Interpreting regulations.

Author:Stack, Kevin M.
Position::III. Legal Process Purposivism Revisited through Conclusion, with footnotes, p. 383-421
  1. Legal Process Purposivism Revisited

    Henry Hart and Albert Sacks's The Legal Process (136) remains the common reference point for purposive interpretation in general (137) and for a purposive theory of statutory interpretation in particular. (138) Hart and Sacks's distinctive conception of the rationality of law made their theory an attractive synthesis of legal formalist and legal realist thought. (139) But their theory has come to be defined by one aspect of its commitment to a rational understanding of law--the counsel that judges treat legislation as if it were enacted by reasonable legislators pursuing reasonable purposes. (140)

    This Part argues that this conventional reading of Hart and Sacks neglects the scope of their commitments to positive sources for discerning purpose and fails to understand how attention to those positive sources fits within their rationalized conception of law. Once Hart and Sacks's jurisprudential commitments to positive sources--both in their approach to interpretation and its grounding---come into view, it also becomes clear how a purposive approach to regulatory interpretation could build on their theory by making an analogy between a statute's enacted statement of purpose and a regulation's statement of basis and purpose.

    1. The Purposive Technique

      In The Legal Process, Hart and Sacks provide clear guidance to courts on the aims and "technique" (141) of statutory interpretation. Their approach to statutory interpretation has four basic elements: the court is to (1) "[d]ecide what purpose ought to be attributed to the statute and any subordinate provision of it," (2) "[i]nterpret the words of the statute immediately in question so as to carry out [that] purpose as best it can," making sure (3) not to give the words "a meaning they will not bear," and finally, (4) not to "violate any established policy of clear statement." (142)

      1. Discerning Purpose. How a court "attributes" purposes to a statute and its subordinate provisions constitutes "[t]he principal problem in the development of a workable technique of interpretation." (143) Hart and Sacks's approach to attributing purposes is frequently taken to be reducible to their counsel that the court should "assume, unless the contrary unmistakably appears, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably." (144) Taking that rationalist, reconstructive attitude as the defining or exclusive way in which Hart and Sacks advise a court to discern purpose exposes their theory to a host of objections. Perhaps most enduring has been a cluster of objections that understand Hart and Sacks's claim as premised on a naive conception of the legislative and political process. As Robert Post writes, "The persistence of hot and intractable political dispute suggests that, in fact, politics is not inhabited by 'reasonable persons' who participate in a shared, intersubjective web of meanings and values." (145) In a similar vein, based on public choice theory, scholars argue that many statutes are the products of deals to implement special interests and often lack overarching or even specific purposes to serve the public interest. (146) From this perspective, the presumption of a reasonable legislature, when "measured against the true workings of the legislative process ... is an unreasonably optimistic view." (147) Further, Richard Posner writes that "the spectrum of respectable opinion on political and social questions has widened so enormously that even if we could assume that legislators intended to bring about reasonable results in all cases, the assumption would not generate specific legal concepts. (148)

      Reading Hart and Sacks's approach as defined by independent judicial construction of reasonable purposes of legislation, their theory would appear to have little to offer as a foundation for a purposive theory of regulatory interpretation. Based on this reading, their technique for discerning purpose not only confronts an array of practical and theoretical objections, but it also does not make sense of the elements of the purposive approach to regulatory interpretation identified thus far. In particular, it does not provide a reason to accord the statement of basis and purpose a special place in discerning the meaning of the regulation's text. It would rather have the court inquire into the reasonable purposes of the regulation without any particular tether to the agency's public rationalization. But this is not the best reading of Hart and Sacks's theory.

      Far from launching the court into a freewheeling reconstruction of a reasonable legislative purpose as the first and primary step of discerning legislative purpose, Hart and Sacks describe the task of attributing purpose to a statute or its provisions as having two sequential steps. The first step in attributing purpose is for the court to consider any "formally enacted statement of purpose." (149) So long as the enacted statement was designed to shed light on interpretation, was consistent with the text, and pertained to the question at issue, the court should "accept[]" the formally enacted statement of purpose. (150) This first step is critical. By "accept[ing]" Congress's own statement of purpose, the court grants a very strong form of deference to Congress's own articulation of the purpose of the statute.

      For Hart and Sacks, it is only after the court has determined that such an enacted statement of purpose is not available or not useful that it must "infer" purpose. (151) In particular, once the court has exhausted the prospect of a congressional statement of purpose, it should adopt Hart and Sacks's familiar imaginative attitude, reconstructing a reasonable legislature's solution, (152) as opposed to adopting the stance of a political realist or the "cynical political observer" attending to the "short-run currents of political expedience that swirl around any legislative session." (153)

      But even in this broader task of inferring purpose, the text plays a critical role. As Hart and Sacks explain, when the court must infer purpose, it should be attentive to the fact that purposes can exist at a level of "great generality," at a level of specificity in which they resolve "specific application[s]," as well as in "hierarchies." (154) Purposes also pertain not only to the statute as a whole but also to "subordinate provision[s]" within it. (155) The task is to discern purposes, plural, for the statute and its provisions, not solely a single overarching purpose. That provision-specific inquiry will necessarily be strongly informed by the text and its varieties, not merely constructing what a rationalized legislature aimed to do.

      This is not to deny that this second step of inferring purpose can also require a broad synthesis. Because meaning is the product of context, (156) inferring purpose involves understanding the meaning of the statute in its whole context. (157) And Hart and Sacks understand the relevant context capaciously. While the text of the statute itself is a primary basis for inferring purpose, the context encompasses the state of the law prior to the enactment of the statute, the public understanding of the "mischief' the statute aimed to remedy as well as documents produced during legislative consideration of the statute to the extent they bear on its general purpose. (158) As the law develops so does the context of the statute's interpretation; the accumulation of fixed judicial and administrative constructions informs the attribution of purpose in context. (159) Moreover, the synthetic demands are broader still because, for Hart and Sacks, "[t]he purpose of a statute must always be treated as including not only an immediate purpose or group of related purposes but a larger and subtler purpose as to how the particular statute is to be fitted into the legal system as a whole," (160) including constitutional principles. (161)

      But what this brief summary reveals is that there is greater variety in the task of attributing purpose under Hart and Sacks's theory than is frequently acknowledged--and particularly relevant for regulatory interpretation, that the starting point for interpretation is consulting any enacted statement of purpose.

      2. The Dual Function of Text. While attributing purpose and formulating constructions of the statute to further these purposes launches the interpretive inquiry, Hart and Sacks posit that a court will check its prospective constructions against the statute's text. As Hart and Sacks put it, the text of the statute serves a dual role. (162) On the one hand, as we have just seen, it constitutes a central source for inferring purpose. But the text also operates as a separate constraint. Recall that the court "ought never to give the words of a statute a meaning they will not bear," (163) and may infer a reasonable purpose for the legislation "unless the contrary unmistakably appears." (164) The interpreter is to test the provisional construction to ensure it does not fall beyond what the words will bear, by which Halt and Sacks mean "whether a particular meaning is linguistically permissible." (165)

      Hart and Sacks have specific advice as to how a court should do so. To discern the scope of permissible construction, Hart and Sacks recommend a cautious and particular use of dictionaries and canons of construction. Neither dictionaries nor canons of construction, they advise, "should ... be treated ... as saying what meaning a word or group of words must have in a given context." (166) The assessment of linguistic meaning operates as a negative to rule out interpretations and works "almost wholly to prevent rather than to compel expansion of the scope of statutes." (167) This check against the text is thus not an invitation to inquire into the best interpretation based solely on the text. It is rather to make sure the construction does not exceed the outer bounds of permissible meaning...

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