Proposed Agency Interpretation of "Federal Means-Tested Public Benefit[s]" Under Personal Responsibility and Work Opportunity Reconciliation Act of 1996

Proposed Agency Interpretation of “ Federal Means-Tested
Public Benefit[s]” Under Personal Responsibility and Work
Opportunity Reconciliation Act of 1996
T he interpretation o f the phrase “ federal m eans-tested public benefit[s]” in the Personal R esponsibility
and W ork O pportunity Reconciliation Act o f 1996 proffered by the D epartm ents o f H ealth and
H um an Services and H ousing and U rban D evelopm ent — that it applies only to m andatory (and
not discretionary) spending p rogram s— constitutes a perm issible and legally binding construction
o f the statute.

January 14, 1997

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
D e p a r t m e n t o f H e a l t h a n d H u m a n S e r v ic e s

You have requested the views of the Office of Legal Counsel regarding a
construction, proffered by the Departments of Health and Human Services
( “ HHS” ) and Housing and Urban Development (“ HUD” ), of the scope of the
phrase “ federal means-tested public benefit[s]” contained in the Personal Respon­
sibility and Work Opportunity Reconciliation Act of 1996 (“ PRA” or “ Act” ).1
In particular, HHS and HUD have concluded that this phrase is best construed
to apply only to mandatory (and not discretionary) spending programs.2 Both
departments have determined that this construction of the PRA “ best balances
[their] other statutory obligations with Congressional goals embodied in the
[PRA].” 3 We further understand that the Departments of Agriculture, Education,
Labor and Veterans Affairs and the Social Security Administration all concur in,
or defer to, the HHS and HUD proffered interpretation of the PRA.4
As explained more fully below, we believe that the proffered interpretation is
a permissible construction of the statute. The PRA was enacted as a budget rec­
onciliation bill, and, accordingly, must be construed against the backdrop of the
Congressional Budget Act of 1974 ( “ CBA” ).5 Under the CBA, budget reconcili­
ation legislation is subject to expedited procedures in both the Senate and the
House. To counterbalance these expedited procedures, the CBA permits a member
of the Senate to raise a point of order against any material included in the legisla­
tion that is extraneous to the budget reconciliation process. Here, through applica­
tion of this procedure, a broad definition of the phrase “ federal means-tested

'P u b L No 104-193, 110 Stat 2105
2 See Letter for Christopher H Schroeder, Acting Assistant Attorney General, Office of Legal Counsel, from Harriet
S Rabb, General Counsel, Department o f Health and Human Services (Dec. 13, 1996) ( “ Rabb Request” )
3 See. e g., Letter for Arthur Fried, General Counsel, Social Security Administration, from H am et S Rabb, General
Counsel, Department o f Health and Human Services and Nelson A Diaz, General Counsel, Department o f Housing
and Urban Development (Nov 21, 1996) ( “ Rabb/Diaz Letter” )
4 Rabb Request at 1 Since receiving your letter of December 13, 1996, we have received oral advice from your
office that the Social Security Administration concurs in the proffered definition
5 Pub L. No 93-344, 88 Stat 297 (1974) (codified as amended in scattered sections of 2 U.S.C ).

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 Opinions o f the Office o f Legal Counsel in Volume 21

public benefit” was struck from early versions o f the bill that ultimately became
the PRA. Significantly, the broad definition was struck because it reached discre­
tionary spending programs, which, in this context, lay beyond the proper scope
of the reconciliation process.
In light o f this history, and the absence of a sufficiently clear indication that
Congress intended, notwithstanding the CBA, to reach discretionary spending pro­
grams, we conclude that the meaning of the phrase “ federal means-tested public
benefit” is, at the very least, ambiguous. We further conclude that the HHS/HUD
proffered definition is a reasonable construction of the statute, that the agency
interpretation is entitled to judicial deference, and that, accordingly, the proffered
definition should govern.

DISCUSSION

Title IV of the Personal Responsibility and Work Opportunity Reconciliation
Act o f 1996, 110 Stat. at 2260, imposes various restrictions on aliens’ eligibility
for public benefits in the United States. A number of provisions in title IV estab­
lish restrictions with respect to aliens’ receipt o f “ federal means-tested public
benefit[s].” These restrictions fall into three general categories: (1) provisions that
deny “ federal means-tested public benefit[s]” to qualified aliens for the first five
years after their entry into the United States;6 (2) provisions that require certain
groups o f aliens who seek federal and state public benefits to prove that they
can be credited with 40 qualifying quarters of work under title II of the Social
Security Act ( “ SSA” ) and have not received any “ federal means-tested public
benefit” during any of those quarters;7 and (3) provisions that establish and define
sponsor-to-alien deeming rules to be applied to aliens seeking “ federal means-
tested public benefit[s].” 8
The PRA contains no statutory definition of the phrase “ federal means-tested
public benefit.” HHS and HUD, however, have concluded that the restrictions
on federal means-tested public benefits contained in tide IV should apply only
to mandatory spending programs, i.e. programs for which funding is not subject
to a definite appropriation.9 Under this construction of the Act, for example, newly
arrived qualified aliens would be ineligible for benefits under mandatory programs
for the first five years after their anrival in this country, but they would remain
eligible for benefits under discretionary spending programs. The rationale of HHS
and HUD for this approach is that ‘ ‘affected departments should hesitate to apply

6 See § 403(a) & (c), 110 Stat. at 2265-66.
7 See §§402(a)(2)(B )(ii)(II), 402(b)(2)(BMH)(Il). 412(b)(2XBXii), 435; 110 Stat. at 2262-63. 2264-^5, 2269. 2275-
76.
*See § 4 2 1(a), (b)(2)(B), (c), (d), 110 Stat. at 2270-71.
9 W hile w e have not been provided with a com prehensive list o f which programs would be subject to these title
IV restrictions under the HHS/HUD interpretation, we understand that Medicaid, food stamps. Supplemental Security
Income ( “ SS I” ), and Tem porary Assistance for Needy Families ( “ TA N F” ) are included within the mandatory cat­
egory.

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 Proposed Agency Interpretation o f “Federal Means-Tested Public B enefit[sj” Under Personal
Responsibility and Work Opportunity Reconciliation Act o f 1996

the term ‘federal means-tested public benefit’ broadly in a manner that would
deny qualified aliens more benefits than Congress may have clearly intended.”
Rabb/Diaz Letter, attachment at 4. HHS and HUD assert that “ this reading of
the term best balances our Departments’ other statutory obligations with Congres­
sional goals embodied in [the PRA],” Rabb/Diaz Letter at 1, and that “ sound
legal and policy considerations support a conclusion that the term is limited to
means-tested mandatory spending programs.” Rabb/Diaz Letter, attachment at 1.
In evaluating the construction proposed by HHS and HUD, we are guided by
the Supreme Court’s landmark opinion, Chevron U.S.A. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), which explains the proper approach
for reviewing the construction of statutes by the agencies that administer them.
The first step in the Chevron analysis is to determine “ whether Congress has
directly spoken to the precise question at issue.” 467 U.S. at 842. If congressional
meaning, as discerned through “ traditional tools of statutory construction,” id.
at 843 n.9, is clear, then no further inquiry is necessary, for the “ unambiguously
expressed intent of Congress” must control. Id. at 843. See also United States
v. Alaska, 503 U.S. 569, 575 (1992). If the statute is silent or ambiguous with
respect to the issue posed, then, under the second step in the Chevron analysis,
the questions become whether Congress has implicitly or explicitly delegated to
the agency the authority to resolve the ambiguity and, if so, whether “ the agency’s
answer is based on a permissible construction of the statute.” Chevron, 467 U.S.
at 843. See also Alaska, 503 U.S. at 575.

I. Chevron Step I

The starting point in determining whether “ Congress had an intention on the
precise question at issue,” Chevron, 467 U.S. at 843 n.9, is, of course, the lan­
guage of the statute itself. See Kaiser Aluminum & Chem. Corp. v. Bonjomo,
494 U.S. 827, 835 (1990); Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980). Ordinarily, if the terms of the statute are plain, they
control and that is the end of the matter. See Chevron, 467 U.S. at 843; Holly
Farms Corp. v. NLRB, 517 U.S. 392, 398 (1996).
At the same time, it is well-established that a provision in one act o f Congress
should be read in conjunction with other relevant statutory provisions and not
in isolation. See Jett v. Dallas Indep. School Dist., 491 U.S. 701, 712-13, 722-
36 (1989); id. at 738-39 (Scalia, J., concurring in part and concurring in the judg­
ment); see also Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995). Thus, courts
regularly construe statutory language in light of both other provisions o f the same
law and relevant provisions from other laws. See, e.g., Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 711-12 (1996); Sullivan v. Everhart, 494 U.S. 83, 92
(1990); cf. Sullivan v. Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concur­
ring) (meaning of later enacted statute may affect interpretation of “ previously

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enacted statute, since statutes in pari materia should be interpreted harmo­
niously” ). The fact that different statutory provisions may employ similar terms
in varying contexts, for example, m ay give insight as to the meaning of the term
in the particular context that is under review. See Medtronic, Inc. v. Lohr, 518
U.S. 470, 487-89 (1996) (plurality opinion). Similarly, the possibility that the
adoption of a seemingly plain statutory meaning may cause a direct conflict with
a different statutory provision, even if in a different law, may trigger application
of the presumption against repeals by implication. See Watt v. Alaska, 451 U.S.
259, 266 (1981); FAA v. Robertson, 422 U.S. 255, 263 (1975); Silver v. New
York Stock Exchange, 373 U.S. 341, 357 (1963). Moreover, courts commonly rely
upon a general interpretive statute, the Dictionary Act, 1 U.S.C. § 1, in construing
specific statutory language that, but for the otherwise-codified definitional provi­
sion, might suggest a different meaning. See Rowland v. California M en’s Colony,
506 U.S. 194, 199-200, 209-10 (1993); id. at 212-13, 222 (Thomas, J., dis­
senting); Wilson v. Omaha Indian Tribe, 442 U.S. 653, 666 (1979); United States
v . A & P Trucking Co., 358 U.S. 121, 123 (1958).
The general rule that the meaning of particular statutory provisions should be
determined with reference to the broader legislative landscape provides significant
guidance here. As reconciliation legislation, the PRA must be interpreted in the
context of both the Congressional Budget Act of 1974, which establishes general
rules that govern the enactment of budget reconciliation measures, and congres­
sional actions taken pursuant to that statutory regime. Just as courts, when consid­
ering a term that has been defined in the Dictionary Act, read that term in light
of the Dictionary Act definition, so too, here, the rules set forth in the CBA pro­
vide important guidance in discerning the meaning of the relevant provisions of
the PRA.

A.

The PRA was brought to the floor of the Senate as a reconciliation bill, and
as such was subject to the special rules that govern the reconciliation process
set forth in section 313 of the CBA. See 2 U.S.C. §644 (1994); Robert Keith
& Edward Davis, The Senate’s “Byrd R ule” Against Extraneous Matter in Rec­
onciliation Measures 1-2 (Congressional Research Service 1995). Section 313
serves to facilitate the expedited consideration of reconciliation legislation by pro­
viding a mechanism for restricting the content of such legislation to provisions
that are material to the reconciliation process. See Allen Schick, The Federal
Budget: Politics, Policy, Process 82—86 (1995). Over time, these subject matter
restrictions have become known as the “ Byrd rule,” after Senator Robert Byrd
o f West Virginia, their principal proponent. The basic purpose of the Byrd rule
is twofold: to protect the effectiveness of the reconciliation process by excluding
extraneous material that has no significant budgetary effect, and to preserve the

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 Proposed Agency Interpretation o f “Federal M eans-Tested Public Benefit[s]“ Under Personal
Responsibility and Work Opportunity Reconciliation Act o f 1996

deliberative character of the Senate by exempting from expedited consideration
all legislative matters that should properly be debated under regular procedures.10
Section 313 establishes the general framework that governs the nation’s budg­
eting process and shapes the content of the legislation that Congress enacts
through the reconciliation process. Indeed, the Byrd rule has been deemed suffi­
ciently important to the fashioning of the nation’s budget that it is not merely
an internal rule of Senate procedure but, as we have noted, a statute duly passed
by both houses of Congress and signed by the President. The meaning of a par­
ticular provision of reconciliation legislation, therefore, such as the phrase “ fed­
eral means-tested public benefit” in the PRA, must be construed in light of
congressional actions taken pursuant to the CBA.
Specifically, the CBA provides:

When the Senate is considering a reconciliation bill or a reconcili­
ation resolution . . . upon a point of order being made by any Sen­
ator against material extraneous to the instructions to a committee
which is contained in any title or provision of the bill or resolution
or offered as an amendment to the bill or resolution, and the point
of order is sustained by the Chair, any part of said title or provision
that contains material extraneous to the instructions to said Com­
mittee as defined in subsection (b) of this section shall be deemed
stricken from the bill and may not be offered as an amendment
from the floor.

Pub. L. No. 93-344, tit. Ill, §313 (codified at 2 U.S.C. § 644(a)). Section
313(b)(1) outlines six categories of “ extraneous” provisions, the most significant
of which, for purposes of this analysis, is (b)(1)(D), which states that a provision
shall be considered extraneous “ if it produces changes in outlays or revenues
which are merely incidental to the non-budgetary components of the provision.”
2 U.S.C. § 644(b)(1)(D). The rule, as set forth in section 313, is enforced by a
Senator raising a point of order against some provision or provisions of the bill,
on the ground that that provision deals with subject matters extraneous to the
legislation.

10The Byrd rule was adopted in 1986, following years o f struggle on the Senate floor over the inclusion of
extraneous provisions in budget reconciliation legislation. Originally enacted as section 20001 of the Consolidated
Omnibus Budget Reconciliation Act o f 1985, Pub L. No. 99-272, §20001, 100 Stat 82, 390-91 (1986), it was,
in 1990, incorporated as section 313 o f the Congressional Budget Act of 1974 See Budget Enforcement Act of
1990, enacted as Title XIII o f Omnibus Budget Reconciliation Act o f 1990, Pub. L No. 101-508, § 13214(b)(1),
104 Stat 1388, 1388-622. As Senator Byrd explained in introducing the amendment that ultimately bore his name:
Mr President, the Senate is a deliberative body, and the reconciliation process is not a deliberative
process . . Such an extraordinary process, if abused, could destroy the Senate’s deliberative nature
Senate committees are creatures o f the Senate, and, as such, should not be in the position o f dictating
to the Senate as is being done here By including mater[i]al not in their jurisdiction or matter which
they choose not to report as separate legislation to avail themselves of the nondeliberative reconciliation
process. Senate committees violate the compact which created both them and the reconciliation process
131 Cong. Rec. 28,968 (1985)

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The PRA’s original definition o f “ federal means-tested public benefit,” con­
tained in both the Senate and House bills, encompassed an expansive range of
benefit and assistance programs and did not distinguish between those that were
mandatory and those that were discretionary. When the Senate bill reached the
floor, Senator Exon invoked the Byrd rule to raise an omnibus point of order
against a number of provisions of the legislation, including the definition of ‘‘fed­
eral means-tested public benefit.” 142 Cong. Rec. 18,296-97 (1996). His objec­
tion to this provision was based upon section 313(b)(1)(C) of the CBA, i.e. the
provision was not within the Finance Committee’s jurisdiction. Id. at 18,297.
The Parliamentarian upheld Senator Exon’s Byrd rule objection on the grounds
that the provision was outside the Finance Committee’s jurisdiction and that, to
the extent the definition encompassed discretionary programs, its impact on the
budget was “ merely incidental.” 11 Rules determining eligibility for discretionary
program benefits within a reconciliation bill have no direct effect on the budget.
Rather, reducing the size of a discretionary program is accomplished by Congress
reducing the appropriation for the program, which the proposed definition of ‘‘fed­
eral means-tested public benefit” did not do. By contrast, so-called entitlement,
or mandatory, programs, generally operate under indefinite appropriations; the size
of the program is not determined based on a fixed appropriation, but rather on
expenditures incurred for all eligible program participants. Thus expenditures
under mandatory programs can be directly reduced by restricting eligibility and
thereby reducing the number of people receiving benefits.
The ruling sustaining Senator E xon’s objection was not appealed by any other
Senator. As a result, the definition of “ federal means-tested public benefit” was
struck from the Senate bill. Moreover, the House acceded to the Senate deletion
and agreed to remove its own expansive definition of the term “ federal means-
tested public benefit” in conference. The conference committee acknowledged the
deletion of the definition under the Byrd rule. 142 Cong. Rec. 20,484 (1996).
This legislative record provides strong evidence that the phrase ‘‘federal means-
tested public benefitfs],” as used in the PRA, should be construed to reach only
mandatory (and not discretionary) spending programs. In keeping with section
313, a Byrd rule objection was made and sustained, a definition was dropped
from the bill in response to the objection, and the House acceded to the Senate
version of the bill in light of the Byrd rule objection. To ignore these events
11 The Parliamentarian upheld the objection on the basis o f both sections 313(b)(1)(C) (not within Finance Commit­
tee’s jurisdiction) and 313(b)(1)(D) (prohibition against policy changes with “ merely incidental” budgetary impact).
See 142 Cong Rec 20,975 (1996) (statement o f Senator Graham dunng consideration of conference report on H R.
3734), see also id at 20,979 (statement o f Senator Chafee) Although Senator Exon’s specific objection to the defini­
tion, as itemized in his list, was jurisdictional only, he raised that objection in an omnibus point of order based
generally upon section 313(b)(1), which permitted the Parliamentarian to consider any basis under (b)(1) for
upholding the objection In any event, in this case it ultimately makes no difference to the analysis whether Senator
Exon’s objection was sustained on jurisdictional grounds alone or on both grounds because any jurisdictional objec­
tion under section 313 is based upon the fact that the Senate committee considering a reconciliation bill would
only have jurisdiction over mandatory programs. S ee Schick, The Federal Budget 83 (1995) (under current practice,
“ reconciliation instructions are given only to com m ittees that have jurisdiction over revenues or direct (mandatory)
spending program s’’). Thus, the underlying reasoning for objections under (b)(1)(C) and (b)(1)(D) is the same.

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 Proposed Agency Interpretation o f “Federal Means-Tested Public Benefit[s]” Under Personal
Responsibility and Work Opportunity Reconciliation Act o f 1996

in determining the meaning of the phrase “ federal means-tested public benefit”
would be to disregard the purpose and language of section 313 itself, which serves
to facilitate the budgeting process by providing a mechanism by which the scope
of reconciliation legislation may be contained.12

B.

Several aspects of the text and legislative history of the PRA, when viewed
in isolation, arguably support a broad interpretation of “ federal means-tested
public benefit” that would include discretionary programs. Ultimately, however,
we find little evidence that Congress, in passing the final version of the bill,
intended to reintroduce the very definition that had been struck through the oper­
ation of section 313 of the CBA. What evidence does exist is at best ambiguous,
and thus, in our view, does not foreclose HHS and HUD, two of the agencies
charged with administering the Act, from construing the PRA in the manner that
they propose.
As previously noted, the PRA, as enacted, contains no definition of the phrase
“ federal means-tested public benefit.” Had Congress intended for this phrase to
include discretionary spending programs, over the sustained objection of a member
of the Senate, it could have reinserted the deleted definition or similar language
in the final version. Indeed, the conference committee did reintroduce a number
of other provisions that also had been struck from the Senate bill through Senator
Exon’s omnibus Byrd rule objection, and Congress ultimately voted to retain these
provisions in the final version of the PRA. See §816, 110 Stat. at 2318 (caretaker
exemption; originally § 1126 of S. 1956, 104th Cong. (1996)); §838, id. at 2331
(expedited coupon service; originally § 1148 of S. 1956; § 850, id. at 2336-37
(waiver authority; originally § 1159 of S. 1956); § 729(d), id. at 2303 (WIC pro­
gram/drug abuse; originally § 1259(d)(1) of S. 1956); §912, id. at 2353—54
(abstinence education; originally § 2909 of S. 1956); compare with S. 1956 (July
16, 1996 and July 24, 1996 versions). The decision of the conference not to
reintroduce the deleted definition of “ federal means-tested public benefit” leaves

12 Some language in one appellate decision might be read to suggest that courts should distinguish between proce­
dural and substantive legislative motivations in inferring congressional intent. See Elizabeth Blackwell Health O r.
fo r Women v. K n o ll 61 F 3d 170, 180 (3d Cir. 1995), cert denied. 516 U S 1093 (1996) The appellees in Elizabeth
Blackwell Health Center argued that Congress, by using a rule o f House parliamentary procedure to eliminate a
provision in the 1994 Hyde Amendment requiring victims of rape or incest to report the cnm e to the police pnor
to seeking publicly funded abortions, intended to prohibit state statutes imposing such reporting requirements. The
Third Circuit rejected that argument slating that, “ [a]t most, the rejection [of the provision] is a sign that Congress
did not wish to mandate reporting requirements on the states,” and lhat Congress’s rejection of mandatory reporting
requirements “ on procedural grounds provides no basis for any inference regarding Congress’s views about the
substantive provisions o f the legislation ” 61 F.3d at 180 Unlike here, the procedural objection made in Elizabeth
Blackwell Health Center did not in any way suggest that Congress intended the specific interpretation offered in
that case. The procedural objection raised to the reporting provision was based upon a House rule of parliamentary
procedure that prohibited attempts to “ legislate” on an appropriations bill. Id at 174 The basis for this objection
bore no relationship to the substantive interpretation appellees urged. In contrast, here the definition proffered by
HHS and HUD is based upon a budgetary distinction between mandatory and discretionary programs, precisely
the same basis upon which Senator Exon’s Byrd rule objection was made

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the PRA without the most obvious textual guidance that Congress might have
provided had it wished to adopt the previously stricken definition.
The PRA does, however, define the related phrase “ federal public benefit”
broadly, and in a manner that appears to draw no distinction between mandatory
and discretionary programs.13 The phrase “ means-tested,” moreover, though not
defined in the statute, is defined in the dictionary.14 It could be argued that these
two phrases combine to produce a phrase that is sufficiently plain to make clear
that, in enacting the bill, Congress effectively overruled the prior Byrd rule dele­
tions.
Although not entirely without force, we find this argument inconclusive. First,
even assuming that the phrases “ federal public benefit” and “ means-tested” are
free o f ambiguity, the proposition that combining plain terms necessarily results
in an equally plain phrase is not at all self-evident.15 See, e.g., Smiley v. Citibank,
517 U.S. 735, 746—47 (1996). It is not clear, therefore, that, even ignoring the
deletion of the broad definition pursuant to the CBA, the bill’s final language
is so free from ambiguity as to be deemed plain.
More important, as we have explained, the PRA was enacted as reconciliation
legislation, and thus can be understood only in light of the special rules that Con­
gress set forth in the CBA and the congressional action taken pursuant to those
13 Section 401(c)(1) defines “ federal public benefit” as
(A) any grant, contract, loan, professional license, or commercial license provided by an agency
o f the United States or by appropriated funds o f the United States, and
(B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education,
food assistance, unemployment benefit, o r any other similar benefit for which payments or assistance
are provided to an individual, household, o r family eligibility unit by an agency of the United States
o r by appropriated funds o f the United States
110 Stat at 2262
l4The dictionary defines “ means test” as “ any examination o f (he financial state of a person as a condition
precedent to receiving social insurance, public assistance benefits, o r other payments from public funds,” Webster's
Third N ew International Dictionary 1399 (3d ed 1986) See also Random House Dictionary o f the English Language
1192 (2d ed 1987) ( “ means test” is “ an investigation into the financial position of a person applying for aid
from public funds” ) Despite this definition, precisely what constitutes a “ means test” in the context of federal
programs that distribute benefits on the basis of need is not clear Som e federal programs look to both an applicant’s
income a n d his or her resources to determine eligibility See, e g , Medicaid program, 42 U S C. §§ 1396—1396v
(1994 & Supp II 1996^, Supplemental Security Income program, 42 U S C. §§ 1381—138la (1994), Food Stamp
program, 7 U S .C §§2011-2032 (1994 & Supp U 1996) Others look only to income without any inquiry into
resources. See, e g . National School Lunch program, 42 U S C §§ 175l-1769h (1994 & Supp II 1996); Women,
Infants & Children program, 42 U S .C §1786 (1994 & Supp 11 1996) Still others presume need on the basis
o f area o f residence, enrollment in another welfare program, or some other factor See, e.g., Indian health services,
42 C F R. § 3 6 12 (eligibility based upon area o f residence). Commodity Supplemental Food Program, 7 U S C .
§ 612c note (1994) (eligibility based upon enrollment in another government benefil program for low-income persons),
Chapter 1 migrant education program, 20 U S.C. § 6398 (1994) (presumption of need for migrant children)
15 An unrelated provision of the PRA itself hints at the ambiguity of the phrase “ federal means-tested public
b e n e fit” Section 911 o f the PRA ensures that individuals whose benefits have been reduced because of an act
o f fraud by the individual may not receive increased benefits under “ any other means-tested welfare or public assist­
ance program for which Federal funds are appropriated” as a result o f such reduction. § 9 1 1(a), 110 Stat. at 2353.
The provision then defines the phrase “ means-tested welfare or public assistance program for which Federal funds
are appropriated” to include “ the food stamp program , any program of public or assisted housing under title
I of the U nited States Housing Act o f 1937 ., and any State program funded under part A of title IV of the
Social Security A ct.” § 9 1 1(b), 110 Stat at 2353 T he provision does not slate whether these programs are intended
to be exhaustive or exemplary, but, in any event, th e fact that Congress concluded that it was necessary to provide
a definition o f some sort suggests that Congress did not believe that the meaning of the defined phrase was plain.

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 Proposed Agency Interpretation o f "Federal Means-Tested Public Benefit/s]” Under Personal
Responsibility and Work Opportunity Reconciliation A ct o f 1996

rules. Therefore, the critical question is not whether the phrase “ federal means-
tested public benefit” is plain when read in isolation, but rather whether the phrase
reveals that Congress intended to incorporate the definition that the Senate had
deleted, with the House’s acquiescence, as a consequence of its compliance with
the budgetary rules established by section 313. The PRA’s definition of “ federal
public benefit” does not reveal such an intention. That same definition was
already in the bill at the time Senator Exon raised his point of order objecting
to the definition of “ federal means-tested public benefit.” Its inclusion in the
final bill, therefore, cannot reasonably be viewed as a rejoinder to Senator Exon’s
objection.
Moreover, even apart from the operation of section 313, it is a well-settled
canon of interpretation that “ where the final version of a statute deletes language
contained in an earlier draft, [it may be presumed] that the earlier draft is incon­
sistent with ultimate congressional intentions.” In re Town & Country Home
Nursing Servs., Inc., 963 F.2d 1146, 1153 (9th Cir. 1991); see also Russello v.
United States, 464 U.S. 16, 23-24 (1983); G ulf Oil Corp. v. Copp Paving Co.,
419 U.S. 186, 200 (1974) (Congress’s deletion of provision “ strongly militates
against a judgment that Congress intended a result that it expressly declined to
enact” ); cf. INS v. Cardoza-Fonseca, 480 U.S. 421, 442—43 (1987) ( “ ‘Few prin­
ciples of statutory construction are more compelling than the proposition that Con­
gress does not intend sub silentio to enact statutory language that it has earlier
discarded in favor of other language.’ ” ) (citations omitted). That canon surely
applies with particular force in a context such as this, in which the deletion occurs
by reason of an independent congressional statute that governs the nation’s budg­
eting process.
A second textual argument that could be made in support of a broader definition
arises from the list of exceptions to “ federal means-tested public benefit” pro­
grams in section 403(c)(2) of the PRA. The inclusion of some discretionary pro­
grams in this list of exceptions would be unnecessary unless the term itself
included such programs. As an initial matter, we note that the logic of this argu­
ment proves too much, particularly in light of other drafting flaws that appear
in the Act. The same provision that excepts certain discretionary programs from
the limitation on eligibility for “ federal means-tested public benefit[s],” for
example, also excepts certain programs specified by the Attorney General that
are not conditioned on “ the individual recipient’s income or resources.”
§ 403(c)(2)(G), 110 Stat. at 2266. The view that Congress would not have excepted
a program that was not otherwise covered would erroneously suggest that “ means-
tested” must be a more expansive term than the phrase “ condition[ed] . . . on
the individual recipient’s income or resources.”
More to the point, the list of exceptions included in section 403(c)(2) is quite
plausibly understood as an inconsistency resulting from the proper operation of
the Byrd rule itself. The remedy provided in section 313 is a blunt instrument

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offering a basis for striking extraneous material in a reconciliation bill, but no
mechanism for re-drafting remaining legislative provisions to conform them to
the legislation as revised by application of the Byrd rule. Indeed, there was no
careful mark-up of the bill following the deletion of the definition of “ federal
means-tested public benefit,” where inconsistent provisions might have been
brought into conformity.16
Moreover, it is unlikely that members of Congress would have seen the list
of exceptions as obviously inconsistent with the PRA as revised by application
of the Byrd rule. The categorization o f particular programs as mandatory or discre­
tionary is not at all obvious, and it is likely that many, if not most, members
did not know precisely which programs fell into which category.17 In addition,
the list of exceptions can be seen as Congress’s attempt to safeguard certain pro­
grams from any definitional skirmishes and ensure their exception.18
We are also unpersuaded that the legislative history of the PRA supports the
conclusion that Congress intended to enact extraneous material through the rec­
onciliation process over the sustained objection of a member of the Senate.
Although noting that the definition o f “ federal means-tested public benefit” was
deleted from the bill through operation of section 313, the conferees’ report on
the PRA nonetheless asserts that “ [i]t is the intent of the conferees that [the
deleted] definition be presumed to be in place for purposes of this title.” 142
Cong. Rec. 20,484 (1996). We believe that this statement in the conferees’ report
cannot be taken as controlling.
As noted above, “ ‘[f]ew principles of statutory construction are more compel­
ling than the proposition that Congress does not intend sub silentio to enact statu­
tory language that it has earlier discarded in favor of other language.’ ” Cardoza-
Fonseca, 480 U.S. at 442—43 (citations omitted). Here, this rule cannot plausibly
give way to contrary legislative history. Both houses of Congress deleted the defi­
nition of “ federal means-tested public benefit” : the Senate did so on the basis

l6SimiIar inconsistencies appear in other provisions of the PRA as a result o f Byrd rule deletions For example,
the family cap provision of S 1956, see § 103 o f July 16 version o f S 1956 (establishing new section 408(a)(2)
o f TANF program), was deleted through a Byrd rule objection The conference report notes this deletion and the
provision does not appear in the final version of the PRA 142 C ong Rec 20,459 (1996) Nevertheless, a reference
to the family cap provision remains, in §103 o f the PRA (establishing new §402(a)(7) of title IV of the SSA),
which permits states to waive program requirements in cases of domestic violence. 110 Stat. at 2112, 2115
17 In fact, dunng Senate consideration o f the conference version o f the bill. Senator Graham confirmed, for himself
and for any other members that might not have analyzed the list o f excepted programs, that the post-conference
version o f the bill was consistent with the Senate’s earlier Byrd rule objections, defining “ federal means-tested
public benefit” as applicable only to mandatory program s See infra note 20
18 As a result, we do not believe it to be significant that the final version of the PRA also included exceptions
for two discretionary programs that did not appear in the Senate version of the PRA from which the broad definition
o f “ federal means-tested public benefit” had been deleted Specifically, the Head Start and Job Training programs
were only included in the H ouse’s final list of exem pted programs, and not the Senate’s, even though they do
appear in the final version o f § 403(c)(2) 110 Stat. at 2266. The inclusion of these two additional exceptions does
not change our conclusion because there is no reason to believe that the inclusion of exceptions for these particular
discretionary programs, more than the exceptions fo r the other discretionary programs, was intended to do more
than safeguard them from further definitional disagreements In any event, the inclusion in the final bill o f two
additional discretionary programs seems to us a m ost oblique means for Congress to reinsert a definition of “ federal
means-tested public benefit” that had previously been struck

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of the CBA, and the House acceded to the Senate. A conference committee cannot
essentially overrule those decisions by including contrary language in its report.
To permit this to occur not only would run counter to the canon against construing
a statute to include terms that Congress had earlier discarded, id., but, even more
fundamentally, would undermine the rules that were established with such care
in section 313, which permit a Senator to object to extraneous material that the
conference might include in the legislation itself, but provide no mechanism for
correcting the conference’s explanatory statement.19 Finally, subsequent Senate
colloquy — admittedly an insubstantial grounding for legislative intent if standing
alone — confirms the understanding that a definition that would have extended
the term to encompass discretionary programs was deleted because it was outside
the subject matter scope of the reconciliation process.20
We thus conclude that the legislative record provides strong support for the
proffered construction of the PRA and that the inconsistencies noted above, while
giving rise to some ambiguity, are insufficient to rebut the evidence that Congress
intended to reach only mandatory spending programs. We, accordingly, turn to
the second step of the Chevron inquiry.

>9Section 313 permits a Byrd rule objection to be made at various points throughout the legislative process,
including after the bill has been reported out o f conference. 2 U.S.C. § 644(c). Thus, the statute allows for the
possibility that Congress might attempt to reinsert a deleted provision into a bill during conference, and provides
the Senate with the opportunity to renew its Byrd rule objection if it insists upon the deletion However, because
a Byrd rule objection can be raised only against legislative language, not against explanatory statements in the con­
ference report, see § 644(a), allowing a conference repon statement to act as the equivalent of legislative language
effectively abolishes the statutory mechanism established to ensure the integrity o f the Byrd rule process
20 Specifically, in the debate over the conference report on the Senate floor. Senator Graham sought to confirm
the exact scope o f the term “ federal means-tested public benefit.” After reviewing the history of the Byrd role
objection and the Parliamentarian’s ruling. Senator Graham engaged Senator Kennedy in the following colloquy.
Mr. Graham . . . [WJould the Senator agree (hatr when the Senate struck these sections as violating
the Byrd rule, the Senate’s intent was to prevent the denial of services in appropriated programs such
as those that provide services to victims o f domestic violence and child abuse, the maternal and child
health block grant, social services block grant, community health centers and migrant health centers?

Mr. Kennedy Yes. Under the Byrd rule, the budget reconciliation process cannot be used to change
discretionary spending programs. Only mandatory spending is affected.
142 Cong. Rec. 20,975 (1996).
Senator Graham subsequently asked Senator Exon, who was one of the Senate conferees on the bill, whether
“ the version o f the bill recommended in this conference report is consistent with this understanding.” Id Senator
Exon confirmed that it was. Later during the debate. Senator Graham raised this issue again with another conferee,
Senator Chafee:
Mr. Graham 1 wonder if my colleague could address one point on this bill. I notice that the term
“ Federal means-tested public benefit” was defined in previous versions of the bill However, in this
conference report, no definition is provided.
M r Chafee . . [W]hen the bill was considered in conference, 1 understand that there was an inten­
tional effort to ensure this provision complied with [the] Byrd rule by omitting the definition o f that
particular term.
In other words, then, the term “ Federal means-tested public benefit” — if it is to be in compliance
with the Byrd rule— does not refer to discretionary programs.
Id at 20,979. . -
 Opinions o f the Office o f Legal Counsel in Volume 21

II. Chevron Step II

Under the second step of the Chevron analysis, two questions arise. First, it
is necessary to determine whether Congress intended for agencies or courts to
resolve the ambiguity that Congress, either intentionally or inadvertently, failed
to resolve. See Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (“ [a] pre­
condition to deference under Chevron is a congressional delegation of administra­
tive authority” ); see also Johnson v. United States R.R. Retirement Bd., 969 F.2d
1082, 1088 (D.C. Cir. 1992) (“ If agencies are simply interpreting a statute, but
have not been granted the power to ‘administer’ it, the principle of deference
applies with less force.” ), cert, denied, 507 U.S. 1029 (1993). Second, if Congress
intended for agencies to resolve the ambiguity, then it is necessary to determine
whether the proposed agency interpretation is “ permissible.” Chevron, 467 U.S.
at 843.21 If Congress intended for the agencies to resolve the interpretive ambi­
guity, and the agency resolution is permissible, then the agency construction is
binding.22 See id.

A,

Congress need not expressly authorize agencies to construe ambiguous statutory
terms in order for courts to be bound by agency constructions. In Chevron itself,
for example, the Court deferred to an Environmental Protection Agency (“ EPA” )
construction of the Clean Air Act, even though no statutory language expressly
empowered that agency to impose a binding interpretation of the term “ stationary
source.” The Court simply inferred that Congress must have intended for the EPA,
as the agency entrusted with administering the Clean Air Act, to resolve the policy
choices that inhere in the interpretation of ambiguous statutory language. See
Chevron, 467 U.S. at 843. The Court explained that this inference was reasonable
because agencies generally possess superior expertise and greater political
accountability than courts. See id. at 865-66.
On the other hand, Congress may impliedly authorize courts to interpret a par­
ticular statutory provision, even though an agency has been generally charged with
administering the statute as a whole. In Adams Fruit Co., for example, the Court
refused to defer to the Department o f Labor’s resolution of the question whether
exclusivity provisions in state worker compensation laws trumped a federal private
right of action under the Migrant and Seasonal Agricultural Worker Protection
21 Although the Court stated in Cardoza-Fonseca that Chevron-deference does not apply to pure questions of
law, such as the one at issue here, it has subsequently retreated from this position Our memorandum proceeds
on the assumption that Chevron applies to such questions. Cardoza-Fonseca„ 480 U.S at 454-55 (Scalia, J., concur­
ring)
22 Even if Congress has not entrusted the interpretative function to an agency, courts should still give careful
consideration to agency constructions that are based on expertise and to which they have consistently adhered. See,
e g ., Atchison, Topeka and Santa Fe Ry. v. Pena, 4 4 F 3d 437, 445 (7th Cir. 1994) (Easterbrook, J , concurring),
a j f d sub nom, Brotherhood o f Locomotive Engineers v Atchison, Topeka & Santa Fe Ry , 515 U S 1141 (1995).

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Act, 29 U.S.C. §§ 1801-1872 (1994 & Supp. I 1995) (“ Worker Protection Act” ).
Even though the Department was responsible for administering the Worker Protec­
tion Act generally, the Court concluded that Congress intended for the judiciary,
not the agency, to construe the contours of the private right of action that the
Worker Protection Act created. See Adams Fruit Co., 494 U.S. at 649. The Court
based that conclusion primarily on the fact that the Department was not required
to interpret the private right of action provisions as an incident of its general
administration of the Worker Protection Act, as those provisions established a
parallel and independent enforcement mechanism. See id. at 649-50.
In our view, the delegation question presented here is more analogous to
Chevron than to Adams Fruit Co. Although the PRA does not expressly delegate
general administrative authority to HHS, HUD, or, for that matter, to any other
particular agency, the PRA effectively amends the statutes that establish the assist­
ance programs over which HHS, HUD and other federal agencies have already
been delegated administrative authority. Because those agencies possess general
administrative authority to interpret eligibility criteria set forth in statutes enacted
prior to the PRA, we believe it to be a fair inference that Congress intended
for the changes effected by the PRA to be administered in the same manner.
In an analogous context, the Third Circuit deferred to HHS’ construction of
the Hyde Amendment, even though, as the dissent in that case pointed out, the
Hyde Amendment does not expressly delegate administrative authority to any
agency. Compare Elizabeth Blackwell Health Ctr. fo r Women, 61 F.3d at 182,
with id. at 196 (Nygaard, J., dissenting). The court concluded that HHS’ authority
to administer the Medicaid statute necessarily included the authority to construe
legislation that amended the Medicaid statute’s eligibility requirements. Id. at 182;
see also Fort Wayne Community Schools v. Fort Wayne Educ. A ss’n, 977 F.2d
358, 365 (7th Cir. 1992) (deferring to Postal Service’s construction of a criminal
statute on the ground that it was “ intimately connected” to the purposes of the
statute that Postal Service was charged with administering), cert, denied, 510 U.S.
826 (1993); Associated Third Class Mail Users v. United States Postal Serv., 600
F.2d 824, 826 n.5 (D.C. Cir.), cert, denied, 444 U.S. 837 (1979) (same).
The case for deference is even stronger here, moreover, because the PRA not
only amends the eligibility requirements for the programs that these agencies
administer, but also expressly assigns these agencies the responsibility of
informing the public of the changes in those eligibility requirements that the PRA
effects. Section 404(a) of the PRA requires federal agencies that administer assist­
ance programs to provide the public with information about how the PRA changes
the eligibility requirements for those programs.23 This assignment, we believe,
impliedly delegates to these agencies the authority to resolve the meaning of the

23 “ Each Federal agency that administers a program to which section 401, 402, or 403 applies shall, directly
or through the States, post information and provide general notification to the public and to program recipients
of the changes regarding eligibility for any such program pursuant to this subtitle ” 110 Stat. at 2267

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phrase “ federal means-tested public benefit” : agencies must first interpret the
meaning of the term “ federal means-tested public benefit” in order to comply
with section 404(a)’s mandate to inform the public of the PRA’s impact on eligi­
bility requirements. Only by determining whether that term applies to both manda­
tory and discretionary assistance programs (among other questions of application)
will agencies be able to determine who is eligible for the programs that they
already administer pursuant to separate statutory delegations. Section 404(a)’s
notification requirement serves a useful function, moreover, only to the extent
that the agencies are able to provide accurate information about the eligibility
changes that the PRA mandates. If courts are free to reject reasonable agency
interpretations of that term, then agencies will be forced to risk providing inac­
curate eligibility information or to refrain from providing complete eligibility
information altogether. Because neither result seems consistent with the purpose
behind section 404(a), it is proper to infer that Congress intended for the agencies
to provide the authoritative construction of the term “ federal means-tested public
benefit” when it assigned them the notification task set forth in section 404(a).
In light of the agencies’ statutorily assigned responsibilities, the agencies cannot
fairly be viewed as “ trying to ‘bootstrap’ [themselves] into an area in which [they
have] no jurisdiction” in seeking deference for their construction of the term “ fed­
eral means-tested public benefit.” Wagner Seed Co. v. Bush, 946 F.2d 918, 923
(D.C. Cir. 1991), cert, denied, 503 U.S. 970 (1992) (citation omitted). Rather,
they are offering an interpretation that results from the “ intimate connection”
between the purposes of the statutes that the agencies already administer and those
of the PRA generally, Fort Wayne Community Schools, 977 F.2d at 365, and that
arises in connection with the “ special duty” that section 404(a) of the PRA
assigns them. See FLRA v. Department o f Treasury, 884 F.2d 1446, 1451 (D.C.
Cir. 1989), cert, denied, 493 U.S. 1055 (1990).
We are aware of those cases that assert that courts should not defer to statutes
that are “ general” in nature or that are subject to interpretation by more than
one agency. See, e.g., Johnson v. United States R.R. Retirement Bd., 969 F.2d
at 1088 (citing cases). We do not believe that this rule of construction should
apply here. The rule has been invoked primarily in cases in which agencies seek
Chevron deference for their construction of statutes that have been expressly
entrusted to other agencies for administration, see id.; Cheney R.R. Co. v. Railroad
Retirement Bd., 50 F.3d 1073, 1073-74 (D.C. Cir. 1995), that are designed to
ensure that agencies remain publicly accountable or proceed in a fair manner,
see, e.g., Professional Reactor Operator Soc’y v. United States Nuclear Regulatory
C omm’n, 939 F.2d 1047, 1051 (D.C. Cir. 1991); see Air North Am. v. Department
o f Transp., 937 F.2d 1427, 1436 (9th Cir. 1991), or that are not intimately con­
nected to the mission of the agency that seeks deference. See, e.g., Professional

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Airways Sys. Specialists v. FLRA, 809 F.2d 855, 857 n.6 (D.C. Cir. 1987). The
results in these cases are, therefore, best explained as particular applications of
the justifiable presumption that Congress does not intend for courts to be bound
by agency constructions that are beyond agency expertise, see, e.g., Colorado
Nurses Ass'n v. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988), or that concern
provisions that are designed to ensure agencies proceed in a fair and accountable
manner, see Air North Am. -v. Department o f Transp., 937 F.2d at 1436. These
cases do not establish, in our view, a general presumption in favor of judicial
resolution of all statutory ambiguities that confront more than a single agency.
Indeed, Chevron's emphasis on the greater political accountability of agencies
counsels against a rule of construction that would afford judges the last word
on the meaning of any statute that does not authorize a single agency to administer
it. See Chevron, 467 U.S. at 865-66. Where, as here, a statute assigns a group
of agencies a particular task that is related to the duties that the agencies already
have been assigned by their governing statutes, Congress may be presumed to
have intended for these agencies to resolve any ambiguities that may arise. That
the PRA does not assign any particular agency primary interpretive responsibility
does not change the analysis. Congress may have intended for the courts to resolve
the meaning of the term “ federal means-tested public benefit” in the event of
unresolved interpretive conflicts among the agencies identified by section 404.
There is no reason to suppose, however, that Congress intended for unelected
judges to countermand a unanimous resolution of the policy question by the agen­
cies closest to it. Cf. American Fed’n o f G ov’t Employees v. FLRA, 2 F.3d 6,
10 (2d Cir. 1993) (“ [W]hen two agencies, each examining statutes they are
charged with administering, agree as to the interplay of the statutes, there is no
more reason to mistrust their congruent resolutions than there is to mistrust action
taken by a single agency.” ); see also Salleh v. Christopher, 85 F.3d 689 (D.C.
Cir. 1996) (suggesting that joint agency interpretations may deserve deference);
c f Lieberman v. FTC, 111 F.2d 32, 37 (2d Cir. 1985) (declining to defer to joint
agency construction but noting that Congress may delegate “ dual lawmaking
authority” ). So long as the agencies identified by section 404(a) concur in their
interpretation of the term “ federal means-tested public benefit,” therefore, we
believe that courts would be bound to accord that interpretation Chevron def­
erence.
Finally, we do not believe that the deference that the agencies receive under
Chevron should turn on whether their construction of the term “ federal means-
tested public benefit” would be deemed an “ interpretative” or “ legislative” rule
under the Administrative Procedure Act. We agree with those courts that have
concluded that Chevron deference turns solely on whether the agency’s interpreta­
tion may fairly be understood to be one for which Congress intended judicial
deference to apply, see, e.g., Elizabeth Blackwell Health Ctr. fo r Women, 61 F.3d
at 182; id. at 190-96 (Nygaard J., dissenting) (reviewing conflicting caselaw);

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Kelley v. EPA, 15 F.3d 1100, 1108 (D.C. Cir. 1994), cert, denied, 513 U.S. 1110
(1995); see generally Robert A. Anthony, Which Agency Interpretations Should
Bind Citizens and the Courts?, 1 Yale J. on Reg. 1 (1990), and not on whether
the proposed construction is “ interpretative” or “ legislative” in nature.24 The
latter determination, in our view, relates only to the procedural question whether
the agency’s rule may be promulgated outside the process of notice and comment
rulemaking. That determination should have no bearing on the entirely separate
question whether Congress intends for courts or agencies to resolve the interpre­
tive ambiguity at issue.25

B.

Given that Congress impliedly delegated to the agencies the responsibility for
resolving the interpretive question raised by the PRA’s use of the phrase “ federal
means-tested public benefit,” the only remaining issue under step two of the
Chevron analysis is whether the answer provided by the agencies “ is based on
a permissible construction of the statute.” Chevron, 467 U.S. at 843. If it is, that
construction is binding. Id.
A definition of the term “ federal means-tested public benefit” that includes
only mandatory assistance programs is manifestly “ permissible.” The second step
of the Chevron analysis arises only if Congress failed to resolve whether the term
“ federal means-tested public benefit” applies to discretionary assistance pro­
grams. The conclusion that Congress left that question open is possible only if
the phrase admits of the proffered construction. The same reasons that led us
to conclude that there is strong evidence to support the HHS and HUD proffered
definition of “ federal means-tested public benefit,” see infra pp. 22-31, therefore,
also show that the proffered definition is a “ permissible” one. Moreover, HHS
and HUD assert that their reading “ best balances our Departments’ other statutory
obligations with Congressional goals embodied in the [PRA].” Rabb/Diaz Letter
at 1. Under Chevron, agency constructions based on reasonable assessments of
statutory purposes are entitled to deference. See Chevron, 467 U.S. at 858.

24 The Supreme Court has stated in post-Chevron dicta that interpretive rules are entitled to less weight than
“ norms that derive from the exercise o f the Secretary’s delegated lawmaking pow ers.” See Martin v. Occupational
Safety & Health Review C om m 'n, 499 U S 144, 157 (1991) More recently, however, the Court has intimated that
interpretive rules may be entitled to Chevron-style deference See Reno v Koray, 515 U S 50, 60-61 (1995).
25 O f course, there are clearly some instances in which informal agency interpretations may be presumed to be
undeserving o f full Chevron deference There are sound reasons, for example, to presume that Congress does not
intend for courts to defer to agency litigating positions See Bowen v. Georgetown Umv H o s p 488 U S. 204, 212-
13 (1988) Here, however, the agencies proffer their construction outside the litigation context. Moreover, we note
that the very existence o f the Bowen rule, which precludes the application of Chevron deference to agency litigating
positions, would be unnecessary if all “ interpretative” rules— including those fashioned outside the litigation pro­
cess— were already precluded from receiving such deference

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CONCLUSION

We accordingly conclude that the HHS/HUD proffered definition constitutes
a permissible and legally binding construction of the PRA.

DAWN E. JOHNSEN
Acting Assistant Attorney General

RANDOLPH D. MOSS
Deputy Assistant Attorney General
Office o f Legal Counsel

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