The judicial perspective in the administrative state: reconciling modern doctrines of deference with the judiciary's structural role.

AuthorMolot, Jonathan T.

INTRODUCTION

Lawyers and scholars traditionally have viewed interpretation as a search for the best reading of an ambiguous legal text.(1) More recently, scholars have considered as well interpretation's "instrumental" effects on lawmaking,(2) highlighting the possibility that particular styles of statutory interpretation may have beneficial effects on legislatures by encouraging democratic deliberation, diminishing interest group influence, or inducing legislators to highlight their bargains in a statute's text rather than bury them in legislative history.(3) Moreover, while this scholarship on the broader influence of legal interpretation on lawmaking is relatively new, and empirical evidence of such a "feedback loop" is still somewhat sketchy,(4) the basic intuition that different approaches to interpretation might influence legislative behavior is by no means novel. Half a century ago, Justice Frankfurter observed that "[l]oose judicial reading makes for loose legislative writing."(5)

If scholars of statutory interpretation have thoroughly explored the notion that interpretive styles may influence lawmaking, they have largely, and incorrectly, assumed that judges will be the interpreters.(6) By the time scholars began to consider how judges could improve lawmaking--and to debate whether judges could legitimately adopt an "instrumentalist" approach to statutory interpretation(7)--the judiciary already had relinquished much of its interpretive power to administrative agencies.(8)

This article argues that modern administrative law's reliance on administrative agencies rather than judges to resolve legal ambiguity rests principally on a narrow vision of interpretation and becomes much more difficult to defend when the interpretive enterprise's broader, instrumental effects on lawmaking are taken into account.(9) Moreover, the article posits that judicial influence over legislative behavior is not simply the invention of modern scholars of statutory interpretation, but rather is an important component of our constitutional structure. The article thus identifies an overlooked tension between judicial deference to administrative agencies under modern administrative law and the judiciary's original, influential role in our constitutional design.

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,(10) the Supreme Court decided to defer to reasonable agency resolutions of statutory ambiguity--and to treat ambiguity as an "implicit delegation" of authority to agencies--largely because the Court believed that agencies were better equipped than judges to resolve interpretive disputes.(11) The Court reasoned that resolving interpretive disputes requires policy judgments and that judges lack the political accountability and subject matter expertise that equip administrators to make these policy judgments.(12) Under Bowles v. Seminole Rock and Sand Co.,(13) the Court has likewise deferred to administrators' interpretations of their own regulations.(14) The Court has reasoned that because interpretation of regulations may "entail the exercise of judgment grounded in policy concerns,"(15) it makes sense to transfer interpretive authority to administrators who are politically accountable(16) and sufficiently expert to make the relevant political choices with a sophisticated understanding of underlying policy considerations.(17) In both lines of cases, the Court has limited judges to determining whether a law is ambiguous and, if so, ensuring that the agency interpretation is reasonable.(18)

But if judicial deference to agency interpretations leads to more "legitimate" or "sensible" resolutions of interpretive disputes, these benefits do not come without a cost to our constitutional framework. Even if Chevron and Seminole Rock produce "better" results in particular cases, together they weaken judicial authority in a way that fundamentally alters the relationship between lawmaking and law interpretation in our constitutional framework. Indeed, some of the very qualities that render administrators better suited than judges to make difficult policy decisions under ambiguous statutes or regulations may make them ill suited to influence the behavior of those drafting the relevant laws.(19) Scholars have thus far overlooked the possibility that the very attribute of administrative agencies most often relied on to defend Chevron and Seminole Rock deference--political accountability--may also be the greatest shortcoming of judicial deference.

The possibility that politically insulated judges may be better suited than politically accountable officials to resolve statutory ambiguity is by no means new. Long before the rise of the modern administrative state, the framers and ratifiers of the Constitution (the "Founders") were acutely aware of the difference between interpretation by politically accountable and politically insulated officials, and they opted for the latter in securing judicial independence. Moreover, while the Founders may have based this decision in part on their expectation that an independent judiciary would do justice in individual cases, their chosen framework also positioned the judiciary to exert a positive influence over legislative behavior. To the extent that politically insulated judges retained interpretive authority, they had the potential to influence a political process of which the Founders were deeply suspicious by inducing politically motivated legislators to consider a perspective beyond politics. Instead of blindly pursuing the petty interests of particular constituents, legislators who wanted their political bargains to be enforced in court would have to take into account how a court might view those bargains. The Founders' separation of lawmaking from law interpretation might thus encourage legislators to internalize the judicial perspective--a politically insulated outlook on law--and formulate and articulate statutory goals with that perspective in mind. By preserving judicial authority over interpretation, the Founders' scheme encouraged legislators to anticipate and guide judicial interpretation through careful deliberation and drafting.

The judiciary's ability to improve legislative deliberation and drafting under the Founders' scheme flowed not only from the Founders' protection of judicial independence but also from the Founders' views on language and interpretation. The Founders understood that the inherent ambiguity of the written word, and of law in particular, would require courts to interpret statutes actively rather than apply them rotely. Embracing a remarkably modern attitude toward interpretation, the Founders recognized that interpretation is an endeavor that involves choice and volition. Indeed, it was precisely because of this interpretive leeway that the Founders viewed the interpretative enterprise as important and valued judicial independence.(20) Despite repeated warnings during the ratification debates by a vocal minority that judges might choose to exercise interpretive leeway based on political preference rather than principle, a majority of the Founders generally believed that judges would exercise leeway differently from political actors.(21)

The exact manner in which judges would approach decisions might depend on the eventual allocation of power between state and federal judges and the extent to which the new federal judiciary would emulate the English tradition of a learned, centralized judiciary or the American tradition of less-learned, jury-dependent local courts.(22) But even if the Founders could not foresee exactly what shape the judiciary would take, their statements on the subject exhibit a confidence that judicial interpretation was constrained in a way that political decisionmaking was not and a hope that the relevant constraints on judicial interpretation could in turn exert a positive influence on legislative behavior.

Of course, if the Founders' framework made judicial influence over legislative behavior possible, it did so based on late-eighteenth-century understandings of lawmaking and interpretation. The rise of the modern administrative state has fundamentally altered law's substance and procedure.(23) Congress today shares lawmaking responsibility with administrative agencies (pursuant to congressional delegations, constructive and otherwise), and the administrative state encompasses a host of complex regulatory regimes unlike any law at the time of the Founding. Moreover, legal realism and public choice scholarship have significantly altered perceptions of both lawmaking by the political branches of government and law interpretation by the judiciary. We must take these historical developments into account if we wish to rely on the Founders' original design for judicial influence as a basis for evaluating the modern administrative law doctrines of Chevron and Seminole Rock.(24)

This article argues that, despite significant changes in lawmaking and interpretation, the Founders' original design for judicial influence remains an appropriate benchmark for evaluating contemporary allocations of interpretive authority. When modern doctrines of deference are considered against this benchmark, a tension emerges between judicial practice under Chevron and Seminole Rock and the judiciary's original role in our constitutional framework. If we gain something in dispute resolution by shifting authority to resolve legal ambiguity from judges to agencies, we also lose an influence over lawmaking that was an important component of the Founders' constitutional design.(25)

Part I of the article explores the Founders' decision to vest the power to interpret law with politically unaccountable officials. The Founders understood that law could be ambiguous and that legal ambiguity could undermine democracy by creating a gap between the law enacted by elected representatives and the law applied by politically insulated courts.(26) But the...

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