Agency-centered or court-centered administrative law? A dialogue with richard pierce on agency statutory interpretation

Administrative Law Review

Volumn 59, Issue 4, 2007, Pages 889-904

  Mashaw, Jerry L ^a  

^a YALE UNIVERSITY   (United States)

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EID: 38749105095     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (65)

1. Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 ADMIN. L. REV. 501 (2005).
2. Id. at 502-03.
3. See id. at 501-02 (positing queries such as how agencies interpret statutes, whether there are distinctive interpretive methodologies that appeal to administrators, and with what effects).
4. See id. at 504-24 (bifurcating the analysis of interpretive norms into constitutional demands and prudential concerns).
5. See id. at 524-36 (querying the occasions, forms, and processes for agency statutory interpretation and the administrators' interpretive methodologies).
6. See id. at 527-36 (selecting these agencies because they each had a substantial number of issuances and engage in different administrative tasks and politico-legal contexts).
7. See id. at 528 (analogizing the Article's findings to the notes of an "explorer in uncharted territory").
8. See id. at 524-27 (discussing the difficulties of empirical investigation of agency interpretive practice).
9. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
10. See Mashaw, supra note 1, at 535 (observing the agencies' meager use of judicial precedent).
11. Id.
12. See id. at 521-24 (qualifying the canons as needing commentary, qualification, examples, and modification to reflect the complexity of the differences between judicial and agency statutory interpretation).
13. See id. at 522 (displaying the canons in tabular form).
14. See id. at 507-10, 518-21 (explaining that a "[c] onstitutionally timid administration... potentially usurps the role of the judiciary in harmonizing congressional power and constitutional command").
15. Id. at 537-38 (referring to United States v. Mead Corp., 533 U.S. 218 (2001) and Skidmore v, Swift & Co., 323 U.S. 134 (1944)).
16. Symposium, Roundtable: Statutory Interpretation in the Executive Branch, 31 ADMIN. & REG. L. NEWS, Spring 2006, at 6.
17. See Richard J. Pierce, Jr., How Agencies Should Give Meaning to the Statutes They Administer: A Response to Mashaw and Strauss, 59 ADMIN, L, REV. 197 (2007). Pierce also disagreed with an earlier article by Peter Strauss, which argued that, whatever the position of courts concerning the relevance of legislative history to statutory interpretation, legislative history is a critically important source of information for agency interpreters.
18. See Peter L. Strauss, When the Judge is Not the Primary Official with Responsibility to Read: Agency Interpretation and the Problem of Legislative History, 66 CHI.-KENT L. REV. 321, 322 (1990).
19. Pierce, supra note 17, at 204-05 (footnotes omitted).
20. See id. at 204 (stating that Pierce does not believe that agencies should use different methods of statutory interpretation than courts use).
21. See id. at 204-05 (explaining that when agencies interpret ambiguous provisions in the statutes that they administer, they are making policy by choosing one of several plausible meanings to further the statute's purposes).
22. See generally WILLIAM C. CHASE, THE AMERICAN LAW SCHOOL AND THE RISE OF ADMINISTRATIVE GOVERNMENT (1982) (arguing that the rise of the case method as the only respectable approach to professional training overwhelmed attempts of Ernst Freund and others to explore administrative law by looking at administrative practice and administrative decisions). Somewhat ironically, this case method also tended to suppress the approach of a Harvard scholar, Bruce Wyman, whose early lectures on administrative law emphasized agency practice, which Wyman conceptualized as the "internal law" of administration.
23. See BRUCE WYMAN, THE PRINCIPLES OF THE ADMINISTRATIVE LAW GOVERNING THE RELATIONS OF PUBLIC OFFICERS §§ 1-6 (1903) (explaining that the author devoted the most time in his lectures to the questions of what methods, practices, and processes the administration acts).
24. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
25. Pierce, supra note 17, at 204 (quoting Mashaw, supra note 1, at 502-03).
26. Id. at 204.
27. See id. at 204-05 (reasoning that when agencies choose between several linguistically plausible meanings to a statute, they are policymaking).
28. id. at 198.
29. See William N. Eskridge, Jr. & Lauren E. Baer, The Supreme Court's Deference Continuum, an Empirical Analysis (from Chevron to Hamdan) 33-36 (May 11, 2007) (unpublished manuscript, on file with author). William Eskridge and Lauren Baer find that in a majority of cases involving statutory interpretation between 1984 and 2006, the Supreme Court failed to apply the Chevron doctrine, used a host of deference doctrines other than Chevron, and applied none of them consistently.
30. Pierce, supra note 17, at 203.
31. Id.
32. See id. at 203-04 (explaining that agencies' efforts to minimize the risk of judicial reversal in Chevron step two has less to do with statutory interpretation than with implementation of a comprehensive and transparent policymaking process).
33. Id. at 205.
34. Id. at 204.
35. See, e.g., Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 373 (1989) (arguing for abandoning the philosophical conception of law as rules of conduct in a world where much of the legislative landscape is populated with statutes that merely confer authority on agencies);
36. Michael W. Spicer & Larry D. Terry, Administrative Interpretation of Statutes: A Constitutional View on the "New World Order " of Public Administration, 56 PUB. ADMIN. REV. 38 (1996);
37. Cass R. Sunstein, Is Tobacco a Drug? Administrative Agencies as Common Law Courts, 47 DUKE L.J. 1013, 1019-20, 1068 (1998) (arguing that administrative agencies are the principle interpreters of statutes and, as a matter of practice, have taken on the role of updating statutes that was long the providence of the common law court).
38. 127 S. Ct. 1438, 1462-63 (2007).
39. Pierce, supra note 17, at 200 (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984)).
40. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983).
41. See Pierce, supra note 17, at 204.
42. 127 S. Ct. 1438 (2007).
43. See Eskridge & Baer, supra note 27, at 34.
44. See generally Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443 (2005).
45. Pierce, supra note 17, at 203.
46. Id.
47. 529 U.S. 120 (2000).
48. See William J. Clinton, Remarks by President on FDA Rule on Children and Tobacco, (Aug. 23, 1996), http://www.clintonfoundation.org/legacy/ 082396-remarks-by-president-on-fda-rule-on-children-and-tobacco.htm (last visited Aug. 8, 2007) (announcing the creation of a "comprehensive strategy to kick tobacco out of the lives of children" and the President's support of the FDA's proposed rule).
49. See Strauss, supra note 17, at 322, 352.
50. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
51. See Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679, 681 (1989) (defining agency nonacquiescence as an agency's selective refusal to conduct administrative proceedings according to adverse appellate rulings);
52. see also Samuel Estreicher & Richard L. Revesz, The Uneasy Case Against Intracircuit Nonacquiescence: A Reply, 99 YALE L.J. 831, 831 (1990) (discussing how agency nonacquiesence results from subjecting agencies' policymaking authority to regional court review across the country).
53. But see Matthew Diller & Nancy Morawetz, Intracircuit Nonacquiescence and the Breakdown of the Rule of Law: A Response to Estreicher and Revesz, 99 YALE L.J. 801, 803 (1990) (critiquing legal scholars' acceptance of agency nonacquiescence).
54. See H. JEFFERSON POWELL, THE CONSTITUTION AND THE ATTORNEYS GENERAL XV (1999) (arguing that the Attorney General has the duty to give independent legal advice to the President and the heads of the executive branches);
55. see also 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 264-67 (3d ed. 2000) (asserting that "a judicial decree contrary to the Constitution arguably should not be given effect by the executive when exercising the power to take care that the laws be faithfully executed");
56. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1359-61 (1997) (discussing the debate among constitutional scholars whether nonjudicial officials must follow Supreme Court interpretations of the Constitution);
57. Christopher L. Eisgruber, The Most Competent Branches: A Response to Professor Paulsen, 83 GEO. L.J. 347, 348 (1994) (recommending "comparative institutional competence," whereby each institution has the authority to determine how much deference it must give to other institutions interpretations of the Constitution);
58. John Harrison, The Role of the Legislative and Executive Branches in Interpreting the Constitution, 73 CORNELL L. REV. 371, 372 (1988) (arguing that the Executive and Legislative Branches are not required to follow judicial precedent when there is no binding judgment in a situation, but that doing so facilitates the smooth operation of government);
59. Sanford Levinson, Constitutional Protestantism in Theory and Practice: Two Questions for Michael Stokes Paulsen and One for His Critics, 83 GEO. L.J. 373, 373-74 (1994) (stating that all institutional players should monitor their own behavior as well as the behavior of other institutional actors to ensure constitutional compliance);
60. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 217 (1994) (suggesting that the Executive Branch has equivalent interpretive power to the judicial branch);
61. Neal Devins, Foreword, Elected Branch Influences in Constitutional Decisionmaking, LAW & CONTEMP. PROBS., Autumn 1993, at 1 (discussing the role of elected branch officials in constitutional decisionmaking);
62. John. McGinnis, Introduction, Executive Branch Interpretation of the Law, 15 CARDOZO L. REV. 21, 21 (1993) (addressing executive branch interpretation of judicial branch decisions).
63. See Mashaw, supra note 1, at 538-42.
64. Norwegian Nitrogen Prods. Co. v, United States, 288 U.S. 294, 315 (1933).
65. Id.