Step One of Chevron v - American Bar Association€¦ · Web viewStep One of Chevron v. Natural Resources Defense Council. Second Revised Draft. Prepared for the Scope of Judicial

Step One of Chevron v. Natural Resources Defense CouncilSecond Revised Draft

Prepared for the Scope of Judicial Review portion of the Project on the Administrative Procedure Act

April 2001

Elizabeth Garrett*

I. To interpret a regulatory statute, a court first determines whether the statutory meaning with respect to the precise issue before the court is clear. If the statutory meaning is ambiguous or if the statute is silent, the court does not impose its own construction on the text. Instead, the court decides whether the agency’s interpretation of the statute is permissible.

In Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Court set out a two-step process for the interpretation of regulatory statutes:

“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 842-43 (footnotes omitted).

Step One of Chevron, therefore, determines the role of the judiciary in interpreting regulatory statutes. The Court defined the judicial role to be less extensive than its traditional one in interpreting other kinds of statutes, where judges continue to interpret and clarify statutory language after finding the text ambiguous or discovering a gap in the statute. In the context of regulatory statutes, however, silence or ambiguity triggers judicial deference to reasonable agency interpretations of the statute. Thus, Chevron has profound institutional implications, shaping the relationship among the branches of government and serving as a kind of “counter-Marbury” for the regulatory state. See Cass Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2075 (1990); see also Cynthia Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452 (1989) (discussing separation of powers implications of Chevron); Jonathan Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary’s Structural Role, 53 Stan. L. Rev. 1 (2000) (arguing that Chevron is inconsistent with the Founders’ view of the appropriate judicial role in statutory interpretation).

* Professor, University of Chicago Law School. I appreciate comments on an earlier draft by Ron Levin, Charles Koch, Andrei Marmor, Ricky Revesz, Adrian Vermeule, and members of the ABA Section on Administrative Law and the Regulatory Process, as well as the research assistance of Leslie Danks and Crista Leahy. I also appreciate the generous support of the James H. Douglas Fund for the Study of Law and Government and the Law and Government Program Endowment, both at the University of Chicago Law School.

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Second Revised Draft 05/07/23

Chevron’s framework seems to be in tension not only with the traditional role of the judiciary, the institution primarily charged with determining what the laws mean, but also with the Administrative Procedure Act (“APA”) itself. The APA requires courts to “decide all relevant questions of law, interpret constitutional and statutory provisions,” and to set aside agency action “in excess of statutory jurisdiction, authority, or limitation, or short of statutory right.” 5 U.S.C. § 706. During deliberations on the APA, the Chairman of the House Subcommittee on Administrative Law, Representative Francis Walter, explained that section 706 “requires courts to determine independently all relevant questions of law, including the interpretation of constitutional or statutory provisions.” 92 Cong. Rec. 5654 (1946).

Some scholars have attempted to reconcile Chevron with the traditional role of the courts in statutory interpretation. John Duffy argues that Chevron’s test and the APA’s text can be reconciled by understanding that regulatory statutes delegate to an agency the power to interpret ambiguous statutory commands, so long as the agency’s decision does not conflict with any other provision of the law. John Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 199-203 (1998). He concludes: “The illusion of deference [in applying the Chevron test] is created by the agency’s delegated authority to fill in the details of the statute, which will affect a court’s interpretation of the more general language in the statute. Thus, Chevron is primarily a case about delegation, not deference.” Id. at 202. Charles Koch presents a different reconciliation, arguing that academics have mischaracterized Chevron. He contends that Justice Stevens’ opinion is not a sweeping departure from precedent. See Charles Koch, Jr., Administrative Law and Practice § 12.32[2] (2d ed. 1997) (“The ‘Chevron doctrine’ is largely the creation of legal scholars. It is doubtful that the opinion was intended to or has in fact changed the law.”). He understands Chevron Step One to instruct courts to perform their ordinary task of statutory interpretation and to do so without special deference to the administrative agency. The Step Two analysis is not really a determination of a question of law, Koch continues, but a judicial assessment of the reasonableness of the agency’s policy choice when Congress has not dictated a particular policy in the statute. In the realm of policy, courts have long deferred to agencies. See SEC v. Chenery Corp. [Chenery I], 318 U.S. 80, 94 (1943). Koch points to another Stevens’ opinion to buttress his interpretation of Chevron: “Fashioning appropriate standards under [the Endangered Species Act] necessarily requires the exercise of broad discretion. The proper interpretation of a term such as ‘harm’ involves a complex policy choice. When Congress has entrusted the Secretary with broad discretion, we are especially reluctant to substitute our views of wise policy for his.” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 708 (1995).

Soon after the Court decided Chevron, it appeared to cut back on the scope of its new doctrine. In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the Immigration and Nationality Service had interpreted the term “well-founded fear” used in a provision of the Immigration and Nationality Act to mean the same thing as a standard in a different section of the Act that required proof of a “clear probability of persecution.” Justice Stevens declined to defer to the agency’s interpretation of the term, primarily because the Court found that the interpretation was inconsistent with clear congressional intent. Not only did it appear that Congress intended the different phrasing to mean different things, but the term “well-founded fear” turned to some extent on the subjective mental state of the alien, unlike the other provision’s more objective test. Id. at 430-431. Stevens also suggested in dicta that Chevron’s two-step test should apply

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only when a question of statutory interpretation could be characterized as a mixed question of law and fact, rather than a pure question of law. Stevens stated that Chevron deference was inappropriate in Cardoza-Fonseca because the “narrow legal question whether the two standards are the same is, of course, quite different from the question of interpretation that arises in each case in which the agency is required to apply either or both standards to a particular set of facts.” Id. at 448.

In his concurrence, Justice Scalia feared that the Court’s language would be understood to empower judges to resume their traditional nondeferential role in statutory interpretation when a challenge to an ambiguous provision in a regulatory statute could be characterized as raising “a pure question of statutory construction.” Id. at 454 (Scalia, concurring in the judgment). The dicta might encourage courts to apply the Chevron framework only when the agency was applying the law to facts. Scalia contended that the question before the Court in Chevron, “the Environmental Protection Agency’s abstract interpretation of the phrase ‘stationary source,’” was not a different sort of interpretative problem than the one posed in Cardoza-Fonseca. Id. at 455. Neither was more or less a pure question of statutory interpretation, and he argued that courts would find it very difficult to distinguish between purely legal questions and mixed questions of law and fact.

Cardoza-Fonseca’s dicta proved to have very little lasting effect. In NLRB v. United Food and Commercial Workers Union, 484 U.S. 112 (1987), the Court stated that it was faced with a pure question of statutory construction in the sense meant by Cardoza-Fonseca. Yet, it also held that it would defer to a reasonable interpretation by the agency if the statutory language was silent or ambiguous with respect to the precise issue before the Court. Id. at 123. It read Cardoza-Fonseca and Chevron as cases using the same method to interpret regulatory statutes. Justice Scalia emphasized the relevance of United Food Workers for the proper understanding of the dicta in Cardoza-Fonseca: “[O]ur decision demonstrates the continuing and unchanged vitality of the test for judicial review of agency determinations of law set forth in Chevron …. Some courts have mistakenly concluded otherwise, on the basis of dicta in INS v. Cardoza-Fonseca.” Id. at 133 (Scalia, concurring). The best way to understand the dicta in Cardoza-Fonseca, then, is to understand the Court’s reference to pure questions of statutory construction as those that courts can resolve using clear congressional intent and the plain meaning of the statute. See Michael Herz, Deference Running Riot: Separating Interpretation and Lawmaking Under Chevron, 6 Admin. L.J. 187, 224 (1992). Although the “well-founded fear” language in Cardoza-Fonseca was ambiguous and thus the INS had some discretion to give it meaning, the Court held that the particular interpretation selected by the agency was inconsistent with the plain statutory language and framework. See 480 U.S. at 432-33, 449. See also Whitman v. American Trucking Associations, Inc., 121 S.Ct. 903 (2001) (applying Chevron to case involving the Clean Air Act; finding ambiguity that would require deference to a reasonable agency interpretation; but finding agency’s interpretation inconsistent with the statutory language).

II. Step One of Chevron does not dictate that courts use any particular method of statutory interpretation. Most courts, including the Chevron Court, view their interpretive role as requiring them to discern legislative intent. Other judges

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follow a method of interpretation known as textualism, which focuses on the plain meaning of the statutory text.

Given the date of the decision (the early 1980s) and its author (Justice Stevens), it is not surprising that Chevron conceived of the judiciary’s job as determining the intent of Congress. Intentionalism has long been the dominant interpretive approach of the courts, even though the notion that a multi-member body can have a unitary, comprehensible intent has been criticized as problematic. Since Chevron, a different method of interpretation has become prominent, in large part through the advocacy of Justice Scalia. Scalia, along with Justice Thomas, interprets statutes using a method called textualism. See Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 23-47 (1997). Textualists are not particularly concerned with discovering congressional intent, at least inasmuch as it differs from the directives found in the statutory language itself. Accordingly, textualists do not rely on legislative history materials except in rare cases, as the discussion in Part III.D., infra, will describe more fully. Although textualism is influential in the courts and the academy, largely because of Justice Scalia’s aggressive advocacy campaign, the majority of judges, including a majority of the Supreme Court, remain intentionalists. However, the debate about interpretive methodology has led to a renewed emphasis on the primacy of the text and its plain meaning in all statutory interpretation.

The decision whether to use intentionalism or textualism as the mode of interpretation is not affected by the relevance of Chevron to the case. Textualists will use their method of interpretation at Step One, and intentionalists will use theirs. The selection of interpretive method has important implications, however, for the vitality of the Chevron framework. It is possible that a particular method of interpretation will systematically allow courts to decide cases at Step One, eliminating the need to defer to agency interpretations and reducing the difference between traditional statutory interpretation by courts and that done pursuant to Chevron. Justice Scalia has argued that textualism allows judges to decide more cases at Step One than do intentionalist techniques. He explains: “One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally adopt.” Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 521. Whether Justice Scalia’s method of interpretation leads more often to finding clear statutory mandates than do other methods is a controversial contention. Its validity depends on further empirical study. See Thomas Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q. 351, 367 and Fig. 1 (1994) (discussing the question whether legislative history, which textualists do not use, tends to narrow the possible range of meanings that the text can support, or whether it expands that range and introduces ambiguity in circumstances where a textual approach would find relatively clear meaning).

Because of the influence of textualists on the Court and the importance of their votes in close cases, in a few recent opinions the Justices have restated Step One of Chevron to eliminate references to legislative intent as the lodestar of interpretation. For example, in National

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Railroad Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407 (1992), the Court described its role as follows:

“If the agency interpretation is not in conflict with the plain language of the statute, deference is due. In ascertaining whether the agency’s interpretation is a permissible construction of the language, a court must look to the structure and language of the statute as a whole. If the text is ambiguous and so open to interpretation in some respects, a degree of deference is granted to the agency, though a reviewing court need not accept an interpretation which is unreasonable.” Id. at 417-18 (citations omitted).

See also Thomas Merrill, supra (discussing changes in Chevron as a result of the rise of textualism).

Two opinions in another case also reflect this subtle change in the formulation of Chevron. In K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988), both Justice Kennedy (writing for the Court) and Justice Brennan (concurring in relevant part) applied the Chevron test, but the majority articulated the test in a way much more compatible with a textualist approach and with few references to legislative intent or legislative history. Although he mentioned “the clearly expressed intent of Congress” in a direct quotation from Chevron, Justice Kennedy conceived of the Step One process as “ascertaining the plain meaning of the statute.” Id. at 291. Deference is due if the agency interpretation of ambiguous language is “not in conflict with the plain language of the statute.” Id. at 292. In contrast, Justice Brennan’s concurrence is replete with references to the intent of Congress, and unlike the majority, he does not limit his search for intent to the language and structure of the statute but also relies on extensive discussion of the legislative materials and drafting history. As we will discuss below, textualists reject such use of legislative history in statutory interpretation.

The shift in the formulation of Chevron’s two-step analysis should not be overstated; in most cases, the Supreme Court and lower courts use the intentionalist language of Chevron even when their method of interpretation more closely resembles textualism in its emphasis on statutory language, dictionary definitions and statutory structure. If more judges adopt textualism as their interpretive method, however, the Boston & Maine Corp. rephrasing may occur more frequently. Even now, some lower court panels have used this language as a cue to the appropriate interpretive methodology at Step One. See, e.g., Strickland v. Commissioner of the Maine Department of Human Services, 48 F.3d 12, 16 (1st Cir. 1995) (quoting K Mart Corp. formulation and discussing what the rephrasing means for the use of legislative history by a court); Bankers Life and Casualty Co. v. U.S., 142 F.3d 973, 982-83 (7th Cir. 1998) (characterizing Boston & Maine Corp. as a stage in the Supreme Court’s “ongoing development” of Chevron “especially regarding the scope of the initial inquiry into statutory meaning”).

III. At Step One, a court should use the “traditional tools of statutory construction” to determine whether the meaning of the statute is clear with respect to the precise issue before it. These tools include the text of the statute, dictionary definitions, the statutory structure, legislative purpose, and legislative history.

In its formulation of Step One of the Chevron test, the Court included a crucial footnote: “The judiciary is the final authority on issues of statutory construction and must reject

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administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is law and must be given effect.” Chevron, 467 U.S. at 843 n.9 (emphasis added) (citations omitted). All judicial interpreters consider statutory text, the statutory structure, purpose and framework, and dictionary definitions as traditional tools of statutory construction. Intentionalists also rely on legislative materials, such as committee reports, floor statements, and drafting history, to ascertain whether congressional intent is clear; textualists prefer to exclude legislative history from their interpretive toolbox.

A. Statutory Text and Dictionary Definitions

Statutory language is the primary source of meaning for courts. Frequently, statutes will provide definitions of key words, particularly when such words are used in a way that differs from their ordinary meaning. In Gustafson v. Alloyd Co., Inc., 513 U.S. 561 (1995), the Court consulted the statutory definition of “prospectus” as part of its inquiry into the meaning of that term in a provision allowing a right of rescission against sellers who make material misrepresentations “by means of a prospectus.” Id. at 573-576. Dictionary definitions are used as evidence of ordinary usage of words found in regulatory statutes, the usage which should prevail absent a finding that words should be understood in some specialized sense. With the rise of textualism, dictionaries are increasingly popular tools of statutory construction, and many judicial arguments revolve around which dictionary or which definition in one dictionary is appropriate in a particular case. See Ellen Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275 (1998); Note, Looking It Up: Dictionaries and Statutory Interpretation, 107 Harv. L. Rev. 1437 (1994). For example, the opinions in MCI Telecommunications Corp. v. AT&T, 512 U.S. 218 (1994), include arguments about the relative merits of Webster’s Third New International Dictionary (a descriptive dictionary that Scalia argues promotes colloquial and erroneous usage as correct usage) with those of Webster’s Second (a prescriptive dictionary).

Often a court discovers that there are alternative dictionary definitions for crucial words. In some cases, the existence of alternative dictionary definitions, “each making some sense under the statute,” leads the court to conclude that the statute is ambiguous or incomplete and thus to defer to the agency’s reasonable choice. See Boston & Maine Corp., 503 U.S. at 418. In other cases, the court will conclude that only one definition is sensible and thus resolve the interpretive question at Step One. In MCI Telecommunications Corp. v. AT&T, the Court was faced with the question of the meaning of the word “modify.” With one exception, the definitions in several dictionaries included a “connotation of increment or limitation”; only one definition among many contained in Webster’s Third defined “modify” to also mean “to make a basic or important change in.” Id. at 225-226. Justice Scalia concluded that this outlier definition was based either on intentional distortions of the word (perhaps for sarcastic effect) or on careless or ignorant misuse (which he claimed occurs frequently in Webster’s Third). Id. at 228. He refused to find an ambiguity requiring deference because of “a meaning set forth in a single dictionary (and, as we say, its progeny) which not only supplements the meaning contained in all other dictionaries, but contradicts one of the meanings in virtually all other dictionaries. Indeed, contradicts one of the alternative meanings contained in the out-of-step dictionary itself.” Id. at 227. Thus, the case was decided at Step One.

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B. Statutory Structure and Framework

Both intentionalists and textualists also consider aspects of the larger statutory framework to provide meaning to particular statutory provisions. First, judges will consult the entire statute in which the provision appears, including sections of the statute passed at different times. They will try to adopt a meaning that makes the most sense of the statute as a whole and promotes coherence. See, e.g., Gustafson, 513 U.S. at 568-573 (interpreting the Securities Act of 1933, 15 U.S.C. § 77a-aa); Visiting Nurses Ass’n of Southwestern Indiana v. Shalala, 213 F.3d 352 (7th Cir. 2000) (interpreting section 1359gg of the Social Security Act).

Second, judges consider related statutes in order to adopt a meaning of the relevant terms “with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 120 S.Ct. 1291, 1301 (2000) (quoting Davis v. Michigan Department of Treasury, 489 U.S. 803, 809 (1989)). In Brown & Williamson, the Court (in an opinion written by Justice O’Connor and joined by the textualist justices) discussed the effect on the regulatory scheme of considering nicotine as a “drug” and cigarettes as “drug delivery devices” given the other provisions of the Food, Drug, and Cosmetic Act (the “FDCA”). But the Court did not stop with a consideration of the FDCA; instead, it also observed that “the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand.” Id.

The Brown & Williamson case also reflects a third kind of context available at Step One: subsequent legislative activity that reaffirms congressional understanding of the text at issue. See also Independent Insurance Agents of America, Inc. v. Hawke, 211 F.3d 638, 643 (D.C. Cir. 2000) (considering subsequent statutes in interpreting the term “incidental powers” in the National Bank Act). In Brown & Williamson, the Court analyzed various tobacco-related laws passed after the FDCA over the last 35 years, as well as legislative proposals that would have granted the FDA clear authority to regulate tobacco products and that had been rejected by Congress. 120 S.Ct. at 1306-1313. But see Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 121 S.Ct. 675, 681-682 (2001) (refusing to allow evidence of failed legislative proposals to inform interpretation of plain text of statute because proposals fail for many reasons and the connection between the subsequent history and the original congressional intent is “considerably attenuated”). The Brown & Williamson Court concluded on the basis of its analysis of subsequent history that the FDCA clearly excluded the regulation of tobacco products from the jurisdiction of the FDA. Notably, the Brown & Williamson dissent did not contest the holistic interpretive method of the Court. Rather, Justice Breyer disagreed with the interpretation of the FDCA and the conclusions drawn from subsequent legislative action, finding that they left ambiguous the agency’s authority to regulate cigarettes.

Brown & Williamson is noteworthy for two other reasons pertinent to the Step One discussion. First, the majority appeared to find relevant the FDA’s longstanding position that it lacked the power to regulate cigarettes under the FDCA. Justice Breyer attacked this position as inconsistent with clear precedent, including Chevron itself, that allows agencies to change their understanding of ambiguous terms in regulatory statutes and to alter their policies as administrations change and as scientific and other information develops. 120 S.Ct. at 1329-

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1331. The majority claimed not to be relying on past agency interpretations as an independent source of meaning, but rather as a way to discover the context in which Congress legislated over the course of three decades and to suggest the likely congressional understanding of the regulatory framework. See, e.g., id. at 1308. See also Solid Waste Agency, 121 S.Ct. at 680 (noting that the original interpretation by the Army Corps was inconsistent with the interpretation at issue in the case and giving priority to the original position which was closer to the time of enactment and thus apt to better reflect congressional intent).

Second, as part of the Step One inquiry, the Court was guided “to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” Id. at 1301. This language could presage a shift in the Chevron doctrine so that it operates not as a general presumption applicable to all regulatory statutes, but as a judicial strategy used only where it appears that Congress actually intended courts to defer to agency interpretations of ambiguous statutory text. In other words, under the latter approach, courts would not automatically apply Chevron, but they would determine in a case-by-case fashion whether deference accorded with congressional intent with respect to a particular statute. This weaker version of Chevron is an approach that Justice Breyer has urged in scholarly articles attacking the stronger version of Chevron deference as contrary both to the judicial role articulated by Marbury v. Madison and to the APA’s provisions governing judicial review. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986). The Brown & Williamson majority cited Breyer’s article, 120 S.Ct. at 1314, lending support to the notion that the opinion can at least be read to signal interest in weakening Chevron.

The long-term effect of this passage remains to be seen. Other than citing to Justice Breyer’s article, the Court did not suggest that it is considering altering the general presumption of Chevron to one that applies only when there is evidence of an explicit congressional delegation. The majority reiterated that Chevron deference is still the predominant interpretive approach, and it labeled the case before it as “hardly an ordinary case,” because of the economic impact of the regulation and the unique political history of tobacco legislation and regulation. Id. at 1315. In addition, it relied on past precedent for the more limited proposition that “Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Id. Arguably, the majority in Brown & Williamson merely concluded at Chevron Step One that Congress could not have intended through its use of broad and general language to delegate to the FDA the power to regulate tobacco, a significant political issue. Thus, the FDCA was not ambiguous on the precise issue before the court, and Chevron deference was not triggered. Justice Scalia is an enthusiastic advocate of the stronger version of Chevron as a background presumption applying to all regulatory statutes and joined the Brown & Williamson majority, no doubt because he understood this passage in the more limited way. In another case decided in the same term as Brown & Williamson, Scalia wrote: “Chevron establishes a presumption that ambiguities are to be resolved (within the bounds of reasonable interpretation) by the administering agency. The implausibility of Congress’s leaving a highly significant issue unaddressed (and thus “delegating” its resolution to the administering agency) is assuredly one of the factors to be considered in determining whether there is ambiguity, but once ambiguity is established the

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consequences of Chevron attach.” Christensen v. Harris County, 120 S.Ct. 1655, 1664 n.* (2000) (Scalia, concurring in part and concurring in the judgment) (citation omitted).

C. Legislative Purpose

Textualists and intentionalists will consider statutory purposes in their search for unambiguous statutory meaning. Although policy arguments relevant in choosing among competing meanings for ambiguous statutory language are more properly within the province of the agency in its Step Two role, see, e.g., Chevron, 467 U.S. at 864-66, the general purpose of Congress in enacting a certain regulatory framework may provide compelling evidence of legislative intent with respect to particular provisions. For example, in interpreting provisions of the Telecommunications Act of 1996, Justice Breyer considered both the legislative history and the statutory purpose to “illuminate [the Act’s] language.” AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366, 412 (1999) (Breyer, concurring in part and dissenting in part). See also Presley v. Etowah County Comm’n, 502 U.S. 491, 508-509 (1992) (rejecting agency’s interpretation on the basis of structure and purpose arguments); CSX Transportation v. U.S., 867 F.2d 1439, 1443 (D.C. Cir. 1989) (considering structure and purpose of the Staggers Rail Act at Step One). Interpreting statutory language with the larger legislative purpose in mind may provide some guidance at Step One, although purpose is often framed at such a level of generality that it cannot satisfactorily clarify ambiguous language.

D. Legislative History

Finally, most judges will consider legislative history at Step One, although this tool of statutory construction is more controversial than those discussed previously. Intentionalists have traditionally been eager to consider legislative history to illuminate statutory meaning and congressional intent. See Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992); Peter Strauss, The Courts and the Congress: Should Judges Disdain Political History?, 98 Colum. L. Rev. 242 (1998) (both discussing the appropriate use of legislative history by courts to provide context and suggest meanings considered by Congress). Justice Stevens has frequently used legislative history as a guide to congressional intent, and his opinion in Chevron is consistent with his methodology. Although he began with the statutory language of the Clean Air Act Amendments of 1977, he also considered committee reports and statements by key legislators on the floor of Congress as he searched for the congressional intent about the bubble concept. Only after canvassing the legislative history and still finding no clear congressional intent on the issue before the Court, did Stevens defer to the agency’s interpretation of the statute. See also Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, supra (majority opinion by Stevens). Similarly, other justices who generally consider legislative materials relevant to legislative intent will rely on committee reports, floor debate, and other legislative materials at Step One. For recent opinions considering legislative history, see both the majority and dissent in Solid Waste Agency, supra.

Textualists spurn the use of legislative history, with the limited exception that legislative history can be used to refute a finding of absurdity or scrivener’s error. Compare, for example, Justice Stevens’ majority opinion in Sweet Home with Justice Scalia’s dissent in the case, or the

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opinions by Justice Scalia for the Court and by Justice Stevens in dissent in City of Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994). Textualists argue that legislative history is unreliable and often strategically used by legislators to influence courts, and they contend that using legislative materials violates the bicameralism and presentment requirements in the Constitution by elevating non-statutory materials to the level of law. See Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. Rev. 74 (2000) (arguing that legislative history should not be used by courts because judges are not competent to separate strategic or inaccurate materials from materials that reflect genuine intent); John Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673 (1997) (making the constitutional argument). Thus, textualists do not use history at Step One, not because they think it is more appropriately used by agencies at Step Two, but because they think it is virtually never acceptable to rely on history in interpretation. In other words, the dispute here about the use of legislative history is not peculiar to Chevron but is being fought in all realms of statutory interpretation. See William Eskridge, Jr., Philip Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 295-307 (2000) (discussing the arguments concerning the use of legislative history). See also Strickland, 48 F.3d at 17 (“Legislative history is subject to many and varied criticisms, and the uncertainty about its value in general parallels the uncertainty about its value in relation to the Chevron doctrine.”).

The textualist approach to legislative history is in tension with the primary interpretive techniques used by agency officials in implementing statutes. Agencies are involved in drafting and writing legislative history, and they work closely with Congress over time, so they are sophisticated and regular users of legislative history. Agencies also must be concerned that their implementation strategies and interpretive choices do not irritate members of Congress who control their budgets and can repeal or alter regulatory statutes. Therefore, agencies necessarily consider legislative history (although perhaps to discern the intent of the current Congress rather than that of the enacting one). See Peter 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 (1990). If judges refuse to consider legislative history but agencies practically have no choice but to consider it, it is possible that courts may often reach interpretations at Step One that agencies have discarded as inconsistent with legislative history. Pragmatic textualists, like Vermeule, who argue that courts should not use legislative history for institutional competence reasons may be more comfortable with agency reliance on such materials than are textualists like Scalia who contend that the use of legislative history in interpretation violates the Constitution. Nonetheless, both groups of textualists would deny courts access to legislative history at Step One.

The Seventh Circuit Court of Appeals adopted an unusual approach to the use of legislative history in Bankers Life & Casualty Co. v. U.S., 142 F.3d 973 (7th Cir. 1998). The court noted:

“While this circuit has examined legislative history during the first step of Chevron, we now seem to lean toward reserving consideration of legislative history and other appropriate factors until the second Chevron step. In the second step, the court determines whether the regulation harmonizes with the language, origins, and purpose of the statute. While not dispositive, a court may find various considerations informative – these considerations might include the consistency of the agency’s interpretation, the

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contemporaneousness of the interpretation, and the robustness of the regulation following congressional reenactment of the underlying statute.” Id. at 983.

See Jason Bell, Bankers Life & Casualty Co. v. United States: Using a Balanced Approach to Review a Treasury Regulation Issued Pursuant to the Commissioner's General Authority, 34 New Eng. L. Rev. 449, 471-481 (2000) (approving of court’s unusual interpretive approach in the limited circumstance of Treasury regulations). See also Ellen Aprill, Muffled Chevron: Judicial Review of Tax Regulations, 3 Fla. Tax Rev. 51 (1996) (advocating change in application of Chevron so that legislative history is used only at Step Two if language is not plain in order to test reasonableness of the agency’s interpretation). Although the court claimed to use legislative materials at Step Two, the inquiry there was whether the agency’s interpretation was inconsistent with congressional intent. Although courts often engage in this analysis at Step Two, it is closely related to Step One because it is part of the judicial inquiry into clear statutory meaning. See Ronald Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 Chi.-Kent L. Rev. 1253, 1283-84 (1997) (referring to this category of Step Two cases as “instances of ‘belatedly discovered clear meaning’”). Thus, the approach in Bankers Life may not be inconsistent with the general judicial approach of using legislative history at Step One in the search for clear statutory meaning. If the Seventh Circuit is departing from the general practice, however, the case is an outlier.

IV. Textual canons of construction are tools of statutory construction available for judicial use at Step One.

Courts have long used a set of rules of interpretation as a guide to statutory meaning; these rules are referred to as the canons of statutory construction. The canons have been attacked as insufficiently determinate and susceptible to strategic manipulation by willful judges who choose among competing canons to reach policy outcomes they favor. See, e.g., Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules of Canons about How Statutes Are To Be Construed, 3 Vand. L. Rev. 395 (1950). This attack exaggerates the malleability of the canons. While canons cannot give definite answers in all cases, there is a group of canons that are generally employed in a principled manner and that can shed real light on statutory meaning. This group of widely accepted canons of construction operates as default rules to guide not only judicial interpretation but also legislative drafting. They have become increasingly popular as more judges use textualist methods of interpretation because they provide additional sources of meaning to replace those that textualists eschew, such as legislative history.

The question for the Chevron analysis is which canons are considered as traditional tools of statutory construction suitable for judicial use at Step One. One difficulty is that canons are employed to clarify and narrow meaning, so their use necessarily implies some amount of ambiguity, vagueness, generality, or unclarity in the statutory text. To put it differently, canons usually do not come into play if the language is self-evidently clear, incapable of more than one meaning. Of course, recourse to dictionaries and statutory structure and purpose, uncontroversial aspects of the Step One inquiry, occurs because the statutory text, standing alone, is not entirely pellucid. Thus, even though use of the canons signals some ambiguity in the statutory text, the current judicial practice of using most of the canons at Step One is appropriate and consistent with other interpretive practices.

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Textual (or syntactic) canons aim to discover what statutory text typically means to an ordinary speaker of the language and to discern the plain or ordinary meaning of statutory provisions. They reflect our linguistic conventions and understandings, and thus they are helpfully, and uncontroversially, used by courts at Step One. Indeed, the Chevron court worked to determine the “common English usage” of the text at issue in that case, 467 U.S. at 860, so rules that are designed to reveal ordinary usage are particularly appropriate at Step One. Likewise, in National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998), Justice Thomas employed several grammar canons to understand the meaning of a provision in the Federal Credit Union Act. At Step One, he discussed the relevance of the use of certain articles, plural rather than singular nouns, and participles rather than prepositions. Id. at 500, 502. In addition to rules of grammar, the use of dictionaries to illuminate ordinary meaning is often considered part of the canon urging interpreters to adopt the ordinary meaning of terms unless the statutory context indicates some specialized usage (perhaps through the use of statutory definitions).

A related group of syntactic canons is aimed more at describing the linguistic conventions of legislative drafters rather than those of ordinary people. Most courts do not distinguish between these two sets of textual rules, apparently believing that both sets follow common language usage. It may be more accurate, however, to consider some textual canons either as prescriptive (and thus not necessarily reflecting common usage) or as descriptive of the more formal use of language when lawmakers draft important documents like statutes. Again, these canons are commonly and uncontroversially used by courts at Step One. They are well-suited to the Step One inquiry because they attempt to discover how congressional drafters intended the statutory language to be understood by their colleagues, agencies, and citizens. See Hawke, 211 F.3d at 644-645 (explaining when textual canons are appropriately used at Step One to trump Chevron deference and concluding that they should be used when they are suited to the statutory context and when relevant canons point to the same understanding). Examples of these canons are the rule against surplusage (used, for example, by Justice Thomas in NCUA, 522 U.S. at 501); the related canons of noscitur a sociis and ejusdem generis (see, e.g., Justice Scalia’s dissent in Sweet Home, 515 U.S. at 720-21, and Justice Thomas’ majority opinion in Christensen, 120 S.Ct. at 1660-1661); the reenactment doctrine (see, e.g., Sweet Home, 515 U.S. at 729 (Stevens, dissenting)); the canon that different statutory sections are to be interpreted so as to be consistent with one another (see, e.g., United Transportation Union-Illinois Legislative Board v. Surface Transportation Board, 169 F.3d 474, 480 (7th Cir. 1999)); and the related canons that Congress is not presumed to do a futile thing and that each statutory provision should be given effect (see, e.g., Halverson v. Slater, 206 F.3d 1205, 1207 (D.C. Cir. 2000)).

Use of this second set of textual canons implicates two critical questions. First, scholars should work to determine how well these canons follow conventions of legislative drafting. Do lawmakers actually work to avoid surplusage or employ the canons of word relationship like ejusdem generis and noscitur a sociis? Alternatively, do lawmakers know that courts will use these canons and thus know that they must take the default rules into account when drafting? If the canons are designed to replicate congressional usage and understanding, ensuring that they reflect actual practice is vital. Second, it is not always clear which canons belong in this

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category. For example, some have classified the canon that riders to appropriations bills should be narrowly construed as a rule that reflects legislative understandings. See, e.g., Sunstein, Law and Administration after Chevron, supra, at 2107. Perhaps that is right; after all, both Houses have adopted internal rules designed to limit the scope of appropriations riders. But would those enacting a rider in a particular case agree that they intended a narrow construction? At least some of the rules that arguably fall within this subset of textual canons should more properly be considered in the category of substantive canons related to failures in the legislative process, discussed below.

V. Substantive canons, including clear statement rules, are typically considered traditional tools of statutory construction available for use at Step One. Some courts do not use the substantive canons protecting important social values and policies at Step One, deferring instead to the agency’s decision whether to take account of such policies.

Substantive canons are rules of interpretation that do more than mirror widespread linguistic conventions; instead, these canons work to vindicate certain policy values. With some exceptions discussed below, courts use these canons to help them determine whether statutory meaning is clear. In some cases, the canons appear to be used as part of the Step Two inquiry, although these cases usually involve the “belatedly discovered clear meaning” analysis that Levin argues closely resembles a court’s task at Step One. See Ronald Levin, supra, at 1283. In other words, although the court finds that the statutory language is ambiguous, it holds that a particular canon of construction rules out the agency’s interpretation because it is inconsistent with the canon. See, e.g., Qualcomm Inc. v. FCC, 181 F.3d 1370 (D.C. Cir. 1999) (holding that under the canon of constitutional doubt, agency interpretation of ambiguous statute that raised a serious constitutional question with regard to retroactive application was not entitled to deference when a reasonable and clearly constitutional alternative was available). See also Edward J. DeBartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U.S. 568 (1988) (declining to defer to an interpretation by the National Labor Relations Board when the construction posed a serious question of validity under the First Amendment and other reasonable interpretations of the language were possible, but apparently deciding the case at Step One). The difference between a traditional Step One case and a “belatedly discovered clear meaning” case is that, in the latter instance, the agency may still have some discretion with respect to its interpretation of ambiguous text as long as the interpretation does not run afoul of the substantive canon.

Three sets of substantive canons merit attention. First, a set of substantive canons related to values of the democratic process are designed to account for problems in the environment in which legislation is drafted. Either they provide incentives for drafters to improve, or they restrict the damage that might be caused by sloppy drafting and poor deliberation. Arguably included in this group of canons, for example, is the rule that riders to appropriations bills should be construed narrowly, a canon that reflects concerns about the poorer quality of committee and floor deliberation that tends to accompany enactment of such riders. Textualism itself can be seen as related to these canons because it is designed in part to improve the democratic process and force lawmakers to express themselves more clearly and precisely in the text of statutes. See Elizabeth Garrett, Legal Scholarship in the Age of

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Legislation, 34 Tulsa L.J. 679, 695-696 (1999) (discussing the relationship between certain substantive canons and textualism).

These substantive canons, if justified, are appropriate for use by courts at Step One because they must be uniformly applied to have the desired effect. If the hope is to improve the legislative process through the use of these canons, their use is not optional; otherwise, their incentive effects will be reduced. If they are designed to minimize possible bad consequences of a flawed legislative process, again their use is not a matter of discretion. Courts should regularly apply them to favor certain meanings over other possible interpretations. See also Bernard Bell, Using Statutory Interpretation to Improve the Legislative Process: Can It Be Done in the Post-Chevron Era?, 13 J.L. & Pol. 105 (1997) (arguing that leaving to agencies the discretion to apply or ignore some interpretative methodologies designed to improve the legislative process may undermine their effectiveness).

A second set of substantive canons protect underenforced constitutional norms, that is, constitutional principles that courts do not protect more aggressively through invalidation of statutes and that Congress is apt to slight when legislating. See Lawrence Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978) (describing the notion of underenforced constitutional norms). Take, for example, the nondelegation doctrine. The Supreme Court has invalidated federal statutes as violations of the nondelegation doctrine only twice in our history; yet, the concept is still a vibrant one because it supports canons of statutory construction that require narrow interpretations of broad statutory language and thereby limit Congress’ ability to make open-ended delegations to agencies. See Cass Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000). Similarly, the canon that statutory language will be interpreted so that it does not raise serious constitutional doubts requires Congress to legislate clearly when it wants to affect behavior in the fuzzy zone between constitutional and unconstitutional regulation. See, e.g., Edward J. DeBartolo Corp., 485 U.S. at 575. The canon that legislation is presumed to have only prospective effect and not to have retroactive application absent a specific indication to the contrary protects an aspect of due process that courts tend not to protect more aggressively outside the criminal context. See, e.g., Bowen v. Georgetown University Hospital, 488 U.S. 204, 208 (1988).

Some of the canons protecting underenforced constitutional norms are applied as clear statement rules. A clear statement rule is merely a canon of construction that can be overcome only with very precise and clear textual language; other canons of construction, such as the rule that laws are presumed to have only prospective effect, can be overcome by specific evidence in the text or legislative history (at least, for nontextualists). Some canons of construction, like the rule of lenity, are usually applied as tie-breakers, leading a court to prefer a narrower construction when all the other sources of legislative meaning provide no clear choice between competing interpretations. In other words, a clear statement rule is a canon with teeth, providing relatively significant protection for constitutional or other norms. Supporters of clear statement rules argue that they force Congress to focus its attention on the particular issue in order to legislate precisely enough to overcome the clear statement requirement. This additional deliberation may ensure that constitutional principles are not undermined without substantial justification and a purposeful decision by the democratically accountable branch. Moreover, if it is difficult to pass legislation with sufficiently precise language to provide a clear statement,

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then the amount of legislation intruding on areas of constitutional concern should decline. See generally William Eskridge, Jr. & Philip Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992) (explaining and critiquing clear statement rules).

Many of the clear statement principles protect structural or institutional constitutional norms. For example, there are several clear statement rules relating to federalism, such as the rule that ambiguous federal statutes will not be interpreted to preempt state law, see National Ass’n of Regulatory Utility Commissioners v. FCC, 880 F.2d 422 (D.C. Cir. 1989), or the rule that ambiguous language will not be interpreted to intrude on areas of traditional state authority or important state governmental functions, see Gregory v. Ashcroft, 501 U.S. 452 (1991). See also Solid Waste Agency, 121 S.Ct. at 683 (requiring a clear statement at Step One in order to find congressional intent to “permit[] federal encroachment upon a traditional state power and refusing to consider Chevron deference in this context). Another clear statement rule requires that Congress state clearly in the statutory text when it intends a statute to have extraterritorial effect. See EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991). Another set of clear statement rules ensure that certain sensitive decisions are made explicitly and transparently by the most democratically accountable branch, the legislature. See Kent v. Dulles, 357 U.S. 116 (1958) (holding that the executive branch could not withhold passports from “subversives” without express congressional authorization and thus using a clear statement rule to protect the constitution right to travel).

The most controversial aspects of clear statement rules are not peculiar to Chevron but relate generally to the use of clear statement rules. Is it fair to require clear textual statements to overcome the presumptions of clear statement rules, or does this set too high a hurdle for Congress, allowing courts effectively to strike down legislation without appearing to be activist? Are the values protected by clear statement rules legitimate? Given the level of protection provided by clear statement rules to certain values like federalism and a smaller national government, they must be justified by convincing reasons rooted in the Constitution or a theory of democratic governance. Substantive canons, unlike textual canons, are not neutral – they privilege one vision of the world over others.

Generally, courts use these substantive canons, including the clear statement rules, at Step One. The justification for their use here is that if they are designed to protect constitutional objectives, they ought not to be optional at the discretion of the agency. Furthermore, if they have become part of the interpretive regime that serves as a background for legislative drafting, they may reflect legislative intention, providing additional justification for their use at Step One. If lawmakers know that precise textual language is required, for example, to apply federal mandates to state and local governments, the absence of such language sends a strong signal about the correct meaning of the text. As with the textual canons, empirical work is required to determine whether drafters are aware of these substantive canons and whether they can and do consider them when drafting legislation. See, e.g., Carol Lee, The Political Safeguards of Federalism? Congressional Responses to Supreme Court Decisions on State and Local Liability, 20 Urb. Law. 301 (1988) (analyzing four case studies of laws affected by clear statement rules relating to federalism and finding mixed results).

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Judges, lawyers, and scholars may want to think more rigorously about whether all these substantive canons relating to constitutional norms should be applied at Step One. Although some of the canons are clearly intended to force the legislature to make a particular decision with specific language, e.g., Kent v. Dulles, other canons may be designed only to prohibit courts from making certain important policy decisions. Therefore, they do not necessarily reflect a preference that the legislature rather than an administrative agency make the policy choice. The Chevron context introduces a third institution into the interpretive picture; with respect to regulatory statutes, the choice is among the three branches rather than between the legislature and the judiciary. So, for example, Curtis Bradley has argued that Aramco’s clear statement rule operates to allocate the decision about extraterritoriality to branches other than the judiciary but does not reflect a preference for congressional as opposed to executive determination. Curtis Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. 649, 692-94 (2000). When courts are faced with an ambiguous regulatory statute with uncertain extraterritorial effect, rather than using the clear statement rule to send the decision back to Congress (which has arguably demonstrated its unwillingness or inability to speak clearly on the matter), courts should defer to the executive branch’s interpretation. Justice Breyer made a similar institutional point in his dissent in Brown & Williamson:

“[O]ne might claim that courts, when interpreting statutes, should assume in close cases that a decision with ‘enormous social consequences’ … should be made by democratically elected Members of Congress rather than by unelected agency administrators. Cf. Kent v. Dulles, 357 U.S. 116, 129 (1958) (assuming Congress did not want to delegate the power to make rules interfering with exercise of basic human liberties). If there is such a background canon of interpretation, however, I do not believe it control the outcome here.

“Insofar as the decision to regulate tobacco reflects the policy of an administration, it is a decision for which that administration, and those politically elected officials who support it, must (and will) take responsibility. And the very importance of the decision taken here, as well as its attendant publicity, means that the public is likely to be aware of it and to hold those officials politically accountable. Presidents, just like Members of Congress, are elected by the public. Indeed, the President and Vice President are the only public officials whom the entire Nation elects. I do not believe that an administrative agency decision of this magnitude – one that is important, conspicuous, and controversial – can escape the kind of public scrutiny that is essential in any democracy. And such a review will take place whether it is the Congress or the Executive Branch that makes the relevant decision.” 120 S. Ct. at 1330-1331 (Breyer, dissenting) (citation omitted).

An institutional choice approach, focusing on differences in institutional competence of the branches of government and the rationales underlying each substantive canon, does not reflect current practice, however, and might prove a daunting task for courts and scholars.

A third set of substantive canons protect important social policies and values. These canons include rules like exemptions to tax laws should be construed narrowly; remedial statutes should be construed broadly; laws should be interpreted to favor Native Americans; and other similar canons of construction that are designed to protect certain principles or groups. The proper use of these canons is often intertwined with the sort of policy decisions for which

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agencies are better suited than courts; therefore, some courts hold that their application to ambiguous statutory language is more appropriate for Step Two deference. There is, however, significant variation in judicial practice with respect to this group of canons. If courts view these canons as relatively settled default rules that provide an interpretive scheme against which Congress legislates, they may feel comfortable using them at Step One to ascertain congressional intent. See, e.g., King v. St. Vincent’s Hospital, 502 U.S. 215, 220-221 n.9 (1991) (in a non-Chevron case, presuming that Congress legislates with an understanding of interpretive principles like the canon that statues conferring veterans’ benefits should be construed in favor of the beneficiaries).

Some policy canons have particular relevance for regulatory statutes, such as the canon that statutes should not be interpreted to require very large expenditures of money to achieve trivial or de minimis gains. An interpretation requiring absolute protection of safety or health no matter the cost would be nonsensical given the reality of limited resources. In Public Citizen v. Young, 831 F.2d 1108, 1113-1118 (D.C. Cir. 1987), the D.C. Circuit was faced with the question whether the FDA could include a de minimis exception in the law regulating color additives (the “Delaney clause”), thereby allowing the FDA to decline to regulate dyes when it found that the cancer risks they posed were trivial. The canon of construction de minimis non curat lex seemed particularly appropriate in this case because it is designed to promote rationality in the law and to avoid costly regulation when the risks are minimal. Id. at 1112. Indeed, under an absolutist understanding of the Delaney Clause, which targets only carcinogenic effects, regulation was occasionally counterproductive as industry shifted to more dangerous but non-carcinogenic additives. Nonetheless, the Court struck down the agency’s interpretation and disallowed any de minimis exception to the Delaney Clause because the textual language was phrased in absolute terms and the legislative history reflected congressional intent to enact a rule without any exceptions. This case is unusual because of the clear and absolute statutory language; often, the text is ambiguous enough to allow flexibility in interpretation. The Young panel hinted that in such a case, the agency should determine whether the statute should be interpreted to include a de minimis exception or not and the court should defer to its decision. Id.

In Michigan Citizens for an Independent Press v. Thornburgh, 868 F.2d 1285 (D.C. Cir.), aff’d by an equally divided Court, 493 U.S. 38 (1989), the court was faced with an antitrust challenge to a Joint Operating Agreement (“JOA”) between two competing newspapers under the Newspaper Preservation Act. Those challenging the Attorney General’s interpretation of the Act argued that the construction allowing the JOA was impermissible because it violated “the interpretive canon that exemptions to the antitrust laws – like all exemptions – should be narrowly construed.” Id. at 1292. The majority rejected this argument and discussed the role of such substantive canons in a Chevron case:

“But Chevron implicitly precluded courts from picking and choosing among various canons of statutory construction to reject reasonable agency interpretations of ambiguous statutes. If a statute is ambiguous, a reviewing court cannot reverse an agency decision merely because it failed to rely on any one of a number of canons of construction that might have shaded the interpretation a few degrees in one direction or another.

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“We do not mean to say that canons of construction are completely irrelevant in the post-Chevron era. If employment of an accepted canon of construction illustrates that Congress had a specific intent on the issue in question, then the case can be disposed of under the first prong of Chevron. [The court then referred approvingly to a number of textual canons uncontroversially used at Step One.]

“In this type of case by contrast, the Attorney General is called upon to balance two legislative policies in tension: The proconsumer direction of the antitrust laws and a congressional desire embodied in the Newspaper Protection Act that diverse editorial voices be preserved despite the unique economics of the newspaper industry. This is precisely the paradigm situation Chevron addressed.” Id. at 1292-1293 (citations omitted).

This passage is susceptible to a number of interpretations. Perhaps the court found only that use of the canon to construe antitrust exemptions narrowly, which does not have the strength of a clear statement rule, insufficiently clarified the Newspaper Protection Act’s ambiguous language. But see id. at 1300 n.6 (Ginsburg, dissenting) (“Under Chevron, is it the Attorney General’s prerogative to construe an ambiguously-phrased antitrust law exemption expansively? The answer to [this] question[] … must be ‘No.’”). Most of the substantive canons in this third category are not clear statement rules but rather operate as presumptions or tiebreakers, so their use by courts may not eliminate the need for deference in some cases. Perhaps the court held that this case presented an example of dueling substantive policies and thus the canon of construction relating to antitrust exemptions was not helpful at Step One. Or perhaps the court believed that this policy canon implicated the kind of policy concerns more appropriately left to the agency to address when statutory language is unclear or leaves a gap.

The judicial practice with respect to other policy canons is inconsistent, and courts do not tend to provide explanations of decisions to use a canon to find clear meaning at Step One or to defer to an agency interpretation notwithstanding an arguably relevant canon. Take, for example, the canon favoring Native Americans in interpreting statutes. In some cases, the canon trumps Chevron deference. See, e.g., Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1462 (10th Cir. 1997) (also finding the canon consistent with the statute’s purpose). In some cases, the court defers to an agency interpretation that competes with the canon. See, e.g., Haynes v. U.S., 891 F.2d 235, 239 (9th Cir. 1989). In other cases, the canon is used to test the reasonableness of the agency’s interpretation of an ambiguous statute. See, e.g., Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1294 (D.C. Cir. 2000) (“In light of the … canon of statutory interpretation calling for statutes to be interpreted favorably towards Native American nations, we cannot condemn as unreasonable” the EPA’s interpretation of “reservation”). See also Philip Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers, 109 Yale L.J. 1, 18-27 (1999) (discussing the uneven application of the canon generally and rationales justifying it).

The judicial inconsistency with respect to canons protecting important social policies and values may reflect the debate about their justifications. Some scholars contend that canons that protect important and well-established social policies are comparable to canons that protect underenforced constitutional norms, like the nondelegation canons. See, e.g., Sunstein, Nondelegation Canons, supra, at 334-35 (classifying many substantive canons as constitutionally based nondelegation canons); but see Sunstein, Law and Administration After

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Chevron, supra, at 2116-17 (arguing that Chevron deference should trump judicial application of canons designed to counteract regulatory irrationality). Just as the canons relating to constitutional norms are applied at Step One, so should the canons protecting important social policies, even if they do not rise to the level of constitutional values. This argument has less force with respect to canons designed to improve regulatory policies or correct regulatory failures. These canons, like the de minimis exception in Public Citizen v. Young, seem to fall squarely within agency competence, at least relative to judicial competence, and thus their application should be left to the agency in formulating a reasonable interpretation of ambiguous language. See Ober United Travel Agency v. Department of Labor, 135 F.3d 822, 825 (D.C. Cir. 1998) (“[W]e have recognized that in a post-Chevron era such policy-oriented canons of statutory construction may not be used to evaluate agency interpretations of ambiguous statutes.”); Amax Land Co. v. Quarterman, 181 F.3d 1356, 1362 (D.C. Cir. 1999) (citing Michigan Citizens for an Independent Press for proposition that canons that “embody a policy choice” should not be used by courts at Step One).

If the courts treat some substantive canons differently from others for purposes of Chevron, applying most at Step One but deferring in a few cases to the agency’s decision whether to rely on the policies they embody, then the inherent difficulty in categorizing substantive canons may become more acute. Often it is tricky to distinguish canons protecting important social policies from those that protect structural or institutional constitutional values. For example, how should courts categorize the canon favoring interpretations of ambiguous language in statutes and treaties that they benefit Native Americans? How should courts treat the clear statement rule that requires an explicit textual waiver of the sovereign immunity of the United States, see United States Department of Energy v. Ohio, 503 U.S. 607, 615 (1992)? Is the canon requiring a clear statement in order to give a statute extraterritorial effect a constitutionally-based canon or one merely protecting certain political choices? All of these canons can be viewed as related to institutional arrangements set forth in the constitutional design. Fuzziness in the line between the two sets of canons may empower judges to resolve more cases at Step One. Arguably, the more canons available for use at Step One, the fewer cases that will proceed to Step Two, and the less the discretion accorded to agencies in their interpretation of regulatory statutes. Thus, judges who favor a different interpretation than a reasonable one that the agency advocates may be able deploy helpful canons at Step One, characterizing them as constitutionally-based canons, so that they find a clear meaning different from the agency’s interpretation.

VI. The court must find at Step One clear statutory meaning on the precise issue before it. Otherwise, it must defer to a reasonable agency interpretation of the statutory language.

The key passage and footnote from Chevron that articulate the method of statutory interpretation refer four times to congressional intent on the “precise” or “specific” issue confronting the court. See Chevron, 467 U.S. at 842-43 & n.9. This emphasis cannot be accidental, although this aspect of the Chevron test is seldom discussed in opinions interpreting regulatory statutes. But see Gonzalez v. Reno, 212 F.3d 1338, 1348 (11th Cir. 2000) (finding that Congress had spoken to the question of what aliens could apply for asylum but finding silence on the precise question o what procedures must be followed to apply or what

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information should be included in an application). Perhaps the best way to understand Chevron’s phrasing is that it emphasizes to courts the change in their interpretive role and encourages them to apply Chevron so that Step One does not dominate the inquiry. If a court discerns a general meaning, say to promote health or safety, it cannot infer from that general purpose a clear meaning on a narrower question if the statutory language relevant to the precise and specific question is ambiguous.

For example, in Chevron, the Court concluded that the 1977 Clean Air Act Amendments reflected the general congressional intent to pursue certain environmental objectives while allowing reasonable economic growth. But the Court could not find in the text or legislative history any “actual intent” of Congress on the precise issue of whether the bubble concept was compatible with the term “stationary source.” Indeed, the Court noted with respect to the legislative history that “[t]he general remarks [of relevant lawmakers] ‘were obviously not made with this narrow issue in mind and they cannot be said to demonstrate a Congressional desire.’” 467 U.S. at 862 (quoting Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 161, 168-69 (1945)). Thus, it is not acceptable at Step One for a court to ascertain a general meaning of statutory terms that could support several more precise understandings and then to select among those specific alternatives. In such a case, courts must defer to the agency’s selection, as long as the interpretation it chooses is not contrary to the general purpose and policy of the Act.

Chevron’s reliance on the notion of the “precise” issue also underscores the importance of how the interpretive question before the agency and the court is framed. A rigorous focus on articulating the legal issue can help to clarify the appropriate judicial treatment for the set of Chevron cases that Levin characterizes as presenting questions of “belatedly clear congressional meaning.” Ronald Levin, supra, at 1282-1283. In such cases, courts as part of the Step Two analysis rule out a particular agency interpretation of admittedly ambiguous statutory language as inconsistent with clear congressional intent. Take, for example, Qualcomm Inc. v. FCC, 181 F.3d 1370 (D.C. Cir. 1999). The Court applied the canon of constitutional doubt and rejected an agency interpretation of an ambiguous statute that raised a serious constitutional question of retroactivity when a reasonable and clearly constitutional alternative was available. This kind of analysis is little different from the Step One analysis in, for example, Cardoza-Fonseca. There the Court refused to defer to the INS’ interpretation of “well-founded fear” because it conflicted with clear congressional intent, although Justice Stevens acknowledged that the term was ambiguous enough to provide the agency some flexibility in applying the standard in the future. See 480 U.S. at 448. See also City of Chicago v. Environmental Defense Fund, Inc., 511 U.S. 328, 339 (1994) (holding that the EPA’s interpretation “goes beyond the scope of whatever ambiguity § 3001(i) contains”).

Often courts undertake this analysis at Step Two, even though the techniques used to resolve the issue should be identical to those used at Step One. It clarifies the Chevron test and the scope of the court’s role if judges explicitly cast these cases as Step One inquiries, and they can do so by reframing the precise question. Levin suggests that the precise question in these cases is “whether Congress has clearly ruled out an option the agency has chosen, or a premise on which the agency has sought to act.” Ronald Levin, supra, at 1283. See also Ronald Levin, Scope-of-Review Doctrine Restated: An Administrative Law Section Report, 38 Admin. L. Rev. 239, 250-51 (1986) (providing similar analysis in a non-Chevron framework). The court might

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find clear statutory meaning at Step One with respect to this precise question, even though the statutory provision remains somewhat ambiguous and triggers some deference at Step Two. Understood in this way, such cases easily become Step One decisions, rather than Step Two cases as they are often characterized by courts.

The emphasis on the “precise question” may also clarify a passage in Brown & Williamson, discussed previously. Before it began to discuss its view that Congress would never have delegated to an agency the question whether to regulate tobacco because it is such a politically significant decision, the majority observed that “our inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented.” 120 S.Ct. at 1314. By focusing on the precise question of tobacco regulation rather than on the more general question of whether the FDA had “broad jurisdictional authority,” see id. at 1318 (Breyer, dissenting), the Court more easily reached its conclusion that Congress could never have intended the FDA’s interpretation of the statute. In this way, the term “precise question” may indirectly move judges toward the weaker version of the Chevron presumption, favored by Justice Breyer in his scholarship, instead of the stronger version, favored by Justice Scalia.

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Documents

Step One of Chevron v - American Bar Association€¦ · Web viewStep One of Chevron v. Natural Resources Defense Council. Second Revised Draft. Prepared for the Scope of Judicial