Normative canons in the review of administrative policymaking.

Author:Bamberger, Kenneth A.

INTRODUCTION I. THE PROBLEM: COMPETING METHODS FOR RESOLVING STATUTORY AMBIGUITY A. The Judicial Tools of Statutory Interpretation B. Statutory Interpretation After Chevron C. The Tension Between Canons and Chevron II. THE EXISTING APPROACH: CATEGORICAL RESPONSES TO THE CHEVRON-CANONS CONFLICT A. The Majority Rule: Canons Trump Deference 1. The Majority Rule in the Courts 2. Justifications for the Majority Rule B. The Minority Rule: Deference Trumps the Canons 1. The Minority Rule in the Courts 2. Justifications for the Minority Rule III. RECONCEIVING NORMATIVE CANONS IN THE REGULATORY CONTEXT A. Canonic Goals and Institutional Solutions B. Changing the Institutional Context: Canons in the Administrative State 1. Doctrinal Discretion and Agency Capacity 2. Operative Discretion and Judicial Limits 3. Replacing Context for Category IV. FINDING A HOME FOR CONTEXTUAL APPLICATION OF NORMATIVE CANONS: RECONCILING GOALS UNDER CHEVRON'S STEP-TWO INQUIRY A. Incomplete Beginnings B. A Home for Canons at Chevron's Step Two 1. Placing Canons in Step Two: Suggestions from the Outlier Cases 2. Exploring a Step-Two Canons Analysis 3. Possible Critiques: Considering Costs CONCLUSION INTRODUCTION

Statutes do not operate in a vacuum. Choices about their meaning do not affect only the substantive areas of law they govern. They also implicate a variety of background norms--like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and separation of powers--inspired, not by Congress's command, but by the substantive and structural concerns of the Constitution. How, then, should we ensure that statutes are interpreted to reflect these important background norms? To which institution should we assign the task?

Courts have traditionally taken on the responsibility, but with some expression of ambivalence. Lacking policy expertise, fact-finding capacity, and the competence to make political choices, courts recognize that they are often institutionally ill suited to balance policy goals against extrastatutory norms. They have thus developed "normative" canons of construction, like those against reading statutes to raise constitutional issues, or to preempt state tort protections, or to affect tribal power detrimentally. These default rules are intended to predetermine interpretive outcomes protective of values that judges, cautious about their capability to weigh competing interests accurately and make political decisions, might otherwise underenforce.

Judicial application of normative canons, however, fits uncomfortably with the fundamental premise of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (1) the formative case governing the allocation of interpretive authority in the administrative state. Under the preexisting canons regime, courts resolve statutory ambiguity conclusively, by resort to judge-made canonic presumptions. Yet after Chevron, when a statute is unclear, the resulting discretion belongs generally to the agency charged with its administration. That agency--armed with the very expertise and political sensitivity courts lack--may (so long as it meets a requisite level of decisionmaking formality) adopt any policy permitted by the scope of statutory indeterminacy.

This tension has split courts and commentators. A majority, including the Supreme Court, argues that courts should continue to interpret legislation independently when normative canons would apply, even when Congress has charged a particular agency with the statute's administration. Canons, they conclude, involve the type of legal question best resolved by independent courts, rather than political agencies. More specifically, canons operate simply as clear-statement rules that constrain interpretive discretion and simply turn politically sensitive questions back to Congress. Accordingly, they leave no space for agency input, and judges should continue to fix statutory meaning independently when canonic values are implicated.

A minority, including the Ninth Circuit, takes the opposite stance. Relying on Chevron's generalized understandings about superior agency expertise and political accountability, this account decries any continued judicial role in policing normative canons. It leaves to agencies the task of balancing both those goals reflected in statutory language and those left out.

This Article rejects both all-or-nothing approaches. After describing, in Parts I and II, the Chevron-canons conflict and the response of courts and commentators, it argues, in Part III, that the categorical approaches rest on stylized and unrealistic claims about both canons and institutional decisionmaking, with detrimental results.

Normative canons do not, as a practical matter, uniformly constrain interpretive discretion or uniformly return sensitive questions to Congress. Indeed, they do not uniformly do anything. Rather, both collectively and individually, they vary greatly in their formulation and their application. In some contexts, normative canons operate as strong clear-statement rules, asking simply whether legislative text explicitly permits a particular outcome. Yet in others, they permit significant leeway to balance competing policies in light of the practical implications of various interpretive choices.

Just as canon application varies greatly by context, so does agency capacity to contribute to the analysis. As a general matter, agencies are more likely than courts to possess the resources needed to engage in interest balancing and to assess the practical impact of normative policy choices that some doctrinal formulations for canon application require. Moreover, the permeability of agency decisionmaking both permits political inputs by Congress and offers a forum for representation, deliberation, and dialogue that involves a range of stakeholders and experts from inside and outside the agency. In addition to the decision-making transparency fostered by procedures under the Administrative Procedure Act (APA), agencies might, and in some circumstances have, developed a host of processes such as public hearings, consultations with states and Native American tribes, independent oversight boards, and procedures for notifying and gaining input from Congress, geared to ensure that secondary mandates--norms external to the principal goal of the statute they are charged with implementing--are effectively reflected in public policy. Yet the fact of agency competence generally means neither that the normative context will raise issues regarding which an agency can make an institutional contribution, nor that, if it does, the agency will.

The categorical approaches to resolving the Chevron-canons conflict ignore both the variability in canon application and the contingency of agency capacity. Specifically, a rule excluding agencies entirely from resolving statutory ambiguity when canonic norms are implicated fails to justify an all-or-nothing preference for judicial, rather than agency, discretion in three important ways. First, such a rule ignores the fact that agencies, in some circumstances, may possess greater capacity than courts for norm balancing. Second, it fails to provide any incentive for agencies to account for those values in their own decisionmaking. Such incentive would further the canons' strong policy of judicial restraint by obviating the need for judicial canon application in an important set of cases, as well as promote canons' goal of norm protection in the range of agency actions that never reach a courtroom. Third, it disregards important limits on judicial authority. Judges applying normative canons independently to strike down agency interpretations face no constraint on their discretion to reach an authoritative construction of the statute, even when other permissible solutions exist. Such expansive decisionmaking reflects the very type of judicial aggrandizement the Supreme Court rejected three years ago in National Cable & Telecommunications Ass'n v. Brand X Internet Services (Brand X), (2) yet contributes nothing to norm protection.

At the same time, a rule eliminating the judicial role in policing the application of normative canons after Chevron fails to recognize the unreliability of the agency contribution, especially in protecting values which are systemically underenforced. Such a rule removes incentives for agencies to account for such norms and constitutes, as a practical matter, a determination that certain important public values need not be consistently reflected in public policy.

Part III therefore concludes that the goals of both normative canons and Chevron require a contextual analysis--an institutionally sensitive framework that takes into account the particularity of governing doctrine and actual agency behavior in each case.

Part IV argues that such a framework exists in the reasonableness inquiry of Chevron's second step. Specifically, it contends that courts should consider every agency action otherwise deserving of Chevron analysis, whether it implicates the values underlying normative canons, within Chevron s two-step framework. If the statute proves ambiguous under the standard judicial step-one analysis, courts should consider the background values animating the canons in its determination of the agency interpretation's reasonableness--an inquiry already structured to vindicate a host of extrastatutory norms. Pursuant to this analysis, courts should determine whether an agency policy sufficiently reflects the background norm--if in a particular case the agency's expertise, decision process, and substantive outcome point to a satisfactory resolution of norm balancing--or whether courts should intercede and apply the default rule. If courts find that an agency has overstepped its bounds, the judicial inquiry should cease. Unlike independent judicial canon application, courts could no longer proceed to...

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