperable barrier" to victims of rape and incest seeking
Medicaid-funded abortions, relying entirely on the fact that rape is a "vastly
underreported" crime. This is both speculative and shallow reasoning, and, in
any event, is nothing more than a litigating position entitled to no weight. See
Martin, 499 U.S. at 156-57, 111 S.Ct. at 1179; Bowen v. Georgetown Univ.
Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 473-74, 102 L.Ed.2d 493 (1988).
Fundamentally, I remain unconvinced that the Secretary has really taken the
necessary "hard look" at this question. Cf. Greater Boston Television Corp. v.

Federal Communications Comm'n, 444 F.2d 841, 851-52 (D.C.Cir.1970) ("hard

look" necessary to satisfy reviewing court that agency action not based on
"impermissible whim, improper influence or misplaced zeal"), cert. denied, 403
U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971).
144 Second, although the agency's position is temporally fairly close to the
enactment of the 1994 Hyde Amendment, it is not one of long-standing. This
factor, accordingly, does not favor according any deferential weight to the
agency's interpretation. See Davis, 495 U.S. at 484, 110 S.Ct. at 2022; Kelley,
17 F.3d at 842 (refusing to give weight to contemporaneous interpretation not
in long use); see also Pena, 44 F.3d at 445 (Easterbrook, J., concurring) (longstanding interpretations entitled to more weight only because they shed light on
the meaning of the statute when enacted); Richard A. Posner, The Federal
Courts: Crisis and Reform 279-80 (1985) (view of current administration, in the
absence of long-standing, consistent interpretation, not entitled to weight).
145 Finally, I turn to the issue of agency expertise. If this case involved any of the
issues we typically review under the Medicaid Act, I would be the first to say
that the Secretary has developed a tremendous amount of it. That is not the case
here, however. Under the Hyde Amendment, funding for abortion, even in
cases of rape and incest, was forbidden from 1982 through 1993. Quite simply,
abortion of pregnancies caused by rape and incest is not something the agency
has had to deal with within recent institutional memory. And it certainly is no
expert on the criminology of rape and incest reporting. It therefore lacks any
comparative advantage vis-a-vis this court with respect to the issue at hand. I
would therefore not accord the agency's interpretation controlling weight. See
Hi-Craft Clothing, 660 F.2d at 915; Mathews, 590 F.2d at 1259; Director,
OWCP v. Mangifest, 826 F.2d 1318, 1333-34 (3d Cir.1987) (Weis, J.,
concurring).
C.
146 My conclusion is philosophically annealed by the fact that the agency's letters
do not merely regulate a private party; they attempt to preempt a state statute.
One of the reasons for Chevron deference is that "federal judges--who have no
constituency--have a duty to respect legitimate policy choices made by those
who do." Chevron, 467 U.S. at 866, 104 S.Ct. at 2793. The argument is that
agencies, which at least in theory are indirectly responsive to majoritarian
pressure, are more legitimate policy makers than Article III courts. With respect
to regulation of private party conduct, that theory holds reasonably true;
agencies are at least the delegates of the Congress and are often the
subordinates of the Executive. It is no secret, however, that what is true in

theory may be less so in practice; because of superior expertise and "agency

capture," actual agency action may be less majoritarian than we might hope.
See Sanford N. Caust-Ellenbogen, Blank Checks: Restoring the Balance of
Powers in the Post-Chevron Era, 32 B.C.L.Rev. 757, 814 (1991). Even so, it is
reasonable in such circumstances to favor the policy choices of agency heads
rather than judges.
147 That situation shifts considerably, however, in the context of preemption.
There, the two alternative policymakers are: (1) unelected and only
theoretically accountable bureaucrats on one side of the balance; and (2) the
elected state legislators on the other. That is our case, and I think the balance
tips sharply in favor of upholding state law, not a federal agency's
interpretation. Under the Supremacy Clause, a federal agency only has the
power to preempt when it clearly, conscientiously and lawfully exercises its
delegated authority under Sec. 553 of the APA, not when it issues an
interpretive rule. Cf. Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum
Corp., 485 U.S. 495, 503, 108 S.Ct. 1350, 1355, 99 L.Ed.2d 582 (1988) ("a
clear and manifest [federal] purpose is always required" for preemption); Ray
v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179
(1978) (same).
148 Indeed, under the law of this circuit, an interpretive rule cannot preempt state
law. See United States v. Walter Dunlap & Sons, Inc., 800 F.2d 1232, 1239 (3d
Cir.1986) ("Because the regulations on which FmHA relies do not have the
force of a congressional directive and because there is no indication that
Congress intended an agency regulation to supersede long-standing uniform
state law in this area, we decline to accept the government's position that the
regulations control."). This makes good logical sense, because it takes law to
displace law, and an interpretive rule lacks the force of law. Other courts and
commentators appear to be in accord. See Koch & Wright, supra, Sec. 3.59, at
73-74 (Supp.1995) (citing South Central Bell Tel. v. Louisiana Pub. Serv.
Comm'n, 744 F.2d 1107 (5th Cir.1984), vacated on other grounds, 476 U.S.
1166, 106 S.Ct. 2884, 90 L.Ed.2d 972 (1986); New England Tel. & Tel. Co. v.
Public Utilities Comm'n, 742 F.2d 1, 11 (1st Cir.1984), cert. denied, 476 U.S.
1174, 106 S.Ct. 2902, 90 L.Ed.2d 988 (1986)).
IV.
149 That brings me finally to Pennsylvania's second physician certification
requirement. Unlike the agency's two letters explaining its interpretation of
reporting and certification requirements, here the Secretary promulgated a valid
legislative rule with the purported force of law. See 42 C.F.R. Sec. 441.203

(speaking in terms of "a physician"). Her interpretation, therefore, would

appear to flow directly from the text of her regulation, merely reminding states
of an existing duty.
150 I do not believe, however, that Congress ever delegated any authority for the
Secretary to make such a rule. I recognize that the Secretary has "exceptionally
broad authority" to interpret the Medicaid Act itself, Schweiker v. Gray
Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460 (1981); see
majority at 181, but the Medicaid Act is not at issue here. The statutory text
under interpretation is the Hyde Amendment to the appropriations bill that
funds the Medicaid program, and there is not one scintilla of evidence in the
Hyde Amendment that Congress intended the Secretary to interpret either the
scope and extent of her appropriation or the validity of state-imposed second
physician certification requirements. Unlike most substantive statutes
administered by regulatory agencies, the Hyde Amendment contains no
provision enabling the Secretary to make regulations with the force of law. At
best, it is silent on the issue. The mere fact of legislative silence, however, does
not necessarily imply the existence of a deliberate "gap" in the statute, much
less a gap that we must infer Congress intended the Secretary to fill through
administrative regulation.16 Because there was no delegation, the regulation
upon which the majority relies is properly treated only as an interpretive rule.
See ARAMCO, 499 U.S. at 256-58, 111 S.Ct. at 1235; Gilbert, 429 U.S. at 14142, 97 S.Ct. at 410-11; Batterton, 648 F.2d at 705.
151 Applying a Skidmore analysis to 42 C.F.R. Sec. 441.203, it would probably,
under normal circumstances, be entitled to controlling weight. The regulation,
after all, was enacted soon after the first Hyde Amendment was passed in 1977,
and has not changed since. Moreover, because the Hyde Amendment has
always permitted funding for Medicaid abortions where the life of the mother
would otherwise be endangered, the agency does have considerable expertise in
this area. Ordinarily, then, I would agree with the majority that the Secretary's
interpretation is controlling.
152 As I have already discussed in Part III(C), however, this is a preemption case,
and an interpretive rule cannot preempt state law. Dunlap, 800 F.2d at 1239.
Accordingly, I would uphold Pennsylvania's second physician certification
requirement.
V.
153 Because the majority incorrectly defers under Chevron to the Secretary's
interpretations, and because there is no basis for its holding in the Hyde

Amendment itself, I dissent.

The original Hyde Amendment, enacted in 1976, limited federal funding to

abortions where "the life of the mother would be endangered if the fetus were
carried to term." Pub.L. No. 94-439, Sec. 209, 90 Stat. 1418, 1434 (1976). The
Hyde Amendment for the following fiscal year expanded the funding to include
abortions for victims of rape and incest as well as "instances where severe and
long-lasting physical health damage to the mother would result if the
pregnancy were carried to term when so determined by two physicians." Pub.L.
No. 95-205, Sec. 101, 91 Stat. 1460 (1977). From that year through 1981, the
Hyde Amendment provided for reimbursement for abortions when a pregnancy
resulted from rape or incest. The rape and incest provision was eliminated from
the Hyde Amendment from 1982 until the appropriations bill for fiscal year
1994

The 1995 Hyde Amendment is identical in language to the 1994 version.

Pub.L. No. 103-333, Sec. 509, 108 Stat. 2539, 2573 (1994)

HCFA reaffirmed its position regarding the Hyde Amendment in another letter
to state Medicaid Directors, which stated:
HCFA will not establish a timeframe within which cases of rape or incest must
be reported to a law enforcement or other agency. State law or policy should
dictate when and to whom a rape or a case of incest must be reported. However,
as noted in my December 28 letter, the State-established reporting requirements
may not serve as an additional coverage requirement to deny or impede
payment for abortions where pregnancies result from rape or incent (sic).
The State must establish procedures which permit the reporting requirements to
be waived, and the procedure reimbursed, if the treating physician certifies that,
in his or her professional opinion, the patient was unable, for physical or
psychological reasons, to comply with the reporting requirements.
Letter, from Sally K. Richardson, Director, Medicaid Bureau, to All State
Medicaid Directors (Mar. 25, 1994) (emphasis added), App. at 116-17.

Section 3215(j) of the Pennsylvania Abortion Control Act provides:

No Commonwealth agency shall make any payment from Federal or State
funds appropriated by the Commonwealth for the performance of any abortion
pursuant to subsection (c)(2) or (3) unless the Commonwealth agency first:

(1) receives from the physician or facility seeking payment a statement signed
by the physician performing the abortion stating that, prior to performing the
abortion, he obtained a non-notarized, signed statement from the pregnant
woman stating that she was a victim of rape or incest, as the case may be, and
that she reported the crime, including the identity of the offender, if known, to a
law enforcement agency having the requisite jurisdiction or, in the case of
incest where a pregnant minor is the victim, to the county child protective
service agency and stating the name of the law enforcement agency or child
protective service agency to which the report was made and the date such report
was made;
(2) receives from the physician or facility seeking payment, the signed
statement of the pregnant woman which is described in paragraph (1). The
statement shall bear the notice that any false statements made therein are
punishable by law and shall state that the pregnant woman is aware that false
reports to law enforcement authorities are punishable by law; and
(3) verifies with the law enforcement agency or child protective service agency
named in the statement of the pregnant woman whether a report of rape or
incest was filed with the agency in accordance with the statement.
The Commonwealth agency shall report any evidence of false statements, of
false reports to law enforcement authorities or of fraud in the procurement or
attempted procurement of any payment from Federal or State funds
appropriated by the Commonwealth pursuant to this section to the district
attorney of appropriate jurisdiction and, where appropriate, to the Attorney
General.
18

Pa.Cons.Stat.Ann. Sec. 3215(j)

Section 3215(c) of the Pennsylvania Abortion Control Act provides, in

pertinent part:
No Commonwealth funds and no Federal funds which are appropriated by the
Commonwealth shall be expended by any State or local government agency for
the performance of abortion, except:
(1) When abortion is necessary to avert the death of the mother on certification
by a physician. When such physician will perform the abortion or has a
pecuniary or proprietary interest in the abortion there shall be a separate
certification from a physician who has no such interest.
(2) When abortion is performed in the case of pregnancy caused by rape which,
prior to the performance of the abortion, has been reported, together with the

identity of the offender, if known, to a law enforcement agency having the

requisite jurisdiction and has been personally reported by the victim.
(3) When abortion is performed in the case of pregnancy caused by incest
which, prior to the performance of the abortion, has been personally reported by
the victim to a law enforcement agency having the requisite jurisdiction, or, in
the case of a minor, to the county child protective service agency and the other
party to the incestuous act has been named in such report.
18

Pa.Cons.Stat.Ann. Sec. 3215(c)

The providers also challenged the second-physician certification provision as

violative of Title XIX and the Due Process Clause of the Fourteenth
Amendment. The district court did not address these additional claims

The legislative history of this provision establishes that Congress added it to

ensure that states would not impose bureaucratic and complicated mechanisms
for determining eligibility that would deter recipients from obtaining care
This provision was included in order to provide some assurance that the States
will not use unduly complicated methods of determining eligibility which have
the effect of delaying in an unwarranted fashion the decision on eligibility for
medical assistance or that the States will not administer the provisions for
services in a way which adversely affects the availability or the quality of the
care to be provided. The committee expects that under this provision, the States
will be eliminating unrewarding and unproductive policies and methods of
investigation and that they will develop such procedures as will assure that the
most effective working relationships with medical facilities, practitioners, and
suppliers of care and service in order to encourage their full cooperation and
participation in the provision of services under the State plan.
S.Rep. No. 404, 89th Cong., 1st Sess. 76, reprinted in 1965 U.S.C.C.A.N. 1943,
2017.

We are aware of the related action, Ridge v. Shalala, No. 94-7751, which is
currently pending in this Court, in which the Commonwealth is challenging
HHS's "waiver" requirement as violative of the Administrative Procedures Act.
The district court dismissed the action on jurisdictional grounds because the
Secretary has not yet called for a hearing nor issued a decision about the
conformity of Pennsylvania's plan with the Hyde Amendment. Casey v.
Shalala, No. 94-390 (M.D.Pa. Nov. 28, 1994)

In Gardebring, the Supreme Court, while recognizing that the Secretary had not
taken a position until that litigation, held that:

when it is the Secretary's regulation that we are construing, and when there is
no claim in this Court that the regulation violates any constitutional or statutory
mandate, we are properly hesitant to substitute an alternative reading for the
Secretary's unless that alternative reading is compelled by the regulation's plain
language or by other indications of the Secretary's intent at the time of the
regulation's promulgation.
485 U.S. at 430, 108 S.Ct. at 1314. Thus, we will defer to the Secretary's
construction of her own regulation even if the interpretation is put forth in
litigation.
1

My reasons for doing so are, regrettably for the readers who must digest them
whole, somewhat lengthy and involved. As Justice Scalia once said,
"Administrative law is not for sissies--so you should lean back, clutch the sides
of your chairs, and steel yourselves...." Hon. Antonin Scalia, Judicial Deference
to Administrative Interpretations of Law, 1989 Duke L.J. 511, 511

This conclusion is vital to the majority's holding. Under the Administrative

Procedure Act, rules may be either legislative or nonlegislative. A legislative
rule must be promulgated according to the notice and comment procedures of 5
U.S.C. Sec. 553, which the Secretary did not do in this case. E.g., Beazer E.,
Inc. v. United States Envtl. Protection Agency, 963 F.2d 603, 606 (3d
Cir.1992); Texaco, Inc. v. Federal Power Comm'n, 412 F.2d 740, 742 (3d
Cir.1969). Indeed, a legislative rule which is not promulgated in accordance
with the requirements of the APA is not entitled to have the force of law. See,
e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 302-03, 99 S.Ct. 1705, 1718, 60
L.Ed.2d 208 (1979)

Accord Shalala v. Guernsey Mem. Hosp., --- U.S. ----, ----, 115 S.Ct. 1232,
1239, 131 L.Ed.2d 106 (1995) (a rule that effects a change in the law is
legislative and must comply with APA rulemaking requirements); Beazer E.,
963 F.2d at 606 (interpretive rule only reminds parties of existing duties);
Texaco, 412 F.2d at 744 (general statements of policy impose no rights or
obligations). This distinction is equally true in the case of federal-state
cooperative programs, such as Medicaid. See Ohio Dep't of Human Servs. v.
United States Dep't of Health & Human Servs., 862 F.2d 1228, 1229-30 (6th
Cir.1988) (HCFA Medicaid rule not interpretive); Cabais v. Egger, 690 F.2d
234, 238-239 (D.C.Cir.1982) (federal regulation of state-administered program
not interpretive)

See also Ohio Dep't of Human Servs., 862 F.2d at 1234-35 (HCFA Medicaid
rule was legislative in character but was treated for deference purposes as
interpretive)

There is some evidence that the law of the circuit has evolved over the fifteen
years since Cerro and Mathews. In Limerick Ecology Action, Inc. v. United
States Nuclear Regulatory Comm'n, 869 F.2d 719 (3d Cir.1989), we stated that:
The agency's label of an agency action, although one factor to be considered,
does not control whether the action is in fact a [legislative] rulemaking. Instead,
it is the substance of what the agency has purported to do and has done which is
decisive.
Id. at 734 (citation to Cerro and other cases omitted). It is apparent from this
language that the Limerick court, like the courts in Dia Navigation and
American Mining, took a functional approach to distinguishing legislative from
interpretive rules. Nevertheless, there is no evidence in any of our cases,
including FLRA (which was heard in banc), that the Cerro- Mathews approach
has been overruled.

The Administrative Conference of the United States adopted Professor

Anthony's recommendation. 1992 ACUS 5, 41 Duke L.J. at 1384; see 1 C.F.R.
Sec. 305.92-2. Recommendation 92-2 provides that "[a]gencies should not
issue statements of general applicability that are intended to impose binding
substantive standards or obligations upon affected persons without using
legislative rulemaking procedures (normally including notice-and-comment)."

Accord Batterton v. Francis, 432 U.S. 416, 424 & n.9, 97 S.Ct. 2399, 2405-06
& n.9, 53 L.Ed.2d 448 (1977); Morton, 415 U.S. at 237, 94 S.Ct. at 1075; New
Jersey, 670 F.2d at 1282; Cerro, 620 F.2d at 980-82; Baker v. Otis Elevator
Co., 609 F.2d 686, 692 (3d Cir.1979); Mathews, 590 F.2d at 1258

Justice Scalia concurred, opining that the interpretive rule was entitled to
Chevron deference and that Gilbert was "an anachronism[.]" Id. at 258-60, 111
S.Ct. at 1236. It is thus clear that the majority held that Chevron was not
applicable

We give consideration to the agency's interpretation (which many courts refer

to as deference), then we decide how much weight the interpretation should
receive. To say that we give it "no deference" implies that we do not even
consider it, which is not the case

10

Again, it would have been more accurate if the court had said that the
interpretation would not be given controlling weight rather than it would be
given no deference

11

The overwhelming majority of the other federal courts of appeals has followed
essentially the same reasoning. See Kelley v. E.I. DuPont de Nemours & Co.,

17 F.3d 836, 841-42 (6th Cir.1994) (policy statements and interpretive rulings
not entitled to Chevron deference but are analyzed under Skidmore factors);
Motor Vehicle Mfrs. Ass'n v. New York State Dep't of Envtl. Conservation, 17
F.3d 521, 534-35 (2d Cir.1994) (no Chevron deference to EPA advisory
circular); Travelstead v. Derwinski, 978 F.2d 1244, 1250 (Fed.Cir.1992)
(interpretive rules receive only Skidmore consideration); Dalheim v. KDFWTV, 918 F.2d 1220, 1228 (5th Cir.1990) (interpretive rules not binding, relying
on Skidmore ); Ohio Dep't of Human Servs., 862 F.2d at 1235 (6th Cir.)
(according only Skidmore consideration to interpretive rule; thoroughness
evident in agency reasoning was "most unimpressive"); Paxton v. Secretary of
Health & Human Servs., 856 F.2d 1352, 1356-57 (9th Cir.1988) (interpretive
rule not given Chevron deference); St. Luke's Hosp., 810 F.2d at 331-32 (1st
Cir.) (interpretation of even ambiguous statute given only Skidmore
consideration); Capitano v. Secretary of Health & Human Servs., 732 F.2d
1066, 1075-76 (2d Cir.1984) (rule treated as interpretive failed Skidmore
analysis); Frank Diehl Farms v. Secretary of Labor, 696 F.2d 1325, 1329-30
(11th Cir.1983) (interpretive rules get less deference than legislative rules,
citing Skidmore )
12

The majority also relies on Hicks v. Cantrell, 803 F.2d 789, 793-94 (4th
Cir.1986). There, and with very little analysis, the court held that Chevron
deference was owed to an agency interpretation. Because of Hicks' minimal
reasoning and its conflict with the overwhelming majority of courts that have
considered the same issue (including the Supreme Court), I simply would not
follow it

13

This language is taken from Chevron, 467 U.S. at 843, 104 S.Ct. at 2782,
where the Court sets forth step two of the Chevron test. Because Koray is a step
one case, I conclude that the use of that quotation amounts to, at most, an
"imprecision in the Court's language," not an implicit part of its holding. See
Pope v. East Brunswick Bd. of Educ., 12 F.3d 1244, 1250 (3d Cir.1993)

14

The Court quoted Sullivan v. Everhart, 494 U.S. 83, 91-92, 110 S.Ct. 960, 96566, 108 L.Ed.2d 72 (1990). There, recipients of federal benefits challenged the
Secretary's "netting" regulations, which were promulgated as legislative rules.
The recipients proffered a plausible construction but the court held--deferring
under step two of Chevron--that at most, the recipients proved that the statute
could bear their construction, but not that it could not bear the Secretary's
construction. That, according to the Court, was insufficient. While the Court's
reasoning was certainly applicable to a step two case, Koray and this case arise
under Chevron step one, which has a less deferential standard

15

Compare Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,

--- U.S. ----, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). There, the agency
promulgated a proper legislative rule giving further meaning to the statutory
term "take" under the Endangered Species Act, 16 U.S.C. Sec. 1531 et seq.
While the Supreme Court engaged in an analysis of the text and legislative
history of the Act, in the final analysis, it decided that "Congress did not
unambiguously manifest its intent" to contradict the agency's view of the
statute. The Court accordingly deferred to the "reasonable" interpretation of the
agency. --- U.S. at ---- - ----, 115 S.Ct. at 2416-17. Sweet Home, in contrast to
Koray, clearly implicated Chevron step two
16

See, e.g., Railway Labor Executives' Ass'n v. National Mediation Bd., 29 F.3d
655, 671 (D.C.Cir.1994) (en banc) (presuming a delegation would enable
agencies to "enjoy virtually limitless hegemony"); West, 879 F.2d at 1138
(Mansmann, J., concurring and dissenting) (mere silence or ambiguity does not
automatically imply delegation to the agency); Weis, supra, at 305 ("If
Congress has not clearly delegated a properly circumscribed power, then the
agency should not obtain untrammeled discretion through legislative silence.");
Herz, supra at 204 ("Courts should not equate a mere lack of clarity with a
delegation of decision-making authority to the agency."); Cass R. Sunstein,
Interpreting Statutes in the Regulatory State, 103 Harv.L.Rev. 405, 445 (1989)
("An ambiguity is simply not a delegation of law-interpreting power."); Cass R.
Sunstein, Constitutionalism After the New Deal, 101 Harv.L.Rev. 421, 467
(1987) (same)