John Vecchione sits down with Kara Rollins to explore her recent piece in the Yale Journal on Regulation titled “Necessary” Discretion: A Primer for Non-Lawyers. They delve into what it really means when legislatures grant agencies the authority to act when something is “necessary,” how courts interpret these trigger‐words, and why this matters for administrative power. From the Spending Clause to rule‐making, this conversation breaks down complex doctrine in plain terms and shows how “necessary” might mean more than you think.

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John Vecchione: Welcome to Unwritten Law. I’m John Vecchione. I’m without Mark Chenoweth today, but I’m fortunate enough to be joined by my colleague, Kara Rollins. And, Kara is here today to discuss kind of interesting. We were both on the Relentless case, Relentless v. Commerce, and as part of that, the Senate, or some of the Senators, have been looking into how to legislate post-Loper Bright, Relentless, when Chevron deference is no longer going to be granted to agencies by the court. So, Kara, what’s happened?

Kara Rollins: So, there’s a working group that was convened by Senator Eric Schmitt, I believe, he’s from Missouri?

John Vecchione: He’s not only from Missouri, but he helped launch Missouri v. Biden and is one of the –

Kara Rollins: Yes. Yes.

John Vecchione: And when we were asked to join that, Jeanine and I –

Kara Rollins: Is a former attorney general.

John Vecchione: Yes. And he launched some of those cases before he went to the Senate.

Kara Rollins: And so, what he convened was a group of Senators, a working group, to look at legislative concerns, post-Loper Bright. He released his report back at the end of the summer. And it had a bunch of ideas, some framework, short-term, long-term proposals. A lot of them were legislative-based. Some of them were ideas that we, in DC, have seen before, like the REINS Act, which goes to how many regulations can actually be promulgated.

John Veccchione: Mike Lee pushes that all the time, right? Until a big, and I think the basis, correct me if I’m wrong, ‘cause I don’t do legislation, but I understand what it means, is that if a regulation affects the economy up to a certain number, like, some big number, that it only goes into effect after Congress approves it.

Kara Rollins: That’s correct. And there’s actually a bunch of states that have versions of that. So, it’s not really unheard of. It’s unheard of on the federal level. But it’s an idea that’s kicked around DC for a long time. So, he sort of packaged a bunch of these legislative ideas, short-term, long-term ideas, and put out a proposal of here’s where we think we are post-Loper Bright and the ways that we can continue to rein in the administrative state.

As part of that, and this is kind of what we’re gonna be talking about, the Yale J-rag, which is the pre-eminent administrative law journal, their online portion did an online symposium where they gathered a bunch of practitioners, academics and folks who previously served in government and said, “Take a look at Senator Schmitt’s report and let’s write varying pieces about what’s going on.” So, I was invited to do that and wrote one of the pieces that was published.

John Vecchione: Is our friend Eli Nachmany organizing that, or is she just a contributor?

Kara Rollins: Yeah. Eli was involved in organizing, and I think he was helpful in identifying what practitioners to reach out to. He wrote a piece as well. And that’s what I think is really interesting about the symposium. It’s academics. Senator Schmitt wrote a piece as well as litigators. And I think that that’s one of the missing pieces in the dialogue, is the people who are in the courtroom dealing with this have a very particular voice that’s worth sharing, particularly with those on the Hill.

John Vecchione: And I think that’s true. ‘Cause I think it’s fair to say that Senator Schmitt is a Republican and his report is kind of Republican in its outlook. But the Yale symposium really did bring in a lot of broader, different views, and they used it as a launch pad. I thought all the articles were kind of interesting, but one of the articles is yours.

Kara Rollins: Yes.

John Vecchione: And let’s discuss this. What drove you to write, and what did you write about?

Kara Rollins: So, a lot of it is from our fishing cases. The Magnuson-Stevens Act has a provision; it’s a necessary and appropriate clause. And one of the things we talk a lot about with necessary and appropriate is that it’s really the definition of discretion, right? It’s where we draw the lines. And the thing that has struck me over time is there’s a discrepancy, I think, between the statutes when you read them and what you think a normal congressional legislative aid is thinking, and the way courts interpret it. And there’s a couple of reasons why that happens, but my piece was really about writing a description of necessary discretion for non-lawyers.

For average, everyday people to understand how did we get here? Because one of the recommendations in the report is, “Well, we should just jettison the use of words like necessary, necessary, and appropriate.” And I don’t think that that’s the appropriate method. I think the better method is to understand why, when those words get to court, and are interpreted, they’re not coming out the way that maybe the legislative aid, again, who’s drafting it, said. And I can give examples of these. We saw this all the time during COVID.

Emergency powers almost always, where you’re talking about public health laws, they always say, “The agency may do what is necessary to stop the spread of disease.” Okay, well, any of us with basic common sense would say, “Okay, necessary means that which is strictly necessary.” It doesn’t mean anything under the sun. As we saw during COVID, it meant anything under the sun. And that’s where the struggle really happens is there is a real gap between the way agencies are interpreting these statutes and their power. Agencies always want more power, so they’re gonna read maximum discretion into a statute. What Congress thinks it’s doing and then how the courts interpret it.

John Vecchione: So, let me ask you a question because as you know, this is a bugaboo of mine whenever these necessary and appropriate or necessary or appropriate or just necessary, that in legislative, and we’ve seen it in the Magnuson-Stevens Act, and we had the Mexican Gulf case, which I think you cite, and there, they said these are cabining words, I think you mentioned a Sixth Circuit concurrence by –

Kara Rollins: Judge Larsen, yeah.

John Vecchione: Yeah. And, she calls it tailoring, I’ve called it cabining, you’ve probably used Joan’s words over mine, but I do think that we think that it modifies it to restrain. But there are other courts that think it modifies it to your off to the races, right?

Kara Rollins: Yeah. And the way I always talk about it is, I talk about it on a discretionary spectrum. And the way I think in common language we would expect is necessary would be the most restrictive. Necessary and appropriate, necessary or appropriate, would be less restrictive because appropriate opens the door a little. But what I think is a surprise to a lot of people, and I’ve explained this to friends and former colleagues who work on the Hill that don’t have litigation background, and they’re shocked by this as the outcome. Necessary is usually the most discretionary. And then, “necessary and appropriate”, “necessary or appropriate”, lay on other ends of the spectrum.

John Vecchione: Could be either right?

Kara Rollins: Yes.

John Vecchione: It could be either necessary or appropriate, which is not strictly necessary, but in the ballpark of what we’re trying to get you to do.

And what they came out and said, the court, was, “Well, it doesn’t make sense, we can’t think of a – if necessary means strictly necessary in this sense, then Congress can never pass a constitutionally appropriate law.” And that just doesn’t make sense; that can’t be what the framers were doing. And one of the things that I think I’ve started thinking about this is that may well be true of the constitution, but I do not think it is true of statutory interpretation.

John Vecchione: And I think McCullogh versus Maryland says that. It says, “We are expounding the Constitution. And a constitution has to allow a lot for the legislature to do a lot.” And I actually have brought this up in the tariff case. Because in the tariff case, they had a similar argument about whether or not you could have protective tariffs, and they said regulate importation and regulating commerce allows you to have protective tariffs. That’s in the Constitution. But that has never, ever, ever transferred into any statute after they made that constitutional decision. And this is the same sort of thing. You read statutes differently, and Congress reads them differently and writes them differently.

Certainly, when I talk to folks on the Hill, they think that they’re using very tight language and the courts are saying, “Well, maybe not.” And so, there’s this new opportunity, I think, to go back and look at these statutes and make this argument. ‘Cause one of the other things that we always say is when we’re talking about canons of construction, if you’re going to use a term of art or you’re gonna displace the common law, Congress has to say that very specifically.

John Vecchione: And here, what you recommend here is that they define the term rather than leave it up to the courts because then, look, we’ve seen the courts do all these different things you’ve talked about.

Kara Rollins: Yeah. And I think that that’s a simple solution. In comparison to just stopping using these words, which was the report’s recommendation. ‘Cause at the end of the day, if you stop using necessary, leg counsel’s gonna put another word in there, and then the courts are gonna interpret that in a different way. But if you mean necessary –

John Vecchione: Leg counsel means legislative counsel to the Congress that advises them what words to use when they’re trying to do something.

Kara Rollins: Yeah. And so, if you’re gonna use necessary, and you mean it to be strictly necessary, then just define it. Alternatively, I think for the attorneys out there, make these arguments. Necessary meant necessary. We certainly are going to be making these arguments, like I said, in our R-CALF case, we think that the USDA is wrong about their interpretation. We think that history, structure, and text are on our side.

John Vecchione: Because in R-CALF, the issue, just to boil it down, is whether or not you have to use electronic tags or you can use the old metal regular ones you see in cow punching movies. And –

Kara Rollins: What is a cow punching movie? That could be a later question.

John Vecchione: A cowboy movie, where they punch cows because they’re cowboys, and so they have – in any event. So, I do think that there is it necessary, well, it’s obviously not necessary because they’ve done it with these same tags forever, right?

Kara Rollins: Yeah. And one of the interesting things with R-CALF about why we say it’s not necessary, I’m not giving away anything secret, it’s in the complaint, is that previously, USDA said in order for the tags to be – work in this electronic system, you need the readers, you need the software, and you need about, I think, 60 or 70% of the nation’s cattle herd.

This regulation doesn’t require the readers, it doesn’t require the software, and you don’t even have to read the tags using software; you can just transcribe them. So, there’s no difference between how the metal tags were used and these were used. And then, finally, it only covers about 11% of the herd. It cannot be necessary. And that’s what triggers the ability of the agency to act, is it has to be necessary, and I think that there’s a discrepancy here.

John Vecchione: Yes. I do too. But one of the things that has not come up, it’s not in your article, but I want you to see what you think about this. What if, necessary, the agency says, “Oh yes, it’s necessary, this thing we’re doing is necessary, but not sufficient, so we need to do more.”

Kara Rollins: But, I haven’t seen a statute like that. That’s sort of one of those things, and we see it all the time, that there are times where an agency will do a rule or a regulation, and they will lose. They’ll lose at either circuit level or Supreme Court level, and Congress comes back and they change the law. They’re free to make those modifications, and they certainly have in the past. But I think for the most part, this language sort of seeped in, and nobody thought about it. Because, particularly, you said, in healthcare and public health context, which the ear tags, at least for animal health, are considered, is we wanna stop disease, but it’s not anything under the sun goes.

It’s we really want to identify the things that are going to make animals healthy and protect them or people healthy and protect them. And so, reading necessary as this capacious term, I just think it’s counter to the text. It’s counter to the way we interpret statutes, and I think that, unfortunately, because of the way it's been interpreted, instead of throwing out the baby with the bathwater, the better way for Congress to move forward is when they’re using it in statutes or going back to statutes that maybe are on the books, go back and define necessary even though it’s a little counterintuitive to give it its plain, ordinary meaning.

John Vecchione: And I’ll tell you this, it’s far easier to change the definition section of a statute than to do the whole statute over.

Kara Rollins: Oh, yeah. Yeah. For sure.

John Vecchione: And, so you can just go to the definitions and add it in. And say, “We now define this term, ‘cause we don’t like how the courts have done it.” And in the statute, the courts are bound by that.

Kara Rollins: Yeah.

John Vecchione: And so, that’s pretty good. Now, I will ask you, what is your view, what do you think, how should “necessary,” “necessary and appropriate,” and “necessary or appropriate,” what are the difference between those three things?

Kara Rollins: So, the way they’re currently interpreted, if you think about the least discretion, it would be “necessary and appropriate,” followed by “necessary or appropriate,” and then “necessary.” And one of the reasons are the conjoined, the dual terms. Read into them a cost-benefit analysis, which also doesn’t necessarily –

John Vecchione: Mexican Gulf.

Kara Rollins: Mexican Gulf. Yeah.

John Vecchione: Paul, my friend Paul Nowey, loves that so much, he tells me every time.

Kara Rollins: And so, but if you thought about it on basic language, you’d actually reorder it. “Necessary” would be the most strict, “necessary and appropriate” would be next, or sorry, “necessary and appropriate,” “necessary,” and then “necessary or appropriate.” And that would still be a much tighter spectrum than what we are currently working off.

John Vecchione: Right. I agree with you. I think that’s how it’s supposed to be done and how it should be done. And it wouldn’t hurt them to define it, and I don’t know that there’d even be a fight about it, except I guess for some environmental statutes, people might say, “No, I like it the way it is.” Because they get to do a lot of things.

Kara Rollins: Yeah. And to your point, I’m just changing the definition. I think I looked this up, and it’s not perfect. Everybody knows the US Code is enormous. But I tried to find different of these combinations or statutes that use necessary tied to a discretionary authorization of power to an agency. And you really only hit about 245, sticks out in my mind, so in the universe of the federal government and the US Code, that’s actually not that large.

And so, I think that it would certainly for litigants, regulated entities, and even agencies, they’re out here and look they’re not gonna like it ‘cause it’s gonna cabin their power further, but there is also a lot of guidance that that could provide to an agency when they’re trying to figure out what they can and cannot do. Cabining their power also puts bright lines in for them to use as opposed to –

John Vecchione: Concentrates the mind.

Kara Rollins: Yeah. Concentrates the mind. Stops litigation when they do wacky things. There’s a lot of net benefits to having tighter statutes. I think this was certainly in the post-Loper Bright era. The thing we always talk about is that the language has to start changing. And tighter legislative drafting is one of the first steps that can occur.

John Vecchione: I think so, too. And so, I think that Senator Schmitt’s effort here has borne a lot of fruit. It’s created a lot of thinking, and we don’t see that many times from Senate reports to tell you the truth. So, good for him. Well, thank you for coming on our show.

Kara Rollins: Thank you for having me.

John Vecchione: And we’ll see whether or not Congress acts at all on this, and we’ll report back if it ever happens. Thank you for being with us on Unwritten Law.

Male Speaker: As we like to say here at NCLA, let judges judge, let legislators legislate, and stop bureaucrats from doing either.

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Duration: 17 minutes