The power canons.

• Author: Heinzerling, Lisa
• Position: Supreme Court statutory interpretation

ABSTRACT

With three recent decisions--Utility Air Regulatory Group v. EPA, King v. Burwell, and Michigan v. EPA--the Supreme Court has embraced a new trio of canons of statutory interpretation. When an agency charged with administering a long-existing statute asserts regulatory authority it has not previously used, in a matter having large economic and political significance, its interpretation will be met with skepticism. When an agency charged with administering an ambiguous statutory provision answers a question of large economic and political significance, one central to the statutory regime, and the Court believes the agency is not an expert in the matter, the Court may ignore the agency's interpretation altogether. And when an agency charged with administering a statute interprets an ambiguous provision to permit the agency not to consider costs before deciding to regulate, the Court will likely find that the agency acted unreasonably. In each case, the Court took interpretive power from an administrative agency, power that would normally have been the agency's due under the Chevron framework, and kept it for itself. And in each case, the Court's seizure of power aligned with its basic distrust of an active administrative state. I call the new canons the "power canons. "

The power canons not only rearrange the Chevron-dominated relationship between the courts and administrative agencies; they also realign the relationship between the courts and Congress. The power canons are clear-statement principles, directed as much to Congress as to the agencies; they instruct Congress to speak clearly if it wants to make certain substantive results available under a statutory regime. And they require clear congressional language only to enable an ambitious regulatory agenda, not to disable one. This asymmetry is the sign that the power canons mask a judicial agenda hostile to a robust regulatory state.

This judicial agenda has no basis in law. The power canons are not based on a careful analysis of what Congress likely meant in employing broad or ambiguous language in the relevant statutes. Nor do they come from judicial precedent. Although two of the canons draw upon previous decisions alluding to the significance (in two different senses) of an interpretive question as a factor in statutory interpretation, the recent cases both resuscitate that factor after intervening cases had signaled its demise and add new, distinctive parameters. The last canon, on regulatory costs, is utterly new.

Although the power canons do not align with the relevant statutes or prior judicial precedents, they are consistent with the dissatisfaction some Justices have expressed with the scope and power of the modern administrative state. In recent years, Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas have all written or joined opinions decrying the growth of the administrative state and its tension with constitutional provisions on the separation of powers. No Court majority, however, has been assembled actually to strike down any law based on the broadest constitutional theories that these Justices have espoused. However, by trimming Congress's power to enable robust regulation through broad or ambiguous language, the power canons may achieve much of what the Justices have been unable to achieve directly through their constitutional views. Thus, one way to understand the power canons is as applications of an exceedingly strong version of the constitutional avoidance doctrine, one that would permit judicial amendment of statutes even in the absence of an articulation of the constitutional problem the statutory adjustments are designed to avoid. Viewing the power canons in this way does not redeem them.

Some scholars have suggested that interpretive canons may be justified by appealing to broader norms. Borrowing from Professor William Eskridge's normative framework for evaluating interpretive canons, I assess the power canons according to whether they promote the rule-of-law values of predictability and objectivity, democratic values, and widely shared public values. I conclude that the power canons undermine rather than promote these values. The power canons' unpredictability and subjectivity upset rule-of-law values. Their blunt approach ignores details of statutory history and design, and thus their application drives a wedge between legislative objectives and judicial outcomes. They undermine the public values of separation of powers and deliberation by enlarging the judicial power at the expense of the legislative and executive branches and by pushing back against only one side of the debate over the scope of regulatory power.

The Supreme Court should renounce the power canons.

Table of Contents Introduction I. Canonizing Power A. Utility Air Regulatory Group v. EPA 1. The Canon 2. Normativity 3. Novelty B. King v. Burwell 1. The Canon 2. Normativity 3. Novelty C. Michigan v. EPA 1. The Canon 2. Normativity 3. Novelty II. Avoidance Coping A. Constitutional Anxieties B. Constitutional Avoidance III. The Power Canons' Normative Problems A. Predictability B. Objectivity C. Democratic Values D. Public Values Conclusion INTRODUCTION

With three recent decisions, the Supreme Court has embraced a new trio of canons of statutory interpretation. When an agency charged with administering a long-existing statute asserts regulatory authority it has not previously used in a matter having large economic and political significance, its interpretation will be met with skepticism. (1) When an agency charged with administering an ambiguous statutory provision answers a question of large economic and political significance central to the statutory regime, and the Court believes the agency is not an expert in the matter, the Court may ignore the agency's interpretation altogether. (2) And when an agency charged with administering a statute interprets an ambiguous provision to permit that agency not to consider costs before deciding to regulate, the Court will likely find that the agency acted unreasonably. (3)

In each of these cases, the Court put Congress on notice that it would

need to speak clearly if it wanted to give administrative agencies interpretive authority over certain kinds of decisions. (4) In each case, the Court took interpretive power from an administrative agency, power that would normally have been the agency's due under Chevron v. Natural Resources Defense Council, (5) and kept it for itself. And in each case, the Court's seizure of power aligned with its basic distrust of an active administrative state. (6) Consistent with this politically inspired shift in power from the executive branch to the courts, I call the new canons the "power canons."

The power canons are striking enough for their rearrangement of the Cfoeuron-dominated relationship between the courts and administrative agencies; however, they are even more noteworthy, and troubling, for their rearrangement of the relationship between the courts and Congress. The power canons do not just oust Chevron deference, which, of course, is itself a principle of statutory interpretation created by the courts. (7) The power canons also instruct Congress that it must speak clearly if it wants to make certain substantive results available under a statutory regime. (8) The power canons are, in other words, clear-statement principles, directed as much to Congress as to the agencies. And they require clear congressional language to enable an ambitious regulatory agenda but not to disable one. (9) This asymmetry is the power canons' tell; it is a sign that they mask a judicial agenda hostile to a robust regulatory state.

This judicial agenda has no basis in law. First, it has no basis in the statutes underlying the cases in which the power canons arose. The power canons were not based on a careful analysis of what Congress likely meant in employing broad or ambiguous language in the relevant statutes. Instead, the power canons came from somewhere outside of the statutes and put a big, grumpy thumb on the scales in interpreting them. Furthermore, the judicial agenda reflected in the power canons has no basis in prior judicial opinions. The power canons either depart from or ignore prior judicial opinions on statutory interpretation. (10) Although two of the canons draw upon previous decisions alluding to the significance (in two different senses) of an interpretive question as a factor in statutory interpretation, the recent cases both resuscitate that factor after intervening cases had signaled its demise and add new, distinctive parameters. (11) The last canon, on regulatory costs, is utterly new, and it sits uncomfortably beside prior decisions on the relevance of such costs to regulatory decisions. (12)

Although the power canons do not align with the relevant statutes or prior judicial precedents, they are consistent with the dissatisfaction some Justices have expressed with the scope and power of the modern administrative state. In recent years, Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas have all written or joined opinions decrying the growth of the administrative state and its tension with constitutional provisions on the separation of powers; (13) but no Court majority has been actually assembled to strike down any law based on the broadest constitutional theories that these Justices have espoused. However, by trimming Congress's power to enable robust regulation through broad or ambiguous language, the power canons may achieve indirectly much of what the Justices have been unable to achieve directly through their constitutional views. In fact, one way to interpret the power canons is as applications of an exceedingly strong version of the constitutional avoidance doctrine, one that would permit judicial amendment of statutes even in the absence of an articulation of the constitutional problem the judicial adjustments...