The Editorial Role of the Judiciary
The preceding Sections explained that there are structural safeguards in the legislative and administrative processes that facilitate reasoned deliberation and encourage lawmakers to consider the interests and perspectives of minorities. Nonetheless, statutes and administrative action are both products of the electoral dimension of democracy and could therefore easily result in majority tyranny or minority faction. In either case, individuals or groups would potentially be subject to arbitrary domination. It is therefore important to provide other mechanisms of contestatory democracy that could minimize this possibility by helping to ensure that relevant interests are taken equally into account. As Philip Pettit has explained, the most promising solution is a procedure that would enable individuals or groups to call governmental decisions into question, and to trigger a review in an impartial court of appeal. (200) The availability of such a procedure improves the democratic legitimacy of decisions that are not challenged, because the possibility of subsequent review encourages public officials to engage in reasoned decision making in the first place. (201) When public decisions are formally challenged, however, the contestatory mode of democracy gives "the people, considered individually, a limited and, of course, indirect power of editorship over those laws." (202) In considering how the judiciary should perform this editorial role on behalf of the people, it is useful to distinguish between cases or controversies in which the judiciary is (1) reviewing the legality of agency law making, (2) interpreting a statute without a responsible agency, and (3) interpreting a statute with guidance from a regulatory agency. In each of these contexts, the judiciary is typically resolving a contest over the permissible scope of governmental authority, and thereby promoting freedom as nondomination.
Judicial Review of Agency Law Making
As explained above, administrative agencies are "the primary official interpreters of federal statutes" in the modern regulatory state. (203) Moreover, when agencies are delegated lawmaking authority, and they interpret statutes pursuant to deliberative lawmaking procedures, they are performing a commissioned authorial role and are therefore the authoritative decision makers. Nonetheless, federal courts are typically authorized to review the validity of such agency decisions, and it is in this context that my claim--that statutory interpretation by the judiciary is best understood as a mechanism of contestatory democracy--is most obvious.
I have also explained that Congress's explicit resolution of a policy question should ordinarily be respected by agencies and courts when a statute is implemented because the legislature is charged with the primary authorial role in the lawmaking process. (204) Challenges to the legality of agency action on statutory grounds will therefore potentially turn on a judicial determination that Congress has unambiguously resolved the precise question at issue. Such judicial challenges will almost invariably be unsuccessful if the agency's decision comports with Congress's resolution of the question. Conversely, an agency's decision will be invalidated as contrary to law if it is incompatible with Congress's resolution of the matter. Although the foregoing propositions are true under any conventional standard of judicial review, substantial disagreement exists regarding the methods of statutory interpretation that courts should use when they assess whether Congress has unambiguously resolved a particular policy question. (205) When statutory interpretation is understood as a mechanism of contestatory democracy, the legislative history of a statute should play a prominent role in this analysis because one should expect legislators to engage in reasoned deliberation during the lawmaking process. (206) I have also pointed out that agencies have significant institutional advantages over courts that could help them better assess whether Congress has explicitly resolved a policy question during the legislative process. (207) The institutional advantages of agencies suggest that courts should treat agency judgments regarding the unambiguous meaning of statutes with respect during the process of judicial review. (208)
At the same time, the fact that a statute has a straightforward semantic meaning should not necessarily compel the conclusion that Congress unambiguously resolved the precise question at issue. On the contrary, if the literal application of statutory language would lead to unintended absurdities, administrative agencies should be allowed to deviate from the statute's ordinary meaning to reach sensible results, (209) thereby limiting the potential for arbitrary domination by the state. For example, in American Water Works Ass'n v. EPA, the D.C. Circuit upheld the agency's decision to implement the Safe Drinking Water Act by establishing a treatment technique, rather than a maximum contaminant level, for regulating lead. (210) The Act anticipated that the Environmental Protection Agency (EPA) would typically establish "maximum contaminant levels" for regulating chemicals, but expressly authorized the use of "treatment techniques" when the agency determined that it was not "economically or technologically feasible" to measure the level of a particular contaminant. (211) The EPA concluded that it was not "feasible" to adopt a maximum contaminant level for lead even though it was undisputed that the substance was physically capable of being measured at a reasonable cost. (212) The agency explained that most lead enters public water systems through corrosion from service lines and plumbing facilities that are beyond its regulatory authority, and that aggressive use of corrosion control techniques necessary to comply with a maximum contaminant level for lead would undermine the statutory purpose by introducing more harmful chemicals into the water supply. (213) The D.C. Circuit agreed with the agency's position that "because the Congress apparently did not anticipate a situation in which monitoring for one contaminant, although possible, is not conducive to overall water quality, it impliedly delegated to the agency the discretion to specify a treatment technique instead of" a maximum contaminant level for lead. (214) The court therefore held that the statutory term "feasible" did not have a plain meaning under the circumstances. (215) Rather, the court explained that "where a literal reading of a statutory term would lead to absurd results, the term simply 'has no plain meaning ... and is the proper subject of construction by the EPA and the courts."' (216) The court noted that this canon would be implicated if the plaintiffs proposed interpretation of the statute was accepted because "it could lead to a result squarely at odds with the purpose of the Safe Drinking Water Act." (217) After concluding that the relevant statutory language was ambiguous, the court upheld the agency's interpretation of the term "feasible" on the grounds that a decision to forego a single national standard in favor of a treatment technique that required public water systems to adopt custom corrosion control plans for lead was reasonable in light of the overall statutory purpose of promoting safe drinking water. (218) The plaintiffs challenge to the agency's interpretation of the statute was therefore rejected.
In much the same fashion, changed circumstances can create legal ambiguity (and, thus, space for policy innovations by agencies) that did not exist when a statute was enacted, or perhaps even change the meaning of a regulatory statute altogether. For example, in Bob Jones University v. United States, plaintiffs challenged the validity of the Internal Revenue Service's newly established position that private schools that discriminate on the basis of race do not qualify as tax-exempt organizations under the Internal Revenue Code. (219) Although plaintiffs appeared to satisfy the statutory requirements for tax-exempt status solely by virtue of being organized for "educational purposes," (220) and it was undisputed that the Congresses that enacted tax exemptions for charitable organizations would not have regarded racially segregated educational institutions as against public policy, (221) the Supreme Court agreed with the IRS that the relevant provisions of the Tax Code incorporated certain common law principles of charitable trusts. (222) As a result, institutions seeking tax-exempt status must serve a public purpose and not violate established public policy. (223) Because there was no longer any room for doubt that "racial discrimination in education violates deeply and widely accepted views of elementary justice" (224) by the time the IRS adopted the challenged policy, the Court concluded that the agency's revised interpretation of the statute was unquestionably correct. (225) In reaching this conclusion, the Court explicitly recognized that Congress has always "seen fit to vest in those administering the tax laws very broad authority to interpret those laws," for "[i]n an area as complex as the tax system, the agency Congress vests with administrative responsibility must be able to exercise its authority to meet changing conditions and new problems." (226)
Thus far, this Section has focused on an agency's obligation to respect Congress's policy choices, as well as the flexibility that agencies can and should exercise to avoid unintended absurdities and interpret statutes dynamically when they implement or carry out federal programs. Because agencies operate within the electoral dimension of democracy and may act arbitrarily when they make such determinations, however, the judiciary should review these aspects of agency decision making. As previously explained, courts should give an agency's judgment about whether Congress...
Statutory interpretation as contestatory democracy.
|Position:||III. Conceptualizing Statutory Interpretation as Contestatory Democracy C. The Editorial Role of the Judiciary through Conclusion, with footnotes, p. 262-304|
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