Inside congress’s mind

Columbia Law Review

Volumn 115, Issue 7, 2015, Pages 1911-1952

  Manning, John F ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84949255847     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (268)

1. Bernard W. Bell, Legislative History Without Legislative Intent: The Public Justification Approach to Statutory Interpretation, 60 Ohio St. L.J. 1-59 n.218 (1999) (linking textualism and intent skepticism)
2. Linda D. Jellum, But That Is Absurd! Why Specific Absurdity Undermines Textualism, 76 Brook. L. Rev. 917, 919-21 (2011) (same)
3. John David Ohlendorf, Textualism and the Problem of Scrivener’s Error, 64 Me. L. Rev. 119, 123-24 (2011) (same).
4. For the article that identifies the phenomenon of “the new textualism,” see William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 623 (1990), which names and defines the Court’s movement toward a more text-based approach to interpretation.
5. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517 [hereinafter Scalia, Judicial Deference] (questioning collective legislative intent)
6. Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 68 (1994) [hereinafter Easterbrook, Text, History, and Structure] (“Intent is elusive for a natural person, fictive for a collective body.”).
7. Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 65 (1988) [hereinafter Easterbrook, Original Intent] (articulating the “reasonable” reader framework).
8. Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 870-71 (1930) [hereinafter Radin, Statutory Interpretation] (laying out the realist position); see also infra text accompanying notes 44-45 (same).
9. William N. Eskridge, & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 347-48 (1990) [hereinafter Eskridge & Frickey, Practical Reasoning] (defending modern interpretive pragmatism); see also infra text accompanying notes 46-48 (describing the pragmatist position on legislative intent).
10. Ronald Dworkin, Law’s Empire 318-50 (1986) (developing a coherentist approach to interpretation); see also infra text accompanying notes 49-53 (expanding on Dworkin’s view of legislative intent).
11. Henry M. Hart, & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., Foundation Press 1994) (1958) (developing a purposive approach to interpretation); see also infra text accompanying notes 54-61 (elaborating on the Legal Process approach).
12. Hart & Sacks, supra note 7, at 1378.
13. For discussion of this development, see John F. Manning, The Supreme Court, 2013 Term—Foreword: The Means of Constitutional Power, 128 Harv. L. Rev. 1, 16-17 (2014) [hereinafter Manning, Foreword] (sketching statutory interpretation theorists’ responses to intent skepticism).
14. Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L.J. 70, 81-82 (2012) (making the point that intent is a common and sensible “metaphor” for decisions of corporate body like Congress).
15. Jerry Mashaw, As If Republican Interpretation, 97 Yale L.J. 1685, 1686 (1988) (“Any theory of statutory interpretation is at base a theory about constitutional law. It must at the very least assume a set of legitimate institutional roles and legitimate institutional procedures that inform interpretation.”)
16. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv. L. Rev. 593, 593-94 (1995) (“To carry out its [interpretive] task, the court must adopt—at least implicitly—a theory about its own role by defining the goal and methodology of the interpretive enterprise and by taking an institutional stance in relation to the legislature.”).
17. Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547-48 (1983) [hereinafter Easterbrook, Statutes’ Domains] (arguing that strict adherence to text enables the legislature to select the means as well as ends of legislation)
18. John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 103-09 (2006) (culling such theme from writings of leading textualists and from Supreme Court decisions).
19. See, e.g., Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (per curiam) (concluding that since “no legislation pursues its purposes at all costs,” courts disserve legislative supremacy by “assum[ing] that whatever furthers [a] statute’s primary objective must be the law”)
20. Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374 (1986) (“Invocation of the ‘plain purpose’ of legislation at the expense of the terms of the statute itself takes no account of the processes of compromise . . . .”).
21. Archibald Cox, Judge Learned Hand and the Interpretation of Statutes, 60 Harv. L. Rev. 370, 370 (1947) (noting that some “purpose lies behind all intelligible legislation”)
22. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 538-39 (1947) (“Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government.”).
23. Max Radin, A Short Way with Statutes, 56 Harv. L. Rev. 388, 406 (1942) [hereinafter Radin, A Short Way] (“The legislature has no constitutional warrant to demand reverence for the words in which it frames its directives.”).
24. It is, by now, widely accepted that there are multiple ways to look at the idea of legislative supremacy. See William N. Eskridge, Jr., Spinning Legislative Supremacy, 78 Geo. L.J. 319, 321-22 (1989) [hereinafter Eskridge, Spinning Legislative Supremacy] (noting the availability of competing conceptions of legislative supremacy)
25. Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 282 (1989) (same).
26. For elaboration of the discussion of legislative history, see infra section I.B.1.
27. Peter L. Strauss, The Courts and the Congress: Should Judges Disdain Political History?, 98 Colum. L. Rev. 242, 262 (1998) [hereinafter Strauss, The Courts and the Congress] (describing the exercise of judicial discretion in cases of indeterminacy).
28. For elaboration of this account of Professor Strauss’s views on Chevron, see infra section I.B.2.
29. Peter L. Strauss, “Deference” Is Too Confusing—Let’s Call Them “Chevron Space” and “Skidmore Weight,” 112 Colum. L. Rev. 1143, 1145 (2012) (coining and defining the term “Chevron space”).
30. John F. Manning, Chevron and the Reasonable Legislator, 128 Harv. L. Rev. 457, 467 (2014) [hereinafter Manning, Chevron] (expressing a preference for the “clean lines” of the categorical approach to deference)
31. John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 720-22 (1997) [hereinafter Manning, Textualism as Nondelegation] (arguing that interpretive norms crediting legislative history enable legislators to shift policy creation outside the process of bicameralism and presentment).
32. Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. 725 (2014) [hereinafter Bressman & Gluck, Part II]
33. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901 (2013) [hereinafter Gluck & Bressman, Part I]
34. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575 (2002).
35. Gluck & Bressman, Part I, supra note 22, at 919-24 (describing the methodology of their study).
36. See infra section II.B (discussing Gluck and Bressman’s survey results relative to legislative history).
37. See infra section II.C (analyzing Gluck and Bressman’s findings concerning the Chevron doctrine)
38. See also United States v. Mead Corp., 533 U.S. 218, 227, 230 (2001) (holding that courts should defer when agencies announce their decisions through “relatively formal administrative procedure[s] tending to foster . . . fairness and deliberation” or where legislative scheme gives “some other indication of . . . congressional intent” to delegate).
39. See infra note 151 (raising questions about the relevance of “drafter’s” intent).
40. See infra text accompanying notes 213-217 (considering the constitutional implications of relying on legislative history rather than statutory text).
41. See infra notes 233-235 and accompanying text (discussing survey results on judicial deference).
42. See infra section II.C (analyzing those results).
43. See infra notes 80-98 and accompanying text (discussing Professor Strauss’s Legal Process views).
44. See infra notes 32-43 and accompanying text (elaborating upon Judge Easterbrook’s and Justice Scalia’s theories of textualism).
45. John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1291-92 (2010) (considering interpretive practices that provoked the development of modern textualism).
46. See, e.g., Philbrook v. Glodgett, 421 U.S. 707, 713 (1975) (“Our objective . . . is to ascertain the congressional intent and give effect to the legislative will.”)
47. Schooner Paulina’s Cargo v. United States, 11 U.S. (7 Cranch) 52, 60 (1812) (“[I]t has been truly stated to be the duty of the court to effect the intention of the legislature.”).
48. See, e.g., Thornburg v. Gingles, 478 U.S. 30, 43 n.7 (1986) (treating such sources as authoritative evidence of legislative intent); N. Haven Bd. of Educ. v. Bell, 456 U.S. 512, 526-27 (1982) (same).
49. Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983) (suggesting that the “task for the judge called upon to interpret a statute is . . . one of imaginative reconstruction,” which involves thinking his or her way “into the minds of the enacting legislators and imagin[ing] how they would have wanted the statute applied to the case at bar”).
50. Scalia, Judicial Deference, supra note 2, at 517
51. Easterbrook, Text, History, and Structure, supra note 2, at 68 (“Intent is elusive for a natural person, fictive for a collective body.”).
52. Easterbrook, Statutes’ Domains, supra note 12, at 547-48
53. Kenneth J. Arrow, Social Choice and Individual Values (2d ed. 1963) (discussing how agenda-setting and logrolling negate the possibility of reconstructing genuine legislative intent).
54. Textualist legal philosopher Jeremy Waldron has thus written that the concept of a legislative will or intention “founders on the fact that a legislature comprises many people not just one person, and people with quite radically varying states of mind.” Jeremy Waldron, Law and Disagreement 42-43 (1999).
55. Easterbrook, Original Intent, supra note 3, at 64-65 (discussing such complexities in the legislative process)
56. Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 Am. Pol. Sci. Rev. 85, 89 (1987) (same).
57. Shepsle & Weingast, supra note 40, at 89 (noting that “veto groups are pervasive”).
58. Easterbrook, Statutes’ Domains, supra note 12, at 548.
59. Antonin Scalia, A Matter of Interpretation 32 (Amy Gutmann ed., 1997) [hereinafter Scalia, Interpretation] (emphasis omitted).
60. Radin, Statutory Interpretation, supra note 4, at 870-71.
61. Eskridge & Frickey, Practical Reasoning, supra note 5, at 347-48 (arguing that “creation of statutory meaning is not a mechanical operation,” that “interpretation will often depend upon political and other assumptions held by judges,” and that answers given by statutory interpreters are “driven by multiple values”). Professors Eskridge and Frickey identify the three foundational methodologies as intentionalism, purposivism, and textualism.
62. See supra notes 42-43 and accompanying text (discussing textualists’ intent skepticism).
63. Eskridge & Frickey, Practical Reasoning, supra note 5, at 326 (citation omitted).
64. Dworkin, supra note 6, at 337-54 (outlining a coherence-based approach to statutory interpretation).
65. Hart & Sacks, supra note 7, at 1124 (articulating and defending such purposivism)
66. T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 Mich. L. Rev. 20, 26-28 (1988) (discussing the influence of the Legal Process approach)
67. William N. Eskridge, & Philip P. Frickey, Legislation Scholarship and Pedagogy in the Post-Legal Process Era, 48 U. Pitt. L. Rev. 691, 698-99 (1987) (same); supra text accompanying notes 12-16 (drawing the contrast between textualism and purposivism). For convenience, this Essay will refer to all of the post-New Deal writings that paved the way for the Legal Process materials under the rubric of the “Legal Process” approach.
68. Hart & Sacks, supra note 7, at 1378.
69. Cox, supra note 14, at 371-72.
70. Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Colum. L. Rev. 1259, 1270 (1947) (arguing that our system of government is premised on idea that Congress “cannot itself enforce the statutes” it enacts but “must delegate that task to other governmental agencies”)
71. Harry Wilmer Jones, Extrinsic Aids in the Federal Courts, 25 Iowa L. Rev. 737, 742 (1940) (“It will be agreed, of course, that the particular fact-situations presented for decision in actual cases are not foreseen by any of the enacting legislators, except in the rare instances in which legislation is aimed at particular individuals.”).
72. Hart & Sacks, supra note 7, at 1182.
73. Frederick J. de Sloovère, Extrinsic Aids in the Interpretation of Statutes, 88 U. Pa. L. Rev. 527, 538 (1940) (“If by ‘legislative intent’ is meant the minutiae of meaning in application to specific cases, then rarely does such intention exist.”)
74. Frankfurter, supra note 14, at 539 (“[T]he judge . . . ought not to be led off the trail by tests that have overtones of subjective design . . . . We do not delve into the mind of legislators or their draftsmen, or committee members.”)
75. Jones, supra note 57, at 742 (“‘Legislative intention’ is, indeed, a fiction in the great majority of cases, if the concept be taken to signify the will of the members of the legislative body as to the decision of each particular case which may seem to involve the application of a statutory direction.”).
76. Radin, A Short Way, supra note 15, at 419.
77. Indeed, the most full-throated theoretical defense of intentionalism in many years—that of Oxford Professor Richard Ekins—defends the concept of legislative intent as something that one could attribute to an ideal legislature, but not necessarily to a complex real-world legislature like Congress.
78. Richard Ekins, The Nature of Legislative Intent 218-44 (2012).
79. The book’s philosophical argument is too intricate to do it full justice here, but a brief summary can convey the essentials. Professor Ekins acknowledges that it is “not sound” to try to aggregate the intentions of individual legislators into that of the body as a whole. At the same time, the legislature can express a “joint intention” by adopting a procedure to select some “plan of action that coordinates and structures the joint action of the members of the group.”. In a “well-formed legislature,” Professor Ekins writes, that procedure will be structured to yield a “reasoned choice” in the resultant legislation. And the legislature’s “particular intention” will be evident in “the plan that the bill set out for the community, which there is good reason to expect to be coherent and reasoned, as if chosen by a sole legislator.”. Notice that Professor Ekins’s treatment of legislative intent is constructed around an ideal legislature.
80. Donald L. Drakeman, Charting a New Course in Statutory Interpretation: A Commentary on Richard Ekins’ The Nature of Legislative Intent, 24 Cornell J.L. & Pub. Pol’y 107, 111 (2014) (“[Professor Ekins] describes the ‘central case’ (or what some social scientists would call the ‘ideal-type’) of the ‘well-formed legislature’ as ‘an institution capable of reasoned choice.’”).
81. Professor Ekins himself suggests that the presumption of reasoned and coherent decisionmaking may extend to Parliament but not Congress because the latter “has many veto-players.” Ekins, supra, at 176.
82. This reality means that Congress “has difficulty legislating well because veto-players may frustrate the coherence of the legislative act, making it less likely that proposals will be reasoned and workable.”. Although Ekins urges us still to assume that U.S. legislation reflects “a complex, reasoned, coherent scheme” from which a shared intent can be inferred, at 240, he never explains why one should indulge that assumption for a more chaotic legislature, like ours, that is not his ideal type.
83. See infra note 204 and accompanying text (listing some examples).
84. Joseph Raz thus has argued that if interpretive outcomes are not attributable to lawmakers’ decisions at least at some level, it would not “matter who the members of the legislature are, whether they are democratically elected or not, whether they represent different regions in the country, or classes in the population, whether they are adults or children, sane or insane.” See Joseph Raz, Intention in Interpretation, in The Autonomy of Law: Essays on Legal Positivism 249, 258 (Robert P. George ed., 1996). As Raz further contends, however, that minimum condition for legislative supremacy can be satisfied even if one rejects the notion that interpreters can identify the genuine or subjective intentions of the legislature in any given case. See infra note 78 (explaining Professor Raz’s position on minimum intention needed for legislative supremacy).
85. See supra text accompanying notes 49-53 (laying out Professor Dworkin’s critique of legislative intent).
86. Nourse, supra note 10, at 81 (“The notion of congressional intent is built upon a metaphor . . . .”).
87. Hart & Sacks, supra note 7, at 4-5.
88. Mashaw, supra note 11, at 1686 (discussing the structural constitutional foundations of interpretation theory)
89. Schacter, supra note 11, at 593-94 (arguing that rules of interpretation require developing an “institutional stance” toward the legislature).
90. See supra text accompanying notes 36-43 (discussing the textualist position).
91. See, e.g., Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 620 (1991) (Scalia, J., concurring in the judgment) (questioning whether committee reports can properly claim to represent the common understanding of the enacting majority)
92. Blanchard v. Bergeron, 489 U.S. 87, 97-100 (1989) (Scalia, J., concurring in part and concurring in the judgment) (same).
93. Antonin Scalia, Speech on Use of Legislative History 13 (Fall 1985-Spring 1986) (on file with the Columbia Law Review) (arguing that the use of legislative history “substantially increases, rather than reduces, the scope of judicial discretion”)
94. Scalia, Interpretation, supra note 43, at 36 (invoking Judge Harold Leventhal’s quip that legislative history permits judges “to look over the heads of the crowd and pick out [their] friends”).
95. Bank One Chi., N.A. v. Midwest Bank & Tr. Co., 516 U.S. 264, 280 (1996) (Scalia, J., concurring in part and concurring in the judgment) (arguing that judicial reliance on legislative history permits legislators to delegate lawmaking authority to committees and other subunits of Congress); Thompson v. Thompson, 484 U.S. 174, 191-92 (1988) (Scalia, J., concurring in the judgment) (raising bicameralism and presentment concerns).
96. See, e.g., Int’l Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 717 (D.C. Cir. 1987) (Buckley, J., concurring) (developing the point about end runs around the legislative process); Note, Why Learned Hand Would Never Consult Legislative History Today, 105 Harv. L. Rev. 1005, 1015-19 (1992) (making similar claim).
97. Easterbrook, Original Intent, supra note 3, at 61.
98. John F. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399 (2010) (discussing and criticizing the Court’s reliance upon clear statement rules).
99. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 436-37 (2005) (discussing textualists’ use of specialized conventions)
100. Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q. 351, 372-73 (1994) (analyzing textualists’ focus on dictionaries, grammar, syntax, and semantic canons).
101. See, e.g., Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247, 2257 (2013) (Scalia, J.) (articulating the “reasonable assumption . . . that the statutory text accurately communicates the scope of Congress’s pre-emptive intent”).
102. As Professor Raz has said, even if one denies the existence of subjective legislative intent, the demands of legislative supremacy are met as long as interpreters ascribe to legislators a constructive intention “to say what one would be normally understood as saying, given the circumstances in which one said it.” See Raz, supra note 64, at 268.
103. Manning, Foreword, supra note 9, at 25-26 (developing this defense of textualism).
104. Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Sup. Ct. Rev. 429, 438.
105. Peter L. Strauss, The Common Law and Statutes, 70 U. Colo. L. Rev. 225, 236 (1999) [hereinafter Strauss, The Common Law and Statutes].
106. Strauss, The Courts and the Congress, supra note 18, at 244-45.
107. Though Professor Strauss does not fully spell this point out, judges’ heeding the signals sent by pivotal actors such as gatekeeping committees presumably minimizes the risk that Congress will find it necessary to overturn the interpretation thus rendered.
108. William N. Eskridge, & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) (modeling dynamics of interpretation and triggers for legislative override).
109. Strauss, The Courts and the Congress, supra note 18, at 255.
110. Professor Strauss’s Columbia colleague Professor Harry Wilmer Jones, one of the greats in the Legal Process tradition, made a similar argument: “[T]he choice before the judges is that they must either derive the meaning of a statute solely from its language and from conjecture as to its purposes, or must accept as the ‘legislative intention’ the understanding of the committee experts and other interested legislators really responsible for its formulation.” Jones, supra note 57, at 743.
111. Strauss, The Courts and the Congress, supra note 18, at 265
112. Hart & Sacks, supra note 7, at 1125 (describing the “reasonable” legislator presumption)
113. also supra text accompanying notes 8, 55 (same).
114. Stephen G. Breyer, Active Liberty 88 (2005) [hereinafter Breyer, Active Liberty].
115. Strauss, The Common Law and Statutes, supra note 81, at 241-42 (stressing that “no one” could properly view the reasonable legislator assumption “as a description of American legislating in any but the most extraordinary setting”)
116. Strauss, The Courts and the Congress, supra note 18, at 265 (“[O]ne could hardly suppose [Hart and Sacks] thought they were describing an actual state of legislative affairs.”)
117. Breyer, Active Liberty, supra note 95, at 101.
118. Strauss, The Common Law and Statutes, supra note 81, at 242.
119. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).
120. John F. Manning & Matthew C. Stephenson, Legislation and Regulation 768-72 (2d ed. 2013) (outlining competing rationales for the Chevron approach).
121. 5 U.S.C. § 706 (2012).
122. Ronald M. Levin, Identifying Questions of Law in Administrative Law, 74 Geo. L.J. 1, 21 (1985) (“Sometimes . . . the legislature intended to make no decision on a particular substantive issue and to leave that issue to administrative creativity. In such a situation, a court’s refusal to use independent judgment actually fulfills Congress’ intent.”)
123. Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 6-27 (1983) (contending, the year before Chevron was decided, that “[a] statement that judicial deference is mandated to an administrative ‘interpretation’ of a statute is more appropriately understood as a judicial conclusion that some substantive law-making authority has been conferred upon the agency” and that the court’s role is to “specify the boundaries of agency authority”).
124. Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation 86 (2008) (explaining how to reconcile deference with the judge’s duty to interpret statutes). Professor Strauss offers a neat formulation of the point, observing: “[T]o the extent Congress empowers an agency to act using language of uncertain meaning, it may also empower the agency reasonably to determine that meaning within the resulting ambit of uncertainty, subject not to judicial redetermination but to judicial oversight of its judgment for reasonableness.”
125. Peter L. Strauss, In Search of Skidmore, 83 Fordham L. Rev. 789, 791 (2014).
126. Professors Thomas Merrill and Kathryn Tongue Watts have suggested that there was once an accepted interpretive convention for identifying a legislative intention to delegate lawmaking power to an agency.
127. Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 Harv. L. Rev. 467, 472 (2002). If they are right, however, that convention seems to have faded from view long ago.
128. Manning & Stephenson, supra note 100, at 753-55.
129. The approach is named for the two leading cases of the period, Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), and NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944).
130. Compare, e.g., Packard, 330 U.S. at 493 (holding that pure questions of law merit independent judicial judgment), with Hearst, 322 U.S. at 130-31 (holding that the application of broad standards to particular facts counsels in favor of deference).
131. See, e.g., Aluminum Co. of Am. v. Cent. Lincoln Peoples’ Util. Dist., 467 U.S. 380, 390 (1984) (recognizing that “principles of deference have particular force” when the “subject under regulation is technical and complex” and the agency has “longstanding expertise in the area”)
132. E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 134-35 & n.25 (1977) (concluding that an agency’s interpretation is entitled to “some deference” given the complexity of the statute or subject matter at issue).
133. See, e.g., Zuber v. Allen, 396 U.S. 168, 192 (1969) (explaining that a court will “accord great weight to a departmental construction of [the agency’s] own enabling legislation,” particularly when “administrators participated in drafting”).
134. See, e.g., SEC v. Sloan, 436 U.S. 103, 126 (1978) (Brennan, J., concurring) (crediting “administrative practice,” in part, because “assumptions which everyone shares . . . often go unspoken because their very obviousness negates the need to set them out”)
135. Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315 (1933) (stating that “administrative practice, consistent and generally unchallenged, will not be overturned except for very cogent reasons if . . . the command is indefinite and doubtful”).
136. Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U. Pa. L. Rev. 549-562 n.95 (1985).
137. Gary Lawson & Stephen Kam, Making Law Out of Nothing at All: The Origins of the Chevron Doctrine, 65 Admin. L. Rev. 1, 59-60 (2013) (explaining the D.C. Circuit’s role in propagating that view of the Chevron case)
138. See also infra note 223 (describing the Court’s formulation of the categorical position on Chevron).
139. 533 U.S. 218, 230 (2001).
140. Even if Chevron deference is not available, Mead indicates that a litigant may invoke Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), which holds that a reviewing court should give an agency interpretation the weight that it deserves in light of “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.”
141. Mead, 533 U.S. at 221.
142. Whether or not Skidmore means more than that a reviewing court should allow itself to be persuaded by a persuasive agency, Skidmore deference is surely not as robust as Chevron deference is.
143. Barnhart v. Walton, 535 U.S. 212, 222 (2002).
144. Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187 (2006) (introducing that concept).
145. For a particularly clear expression of that position, see City of Arlington v. FCC, 133 S. Ct. 1863, 1882 (2013) (Roberts, C.J., dissenting) (emphasizing that the availability of Chevron deference “is defined by congressional intent”).
146. Lisa Schultz Bressman, Reclaiming the Legal Fiction of Congressional Delegation, 97 Va. L. Rev. 2009, 2024-25 (2011) (characterizing intent to delegate as a legal fiction)
147. Sunstein, supra note 116, at 248 (same).
148. See Cannon v. Univ. of Chi., 441 U.S. 677, 699 (1979) (deeming it “not only appropriate but also realistic to presume that Congress was thoroughly familiar with . . . unusually important precedents” establishing rules of construction).
149. Manning, Chevron, supra note 21, at 459-63 (describing various regime changes in the Chevron family of doctrines).
150. Scalia, Judicial Deference, supra note 2, at 517 (disclaiming any intent-based justification for Chevron).
151. Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347 (2005) (developing this strand of textualism).
152. Finley v. United States, 490 U.S. 545, 556 (1989).
153. Scalia, Judicial Deference, supra note 2, at 517 (articulating that view of Chevron).
154. Peter L. Strauss, One Hundred Fifty Cases per Year: Some Implications of the Supreme Court’s Limited Resources for Judicial Review of Agency Action, 87 Colum. L. Rev. 1093, 1120 (1987) (noting that the Chevron Court fashioned its presumption of agency delegation “unconnected to congressional wishes reflected in any given law”).
155. Peter L. Strauss, Courts or Tribunals? Federal Courts and the Common Law, 53 Ala. L. Rev. 891, 893 (2002) [hereinafter Strauss, Courts or Tribunals?] (explaining the institutional basis for preferring a contextual approach).
156. United States v. Mead Corp., 533 U.S. 218, 236 (2001).
157. Strauss, Courts or Tribunals?, supra note 132, at 893 (explaining why Mead’s case-by-case approach is consistent with traditional common law).
158. Professor Strauss’s approach again resonates with Justice Breyer’s similar endorsement of the “institutional virtue[]” of doctrinal flexibility “to allocate the lawinterpreting function between court and agency in a way likely to work best within any particular statutory scheme.”
159. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 371 (1986).
160. And because Congress typically expresses no clear intention about the appropriate form of judicial deference (if any), nothing precludes the judiciary from crafting a presumed intent that imputes to Congress an institutionally sensible approach to the administration of federal regulatory law and policy.
161. Strauss, Courts or Tribunals?, supra note 132, at 893.
162. Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 Va. L. Rev. 1295, 1359 (1990).
163. Daniel B. Rodriguez & Barry R. Weingast, The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation, 151 U. Pa. L. Rev. 1417, 1448 (2003).
164. Robert A. Katzmann, Judging Statutes 52 (2014).
165. Nourse, supra note 10, at 95 (arguing interpreters should resolve discrepancies between pre- and post-conference committee-bill language in light of “congressional rule[] [that] the conferees ha[ve] no power to change the text in any significant way”).
166. Nourse & Schacter, supra note 22.
167. Gluck & Bressman, Part I, supra note 22, at 906.
168. Indeed, at one point, they describe “the notion of a single ‘congressional intent’” as a “fiction” that “is most certainly false” as an empirical matter.
169. The authors acknowledge that their study does not necessarily negate the validity of any particular theory of interpretation, but rather casts upon its proponents the burden of articulating a justification other than the faithful-agent theory for any method that is not borne out by the legislative facts on the ground.
170. See infra text accompanying notes 155-165 (discussing survey results on canons and dictionaries).
171. See infra text accompanying notes 193-209 (examining findings on legislative history).
172. See infra text accompanying notes 230-235 (sketching Gluck and Bressman’s conclusions about deference doctrines).
173. In assessing the survey’s implications, one might ask at the threshold why the subjective understandings of the staff are even relevant to questions of statutory meaning. Professors Gluck and Bressman did not interview members of Congress—a choice they made, in part, because they had a “pragmatic” sense that few legislators would agree to be interviewed and, in part, because they thought it “theoretical[ly]” significant that the legislators themselves “do not draft statutory text.”
174. Gluck & Bressman, Part I, supra note 22, at 923.
175. But it is not clear why the staffers’ intentions or understandings about drafting practice should matter if they lack the power to enact legislation. Consider a hypothetical variation on Gluck and Bressman’s recurrent claim that legislative drafters subscribe to understandings and practices that frequently differ from the established conventions used by the legal community to decode legal texts.
176. In particular, imagine that one discovered that the committee charged with producing the final draft of the Constitution at the Philadelphia Convention had its own understandings of interpretive norms—many of which did not line up with the legal community’s established conventions for decoding legal texts. Would anyone seeking constitutional meaning attach significance to the framers’ idiosyncratic assumptions—at least without trying to ascertain whether the ratifiers shared the same understanding of relevant practice?
177. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 8 (2d ed. 1977) (expressing the traditional view that the “intention of the framers . . . is as good as written into the text”)
178. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L.J. 1113, 1135-39 (2003) (noting that the center of gravity has moved away from framers’ intent and toward either ratifiers’ understanding or original public meaning). To be sure, the legislative process on which Professors Gluck and Bressman have cast their focus may differ in important respects from the constitutionmaking process.
179. For instance, if modern legislators do not really read the text anyway, see Gluck & Bressman, Part I, supra note 22, at 968
180. I suppose one could argue that staffers advise members of Congress about a bill’s meaning based on the staffers’ understandings of their own drafting practices. Still, given the complexity and diversity of the staff views and practices that Professors Gluck and Bressman have spread across two lengthy articles, see Bressman & Gluck, Part II, supra note 22, at 758 (noting the “number of categories [of staff] and diversity of practice across them”), one might also wonder whether the advice received by members of Congress likely reflects a thoroughgoing application of what staffers perceive to be the practices and understandings of their staff colleagues. That larger question, however, is for another day.
181. While not able to identify these canons by their Latin names, most of the staffers surveyed knew of and embraced the concepts behind the negative implication canon (expressio unius) and the word association canons (noscitur a sociis and ejusdem generis).
182. Gluck & Bressman, Part I, supra note 22, at 932-33.
183. These findings are somewhat surprising given the controversy that has long surrounded the Latin canons.
184. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 927 (1992) (noting widespread criticism of the expressio unius canon).
185. Gluck & Bressman, Part I, supra note 22, at 954.
186. Manning, Foreword, supra note 9, at 69 (discussing the Court’s increased reliance on tools of construction that carefully parse statutory text).
187. See, e.g., Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1268 (2011) (rejecting a proposed interpretation of statutory language because the construction would render other language in statute “superfluous and so depriv[e] that amendment of any effect”)
188. Corley v. United States, 556 U.S. 303, 314 (2009) (rejecting the government reading because “it renders § 3501(c) nonsensical and superfluous”).
189. Gluck & Bressman, Part I, supra note 22, at 934-35.
190. See, e.g., Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 2004-05 (2012) (articulating that presumption); Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995) (same). The less frequently invoked “whole code rule” presupposes consistency in phraseology across statutes. See infra text accompanying note 176 (giving example of the rule’s application).
191. Jeffrey L. Kirchmeier & Samuel A. Thumma, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77, 86 (2010) (charting the explosive growth in the Court’s use of dictionaries).
192. Gluck & Bressman, Part I, supra note 22, at 938-40 (discussing dictionary use).
193. Posner, supra note 35, at 812-14 (denouncing this family of canons for assuming legislative “omniscience”).
194. Gluck & Bressman, Part I, supra note 22, at 938.
195. Beck v. Prupis, 529 U.S. 494, 504 (2000) (invoking Black’s Law Dictionary and Ballentine’s Law Dictionary to determine the common law elements of “civil conspiracy” for purposes of construing that term in the RICO statute)
196. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999) (using Black’s Law Dictionary and a treatise on tort law to define the meaning of “malice or reckless indifference” under 42 U.S.C. § 1981a(a)(2012))
197. Molzof v. United States, 502 U.S. 301, 307 (1992) (relying on Black’s Law Dictionary and The Cyclopedic Law Dictionary to define “punitive damages” for purposes of an exclusion contained in the Federal Tort Claims Act). The Court often uses even more obscure sources than law dictionaries to determine the meaning of a term of art. See, e.g., Rosemond v. United States, 134 S. Ct. 1240, 1245-48 (2014) (consulting three nineteenth-century criminal law treatises to determine the reach of accomplice liability for purposes of 18 U.S.C. § 2 (2012), which imposes criminal liability upon one who “aids, abets, counsels, commands, induces, or procures” commission of a federal crime)
198. Air Wis. Airlines Corp. v. Hoeper, 134 S. Ct. 852, 860-61 (2014) (determining the meaning of a statutory “reckless disregard” standard by parsing the way the Court’s First Amendment libel cases apply the actual malice standard). It seems fair to surmise that few, if any, congressional staffers (even the lawyers) look up the legal arcana that the Court so often reads into technical statutory terms.
199. Gluck & Bressman, Part I, supra note 22, at 952 (noting even their lawyer respondents did not know many technical canons invoked by the Court).
200. The idea of legislative supremacy itself is contested.
201. Eskridge, Spinning Legislative Supremacy, supra note 16 (discussing competing conceptions of legislative supremacy)
202. Farber, supra note 16 (same).
203. Thus, one cannot decouple a theory of interpretation from faithful agency without first establishing what legislative supremacy entails in our system of government.
204. 499 U.S. 83 (1991).
205. Bressman & Gluck, Part II, supra note 22, at 781.
206. S. Ct. 2175, 2182, 2186 (2014) (construing the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 94 Stat. 2767, as amended, 42 U.S.C. § 9601 et seq. (2012)). The relevant section preempts any state “statute of limitations” in a state law action “for personal injury, or property damages . . . caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action . . . provides a commencement date which is earlier than the federally required commencement date . . . .” 42 U.S.C. § 9658(a)(1).
207. 498 U.S. 103, 121-26 (1990) (Scalia, J., dissenting).
208. This supposition accords with Gluck and Bressman’s finding that members of Congress relate to statutes “at the more abstract level of policy rather than at the granular level of text.” Gluck & Bressman, Part I, supra note 22, at 940.
209. Morissette v. United States, 342 U.S. 246, 263 (1952).
210. The opposite presumption—that terms of art do not reflect their common law meaning—might correspond better to the staff’s subjective lack of knowledge of the content of those terms. But by requiring drafters to speak clearly when they want to adopt the technical meaning of a technical term, that presumption would raise the cost of enacting legislation that embraces the “recondite connotations” of the common law.
211. Frankfurter, supra note 14, at 537.
212. If neither presumption affirmatively captures legislative intent—if staffers neither affirmatively embrace nor consciously reject a technical term’s common law meaning—it is not clear why the costlier “clear statement rule” approach to terms of art is preferable to the one in effect today.
213. In a moment, I will discuss the competing possibility of relying on legislative history. See infra text accompanying notes 191-219.
214. Bressman & Gluck, Part II, supra note 22, at 738-39 (“The committee system divides policymakers into ‘silos’ that do not communicate with one another, a fragmentation exacerbated by the separate and different roles that noncommittee leadership staff and personal staff play in the drafting process.”).
215. Jarrod Shobe, Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting, 114 Colum. L. Rev. 807, 856-59 (2014) (discussing improvements in staff resources and drafting practice).
216. Easterbrook, Statutes’ Domains, supra note 12, at 540.
217. Gluck & Bressman, Part I, supra note 22, at 951 (arguing judges “are notoriously inconsistent in their application of the canons, a fact that undermines the efficacy of any canons ostensibly targeted to provide coherence, notice, or consistency”).
218. I have worried about it myself. See Manning, Foreword, supra note 9, at 71 (discussing inconsistencies in the Court’s application of usage canons).
219. Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv. L. Rev. 802, 823-31 (1982) (using social-choice theory to examine aggregation problems on multimember courts).
220. Gerald C. MacCallum, Jr., Legislative Intent, 75 Yale L.J. 754, 758 (1966) (“The words [a legislator] uses are the instruments by means of which he expects or hopes to effect . . . changes [in society]. What gives him this expectation or this hope is his belief that he can anticipate how others (e.g., judges and administrators) will understand these words.”).
221. See supra text accompanying note 72 (sketching the textualist position).
222. See supra text accompanying note 70 (same).
223. Bressman & Gluck, Part II, supra note 22, at 740.
224. Archer-Daniels-Midland Co. v. United States, 37 F.3d 321, 323-24 (7th Cir. 1994) (Posner, C.J.) (citation omitted).
225. Gluck & Bressman, Part I, supra note 22, at 969.
226. Bressman & Gluck, Part II, supra note 22, at 742.
227. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 93-94 (2002) (“[A]ny key term in an important piece of legislation . . . [is] the result of compromise . . . .”)
228. Hallstrom v. Tillamook County, 493 U.S. 20, 29 (1989) (“Giving full effect to the words of the statute preserves the compromise struck by Congress.”). I have so implied as well.
229. John F. Manning, Competing Presumptions About Statutory Coherence, 74 Fordham L. Rev. 2009, 2039 (2006) (defending “textualists’ systemic presumption that the clear semantic import of the enacted text reflects compromise (rather than judicial correctable legislative inadvertence)”). I outline below what I hope is a better reason for following the statutory text rather than the legislative history.
230. See infra text accompanying notes 213-217.
231. Bressman & Gluck, Part II, supra note 22, at 743.
232. Gluck & Bressman, Part I, supra note 22, at 969.
233. For example, Gluck and Bressman’s findings suggest that legislators view “committee and conference reports . . . as particularly reliable [in] that they are viewed as evidence of a shared consensus.”. More than half of their respondents, moreover, asserted that legislative history in the appropriations context is particularly important because “the purpose of the committee report . . . is essentially to legislate—that is, to direct where the money appropriated is going.”. Given their nuanced findings, Professors Gluck and Bressman suggest that it would be “rather eas[y]” for courts to “implement many of our respondents’ insights” by giving some types of legislative history more weight than others in the interpretive process.
234. See supra text accompanying notes 49-53 (showing the absence of any neutral way to aggregate individual legislative intentions into a collective whole).
235. Bressman & Gluck, Part II, supra note 22, at 742.
236. U.S. Const. art. I, § 5; see also Noel Canning v. NLRB, 134 S. Ct. 2550, 2574 (2014) (holding that Congress enjoys considerable discretion in establishing its rules of procedure).
237. Given constitutional requirements for enacting legislation, it is fair to impute to Congress some sort of signaling purpose when it chooses the texts on which to vote. See U.S. Const. art. I, § 7.
238. Bressman & Gluck, Part II, supra note 22, at 741.
239. Indeed, Congress sometimes does just that. See Manning, Textualism as Nondelegation, supra note 21, at 730 n.245 (collecting examples).
240. Almost a sixth of the Gluck and Bressman respondents surveyed “volunteered . . . that there is a level of important legislation-related detail that is simply inappropriate for statutory text.”
241. Gluck & Bressman, Part I, supra note 22, at 974.
242. These respondents stressed that the omission of statutory details was not driven by a political inability to “agree[] on those details,” but rather reflected “a perception of what modern statutory language ‘should look like’ and, relatedly, how much detail statutory text is supposed to have.”. That concern is somewhat hard to understand. The statute is a text; so is the legislative history. Presumably, it should make little difference if the committee reports appear on one shelf in the U.S. Statutes-at-Large as an enacted statutory appendix rather than on another in the U.S. Code Congressional & Administrative News.
243. Bressman & Gluck, Part II, supra note 22, at 742.
244. Manning, Chevron, supra note 21 (outlining imputed intent theory).
245. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)
246. See also supra text accompanying notes 121-126 (discussing the textualist view of Chevron as a clear background rule against which Congress can legislate).
247. The crispest articulation of the purist position on Chevron appears in Smiley v. Citibank (South Dakota), N.A., which stated: We accord deference to agencies under Chevron . . . because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.
248. 517 U.S. 735, 740-41 (1996)
249. See also United States v. Mead Corp., 533 U.S. 218, 240-45 (2001) (Scalia, J., dissenting) (elaborating and defending the purist view of Chevron).
250. See supra text accompanying notes 132-136 (discussing Professor Strauss’s preference for Mead).
251. Mead, 533 U.S. at 231.
252. See King v. Burwell, 135 S. Ct. 2480, 2488-89 (2015) (applying the major questions doctrine)
253. Manning & Stephenson, supra note 100, at 819-20 (discussing that doctrine).
254. Mead, for example, has given rise to a broad and extensive body of scholarship.
255. David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 Yale L.J. 276, 319-24 (2010)
256. Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 Admin. L. Rev. 807, 814-15 (2002)
257. Russell L. Weaver, The Emperor Has No Clothes: Christensen, Mead, and Dual Deference Standards, 54 Admin. L. Rev. 173, 175 (2002).
258. Scholarly writing on the major questions doctrine is also extensive. See, e.g., Elhauge, supra note 103, at 103-04
259. Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51, 71-78
260. Abigail R. Moncrieff, Reincarnating the “Major Questions” Exception to Chevron Deference as a Doctrine of Noninterference (or Why Massachusetts v. EPA Got It Wrong), 60 Admin. L. Rev. 593, 597 (2008).
261. Merrill & Watts, supra note 104, at 526 (arguing that, until recently, Congress had an established convention for signaling its intention to delegate interstitial lawmaking authority to agencies).
262. Bressman & Gluck, Part II, supra note 22, at 729.
263. Gluck & Bressman, Part I, supra note 22, at 995-96.
264. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984).
265. See supra note 151 (raising questions about the relevance of “staffer’s” intent).
266. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside: Methods Appendix, 65 Stan. L. Rev. 901 app. at 36-37 (2013), www.stanfordlawreview.org/sites/default/files/Gluck_Bressman_65_Stan._L._Rev._Methods_Appendix.pdf [http://perma.cc/W5QS-DBXQ] (listing survey questions).
267. Bressman & Gluck, Part II, supra note 22, at 776 (explaining that “our respondents” rejected the “notion . . . that Congress tends to delegate at least in some measure to courts”).
268. See supra text accompanying note 53 (discussing Dworkin’s view that the answer to any question about “legislative intent” depends on the level of generality at which one poses the question).