Textualism and contextualism in administrative law

Boston University Law Review

Volumn 78, Issue 4, 1998, Pages 1023-1112

  Siegel, Jonathan R ^a  

^a NONE

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EID: 0032283281     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (482)

1. See infra Part I.
2. See id.
3. See infra Part IV.
4. 512 U.S. 267, 281 (1994) (holding that the Department of Labor cannot employ presumptions that shift the burden of persuasion in workers compensation cases); see infra Part IV.A.
5. 509 U.S. 137, 154 (1993) (holding that, except as provided by 5 U.S.C. § 704 (1994), federal courts cannot require plaintiffs to exhaust available administrative remedies before seeking judicial review under the Administrative Procedure Act (APA)); see infra Part IV.B.
6. 488 U.S. 204, 208-09 (1988) (holding that, absent specific statutory authorization, agencies may not promulgate retroactive rules); see infra Part IV.C.
7. Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 419 (1899); see also Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 538 (1947) (quoting Holmes to this effect).
8. Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 419 (1899); see also Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 538 (1947) (quoting Holmes to this effect).
9. See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 16-17 (Amy Gutmann ed., 1997).
10. Id. at 17.
11. See, e.g., Patricia M. Wald, The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89 Term of the United States Supreme Court, 39 AM. U. L. REV. 277, 281, 301 (1990).
12. See, e.g., id. at 281; Train v. Colorado Pub. Interest Research Group, 426 U.S. 1, 9-10 (1976) (stating that excluding consideration of legislative history is error: "When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on superficial examination.").
13. These movements should not be understood as strictly temporal; they are rather a conceptual (and simplified) representation of the theoretical debate.
14. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623 (1990).
15. See id. at 623, 626.
16. See id. at 626.
17. See id.
18. Id.
19. See id.
20. See id. at 641-42.
21. See id. at 642-44.
22. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 686 (1997).
23. See id. at 687-88; Eskridge, supra note 13, at 643-44.
24. See Eskridge, supra note 13, at 642.
25. See id. at 641-43. The public choice problems include the fact that a legislature's vote on a particular issue may be determined by the order in which votes are taken and so may really be in the control of whoever sets the agenda. A judicial interpreter of a statute will usually have no way of assessing the influence of such factors on how a legislature would have voted on an issue it did not actually decide.
26. See id. at 644-46.
27. See William N. Eskridge, Jr., Gadamer/Statutory Interpretation, 90 COLUM. L. REV. 609, 617 (1990).
28. See Eskridge, supra note 13, at 644.
29. See id. at 647-48.
30. See U.S. CONST, art. I, § 7, cl. 2-3.
31. See Eskridge, supra note 13, at 647-48.
32. This argument was made, or at least noted, by numerous authors, although not all of them could be called intentionalists. See, e.g., Melvin Aron Eisenberg, Strict Textualism, 29 LOY. L.A. L. REV. 13, 35 (1995); Eskridge, supra note 13, at 669; Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 777-78 (1995); Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 253-56.
33. This argument was made, or at least noted, by numerous authors, although not all of them could be called intentionalists. See, e.g., Melvin Aron Eisenberg, Strict Textualism, 29 LOY. L.A. L. REV. 13, 35 (1995); Eskridge, supra note 13, at 669; Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 777-78 (1995); Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 253-56.
34. This argument was made, or at least noted, by numerous authors, although not all of them could be called intentionalists. See, e.g., Melvin Aron Eisenberg, Strict Textualism, 29 LOY. L.A. L. REV. 13, 35 (1995); Eskridge, supra note 13, at 669; Richard J. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 COLUM. L. REV. 749, 777-78 (1995); Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 WIS. L. REV. 235, 253-56.
35. Solan gives the example of the sentence "Bill threw the ball over the tree," which appears to be unambiguous until one learns, from context, that it really means that Bill secretly schemed to undermine his family's chances of winning an interfamily competition for the holding of the best formal dance event because of his anger over his sibling's decision to have his favorite tree cut down. Knowledge of this context undermines the reader's previous confidence about the meaning of the words "threw," "ball," and "over." See Solan, supra note 31, at 236.
36. See Eisenberg, supra note 31, at 35-36.
37. See Eskridge, supra note 13, at 669.
38. See id.; Scalia, supra note 8, at 23.
39. See Eskridge, supra note 13, at 669.
40. See id.
41. See Eskridge, supra note 13, at 642; Scalia, supra note 8, at 32 (stating that as to 99.99% of statutory construction issues in litigated cases, "[t]here is no legislative intent"); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 68 (1994) ("Intent is elusive for a natural person, fictive for a collective body.").
42. See Eskridge, supra note 13, at 643-44.
43. See id. at 647-50 (noting that only a statute's text gets voted upon by the full Congress and signed by the President).
44. See Manning, supra note 21.
45. See Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 STAN. L. REV. 1833, 1860-77 (1998).
46. See Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 219 (1994) (Scalia, J., concurring).
47. Eskridge, supra note 13, at 624.
48. I do not mean to suggest that Eskridge, one of the leading scholars in the statutory interpretation field, is unaware of this possibility, but only to point out that, given the way the debate is framed, even the leading scholars sometimes neglect it.
49. See id. at 626-40.
50. See id.
51. See id. at 640-90.
52. See, e.g., A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 71, 74 (1994) ("If one agrees that statutes can be interpreted accurately only in a fairly comprehensive context, and that dictionaries do not provide context, where does this lead? Consider legislative history always, sometimes, or, nevertheless, never?"); see also George H. Taylor, Structural Textualism, 75 B.U. L. REV. 321, 321-22 (1995) (noting that "[t]he principal debate in statutory interpretation has revolved around textualism's general repudiation of approaches that rely on legislative history as indicia of statutory intent").
53. See, e.g., A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 71, 74 (1994) ("If one agrees that statutes can be interpreted accurately only in a fairly comprehensive context, and that dictionaries do not provide context, where does this lead? Consider legislative history always, sometimes, or, nevertheless, never?"); see also George H. Taylor, Structural Textualism, 75 B.U. L. REV. 321, 321-22 (1995) (noting that "[t]he principal debate in statutory interpretation has revolved around textualism's general repudiation of approaches that rely on legislative history as indicia of statutory intent").
54. See, e.g., John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 677 (1997) ("When statutory language does not clearly answer a question presented by the application of general language to particular circumstances, the Court searches for congressional intent (or purpose) relative to the interpretive question in issue."); see also Daniel B. Rodriguez, The Substance of the New Legal Process, 77 CAL. L. REV. 919, 929 (1989) ("Statutory interpretation doctrine continues to reflect a basic dichotomy between textualist and intentionalist interpretive approaches.").
55. See, e.g., John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 677 (1997) ("When statutory language does not clearly answer a question presented by the application of general language to particular circumstances, the Court searches for congressional intent (or purpose) relative to the interpretive question in issue."); see also Daniel B. Rodriguez, The Substance of the New Legal Process, 77 CAL. L. REV. 919, 929 (1989) ("Statutory interpretation doctrine continues to reflect a basic dichotomy between textualist and intentionalist interpretive approaches.").
56. See Taylor, supra note 49, at 323-24 (noting that because the debate has focused on legislative history, more attention has been paid to what textualism opposes than to its own insights and methods).
57. Eskridge, supra note 13, at 669.
58. Scalia, supra note 8, at 37.
59. See id. at 25-29.
60. See id. at 29-37.
61. Other authors focusing on the legislative history question sometimes mention the alternative of looking to a broad context as an aid in statutory interpretation, but without developing in detail how that context is to be used. See, e.g., Easterbrook, supra note 38, at 61; Muriel Morrisey Spence, The Sleeping Giant: Textualism as Power Struggle, 67 S. CAL. L. REV. 585, 586 (1994).
62. In suggesting that background principles of law have been somewhat neglected, I do not mean to suggest that an appreciation of their importance is wholly absent from current discussion. Eskridge himself, in a different article, argues that the best interpretation of a statute is typically the one that "is most consonant with our current web of beliefs and policies surrounding the statute," William N. Eskridge, Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1483 (1987) (internal quotations omitted), which is an idea very close to the one proposed here. A similar point is at the heart of GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982). These works, however, are primarily concerned with the problem of dealing with statutes over time. See Eskridge, supra, at 1497 ("My central proposition is that statutory interpretation is influenced by the ongoing, not just original, history of the statute."); CALABRESI, supra, at 2 (stating that the object of his proposal is to permit courts to deal properly with "anachronistic laws"). This Article attempts to show that statutory interpretation at any time is and should be influenced by background principles of law. My colleague Dick Pierce has also called attention to the excessively word-focused interpretive techniques now being used by the Supreme Court in some cases. See Pierce, supra note 31. Like me, he believes that the Supreme Court relies too much on "the abstract meaning of a particular word or phrase" without considering other evidence of its meaning in a particular statute. Id. at 752. Pierce does not, however, explore in detail the proper method of construction that the Court should use. This Article attempts to complement Pierce's observations by exploring that method. The articles most clearly focused on the importance of background principles are Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 407 (1989) and Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 S. CT. REV. 429. Sunstein believes that both the textualist and intentionalist accounts of statutory interpretation are incomplete and that statutory interpretation frequently proceeds by consulting background norms. His article articulates norms that he believes should, and sometimes do, govern statutory interpretation in the "regulatory state"-which is not a reference to administrative law in particular, but more generally to the needs of the post-New Deal period in which national government has substantially increased regulatory responsibilities. Sunstein attempts to articulate principles that have "at least some basis in current law," 103 HARV. L. REV. at 463, but his project mixes description of accepted principles with suggestions for the adoption of some rather bold new ones. See, e.g., id. at 479-80 (suggesting that courts should require a clear statement before allowing a statute to create significant inconsistencies in the cost/benefit ratios of regulatory programs). Strauss sees legislation "as an element in the continuing evolution of law's fabric" and emphasizes the role of courts in integrating statutory with other law. See 1994 S. CT. REV. at 436-37. However, Strauss is primarily concerned with what he perceives as the Supreme Court's shift away from such proper integration. See id. at 436, 527. This Article, by examining statutory interpretation in one particular substantive area of law, and by highlighting cases in which application of background principles led to results different from those that would have followed from purely textualist or intentionalist analysis, attempts to demonstrate the critical effect that existing background principles have had and continue to have on statutory interpretation in actual judicial decisions.
63. In suggesting that background principles of law have been somewhat neglected, I do not mean to suggest that an appreciation of their importance is wholly absent from current discussion. Eskridge himself, in a different article, argues that the best interpretation of a statute is typically the one that "is most consonant with our current web of beliefs and policies surrounding the statute," William N. Eskridge, Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1483 (1987) (internal quotations omitted), which is an idea very close to the one proposed here. A similar point is at the heart of GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982). These works, however, are primarily concerned with the problem of dealing with statutes over time. See Eskridge, supra, at 1497 ("My central proposition is that statutory interpretation is influenced by the ongoing, not just original, history of the statute."); CALABRESI, supra, at 2 (stating that the object of his proposal is to permit courts to deal properly with "anachronistic laws"). This Article attempts to show that statutory interpretation at any time is and should be influenced by background principles of law. My colleague Dick Pierce has also called attention to the excessively word-focused interpretive techniques now being used by the Supreme Court in some cases. See Pierce, supra note 31. Like me, he believes that the Supreme Court relies too much on "the abstract meaning of a particular word or phrase" without considering other evidence of its meaning in a particular statute. Id. at 752. Pierce does not, however, explore in detail the proper method of construction that the Court should use. This Article attempts to complement Pierce's observations by exploring that method. The articles most clearly focused on the importance of background principles are Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 407 (1989) and Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 S. CT. REV. 429. Sunstein believes that both the textualist and intentionalist accounts of statutory interpretation are incomplete and that statutory interpretation frequently proceeds by consulting background norms. His article articulates norms that he believes should, and sometimes do, govern statutory interpretation in the "regulatory state"-which is not a reference to administrative law in particular, but more generally to the needs of the post-New Deal period in which national government has substantially increased regulatory responsibilities. Sunstein attempts to articulate principles that have "at least some basis in current law," 103 HARV. L. REV. at 463, but his project mixes description of accepted principles with suggestions for the adoption of some rather bold new ones. See, e.g., id. at 479-80 (suggesting that courts should require a clear statement before allowing a statute to create significant inconsistencies in the cost/benefit ratios of regulatory programs). Strauss sees legislation "as an element in the continuing evolution of law's fabric" and emphasizes the role of courts in integrating statutory with other law. See 1994 S. CT. REV. at 436-37. However, Strauss is primarily concerned with what he perceives as the Supreme Court's shift away from such proper integration. See id. at 436, 527. This Article, by examining statutory interpretation in one particular substantive area of law, and by highlighting cases in which application of background principles led to results different from those that would have followed from purely textualist or intentionalist analysis, attempts to demonstrate the critical effect that existing background principles have had and continue to have on statutory interpretation in actual judicial decisions.
64. In suggesting that background principles of law have been somewhat neglected, I do not mean to suggest that an appreciation of their importance is wholly absent from current discussion. Eskridge himself, in a different article, argues that the best interpretation of a statute is typically the one that "is most consonant with our current web of beliefs and policies surrounding the statute," William N. Eskridge, Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1483 (1987) (internal quotations omitted), which is an idea very close to the one proposed here. A similar point is at the heart of GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982). These works, however, are primarily concerned with the problem of dealing with statutes over time. See Eskridge, supra, at 1497 ("My central proposition is that statutory interpretation is influenced by the ongoing, not just original, history of the statute."); CALABRESI, supra, at 2 (stating that the object of his proposal is to permit courts to deal properly with "anachronistic laws"). This Article attempts to show that statutory interpretation at any time is and should be influenced by background principles of law. My colleague Dick Pierce has also called attention to the excessively word-focused interpretive techniques now being used by the Supreme Court in some cases. See Pierce, supra note 31. Like me, he believes that the Supreme Court relies too much on "the abstract meaning of a particular word or phrase" without considering other evidence of its meaning in a particular statute. Id. at 752. Pierce does not, however, explore in detail the proper method of construction that the Court should use. This Article attempts to complement Pierce's observations by exploring that method. The articles most clearly focused on the importance of background principles are Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 407 (1989) and Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 S. CT. REV. 429. Sunstein believes that both the textualist and intentionalist accounts of statutory interpretation are incomplete and that statutory interpretation frequently proceeds by consulting background norms. His article articulates norms that he believes should, and sometimes do, govern statutory interpretation in the "regulatory state"-which is not a reference to administrative law in particular, but more generally to the needs of the post-New Deal period in which national government has substantially increased regulatory responsibilities. Sunstein attempts to articulate principles that have "at least some basis in current law," 103 HARV. L. REV. at 463, but his project mixes description of accepted principles with suggestions for the adoption of some rather bold new ones. See, e.g., id. at 479-80 (suggesting that courts should require a clear statement before allowing a statute to create significant inconsistencies in the cost/benefit ratios of regulatory programs). Strauss sees legislation "as an element in the continuing evolution of law's fabric" and emphasizes the role of courts in integrating statutory with other law. See 1994 S. CT. REV. at 436-37. However, Strauss is primarily concerned with what he perceives as the Supreme Court's shift away from such proper integration. See id. at 436, 527. This Article, by examining statutory interpretation in one particular substantive area of law, and by highlighting cases in which application of background principles led to results different from those that would have followed from purely textualist or intentionalist analysis, attempts to demonstrate the critical effect that existing background principles have had and continue to have on statutory interpretation in actual judicial decisions.
65. Some possible reasons why the influence of background principles is particularly strong in the field of administrative law are suggested infra in Part III. A. For a few examples from other areas of law, see infra note 187 (taxation); note 417 (criminal law); note 418 (habeas corpus); note 418 (civil procedure).
66. The Supreme Court and the D.C. Circuit both frequently allude to this trio of interpretive sources. See, e.g., Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 695, 696-708 (1995) (referring to statutory text, structure, and history in determining whether the Secretary of the Interior reasonably construed the term "harm" in the Endangered Species Act); State of Ohio v. United States Dep't of the Interior, 880 F.2d 432, 441 (D.C. Cir. 1989) (noting that courts must look to statutory text, structure, and history in construing CERCLA).
67. See Morrison v. Olson, 487 U.S. 654, 691 (1988) (holding that Congress may protect an official from presidential removal if doing so does not impede the President's ability to perform his constitutional duty); Humphrey's Executor v. United States, 295 U.S. 602, 629, 631-32 (1935) (holding that Congress may protect "quasi-legislative" and "quasi-judicial" officials from removal); Myers v. United States, 272 U.S. 52, 176 (1926) (holding that President must have unrestricted power to remove first-class postmasters).
68. See, e.g., Ex Parte Hennen, 38 U.S. (13 Pet.) 230 (1839) (discussing organic statute containing no removal provision).
69. See, e.g., Humphrey's Executor v. United States, 295 U.S. 602, 620 (1935) (discussing organic statute containing for-cause removal provisions but no removal limitations).
70. See, e.g., Parsons v. United States, 167 U.S. 324, 327-28 (1897) (discussing organic statute containing language that fixes United States Attorney's term but no language about removal).
71. 38 U.S. (13 Pet.) 230 (1839).
72. See id. at 256.
73. See id.
74. See id.
75. See id. at 257.
76. First Judiciary Act. ch. 20, § 7, 1 Stat. 76 (1789).
77. Id.
78. See 38 U.S. at 258. The court's opinion gives the language of the statute, but does not set it out in quotation form, as though the precise words are of little importance.
79. Id. at 258-59.
80. Id.
81. See id.
82. Id. at 260.
83. See id.
84. Id. at 259.
85. See id. at 261.
86. See id. at 258.
87. 189 U.S. 311 (1903).
88. See Act of June 10, 1890, ch. 407, § 12, 26 Stat. 131 (providing power to appoint general appraisers).
89. See Shurtleff, 189 U.S. at 312 (describing Shurtleff's removal via letter from President).
90. Id. at 313.
91. See id. at 316 (emphasizing that "tenure of the judicial officers of the United States is provided for by the Constitution, but with that exception no civil officer has ever held office by a life tenure since the foundation of the government").
92. See id. at 314-15 (citing Hennen and stating that "[i]t cannot now be doubted that in the absence of constitutional or statutory provision the President can by virtue of his general power of appointment remove an officer").
93. See id. at 315.
94. See id. (stating that the President's removal power "should not be held to be taken away by mere inference or implication").
95. Id. at 316.
96. Id. at 318.
97. Id.
98. Id. at 316.
99. 167 U.S. 324 (1897).
100. See id at 327-28 ("District attorneys shall be appointed for a term of four years and their commissions shall cease and expire at the expiration of four years from their respective dates.").
101. See id. at 343 (asserting that tenure protection during statutory term of office "could never have been the intention of Congress").
102. See id. at 331 (quoting Hennen).
103. 295 U.S. 602(1935).
104. 15 U.S.C. § 41 (1934).
105. 295 U.S. at 618.
106. See id. at 631-32.
107. 295 U.S. at 623. The Court also adverted briefly to the statutory provision that the first commissioners appointed should "continue in office" for specified periods. The Court thought this phase "ha[d] significance" and that, although it applied only to the first commissioners appointed, "it is not easy to suppose that Congress intended to secure the first commissioners against removal except for the causes specified and deny like security to their successors." Id. However, the Court then immediately "put[] this phrase aside." Id.
108. Id. at 624.
109. Id.
110. Id. at 625.
111. Id. at 624 (emphasis added).
112. See id.
113. See id. at 626 (stating that presidential power to remove Commissioners would "thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office").
114. 357 U.S. 349 (1958).
115. See id. at 349-50.
116. War Claims Act of 1948, ch. 826, 62 Stat. 1240 (codified as amended in 50 U.S.C. App. §§ 2001-2017 (1994)).
117. 357 U.S. at 353 (emphasis added).
118. Id. at 355.
119. Id. at 354 (quoting War Claims Act of 1948, 62 Stat. 1240, § 3).
120. Id. at 356.
121. 2 U.S.C. § 437c (1994).
122. See Federal Election Comm'n v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993).
123. See supra notes 92-95 and accompanying text.
124. For example, the courts might have made more use of the expressio unius canon, or, alternatively, they might have adopted the rule that only a clear statement in statutory text could displace the power of the President to remove an officer he had appointed, with no inferences being permitted based on term provisions, for-cause removal provisions, or the nature of an officer's functions. Justice Scalia would likely have preferred the latter rule if starting from scratch. See Morrison v. Olson, 487 U.S. 654, 705, 724 n.4 (Scalia, J., dissenting) (discussing unitary executive theory).
125. See Scalia, supra note 8, at 23 (textualism is not strict); id. at 24; Manning, supra note 21, at 696; Taylor, supra note 49, at 341 (nor literal); Scalia, supra note 8, at 23 (nor wooden); William N. Eskridge, Jr., "Fetch Some Soupmeat", 16 CARDOZO L. REV. 2209, 2211 (1995) (nor boneheaded).
126. Scalia, supra note 8, at 17.
127. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring).
128. United States v. Fausto, 484 U.S. 439, 453 (1988).
129. 295 U.S. at 623.
130. Hennen, 38 U.S. at 259.
131. Shurtleff, 189 U.S. at 315.
132. Eskridge, supra note 13, at 669.
133. Id. (emphasis added).
134. 508 U.S. 223 (1993).
135. See Scalia, supra note 8, at 23-24; 508 U.S. at 242-43 (Scalia, J., dissenting).
136. See Scalia, supra note 8, at 25-27.
137. See id. at 27-29.
138. See supra notes 107-113 and accompanying text.
139. 357 U.S. at 356.
140. Id. at 353.
141. For a more detailed illustration of how textualists use the corpus juris as context, and how such use differs from contextualist analysis, see infra Part IV.A.
142. Interestingly, textualist judges have a set of substantive presumptions that they are willing to apply. Justice Scalia, for example, recognizes the rule of lenity in criminal cases as validated by its "sheer antiquity," Scalia, supra note 8, at 29, and he accepts the rule that courts should read a congressional statute as abrogating state sovereign immunity only if it contains an unmistakably clear statement to that effect, on the ground that, because congressional abrogation of state sovereign immunity is "an extraordinary act," something like the clear statement rule is merely "normal interpretation." Id. He has also forcefully applied the presumption that statutes have no retroactive effect, even in a case in which the trans-substantive canon that statutes should be read so that no portion is redundant or inoperative might have suggested retroactive application. See Landgraf v. USI Film Prods., 511 U.S. 244, 286-89 (1994) (Scalia, J., concurring in the judgments) (applying rule against retroactivity to entire statute even though statute expressly provided that certain sections would have only prospective application). Extratextual policies are at the heart of these substantive presumptions, leading to Justice Scalia's doubt as to whether they can fairly be considered proper textualist tools. In applying them, textualism begins to blend into contextualism.
143. See, e.g., Scalia, supra note 8, at 24 ("[W]hile the good textualist is not a literalist, neither is he a nihilist. Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible."); United States v. X-Citement Video, Inc., 513 U.S. 64, 80 (1994) (Scalia, J., dissenting) (refusing to join an opinion giving a statute a "meaning that its language simply will not bear"). Even the Hart and Sacks legal process materials, with their strong emphasis on the importance of context, caution that the interpreter of a statute must make sure not to give the words "a meaning they will not bear." HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION O FLAW 1169 (William N. Eskridge & Philip P. Frickey eds., 1994).
144. 351 U.S. 192 (1956).
145. 377 U.S. 33 (1964). These cases are usually cited together for the point discussed here. See, e.g., American Hosp. Ass'n v. NLRB, 499 U.S. 606, 612 (1991), Mobil Oil Exploration & Producing Southeast Inc. v. United Distribution Cos. 498 U.S. 211, 228 (1991); Chemical Mfrs. Ass'n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 133 n.25 (1985); Heckler v. Campbell, 461 U.S. 458, 467 (1983).
146. See 351 U.S. at 197.
147. See 377 U.S. at 36.
148. See 351 U.S. at 195-97.
149. See 377 U.S. at 36-37.
150. See 351 U.S. at 195 n.5 (quoting 47 U.S.C. § 309(a) (1952)).
151. See id. at 195-96 n.5 (quoting 47 U.S.C. § 309(b) (1952)).
152. Id.
153. Id.
154. See 15 U.S.C. § 717f(c) (1958). An exception was provided, but only for certain grandfathered gas operations. See id.
155. See Texaco v. Federal Power Comm'n, 317 F.2d 796 (10th Cir. 1963); Storer Broad. Co. v. United States, 220 F.2d 204 (D.C. Cir. 1955).
156. See 351 U.S. at 202.
157. Id. (emphasis added).
158. Id.
159. Id.
160. Id. at 205.
161. 377 U.S. at 44.
162. Several textual arguments might have been tried, but none is satisfactory. In Storer, a part of the statute not quoted in the Court's opinion stated that when the FCC set an application for hearing, it was to notify the applicant of the grounds therefor, "specifying with particularity the matters and things in issue but not including issues or requirements phrased generally." 47 U.S.C. § 309(b) (1952). This somewhat cryptic phrase appears to be designed only to insure that hearings on applications will be directed to clearly defined issues so that the Commission should not, for example, notify an applicant that the reason for denial was that granting its application would not serve the public interest, convenience and necessity. The legislative history suggests that this phrase has nothing to do with the point at issue in Storer. See S. REP. No. 82-44, at 8 (1951). Still, someone determined to find a textual hook for the Court's holding in Storer might argue that the FCC's lack of obligation to give notice of "issues or requirements phrased generally" indicates that when the only issue was an application's failure to meet generally applicable requirements, no hearing at all was required. This argument, however, is not satisfactory from a textualist perspective. Even this strained reading of the notice provision does not change the portion of the statute that states that if the FCC does not grant an application, it "shall formally designate the application for hearing on the grounds or reasons then obtaining . . . ." 47 U.S.C. § 309(b) (1952). The notice provision, like the background principle favoring efficiency, may suggest to a sensible reader that the FCC should not be required to hold hearings when on agreed facts the agency's rules would require denial of an application, but the plain text of the hearing provision still does not admit of such an exception. In any event, the Supreme Court made a similar holding before this phrase was added to the notice provision, see National Broad. Co. v. United States, 319 U.S. 190 (1943); see also Storer, 351 U.S. at 204 (discussing National Broadcasting), and no such argument is available in Texaco, where there was no comparable restriction in the statute's notice provision. See 15 U.S.C. § 717f (1958). Storer also cannot be accounted for within textualism by imagining that the Court did no more than give an appropriate interpretation to the statutory word "hearing" by interpreting it to include a paper hearing, as the Court later did in United States v. Florida East Coast Ry. Co., 410 U.S. 224 (1973). The statute in Storer already provided for such a paper proceeding as a prerequisite to the statutorily required hearing. As noted in the text, the statute required the FCC, if it did not grant a license application, to notify the applicant of the reasons and to give the applicant an opportunity to reply. The statute then provided that if, after receiving this paper reply, the agency still did not grant the license, it was to set the matter for hearing. Given these provisions, it is impossible to conclude that the hearing requirement could be satisfied by a process already completed by the agency. The requirement of a hearing is plainly an additional requirement beyond that of the paper process that would already have taken place. In Texaco, the Court made some, rather feeble, efforts at textualist justification. The Court attempted to reconcile its holding with the text of the statute by suggesting that the hearings held when the Commission promulgated the rules with which subsequent particular applications were inconsistent satisfied the "hearing" requirement of section 7 of the Natural Gas Act. See 377 U.S. at 39. This reading of the statute, however, is highly unsatisfactory. In both Storer and Texaco, the statutory language clearly entitled the applicant to an individualized hearing at the time the application was rejected. This requirement could not honestly be said to be satisfied by a generalized hearing held prior to the rejection of a particular application.
163. Scalia, supra note 8, at 17.
164. See, e.g., American Hosp. Ass'n v. NLRB, 499 U.S. 606, 611, 612 (1991) (NLRB may by rule generally determine what are appropriate bargaining units in hospitals despite statutory provision that Board will determine appropriate bargaining units "in each case"); Heckler v. Campbell, 461 U.S. 458, 467 (1983) (Secretary of HHS may resolve certain issues relating to disability determinations by rule even though statute contemplates that disability determinations will be made in individualized hearings); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620 (1973) (where it is apparent that applicant has no evidence that would satisfy statute, the FDA may withdraw approval of drug application without hearing, despite statutory requirement of "due notice and opportunity for hearing" before approval is withdrawn); Air Line Pilots Ass'n Int'l v. Quesada, 276 F.2d 892, 895-96 (2d Cir. 1960) (Federal Aviation Administration may by regulation revoke certificates of all pilots over age 60 despite statutory requirement that it provide opportunity for hearing before issuing an order affecting a certificate); see also Mobil Oil Exploration & Producing Southeast Inc. v. United Distribution Cos., 498 U.S. 211, 228 (1991) (quoting Heckler v. Campbell, 461 U.S. at 467) ("Time and again, '[t]he Court has recognized that even where an agency's enabling statute expressly requires it to hold a hearing, the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration.'").
165. The Court made a very brief reference to a Senate report in a footnote only. See 351 U.S. at 204 n.14. The Court placed somewhat more weight on legislative history in Texaco. See 377 U.S. at 43-44.
166. For examples of some other contextualist interpretations that cut strongly against the plain meaning of statutory text, see Interstate Commerce Comm'n v. Southern Ry. Co., 543 F.2d 534, 537-39 (5th Cir. 1976), described infra note 225 and accompanying text, and Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 441-42 (1907), described infra note 291 and accompanying text.
167. HART & SACKS, supra note 136, at 1169. Hart and Sacks qualify this instruction with the requirement that the court not give the statute a meaning it will not bear, see id., so contextualism is already distinguished from it for the reason explained in the previous section. But this section shows another distinction.
168. See Storer, 351 U.S. at 205.
169. See Wald, supra note 10. at 281-82.
170. 745 F.2d 677 (D. C. Cir. 1984). The case should not be confused with the better-known case of ADAPSO v. Camp, 397 U.S. 150 (1970), which created the "injury in fact" test that determines whether a plaintiff has standing to sue under the Administrative Procedure Act.
171. See 745 F.2d at 681.
172. See id.
173. See id. at 682.
174. See id.
175. See id. at 682-84.
176. See 5 U.S.C. § 706(2)(A), (E) (1994).
177. 12 U.S.C. § 1848 (1982) (emphasis added).
178. See 745 F.2d at 683.
179. See id.
180. See id. at 684.
181. See also 5 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE § 29.6, at 354 (2d ed. 1978) ("[Refinements about the formulas for scope of review have become more harmful than helpful").
182. The textualist canon that statutory text should be interpreted so that no portion is redundant or inoperative reflects this point. See, e.g., Stone v. INS, 514 U.S. 386, 397 (1995).
183. 745 F.2d at 685.
184. See id. at 683-84.
185. See id. at 684.
186. See id.
187. Id. at 685 (emphasis added).
188. Morales v. Yeutter, 952 F.2d 954, 957 (7th Cir. 1991).
189. HART & SACKS, supra note 136, at 1378-80.
190. See 745 F.2d at 685 ("One should not be too quick, however, to impute . . . a congressional intent [that courts should scrutinize agency actions more closely].").
191. Similar reasoning was used in Washington Ass'n for Television & Children v. FCC, 712 F.2d 677 (D.C. Cir. 1983). In that case, the court had to consider whether the petitioner had exhausted its administrative remedies before seeking judicial review. The court noted that, with regard to the FCC, exhaustion was not merely a requirement imposed by the judiciary, but was codified in 47 U.S.C. § 405 (1982). See id. at 681. That statute, moreover, made no provision for the usual, judicially-developed exceptions to the exhaustion requirement. See id. However, the court interpreted the statute to allow the usual exceptions anyway. It noted that numerous statutes contain an explicit exhaustion requirement, some providing for exceptions and others not, and that those that do provide for exceptions do so with slightly different wordings, with "no apparent rhyme or reason for the differences." Id. at 682 n.6. Rather than parse the different wordings carefully to determine what different exceptions the various statutes might allow (including the possibility of no exceptions for the statutes, like the one at issue, that made no provision for exceptions at all), the court held that "[t]he very senselessness of the[] differences in language suggests that Congress meant, in all these statutes, merely to codify the judicial doctrine of exhaustion of administrative remedies. That would explain Congress' failure to give careful attention to the nuances of language that might, in another context, connote differences in intended meaning." Id. Although the court used the language of intentionalism, it is apparent that the court looked with disfavor upon congressional attempts to alter the existing scheme.
192. For examples of some other contextualist interpretations that depart from congressional intent, see United States v. Florida East Coast Ry Co., 410 U.S. 224, 239 (1973), described infra note 245 and accompanying text, and National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672, 677-83 (D.C. Cir. 1973), described infra note 274 and accompanying text.
193. See infra Part V.
194. Cf. In re Sinclair, 870 F.2d 1340, 1344 (7th Cir. 1989) (Easterbrook, J.) (discussing a similar hypothetical). That is not to say that there are no background principles operating in the tax field. There is, for example, the fundamental principle that "the federal income tax is a tax on net income." Commissioner v. Tellier, 383 U.S. 687, 691 (1966) (emphasis added). The Supreme Court relied on this principle, which it said was "firmly imbedded in the tax statute from the beginning," in determining that a taxpayer may deduct, as an ordinary and necessary business expense, expenses incurred in the unsuccessful defense of a criminal prosecution. See id. Textual analysis, also used by the Court, yielded the same result, see id. at 690, but contextualist reasoning aided and supported the textual analysis.
195. Sunstein, supra note 57, at 461; see also BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 113-16 (1921).
196. See Eskridge, supra note 57, at 1524-26 (commenting on ability of Congress to overturn court decisions): id. at 1488, 1535-37 (commenting on the incremental nature of judicial lawmaking); Cardozo, supra note 188, at 114 (stating that judges are constrained by each other, by "the traditions of the centuries . . . by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law").
197. See, e.g., Scalia, supra note 8, at 29 (referring to the principle that statutes in derogation of the common law will be narrowly construed as "a sheer judicial power-grab").
198. Scalia, supra note 8, at 31.
199. For some analyses of the effect of Justice Scalia's sustained textualist campaign on judicial performance in cases concerning statutory interpretation, see Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 12 WASH. U. L.Q. 351, 355 (1994) (providing statistics regarding the decline in the Supreme Court's use of legislative history and the rise in its use of dictionaries); Eskridge, supra note 13, at 656-57 (providing similar statistics and concluding that Justice Scalia's influence increased every year from 1987 through 1989); Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827, 832 (1991) (tentatively concluding that textualism is a "major new direction" in statutory interpretation).
200. See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527-530 (1989) (Scalia, J., concurring) (agreeing that court should depart from literal reading of Federal Rule of Evidence 609(a)(1) because literal reading produces absurd result); cf. Veronica M. Dougherty, Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation, 44 AM. U. L. REV. 127, 129-30 nn. 9-10 (1994) (citing cases applying the absurd result principle from all fifty states, the District of Columbia, and the U.S. Supreme Court).
201. See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring) (when apparent textual meaning of statute is absurd, court should consult legislative history to confirm that "unthinkable" result was indeed unthought of).
202. See William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321 (1990).
203. See id. at 322.
204. See id. at 321-22.
205. See id. at 352 ("[A] true dialogue with the text requires the interpreter to reconsider her preunderstandings as she considers the specific evidence in the case, and then to formulate a new understanding, which in turn is subject to reconsideration."); Cass R. Sunstein, Principles, Not Fictions, 57 U. CHI. L. REV. 1247, 1249 (1990) (Congress may displace judicially-created interpretive principles); see also infra Part III.A (noting that administrative law statutes are themselves one of the sources from which background principles of administrative law are derived).
206. For an example of contextualism's recognition of legislative power to depart from and even alter background principles, see the discussion of Darby v. Cisneros, Part IV.B, infra.
207. For example, even in Storer Broadcasting, where the Court reached a result that required a departure from clear statutory text, the Court did not ignore the text, in the sense of failing to consider it in the course of its opinion.
208. Again, Darby, Part IV.B, infra, provides an example.
209. Cf. RICHARD A. POSNER, OVERCOMING LAW 400 (1995) (advocating a "pragmatic" approach to statutory interpretation, in which judges "use consequences to guide their decisions," but also "always bear[] in mind that the relevant consequences include systemic ones such as the risk of debasing the currency of statutory language").
210. Darby, discussed in Part IV.B, infra, provides an example.
211. Tellier, supra note 187, is an example.
212. Some of the official tenure cases discussed in Part II.A, supra, are examples.
213. See CALABRESI, supra note 57, at 2.
214. Id. at 75; see id. at 96 (courts "discern[] principles of law" and "work[] out the demands of the ever-changing legal topography").
215. Eskridge, supra note 57, at 1487.
216. See CARDOZO, supra note 188 (describing the methods of philosophy, history, tradition, and sociology).
217. See CALABRESI, supra note 57, at 99.
218. See id. at 92 (noting accepted fact that courts make law); Eskridge, supra note 57, at 1488 (common law reflects accumulated wisdom of incremental judicial doctrine building).
219. For examples, see the discussion, infra Part III.B.2, of United States v. Florida East Coast Ry., 410 U.S. 224 (1973) and Califano v. Yamasaki, 442 U.S. 682 (1979).
220. See, e.g., Webster v. Doe, 486 U.S. 592 (1988); Johnson v. Robison, 415 U.S. 361 (1974); see infra Part III.B.4.
221. See James M. Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213 (Roscoe Pound ed., 1934); see also Roger J. Traynor, Statutes Revolving in Common-Law Orbits, 17 CATH. U. L. REV. 401 (1968); Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383 (1908).
222. See James M. Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213 (Roscoe Pound ed., 1934); see also Roger J. Traynor, Statutes Revolving in Common-Law Orbits, 17 CATH. U. L. REV. 401 (1968); Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383 (1908).
223. See James M. Landis, Statutes and the Sources of Law, in HARVARD LEGAL ESSAYS 213 (Roscoe Pound ed., 1934); see also Roger J. Traynor, Statutes Revolving in Common-Law Orbits, 17 CATH. U. L. REV. 401 (1968); Roscoe Pound, Common Law and Legislation, 21 HARV. L. REV. 383 (1908).
224. Landis, supra note 214, at 219, 222. See CALABRESI, supra note 57, at 85-86 for a summary of Landis's ideas.
225. See supra Part II.A, infra Part III.B.1.
226. 5 U.S.C. § 702 (1994); see Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967).
227. Cf. Sunstein, supra note 57, at 466 (stating that interpretive norms derive partly from "understandings about how statutory interpretation will improve or impair the performance of governmental institutions"); CARDOZO, supra note 188, at 98-141 (stating that judges, like legislators, must use experience, study, and reflection to determine the comparative importance of the social interests that will be promoted or impaired by the choices made in deciding cases).
228. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 251-55 (4th ed. 1992).
229. See, e.g., Jonathan R. Siegel, Suing the President: Nonstatutory Review Revisited, 97 COLUM. L. REV. 1612, 1622-65 (1997) (exploring the role of the courts in creating the law of judicial review of agency action); 1 DAVIS, supra note 174, § 6.31, at 597 (noting that prior to APA, courts created rules of administrative procedure as a matter of common law).
230. See U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 9, 93 (1947) (stating that judicial review provisions of APA "restate" the law).
231. See supra Part II.A.
232. Federal law generally gives the Department of Justice control over federal government litigation, see 28 U.S.C. § 516 (1994), which means that the Attorney General has the important power to determine what positions government agencies will take in court. However, the Attorney General's power exists only "[e]xcept as otherwise authorized by law." Id. Numerous agencies, particularly, though by no means exclusively, the independent agencies, have statutory authority to appear in court by their general counsel or by other counsel of their choice. See, e.g., 2 U.S.C. § 437d(a)(6) (1994) (Federal Election Commission may initiate, defend, and appeal civil actions through its general counsel); 29 U.S.C. § 154(a) (1994) (attorneys appointed by the National Labor Relations Board may represent the Board in court); 7 U.S.C. § 1981(c) (1994) (Secretary of Agriculture may in certain cases appear by the Department of Agriculture's general counsel or by private attorney).
233. 986 F.2d 509 (D.C. Cir. 1993). The author was part of the Department of Justice team that worked on this case.
234. 543 F.2d 534 (5th Cir. 1976).
235. See 39 U.S.C. § 3625(c) (1994).
236. See 49 U.S.C. § 16(12) (1976).
237. 39 U.S.C. § 3625(c) (1994); see 986 F.2d at 510-11.
238. 39 U.S.C. § 409(d) (1994). Section 411, referenced in section 409, provides that "[t]he furnishing of property and services under this section shall be under such terms and conditions, including reimbursability, as the Postal Service and the head of the agency concerned shall deem
239. Several other sections of the postal statute were also relevant, and the case was complicated by additional suits filed by private mailers in which the Postal Service was the respondent. See 986 F.2d at 510, 512-14. But the two sections quoted here were the most important for the issue of the Postal Service's ability to represent itself in its suit against the Rate Commission.
240. Pub. L. No. 91-375, 84 Stat. 719 (1970) (codified as amended in scattered sections of 39 U.S.C.).
241. See 986 F.2d at 512, 519.
242. See id. at 513.
243. Id. at 521.
244. Id. at 522.
245. See id.
246. 543 F.2d at 538 (quoting 49 U.S.C. § 16(12) (1976)).
247. See Interstate Commerce Comm'n v. Southern Ry. Co., 551 F.2d 95 (5th Cir. 1977) (three judges, dissenting from denial of rehearing en banc, argue that the use of the disjunctive in the statute shows that the statute's "plain meaning" permits the Commission to bring suit to enforce its orders).
248. See Interstate Commerce Comm'n v. Southern Ry. Co., 543 F.2d 534, 535 (5th Cir. 1976).
249. Id. at 539.
250. Id.
251. See id. at 535-36; cf. United States v. Providence Journal Co., 485 U.S. 693, 706 (1988) (noting that 28 U.S.C. § 518 (1994) permits the Solicitor General to fulfill this function with regard to litigation in the Supreme Court).
252. For a similar battle over choosing, in the face of an imperfectly clear statute, between the value of respecting the centralizing function of the Attorney General and the value of respecting agency independence, see Federal Election Comm'n v. NRA Political Victory Fund. 513 U.S. 88 (1994). In that case, the Supreme Court held that the Solicitor General had litigation authority over the FEC's Supreme Court filings, even though the FEC's organic statute permitted it to "appeal" a case using its own lawyers. See id. at 90-91. In addition to a textual argument distinguishing appeal from the seeking of certiorari, the Court relied on the values served by giving the Solicitor General exclusive power to represent the government at the Supreme Court level of litigation. See id. at 94, 96-97. Justice Stevens, dissenting, thought that "appeal" was more naturally read to apply to a broad range of appellate proceedings including certiorari; he also stressed that the "historical context" of the FEC's organic statute showed a congressional desire that the agency be free of executive influence. See id. at 101-03 (Stevens, J., dissenting).
253. See supra Part II.A.
254. 410 U.S. 224 (1973).
255. See id. at 230-33.
256. The Commission issued a report containing its tentative decision, invited railroads to submit comments within sixty days, received comments, and issued its final rule. See id. at 233-34.
257. See id.
258. Id. at 225-26 n. 1 (quoting 49 U.S.C. § 1(14)(a) (1970)).
259. See Act of May 29, 1917, ch. 23, 40 Stat. 101. The Act was amended, with the critical words "after hearing" left intact, by the Act of Sept. 18, 1940, ch. 722, § 4, 54 Stat 898, 901.
260. See 1 DAVIS, supra note 174, § 6.22, at 557. Indeed, the Commission's own general counsel advised Congress that a hearing would be required before the Commission could issue a rule, in terms that obviously assumed that the hearing would be an oral evidentiary hearing. See Florida East Coast Ry. Co. v. United States, 322 F. Supp. 725, 730-32 (M.D. Fla. 1971) (quoting counsel's Senate testimony).
261. See 410 U.S. at 244-45 (citing Londoner v. Denver, 210 U.S. 373 (1908) and BiMetallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915)).
262. As examples from the history of administrative rulemaking show, a requirement of trial-type hearings can grind rulemaking to a virtual halt. See 1 DAVIS, supra note 174, § 6.8, at 475 (noting that the formal proceeding in which the FDA took nine years to determine the percentage of peanut butter that should be made from peanuts served as "a great educator of the American legal profession").
263. See Bi-Metallic Inv. Co., 239 U.S. at 445.
264. See 410 U.S. at 239.
265. 442 U.S. 682 (1979). The two cases are nicely paired in Mashaw, Merrill, & Shane's casebook, ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM 335-48 (3d ed. 1992).
266. See 442 U.S. at 684-87.
267. See id. at 686-87.
268. See id. at 690-91.
269. See id. at 693-97.
270. 42 U.S.C. § 404(b) (1994).
271. 442 U.S. at 693.
272. Id. at 696-97.
273. For further examples of procedural requirements inferred from background principles of administrative law, see the cases discussed at the end of Part III.B.4, infra.
274. 1 DAVIS, supra note 174, § 6.23, at 561.
275. See, e.g., Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 201-03 (1947); NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974).
276. See, e.g., RICHARD J. PIERCE, JR., SIDNEY A. SHAPIRO & PAUL R. VERKUIL, ADMINISTRATIVE LAW AND PROCESS, § 6.4.1, at 259-63 (2d ed. 1992).
277. See id. at 261-63.
278. See id. at 262.
279. See id. at 261-62.
280. See id. at 261.
281. See Florida East Coast Ry., 410 U.S. at 240-42; Storer Broadcasting, 351 U.S. at 205; see also PIERCE, ET AL., supra note 267, at § 6.4.1.
282. See PIERCE, ET AL., supra note 267, § 6.4. 1a, at 263-65.
283. 482 F.2d 672 (D.C. Cir. 1973).
284. See id. at 674.
285. The actual statutory phrase is "[u]nfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce." 15 U.S.C. § 45(a) (1970). "Unfair trade practices" is used here as a shorthand for this phrase.
286. The statute states in pertinent part: Whenever the Commission shall have reason to believe that any . . . person . . . has been or is using any unfair method of competition or unfair or deceptive act or practice in commerce, . . . it shall issue . . . a complaint stating its charges in that respect and containing a notice of a hearing . . . . The person . . . complained of shall have the right to appear . . . . If upon such hearing the Commission shall be of the opinion that the method of competition or the act or practice in question is prohibited . . ., it . . . shall issue . . . an order . . . to cease and desist from using such method of competition or such act or practice. . . . 15 U.S.C. § 45(b)(1970).
287. 15 U.S.C. § 46 (1970).
288. 15 U.S.C. § 46(g)(1970).
289. The power to make rules and regulations is sandwiched between the power to make public such portions of the information the Commission gathers as it deems expedient, and the power to investigate trade conditions in and with foreign countries. See 15 U.S.C. § 46(f), (h) (1970).
290. 15 U.S.C. § 46(g) (1970).
291. After the decision in Petroleum Refiners, Congress expressly gave the FTC substantive rulemaking authority, but constrained its use by imposing burdensome procedural requirements on its exercise. See The Magnuson-Moss Warranty - Federal Trade Commission Improvement Act, 88 Stat. 2183 (1975).
292. See PIERCE ET AL., supra note 267, § 6.4, at 264.
293. See id.
294. See id.
295. See 482 F.2d at 698.
296. See id. at 681.
297. Id.
298. See id. at 681, 683, 690-91.
299. See supra Part II.C.
300. 204 U.S. 426 (1907).
301. See id. at 430.
302. See id. at 431-32.
303. See id.
304. See id. at 436.
305. See id. at 448.
306. PIERCE ET AL., supra note 267, § 5.8.1, at 192.
307. 204 U.S. at 446 (quoting § 22 of the Interstate Commerce Act).
308. Id. at 438-39 (emphasis added) (quoting § 9 of the Interstate Commerce Act).
309. Id. at 442.
310. Id.
311. See id. at 439.
312. See id. at 439-42.
313. Id. at 442. The Court gave short shrift to the savings provision, saying that it "cannot in reason be construed as continuing in shippers a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself." Id. at 446.
314. See 4 DAVIS, supra note 174, § 22.3, at 89 ("The lesson to be learned from the Abilene opinion relates more to statutory interpretation than to primary jurisdiction.").
315. The court may also consider whether the agency's expertise makes it a superior forum and whether permitting the use of judicial fora will prevent the agency from implementing its statutory mandate. See id. at 88-89; PIERCE ET AL., supra note 267, § 5.8, at 190.
316. 476 U.S. 667 (1986).
317. See id. at 668. Medicare is divided into two parts, Part A (Hospital Insurance) and Part B (Medical Insurance). See Michigan Academy of Family Physicians v. Blue Cross & Blue Shield, 728 F.2d 326, 327 (6th Cir. 1984). Most U.S. citizens and permanent residents over 65 are entitled to Part A insurance for free, but Part B is a voluntary program for which a premium is charged. See Michigan Academy, 476 U.S. at 674-75.
318. The Medicare statute creates a detailed structure by which determinations are made regarding Medicare benefits and by which Medicare beneficiaries may obtain review of those determinations. At the time Michigan Academy was decided, section 1395ff of the statute provided that the Secretary of HHS would determine whether individuals were eligible to participate in Part A or Part B and also the amount of benefits to which individuals were entitled under Part A. See 42 U.S.C. § 1395ff(a) (1982). Determinations of the amount of benefits under Part B, however, were made by private health insurance carriers under contracts with the Secretary. See 476 U.S. at 674-75. An individual dissatisfied with a determination of eligibility under Part A or Part B, or a determination of amount of benefits under Part A, was entitled to a hearing by the Secretary, followed by judicial review. See 42 U.S.C. § 1395ff(b)(1) (1982). However, for an individual dissatisfied with an amount determination under Part B, the Medicare statute provided only for a hearing by the private health insurance carrier that made the determination, see 476 U.S. at 675, and the Supreme Court had held that this statutory scheme impliedly precluded judicial review of individual benefit amount determinations under Part B. See United States v. Erika, Inc., 465 U.S. 201 (1982).
319. 42 U.S.C. § 405(h) (1982) (incorporated by reference into the Medicare program by 42 U.S.C. § 1395ii (1982)).
320. See 476 U.S. at 670-73.
321. See 476 U.S. at 680.
322. Id at 680-81 (internal quotation omitted).
323. Interestingly, textual analysis might have provided the Court with additional support for its conclusion: the second sentence of section 405(h), the Court might have noted, did not expressly bar review of Medicare regulations issued by the Secretary; it barred review of a "finding[] of fact or decision" by the Secretary. The context of the first sentence of the section suggests that the second sentence refers to findings of fact or decisions issued in hearings on individual benefits determinations. The third sentence does not bar all actions against the Secretary, but only actions "to recover on a claim arising under this sub-chapter," which could, similarly, be read to cover only cases seeking money on individual benefits claims, not cases challenging a regulation as invalid and seeking only equitable relief. Thus, in Michigan Academy contextualism might have played the role, not of demanding departure from clear statutory text, but of impelling the Court to give the text a permissible reading that best comported with background principles of administrative law. The case shows that the influence of background principles may be so strong as to cause the Court to dispense with textual analysis even where that analysis may be favorable to the conclusion it desires to draw.
324. For another similar example, see Johnson v. Robison, 415 U.S. 361 (1974). There, the Court relied on the principle that there should be judicial review of consutuuonal claims to conclude that a statute apparently barring review of veterans benefits claims did not bar review of a constitutional challenge to a statute governing eligibility for veterans benefits The Court noted that the statute barred review of "the decisions of the Administrator [of Veterans Affairs] on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans." The passage of a veterans benefits statute itself, the Court held, was not a decision by the Administrator on any question of law or fact under a veterans benefits statute. Thus, while the Court relied on the background principle that judicial review should be available, it was ultimately able to hold that an interpretation of the statute as not barring review was the most reasonable reading of the statutory text. See also Traynor v. Turnage, 485 U.S. 535 (1988) (construing same statute so as not to preclude challenge to regulations based on the Rehabilitation Act); Webster v. Doe, 486 U.S. 592 (1988) (construing National Security Act so as not to preclude constitutional challenges to discharge of employee of the Central Intelligence Agency).
325. 5 U.S.C. § 553(b)(1994).
326. See Antonin Scalia, Vermont Yankee: The APA, the D. C. Circuit, and the Supreme Court, 1978 S. CT. REV. 345, 378-80.
327. See, e.g., United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 251-53 (2d Cir. 1977) (requiring notice or disclosure of scientific data and responses to comments); Automotive Parts & Accessories Ass'n v. Boyd, 407 F.2d 330, 338 (D.C. Cir. 1968) (requiring agencies to articulate the rationale for their decisions).
328. Automotive Parts, 407 F.2d at 338.
329. See Nova Scotia, 568 F.2d at 249 ("Adequate review of a determination requires an adequate record, if the review is to be meaningful."); Automotive Parts, 407 F.2d at 338 (text of APA setting forth procedural requirements "must be accommodated to the realities of judicial scrutiny").
330. See Nova Scotia, 568 F.2d at 252 (noting that an agency's failure to respond to cogent and material comments is "not in keeping with the rational process").
331. Of course, the Supreme Court purported to forbid judicially-imposed procedural rulemaking requirements, beyond those imposed by the Constitution or statute, in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978). Despite the strong language used in that case, however, the validity of the requirements of providing notice of the scientific basis of rules, responding to comments, and articulating the basis of decision does not appear to be in doubt.
332. 512 U.S. 267 (1994).
333. See id. at 269-70.
334. See id.
335. See id. at 270.
336. 5 U.S.C. § 556(d) (1994).
337. See 512 U.S. at 272.
338. See id. at 272-74.
339. Id. at 273.
340. See id. at 274.
341. Id. at 274-75.
342. Id. at 275.
343. See id. at 280-81.
344. The Court's conclusion that the phrase "burden of proof" had acquired an unambiguous meaning in the legal community by 1946 is contradicted by usages of the term in judicial opinions and treatises of that period. See 512 U.S. at 283-85 (Souter, J., dissenting); Pierce, supra note 31, at 756. The legislative history of the APA suggested that Congress used the phrase to mean "burden of production," not "burden of persuasion." See infra note 341. The Court even had to overrule its own express, though admittedly rather hurried, previous holding that the phrase, as used in the APA, meant "burden of production." See 512 U.S. at 276-78 (rejecting prior holding in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983)). The holding in Transportation Management was admittedly contained only in a rather cursory footnote. See 462 U.S. at 404 n.7.
345. See supra Part II.B.
346. The 19th-century Massachusetts case upon which the Court relied was about mortgage deeds. See Powers v. Russel, 30 Mass. 69 (1833). Compare the sensitivity to context the Court displayed in Florida East Coast Railway: "The term 'hearing' in its legal context undoubtedly has a host of meanings. Its meaning undoubtedly will vary, depending on whether it is used in the context of a rulemaking-type proceeding or in the context of a proceeding devoted to the adjudication of particular disputed facts." 410 U.S. at 239.
347. See 512 U.S. at 271.
348. See Edward W. Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 12 STAN. L. REV. 5 (1959). Cleary explains that the burden of persuasion may be placed on a party so as to further a substantive policy favoring the other party in the particular kind of litigation involved; or because one party is most likely to possess the relevant evidence; or because of a sense that in the particular situation it is inherently probable that one side's factual contentions are correct and that the burden of proving otherwise should therefore be placed on the other party. See id. at 8-14.
349. See Eskridge & Frickey, supra note 195, at 356; see also HART & SACKS, supra note 136, at 1116-69 (showing how several statutes held by courts to have plain, but foolish, meanings might have been interpreted more sensibly without violence to statutory language).
350. The Court might also have considered the influence of other parts of the statutory text, noting, for example, that, whatever burden the APA places, it places on "the proponent of a rule or order." 5 U.S.C. § 556(d) (1994). This text is difficult to square with the Court's reading of the phrase "burden of proof," since typically every party in an administrative proceeding is the proponent of some rule or order. In each compensation proceeding before the Court in Greenwich Collieries, for instance, the employee was the proponent of an order requiring compensation and the employer was the proponent of an order denying compensation. The legislative history expressly reflected this point. See 512 U.S. at 285-86 (Souter, J., dissenting) (quoting legislative reports). A textualist approach to the APA, given the Court's reading of "burden of proof," would therefore require placing the burden of persuasion on both parties, which is impossible. This difficulty could have pointed the way to the more sensible result that the Court avoided. Another indication of the error of the Court's opinion is the ease with which it could be avoided by a purely cosmetic change in the agency's regulations. As the Court has since acknowledged the APA, even assuming it to require the burden of persuasion to be placed on a particular party, does not specify what that party must prove to prevail. Therefore the agency, even after Greenwich Collieries, could adopt a regulation that was the equivalent of its invalidated practice, by placing the burden of persuasion on a BLBA or LHWCA claimant, but relaxing the nature of what it is the claimant must prove - perhaps even working a probabalistic component into that requirement. See Metropolitan Stevedore Co. v. Rambo (Rambo II), 117 S. Ct. 1953, 1962-63 & n.9 (1997) (interpreting section 10(c) in this way and holding that a certain kind of relief is appropriate it a LHWCA claimant can prove, by a preponderance of the evidence, that there is significant possibility that the claimant's condition will decline in the future). Given this holding, there can be little point in insisting on such a rigid interpretation of section 10(c) itself.
351. The LHWCA in a provision incorporated by reference into the BLBA, provides that "[i]n any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary . . . [, t]hat the claim comes within the provisions of this chapter." 33 U.S.C. § 920 (1994). This provision suggests the appropriateness of the true doubt rule. (The Supreme Court's holding that this provision creates an "exploding" presumption that "falls out of the case" once there is substantial evidence presented on both sides of the issue, see U.S. Indus./Fed. Sheet Metal, Inc. v. Director, OWCP, 455 U.S. 608, 612 n.5 (1982); Del Vecchio v. Bowers 296 U.S. 280, 286 (1935), was pre-Chevron; today it would be more appropriate to recognize that the placement of the burden of proof in agency adjudications is a decision that requires just the sort of expertise to which Chevron deference applies. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984) (holding that courts should defer to an agency's reasonable interpretation of an ambiguous provision in a statute that the agency is entrusted to administer)).
352. 509 U.S. 137 (1993). The author was part of the government's team that briefed the case in the Supreme Court.
353. See supra Part III.B.4.
354. 503 U.S. 140 (1992).
355. Id. at 144.
356. Id. at 145. The rule recognized that agencies ought to have primary responsibility for the programs that Congress has charged them to administer; it gave agencies an opportunity to correct their own mistakes before being haled into court; and it prevented the weakening of an agency's effectiveness that could result from the flouting of its procedures. It also saved courts from having to decide cases that could have been resolved had administrative remedies been exhausted, and it provided better records for judicial review. See id. at 145-46.
357. See, e.g., Honig v. Doe, 484 U.S. 305, 326-27 (1988) (futility); Coit Indep. Joint Venture v. Federal Savings & Loan Ins. Corp., 489 U.S. 561, 587 (1989) (inadequacy).
358. See McCarthy, 503 U.S. at 146; McKart v. United States, 395 U.S. 185, 193 (1969).
359. See 509 U.S. at 139-40.
360. See id. at 140-41.
361. See id.
362. See id. at 141.
363. See id.
364. See id. at 141-43.
365. Darby v. Kemp, 957 F.2d 145 (4th Cir. 1992).
366. See 509 U.S. at 153-54.
367. 5 U.S.C. § 704 (1994).
368. 509 U.S. at 146.
369. See id. at 145. As the Court noted, see id., Professor Davis attempted, largely unsuccessfully, to call attention to the rule of Section 10(c) in both the first and second editions of his treatise. Davis observed that section 10(c) was applicable to hundreds of cases but was almost always overlooked. See 4 DAVIS, supra note 174, § 26.12, at 468-69.
370. 509 U.S. at 145-46.
371. See id. at 146-47.
372. See id. at 147-48.
373. Id. at 147 (internal quotation and citation omitted).
374. Bernard Schwartz, Timing of Judicial Review - A Survey of Recent Cases, 8 ADMIN. L.J. 261, 289 (1994).
375. See Darby v. Cisneros, No 91-2045, tr. of oral arg. at 37 (U.S. 1993) (The transcript does not identify the Justice who asked this question; the identification comes from the author's personal recollection of the oral argument.)
376. Id.
377. S. REP. No. 79-752, at 27 (1945). The Supreme Court quoted this passage, see 509 U.S. at 148, but, curiously, drew no conclusion from it.
378. 482 U.S. 270 (1987).
379. See id. at 284-85.
380. Darby, tr. of oral arg. at 5-7.
381. 5 U.S.C. § 704 (1994). Of course, this rule is subject to the exceptions for cases in which administrative appeal or reconsideration is required by a statute or by an agency rule that suspends the effectiveness of the agency action pending review. See id. Where these exceptions do not apply, however, the result stated in the text would have to follow.
382. See Locomotive Engineers, 482 U.S. at 284-85 (preserving party from such a time bar by holding that petition for agency reconsideration rendered agency action nonfinal).
383. See id. (citing cases).
384. The courts of appeals have in fact so held in a variety of contexts since Darby. See, e.g., Ma v. Reno, 114 F.3d 128 (9th Cir. 1997) (holding that a person who took an administrative appeal of the denial of his petition for preferential visa status for his brother could not seek judicial review of the denial while administrative appeal was still pending); Acura of Bellevue v. Reich, 90 F.3d 1403 (9th Cir. 1996) (holding that car dealers who requested a hearing before an ALJ on an agency's finding that they violated the child labor laws may not seek judicial review before the hearing takes place), cert. denied, 117 S. Ct. 945 (1997); Bellsouth Corp. v. FCC, 17 F.3d 1487 (D.C. Cir. 1994) (holding that a party denied "pioneer preference" in FCC license proceeding may not simultaneously seek administrative reconsideration and judicial review of the denial). The appellate opinions that discussed section 10(c) used typical contextualist analysis: the court in Acura conceded that the language of section 10(c) "might appear to support the dealers' position," 90 F.3d at 1407, but held that "sound policy" required that simultaneous review by two government bodies not be allowed. Id. at 1408-09. The Supreme Court indicated that Locomotive Engineers remains good law in Stone v. INS, 514 U.S. 386, 391-92 (1995), where it also suggested, although it did not have occasion to hold, that judicial review and agency reconsideration may not be sought simultaneously. See id. at 396-97.
385. 488 U.S. 204 (1988).
386. See id. at 205-06.
387. See id. at 206.
388. See id. at 207.
389. See id.
390. See id.
391. See id.
392. See id. at 215.
393. Id. at 208.
394. Id.
395. See PIERCE ET AL., supra note 267, at 265.
396. See 488 U.S. at 209-14.
397. 42 U.S.C. § 1395x(v)(1)(A) (1988).
398. 488 U.S. at 210.
399. See id.
400. See id. at 210-11.
401. See id. at 214.
402. Id. at 216 (Scalia, J., concurring) (quoting 5 U.S.C. § 551(4) (1988)) (emphasis by Justice Scalia).
403. Id. at 223.
404. See American Hosp. Ass'n v. NLRB, 499 U.S. 606 (1991).
405. Scalia, supra note 317, at 383.
406. See, e.g., SEC v. Chenery Corp., 332 U.S. 194 (1947).
407. In the Court's defense, it might be noted that the Court appeared to be applying what it perceived as the more general background principle that "[r]etroactivity is not favored in the law." 488 U.S. at 208. The Court's analysis, however, ignored the unquestioned power of agencies to act retroactively in some circumstances.
408. See PIERCE ET AL., supra note 267, at 266.
409. As the Court observed, the Secretary's retroactive "adjustment" authority, derived from the statute quoted earlier, was probably not designed to permit the Secretary retroactively to alter the method of calculating reimbursements; rather, as the Secretary had argued in prior cases, it was more probably designed only to permit the Secretary to balance a provider's year-end reimbursement entitlement with the monthly installment payments the provider received under the Medicare program. See 488 U.S. at 213. Also, as the legislative history suggested, it would be unfair to apply cost limitations retroactively, because Medicare providers rely on current rules. See id. at 214.
410. See, e.g., Thomas W. Merrill, The Common Law Powers of the Federal Courts, 52 U. CHI. L. REV. 1, 13-27 (1985); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1260-62 (1996).
411. See, e.g., Thomas W. Merrill, The Common Law Powers of the Federal Courts, 52 U. CHI. L. REV. 1, 13-27 (1985); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. PA. L. REV. 1245, 1260-62 (1996).
412. See Eskridge, supra note 57, at 1498-1511; CALABRESI, supra note 57, at 91-119; Sunstein, supra note 57, at 437-41.
413. WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (Univ. Of Chicago Press 1979) (1765).
414. 76 Eng. Rep. 637 (Exch. 1584); see 1 BLACKSTONE, supra note 403, at 87.
415. 76 Eng. Rep. at 638.
416. 1 BLACKSTONE, supra note 403, at 60.
417. Id. at 91. Quoad hoc means "as to this".
418. Id.
419. See id.
420. Id. at 60.
421. United States v. Kirby, 74 U.S. (7 Wall.) 482, 487 (1868); see Reniger v. Fogossa, 1 Plowden 1, 13 (K.B. 1816).
422. For other examples of the interpretive attitude in England, see Jennings v. Hunkin, 83 Eng. Rep. 478, 479 (K.B. 1675) (limiting the effect of a venue statute in accordance with prior understandings of venue; "[t]hough the words of the statute are so, . . . it is not reasonable to imagine that Parliament intended to alter the whole course of trials . . . ."); Eyston v. Studd, 2 Plowden 459, 464 (1573) ("[T]he intent of statutes is more to be regarded and pursued than the precise letter of them, for oftentimes things, which are within the words of statutes, are out of the purview of them . . . ."); Frederick J. deSloovere, The Equity and Reason of a Statute, 21 CORN. L.Q. 591, 591-604 (1936) (noting, though largely condemning, examples of departures from statutory text by English and American courts, and legal doctrines supporting the judicial power so to depart, from the sixteenth through the nineteenth centuries); W.H. Loyd, The Equity of a Statute, 58 U. PA. L. REV. 76 (1909) (taking a more favorable view of similar examples); THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 334-35 (5th ed. 1956) (discussing the doctrine of the equity of a statute).
423. For other examples of the interpretive attitude in England, see Jennings v. Hunkin, 83 Eng. Rep. 478, 479 (K.B. 1675) (limiting the effect of a venue statute in accordance with prior understandings of venue; "[t]hough the words of the statute are so, . . . it is not reasonable to imagine that Parliament intended to alter the whole course of trials . . . ."); Eyston v. Studd, 2 Plowden 459, 464 (1573) ("[T]he intent of statutes is more to be regarded and pursued than the precise letter of them, for oftentimes things, which are within the words of statutes, are out of the purview of them . . . ."); Frederick J. deSloovere, The Equity and Reason of a Statute, 21 CORN. L.Q. 591, 591-604 (1936) (noting, though largely condemning, examples of departures from statutory text by English and American courts, and legal doctrines supporting the judicial power so to depart, from the sixteenth through the nineteenth centuries); W.H. Loyd, The Equity of a Statute, 58 U. PA. L. REV. 76 (1909) (taking a more favorable view of similar examples); THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 334-35 (5th ed. 1956) (discussing the doctrine of the equity of a statute).
424. For other examples of the interpretive attitude in England, see Jennings v. Hunkin, 83 Eng. Rep. 478, 479 (K.B. 1675) (limiting the effect of a venue statute in accordance with prior understandings of venue; "[t]hough the words of the statute are so, . . . it is not reasonable to imagine that Parliament intended to alter the whole course of trials . . . ."); Eyston v. Studd, 2 Plowden 459, 464 (1573) ("[T]he intent of statutes is more to be regarded and pursued than the precise letter of them, for oftentimes things, which are within the words of statutes, are out of the purview of them . . . ."); Frederick J. deSloovere, The Equity and Reason of a Statute, 21 CORN. L.Q. 591, 591-604 (1936) (noting, though largely condemning, examples of departures from statutory text by English and American courts, and legal doctrines supporting the judicial power so to depart, from the sixteenth through the nineteenth centuries); W.H. Loyd, The Equity of a Statute, 58 U. PA. L. REV. 76 (1909) (taking a more favorable view of similar examples); THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 334-35 (5th ed. 1956) (discussing the doctrine of the equity of a statute).
425. United States v. Palmer, 16 U.S. (3 Wheat.) 610, 631 (1818). That case concerned the construction of a federal statute prohibiting piracy. The statute prohibited piracy committed by "any person or persons . . . upon the high seas," id. at 626, and one question was whether this prohibition extended to piracies having no connection with the United States, such as a piracy committed by a foreign national upon a foreign vessel containing only foreign persons and property. The Chief Justice's opinion acknowledged that the Constitution gives Congress the power to punish such piracies, see id. at 630, and also that the words of the statute were "in terms of unlimited extent," id. at 631, but nonetheless held that they should be construed so as to cover only piracies that were offences against the United States, rather than against the human race. See id.
426. 74 U.S. (7 Wall.) 482 (1869). In this case, the Court held that a federal statute making it a crime to obstruct or retard the passage of the mail or of any mail carrier did not apply to a state police officer who arrested a mail carrier for committing murder. Id. at 487; see also United States v. Hart, 26 F. Cas. 193 (C. Ct. D. Pa. 1817) (No. 15,316) (holding that statute does not apply where state constable stops mail coach that is driving through a populous street in such a manner as to endanger the inhabitants).
427. 74 U.S. at 486.
428. Id. (emphasis added); see also Lau Ow Bew v. United States, 144 U.S. 47, 59 (1892) ("Nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion."); 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 384 (1833) (stating that interpretation is indispensable when there is an incongruity or repugnancy between the words of an instrument and its apparent intention derived from its whole structure or its avowed object); id. at 443-44 (stating that deviation from clear and unambiguous statutory language is appropriate "in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble").
429. Sorrells v. United States, 287 U.S. 435, 450 (1932) (emphasis added). This case held that a defendant who had violated the terms of the National Prohibition Act could raise the defense of entrapment even though the statute did not provide for it. Id. at 446-52. See also deSloovere, supra note 412, at 591-604 (citing numerous early cases from American courts, state and federal, that support legal doctrines permitting deviations from statutory text).
430. The appellate cases considering how to deal with Darby, see supra note 375, provide good recent examples of contextualism in administrative law. For a good example of contextualist interpretation in the most recent Supreme Court Term (though outside the administrative law context), see Stewart v. Martinez-Villareal, 118 S. Ct. 1618 (1998). In that case, the Court held that the provision of the Antiterrorism and Effective Death Penalty Act that in most circumstances forbids consideration of a "second or successive" petition for habeas corpus does not cover cases in which the petitioner files a habeas petition after an earlier habeas petition was dismissed for technical reasons without consideration of its merits. See id. at 1621-22. Although the text of the statute suggested that the second petition should be dismissed, see id. at 1622 (Scalia, J., dissenting), the Court relied on the background principle, developed during its experience with habeas corpus cases, that the goal of the system is to provide defendants convicted in state courts with one (and only one) opportunity to receive an adjudication of the merits of their claims in a federal court. See id. at 1621-22. This case is a good illustration of how contextualism applies just as much to a newly-enacted statute as to an aging one. Another good recent example of contextualism, which may soon reach the Supreme Court, concerns the diversity jurisdiction statute, 28 U.S.C. § 1332 (1994). Congress recently amended this statute by adding the sentence, "For the purposes of this section . . . an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled." Id. This sentence was probably intended to eliminate diversity jurisdiction in cases between a U.S. citizen and a permanently resident alien domiciled in the same state, but it also, on a textualist reading, has the probably unintended effect of creating diversity jurisdiction in some cases, such as where an alien sues a citizen and a permanently resident alien. In such cases, the Constitution is satisfied, since the Constitution requires only "minimal diversity," and the diversity statute, long considered to require complete diversity and to forbid suits such as the one described, is satisfied by virtue of the new "deeming" rule. The Third Circuit has given the statute a purely textualist reading, see Singh v. Daimler-Benz AG, 9 F.3d 303 (3d Cir. 1993), but the D.C. Circuit recently held that the statute should be read only to contract, not to expand, federal diversity jurisdiction. See Saadeh v. Farouki, 107 F.3d 52 (D.C. Cir. 1997). The difference between the two opinions rests primarily on the courts' different degree of willingness to follow legislative history, but the D.C. Circuit also properly recognized that quite apart from legislative history, the literal reading of the statute should be disfavored because it departs, without any reason to think the departure deliberate, from the background principle, now nearly two centuries old, that complete diversity is required for diversity jurisdiction. See 107 F.3d at 58, 61.
431. See Scalia, supra note 8, at 17.
432. See supra Part IV. A (explaining how Greenwich Collieries illustrates this difference).
433. See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 511 (1989); National Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 687 (1978); Vencedora Oceanica Navigacion, S.A v. Compagnie Nationale Algerienne De Navigation, 730 F.2d 195, 202 (5th Cir. 1984).
434. Scalia, supra note 8, at 20.
435. See Eisenberg, supra note 31, at 28-29; Dougherty, supra note 193, at 158-59.
436. Actually, a statute might be absurd in a purely internal, logical sense: it might be so poorly drafted as to contradict itself and to require two different results in the same case. See, e.g., 42 U.S.C. § 300aa-12(f) (1994) (containing what appears to be a drafting error that states two different time limits for seeking review of certain decisions of United States Claims Court). Usually, however, when a court invokes the absurd results exception, the court is referring, not to such a logical absurdity, but to the court's belief that the statute is absurd when judged against some extratextual policy. See Dougherty, supra note 193, at 141-53.
437. See, e.g., Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 470 (Kennedy, J., concurring) ("When used in a proper manner, this narrow exception to our normal rule of statutory construction does not intrude upon the lawmaking powers of Congress, but rather demonstrates a respect for the coequal Legislative Branch, which we assume would not act in an absurd way.").
438. Cf. Eisenberg, supra note 31, at 28-29 (commenting that if one may assume legislature did not intend an absurd result, one may assume that it did not intend an unreasonable result).
439. While the Supreme Court often cites legislative intent as the justification for departing from statutory text, it sometimes more forthrightly recognizes the idealized or fictional nature of that intent. See. e.g., Kirby, 74 U.S. at 486-87 ("General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character.") (emphasis added).
440. E.g., United States v. Storer Broad. Co., 351 U.S. 192, 205 (1956) (stating that Court did not think Congress intended the Commission to waste time on applications that did not state a valid basis for a hearing).
441. See supra Part II.C.
442. See Eskridge, supra note 57, at 1484.
443. See Eskridge & Frickey, supra note 195, at 330-32.
444. See supra notes 225-243 and accompanying text.
445. See, e.g., Dellmuth v. Muth, 491 U.S. 223 (1989).
446. See Landgraf v. USI Film Prods., 511 U.S. 244, 268-73, 280 (1994).
447. See, e.g., Jonathan R. Siegel, The Hidden Source of Congress's Power to Abrogate State Sovereign Immunity, 73 TEX. L. REV. 539, 565-66 n.136 (1995) (criticizing the Eleventh Amendment clear-statement rule).
448. Justice Scalia criticizes clear statement rules as possibly illegitimate in Scalia, supra note 8, at 29, but he also recognizes that perhaps some of them "can be considered merely an exaggerated statement of what normal, no-thumb-on-the-scales interpretation would produce anyway," in that they express the interpretive assumption that Congress usually does not depart from accepted ways of doing things. Id. The Eleventh Amendment clear statement rule (or something close to it), for example, is "merely normal interpretation" that recognizes that "congressional elimination of state sovereign immunity is . . . an extraordinary act." Id. The contextualist insight that Congress usually legislates consistently with background principles of administrative law is not very different from Justice Scalia's analysis.
449. Cf. CALABRESI, supra note 57, at 178-81 (discussing the value of judicial candor).
450. See supra Part II.B.
451. See, e.g., Smith v. United States, 508 U.S. 223, 242 (1993) (Scalia, J., dissenting). Justice Scalia argued in this case that the word "uses," in the phrase "uses . . . a firearm," should be understood in light of what that phrase ordinarily means. See id.; see also Scalia, supra note 8, at 23-24 (discussing Smith case).
452. See Scalia, supra note 317, at 375-77; Richard J. Pierce, Jr., Rulemaking and the Administrative Procedure Act, 32 U. TULSA L.J. 185, 187-91 (1996).
453. Some might characterize this last item (pre-enforcement judicial review) as a hindrance, rather than a help, to a system in which agencies proceed by rule rather than by adjudication. See, e.g., Pierce, supra note 440, at 191-93. However, pre-enforcement review is a necessary concomitant of a system of expanded use of rulemaking authority, because it reconciles our desire for efficiency with our desire for checks on government power. See id. at 196-98. Similarly, the judicial accretion of procedural requirements onto the APA's minimalist requirements of notice, comment, and a concise statement of basis and purpose serves to preserve adversary testing of and reasoned choice among possible factual and scientific determinations in a system in which many decisions that would formerly have been made through adjudication are made by rule. See Scalia, supra note 317, at 380-82.
454. See National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672, 698 (D.C. Cir. 1973).
455. See United States v. Florida East Coast Ry. Co., 410 U.S. 224, 239-40 (1973).
456. See United States v. Storer Broad. Co., 351 U.S. 192, 205 (1956); Federal Power Comm'n v. Texaco, 377 U.S. 33, 44 (1964).
457. The D.C. Circuit embraced the requirement and inferred from it a substantive limitation on the agency's rulemaking authority. See Storer Broad. Co. v. United States, 220 F.2d 204, 207-09 (D.C. Cir. 1955) (holding that Commission could not adopt a fixed limit on the number of licenses one person could have). Even without that inference, it is not impossible to imagine a system whereby the FCC, before rejecting a license application, must hear the applicant's reasons why granting the application would serve the public interest, convenience, and necessity (the ultimate test), even though, under a Commission regulation, the denial of the application appears certain. Such a system would be wasteful, but might be thought to serve participatory values.
458. vSee supra Part IV.A.
459. See supra Part IV.B.
460. See supra Part IV.C.
461. See, e.g., Scalia, supra note 8, at 22 (stating that statutory interpretations that achieve desirable results are wrong if they fail to follow the text; "[t]he text is the law, and it is the text that must be observed").
462. See, e.g., United States v. Granderson, 511 U.S. 39, 60 (1994) (Scalia, J., concurring) ("It is best, as usual, to apply the statute as written, and to let Congress make the needed repairs.").
463. See Eskridge, supra note 13, at 677.
464. See H.L.A. HART, THE CONCEPT OF LAW 128 (2d ed. 1994). Others have noted the aptness of Hart's response to the textualists. See, e.g., Cass R. Sunstein, Justice Scalia's Democratic Formalism, 107 YALE L.J. 529, 544 (1997).
465. See Eskridge, supra note 13, at 677; Sunstein, supra note 57, at 439.
466. See also Raymond B. Marcin, Epieikeia; Equitable Lawmaking in the Construction of Statutes, 10 CONN. L. REV. 377, 380-89 (1978) (discussing similar problems in ancient Greek and Roman law).
467. See Sunstein, supra note 57, at 439.
468. See CALABRESI, supra note 57, at 6, 48.
469. See Eskridge, supra note 57, at 1484: Eskridge & Frickey, supra note 195, at 358-62.
470. See Scalia, supra note 317, at 380-82.
471. CALABRESI, supra note 57, at 96. Calabresi attributes this quality of courts to "the way judges are trained and selected, their relative independence, the limitations imposed on their staff, the fact that they make law incrementally in response to specific situations, and the requirement that they explain the grounds of their decisions." Id. One may also add the hierarchical structure of the judicial system and the inability of appellate judges to act without persuading their colleagues to join them.
472. United States v. Fausto, 484 U.S. 439, 453 (1988).
473. Cf. Sunstein, supra note 57, at 440 (suggesting that the judiciary's independence and deliberative capacity gives it an advantage over the legislature).
474. See ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 1997 REPORT OF THE DIRECTOR, Table B-1 at 77 (1997).
475. See Scalia, supra note 317, at 386-87 (Courts are "at least as well-equipped, and probably better motivated" to develop an administrative common law than are "the substantive committees of Congress which consider procedural issues en passant.").
476. Of course, the administrative agencies also play an important role in this task. The doctrine of Chevron deference to agency interpretations of ambiguous statutory provisions recognizes and promotes the ability of agencies to play this role. Agency interpreters, like courts, should use contextualism in their interpretations of statutes, and Chevron deference will then promote judicial acceptance of the agencies' contextualist interpretations. However, Chevron deference could not, by itself, achieve the goals of contextualism unless courts, as well as agencies, use contextualist interpretation. One might argue that agencies are in the best position to promote coherent application of the statutory schemes that they administer and that this goal can therefore best be achieved by permitting agencies to use contextualism while courts use only textualism or intentional ism plus the principle of Chevron deference. As the cases we have seen demonstrate, however, courts would sometimes be compelled to void an agency's contextualist interpretation on the ground that it departs from the plain meaning that textualism or intentionalism would assign to the statute. In addition, it is not clear that agencies are necessarily in the best position to achieve coherence with regard to the kinds of general administrative law issues discussed in this Article, which cut across the agencies' subject matter areas. A system of indiscriminate deference to agency interpretations would sometimes permit agencies to evade the duties that would be imposed by the best readings of statutes. In short, if contextualism is the proper way to read statutes, then courts, as well as agencies, must use it; otherwise, courts will sometimes be too deferential and at other times not deferential enough. Cf. Sunstein, supra note 57, at 444-46 (arguing that Chevron deference cannot resolve every disputed statutory question and that the judiciary should act as an independent arbiter); id at 464 n.217 (stating that Sunstein's discussion of background norms is directed to courts even though its implications extend to other institutions); CALABRESI, supra note 57, at 46-51 (discussing possible reasons why agencies fail to keep laws up to date, including a reluctance to recognize inconsistency between the laws they administer and laws outside their jurisdiction).
477. For example, I would personally be inclined to place Abilene Cotton Oil in this category. Despite the reasonableness of the opinion in light of today's understandings of the doctrine of primary jurisdiction (largely created, of course, by the case itself), and despite the unruly result that would have followed from a contrary outcome, the statutory language in that case seems to me to reflect a congressional decision made with a degree of deliberateness and precision that foreclose judicial action.
478. See Eskridge, supra note 13, at 675 ("Frankly, a result-oriented jurist will refuse to be constrained under any approach, and a modest and diligent jurist will be constrained under either the new textualism or the traditional approach.").
479. HART & SACKS, supra note 136, at 1124-25.
480. See Eskridge & Frickey, supra note 195, at 334-35.
481. For a discussion of how Congress sometimes uses procedural impediments as a means to gain the political benefits of having created an agency without having to give the agency effective power, see Scalia, supra note 317, at 400-09.
482. Although what readers who disagree plan to do with cases of the Storer Broadcasting variety, I don't know. Some otherwise strict doctrinalists use stare decisis as a convenient escape from the more unpalatable consequences of their theories. See, e.g., Scalia, supra note 8, at 138-40 (discussing stare decisis as an exception to originalism in constitutional interpretation). In my view, this practice implicitly rests on the rather naive assumption that prior cases will have made all the departures from theory that are necessary to make a theory workable in practice and that no further departures will be needed in the future.