The past several Supreme Court Terms have seen a judicial revitalization of sorts for Chief Justice Marshall's famous directive in Marbury v. Madison that "it is emphatically the province and duty of the judicial department to say what the law is." (1) In a series of dissenting and concurring opinions, Justices have juxtaposed that statement with the bedrock administrative law doctrines requiring reviewing courts to "defer" to an administrative agency's reasonable interpretation of its own organic statute and regulations. (2) The question that these opinions raise can be summarized as follows: If deference is required, how can it be said that the reviewing court is declaring "what the law is," rather than allowing some other body to make the declaration? (3) Thus, to take one example, Justice Thomas has argued that judicial deference "wrests from Courts the ultimate interpretive authority to 'say what the law is,' and hands it over to the Executive," (4) because "[j]udges are at least as well suited as administrative agencies to engage in [the interpretive] task." (5)
In some respects, this rediscovery of Marbury in the administrative law context should come as little surprise. For one thing, scholars have long recognized a seeming tension between the notion of judicial deference and Marbury, some going so far as to characterize the Court's canonical decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council as the "counter-Marbury" of the administrative state, (6) because it requires courts to accept any "permissible" interpretation proposed by the government rather than to adopt, even where possible, the best interpretation of a statute. (7) The Court's rediscovery of Marbury in this context, thus, lags behind the academic literature by several decades. For another thing, Marbury itself is a decision about administrative law, with Chief Justice Marshall devoting many more pages to what we would currently characterize as statutory interpretation and administrative law issues than to constitutional issues. (8) That the Court would rediscover Marbury in this context, in other words, tends to place Chief Justice Marshall's canonical decision in its appropriate sphere.
In an important respect, however, the recent opinions paint an incomplete picture of Marbury itself. Marbury's "say what the law is" statement--upon which the various recent opinions have relied--was made in the context of interpreting the federal Constitution. Each of the opinions has neglected the lengthy statutory analysis portion of Marbury. Did Marbury have anything to say about interpretive technique in the many other pages that Chief Justice Marshall devoted to statutory interpretation?
The answer to that question is "yes." As I explain in this Article, Marbury's lessons for the doctrine of judicial deference are richer and more nuanced than one might expect from the repeated invocations of Chief Justice Marshall's famous statement. As a close review of the Chief Justice's statutory analysis reflects, the Marbury Court could be said to consider three types of "deference" in the course of its opinion, through its (1) treatment of executive custom in statutory interpretation, (2) discussion of the "political question" doctrine, and (3) use of the ministerial/executive distinction under the writ of mandamus. To be sure, none of these three doctrines is the same as the "Chevron" doctrine of judicial deference familiar to us today. But they provided the framework for much nineteenth-century judicial review of executive action and later the kernels--or sparks--that established the modern doctrine of judicial deference to executive interpretation. Understanding the full picture of Marbury, thus, gives the modern reader a richer understanding of nineteenth-century interpretation and the development of judicial deference --as well as a way to understand and to critique the recent opinions relying on Marbury.
The Article proceeds as follows. Part I summarizes Marbury's statutory analysis. Part II picks up that summary and analyzes each of the three types of "deference" discussed in the Marbury opinion. Part III provides some concluding thoughts.
Marbury is such a foundational case of American public law that its summary may seem almost unnecessary. But the case is typically studied today for its role in the development of the doctrine of judicial review--the notion that the Constitution gives Article III courts the authority to deem unconstitutional congressional enactments. (9) That very centrality as a constitutional decision in modern debates can obscure its other important holdings.
Through the lens of administrative law, Marbury is a case about whether and when the judiciary may compel an Executive Branch official to comply with his statutory duties. (10) The executive actor was James Madison, the newly installed Secretary of State to President Thomas Jefferson, and the asserted statutory duty was Madison's obligation to deliver a commission to William Marbury. (11) Marbury had been nominated by President Adams to a five-year term as Justice of the Peace to the District of Columbia. (12) He was confirmed by the lame-duck Federalist Senate, and his commission was signed--but not delivered--before Adams left office. (13) Marbury asked the new Administration for his commission. (14) He was refused. (15) In an effort to compel Madison to deliver his commission, Marbury sought a writ of mandamus directly in the Supreme Court. (16)
The case called for the Court to consider whether Marbury had a "right to the commission" because the existence of the signed but undelivered commission meant that he had "been appointed to the office." (17) The Act establishing his position provided simply that "there shall be appointed" justices of the peace as the President "shall, from time to time, think expedient." (18) A second Act relevant to the question authorized the Secretary of State to "affix the... seal" of the United States to the commission after "the same shall have been signed by the president of the United States." (19) The Court held that, under these provisions, Marbury had been appointed. (20)
Chief Justice Marshall started from the proposition that, as with constitutional questions, the statutory question "whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority." (21) In light of the connection between delivery of Marbury's commission and his appointment, (22) the Court took what it believed to be an "obvious" step: Because appointment was the "sole act of the President," it was accomplished "when it is shown that he has done every thing to be performed by him," which in such a case, was the "open, unequivocal act" of the President's "signature of the commission." (23) At that point, as the Court bluntly put it, "[h]e has decided"--and "the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president." (24) That course of conduct--discretionary presidential signature followed by mandatory Secretary of State affixing of the seal and delivery--was "not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued." (25) The Secretary's conduct was, in other words, a "ministerial act." (26)
It is worth pausing here to remark just why this analysis of the relevant legal text is by no means "obvious." The Act of Congress establishing the Secretary of State's role in affixing the seal to commissions nowhere defined his duties as mandatory, nor did it make any mention of delivery. (27) It could have been plausibly read to allow the Secretary, in his discretion, as guided by the President, not to deliver the commission under appropriate circumstances. Indeed, it would have been a perfectly rational statutory scheme to allow the President, who undoubtedly would sign the commission in private, to change his mind, even after a seal had been affixed. Had Marshall interpreted the statute in this manner--had he concluded, in other words, that the decision whether to deliver was in some sense discretionary--his own analysis indicated that mandamus should have been "rejected without hesitation." (28) And many legal documents were, in ordinary practice, not valid until delivered. It may thus have been prudent, in the case of statutory silence, (29) to adopt a default rule that presidential commissions should be, like these other legal documents, considered valid only once delivered. Marshall recognized as much when he cited the case of "a deed, to the validity of which, delivery is essential." (30) But he brushed aside the objection on the ground that the statutory scheme contemplated delivery by the President, which was accomplished when the President delivered the commission to the Secretary of State. (31)
Marshall did have a significant, extra-textual point (not heretofore mentioned) to buttress his position. He claimed that his understanding of the Secretary of State's authority was "the understanding of the government" itself and "apparent from the whole tenor of its conduct"--or, to put the point in other words, that his interpretation was consistent with the government's customary practice. (32)
In reaching the conclusion that Marbury had a right to his appointment, Marshall acknowledged that there were certain "mere political act[s] belonging to the Executive department alone, for the performance of which entire confidence is placed by our Constitution in the Supreme Executive, and for any misconduct respecting which the injured individual has no remedy." (33) While recognizing the "difficulty" in distinguishing between executive actions that were "examinable" and those that were "not," he reasoned that the President possessed "certain important powers" that he could use in "his own discretion" and for...