The opinion
BORK, Circuit Judge, concurring in part and dissenting in part:
I dissent from the majority’s disposition of the case although I agree with much of the majority’s opinion. It is one thing to conclude that the 1981 amendment to Title X does not give authority for the promulgation of the rules challenged here. I agree that the amendment does not. It is quite another matter to decide, as the majority does, that the 1981 amendment affirmatively forbids the promulgation of these rules. That has not been persuasively shown. It is especially important that this distinction be borne in mind because we are dealing in a vexed and hotly controverted area of morality and prudence. The choices required are to be made by Congress or, under a delegated power, by the Secretary of the Department of Health and Human Services. So far as I can tell from the arguments deployed by the Secretary and from the evidence cited by the majority, Congress has not made those choices. Neither has the Secretary, since she believes she is implementing decisions made by Congress. We should not, by a legal analysis that overlooks an important differentiation between two types of congressional intent, effectively make moral and prudential decisions that are properly left to those who are politically responsible. For that reason, rather than affirm the judgment of the district court, I would direct the district court to remand the challenged regulations to the Secretary for reconsideration.
*352 Under SEC v. Chenery Corp., 318 U.S. 80 , 63 S.Ct. 454 , 87 L.Ed. 626 (1943), we must judge the validity of an administrative regulation solely on “the grounds upon which the [agency] itself based its action.” Id. at 88 , 63 S.Ct. at 459 . In particular, an agency regulation must be declared invalid, even though the agency might be able to adopt the regulation in the exercise of its discretion, if it “was not based on the [agency’s] own judgment but rather on the unjustified assumption that it was Congress’ judgment that such [a regulation is] desirable.” FCC v. RCA Communications, Inc., 346 U.S. 86, 96 , 73 S.Ct. 998, 1005 , 97 L.Ed. 1470 (1953). If a regulation is based on an incorrect view of applicable law, the regulation cannot stand as promulgated, unless the “mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached.” Massachusetts Trustees v. United States, 377 U.S. 235, 248 , 84 S.Ct. 1236, 1245 , 12 L.Ed.2d 268 (1964).
HHS based its decision to promulgate the regulations challenged in this case on the 1981 amendment to Title X. In the preamble to the regulations HHS stated generally: “The rules implement a 1981 amendment to Title X which requires projects supported by Title X to encourage, to the extent practical, family participation in the provision of project services.” 48 Fed.Reg. 3600 (1983); Addendum to Brief for the Appellants at 14a [hereinafter “Addendum at ( )”]. Accord id. at 3601; Addendum at 15a (“The rules below implement this statutory requirement.”). Most important, with respect to the notification rules in particular, HHS stated that it was specifically relying on the 1981 amendment for authorization as an alternative to relying on any statutory authority it may have had prior to 1981:
It is on the basis of this amendment that the notification provisions of the regulation have been proposed and it is in the light of this amendment and its legislative history that one must judge the propriety of the.notification provisions, not. the legislative history surrounding defeated legislative proposals or interpretations of the statute prior to the 1981 amendment.
Id. at 3602; Addendum at 16a. Thus, HHS substantially relied for its decision to adopt the notification provision on the legal position that the 1981 amendment was intended to give HHS the authority to adopt such a provision. See. also Brief for the Appellants at 18-19.
The situation is different with respect to the rule requiring compliance with state parental consent and notification laws and with respect to the change in prior regulations defining “low-income family.” HHS did not state in the preamble to its regulations that these two provisions were specifically authorized by the 1981 amendment. As the HHS brief in this case makes clear, however, these two provisions were adopted in significant part because of HHS’s adoption of the notification provision and its understanding of the meaning of Congress’s 1981 enactments. See Brief for the Appellants at 30 (rule on compliance with state law “merely clarifies that state law has not been preempted by federal law”); id. at 32 n. 10 (“Since Congress has expressly approved Title XX’s requirement for parental permission and notification, it is no longer possible to view similar state provisions as contrary to federal policy. The two district court cases cited by the district court to show that state notification and consent rules are contrary to the intent of Title X were decided before Congress enacted the 1981 Amendment or Title XX.”) (citation omitted); id. at 33-34 (“One reason for this change [in the low-income family regulations] is obvious. The sentence in question [, removed by the challenged provision,] is fundamentally contrary to the new regulation requiring parental notification. While project directors retain great discretion under the regulations to determine those who ‘for good reasons’ may be unable to pay for services, they may not continue to base this discretion solely on an adolescent’s desire to receive services without parental notification.”) (citation omitted).
*353 Whatever legal errors HHS made in promulgating the notification provision thus infected its promulgation and apparent interpretation of the other two provisions under challenge, and “there is a significant chance that but for the error[s] the agency might have reached a different result” on all three provisions of the challenged regulations. Friendly, Chenery Revisited: Reflections on Reversal and Remand of Administrative Orders, 1969 Duke L.J. 199 , .211 (footnote omitted). If HHS made legal errors that require invalidation of the notification rule, those errors require invalidation of all three parts of the challenged regulations.
I agree with the majority opinion to the extent it holds that HHS is wrong in the view that the 1981 amendment' gave the Secretary the authority to promulgate the parental notification rule. The evidence cited by the majority amply demonstrates the error in HHS’s position. I agree, therefore, that the regulations cannot stand as promulgated.
I depart from the majority because I think that nothing further should be decided in this case. Under Chenery and its progeny, a rule that cannot stand as promulgated should be remanded to the administrative agency for reconsideration if it is arguable that the agency could correct its initial errors and lawfully reissue the rule. The regulations at issue here fall into that category and therefore should be remanded to HHS for reconsideration.
Since HHS is ordinarily owed some deference in the interpretation of a statute like Title X, see, e.g., Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37 , 102 S.Ct. 38, 45 , 70 L.Ed.2d 23 (1981); Udall v. Tallman, 380 U.S, 1, 16, 85 S.Ct. 792, 801 , 13 L.Ed.2d 616 (1965); National Wildlife Federation v. Gorsuch, 693 F.2d 156, 166-70 (D.C.Cir. 1982), HHS should be given an opportunity to say in the first instance not only whether it wants to readopt the regulations but also whether it can do so under some statutory authority other than the 1981 amendment alone. That HHS has other statutory authority to issue these rules is, at the very least, arguable.
As the majority opinion recognizes, “the rulemaking authority that Congress has delegated to the Secretary is broad indeed.” Maj. op. at 655. Title X says: “Grants and contracts made under this subchapter shall be made in accordance with such regulations as the Secretary may promulgate.” 42 U.S.C. § 300a-4(a) (1976). The Secretary thus has a rulemaking power that would authorize the notification regulation challenged here unless Congress has deprived the Secretary of that particular authority. Certainly Congress has not done so by any statutory language, and a careful reading of the majority opinion shows that only a few snippets of the legislative history it cites can offer any support at all for an inference of congressional restriction of otherwise broad agency authority. “Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.” INS v. Chadha,U.S. -, -, 103 S.Ct. 2764, 2786 , 77 L.Ed.2d 317 (1983) (footnote omitted). It is, as I have said, at the very least arguable that Congress has not done so with respect to the parental notification rule here.
In truth, there is very little evidence to show that Congress has prohibited the Secretary from adopting a rule requiring parental notification. It would be no small matter to decide, as proponents of the rule would put it, that the federal government will assist teenagers in conducting active sexual lives but that their parents may not be told. As the rulemaking proceeding at issue in this case makes clear, a decision that parents must be told — as opponents of the challenged rule put it, thereby risking more teenage pregnancies — would also be highly controversial. Either way, the political consequences for some legislators might be serious. Legislators are made politically responsible, however, precisely so that they will take such consequences into account. If Congress wants the result the majority gratuitously attributes to it, it must say so. I might yet be convinced that it has, but the *354 evidence put forth in this case suggests that it has not.
If a case might be made that the Secretary has the authority to promulgate the parental notification rule, an even stronger case might be made that the Secretary has the authority to issue the other two provisions challenged in this lawsuit. A valid parental notification rule, of course, would remove the fundamental objection to the state-law and low-income-family rules relied on by the appellees and the majority here. In addition, however, these latter two rules might also find a basis substantially independent of any federal parental notification rule.
The change in the low-income-family regulations might well be a rational implementation of the Title X policy, embodied in 42 U.S.C. § 300a-4(c) (1976), of giving priority to “persons from low-income families,” a policy that the majority opinion inexplicably suggests is of the Secretary’s, not Congress’s, creation. See maj. op. at 665 n. 60. That policy might rationally be thought to qualify — it does not contradict — Title X’s general purpose of “assisting] in making comprehensive voluntary family planning services readily available to all persons desiring such services.” 42 U.S.C. § 300 note (1976). It should be noted that, contrary to the majority’s suggestion, maj. op. at 651-652, 665 n. 60, it is not Title X’s general purpose to provide family planning services entirely through Title X clinics to all who seek them. The sweep of the majority’s suggestion is hardly required by the statutory language just quoted and is inconsistent with the prominence in the congressional declaration of purposes of the goal of aiding private family planning programs. See 42 U.S.C. § 300 note (1976). Congress’s object was merely to help ensure that, in one way or another, all persons who wanted family planning services could get them.
Similarly, a rule requiring Title X grantees to comply with state parental consent and notification laws might be valid even if a federal parental notification rule were not. That is so because Congress might forbid HHS from requiring parental notification yet, in recognition of states’ traditional role in this area, defer to states that have such a requirement. Contrary to the majority’s statement, maj. op. at 664 n. 57, the validity of a rule requiring grantees to obey state laws presents a preemption problem of “direct conflict between two bodies of law,” id. The rule’s validity turns on whether Congress intended to give grantees a federal-law defense to a charge of violating state law. Support for such a rule might be found in the “presumption against congressional intent to encourage violation of declared public policy [in a state law].” Tank Truck Rentals, Inc. v. Commissioner, 356 U.S. 30, 35 , 78 S.Ct. 507, 510 , 2 L.Ed.2d 562 (1958), quoted in Bob Jones University v. United States,-U.S.-, - n. 17, 103 S.Ct. 2017 , 2028 n. 17, 76 L.Ed.2d 157 (1983). Support might also derive from the especially high standard that must be met when inferring preemption of state laws in areas such as family relations and medical ethics that are traditionally the exclusive or nearly exclusive province of state law. See, e.g., Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 , 99 S.Ct. 802, 808 , 59 L.Ed.2d 1 (1979) (family relations). Where such policies are at stake, it is particularly important that we make sure Congress intended to oust state laws. One function of the rules about preemption is to ensure that critical decisions are consciously made.
In sum, the Secretary might well be able to issue all three of the challenged regulations under legal power different from the one initially claimed. Whether regulations so promulgated would be valid need not and should not be decided until HHS decides to adopt them and articulates a rationale for doing so. Because the validity of reissued regulations is at least arguable, however, the proper disposition of this case is to direct that the regulations be remanded to HHS for reconsideration. The majority goes farther and holds that the challenged regulations are inconsistent with a congressional command. I dissent from that holding.