THE CONSTITUTION OF LAW Part 7 ppt

maintaining the rule of law 145

This doctrine consists of two steps. To begin with, the court must deter￾mine whether Congress had a ‘clear’ and ‘unambiguously expressed’ intent

when enacting the statute in question. If the court finds that Congress did

have such an intent that is ‘the end of the matter’ and the court has no

authority to modify or interfere with the interpretation or implementa￾tion of the statute. However, if no such intent can be discovered, the court

must determine whether the administrative agency came to its decision

on the basis of a ‘permissible construction of the statute’.49

Justice Scalia supports the Chevron doctrine – the introduction of an

‘an across-the-board presumption that, in the case of ambiguity, agency

discretion is meant’.50 But he does not do so on grounds to do with agency

expertise, nor with the separation of powers and the inappropriateness

of judges deciding policy issues. In respect of expertise, he says that if it

were true that officials were better situated to determine the purpose of

legislation than judges this would constitute ‘a good practical reason for

accepting the agency’s view, but hardly a valid theoretical justification for

doing so’. In respect of separation of powers, he argues that the courts are

constantly in the business of determining policy, especially when it comes

to working out what is the intention or range of permissible intentions

that can be attributed to a statute, so that this task cannot be reserved to

the administration.51

Instead, his approval of Chevron is based on the rise of the mod￾ern administrative state. The kind of statute-by-statute assessment that

was common prior to Chevron was becoming increasingly difficult to

implement given the complexity of present-day administrative decision￾making. In addition, he contends that in the majority of cases, Congress

does not have a ‘clear’ intention and it does not mean to provide an agency

with discretionary powers. Instead, it simply fails to consider the matter.

Because of this, Chevron is ‘unquestionably better’ than that which pre￾ceded it. Not only does Congress now know that statutory ambiguities

will be resolved by agencies rather than courts, but these agencies will be

able to deal with them with sufficient flexibility to ensure that their deci￾sions are not ‘eternal’ or ‘immutable’. Indeed, he argues that one of the

great benefits of Chevron is that it accords agencies the space to alter their

interpretations and approaches in the light of changing conditions.52

Justice Scalia’s view of the proper role of agencies is very much the Ben￾thamite or political positivist picture of appropriate adjudication. Officials

49 Here I rely on the quotations from Scalia, ‘Judicial Deference’, 511–12. 50 Ibid., 516. 51 Ibid., 514–16. 52 Ibid., 516–17.

146 taking the administrative state seriously

who are charged with interpreting the law have wide discretion about how

to apply the law and wide discretion when it comes to interpreting the

law when the content of the law is indeterminate or ambiguous. But when

it comes to the second activity of interpretation, the officials’ decisions

are not to have any precedential force, lest these come to be regarded as a

constraint on the discretion of officials in the future.

However, Justice Scalia still has to make sense of his own role, qua

judge. Here it is worth quoting at some length the link he draws between

one’s ‘method’ of interpreting statutory and constitutional documents

and one’s definition of ‘clear’ in the first step of Chevron:

In my experience, there is a fairly close correlation between the degree to

which a person is (for want of a better word) a ‘strict constructionist’ of

statutes, and the degree to which a person favors Chevron and is willing

to give it broad scope. The reason is obvious. One who finds more often

(as I do) that the meaning of a statute is apparent from its text and from

its relationship with other laws, thereby finds less often that the trigger￾ing requirement for Chevron deference exists. It is thus relatively rare that

Chevron will require me to accept an interpretation which, though reason￾able, I would not personally adopt. Contrariwise, one who abhors a ‘plain

meaning’ rule, and is willing to permit the apparent meaning of a statute to

be impeached by the legislative history, will more frequently find agency￾liberating ambiguity, and will discern a much broader range of ‘reasonable’

interpretation that the agency may adopt and to which the courts must

pay deference. The frequency with which Chevron will require that judge

to accept an interpretation that he thinks is wrong is infinitely greater.53

Justice Scalia’s positivism thus draws him to the view that his tests for

statutory meaning are likely to come up with a plain meaning of the

statute and that, once that meaning has been determined, there is no

reason for the judge to defer. Since, as he argues elsewhere in the same

article, it is rare that a judge, whatever his interpretative approach, will

find that on his approach there is in fact ‘equipoise’ between conflicting

interpretations, one can infer that generally Justice Scalia will find no

reason for deference.54

The tension Justice Scalia encounters arises out of his view of the rule of

law as the rule of a system of statute-based rules with determinate content.

It arises because that view requires, on the one hand, that when the statute

imposes constraints, these rigidly constrain officials in accordance with

the judges’ understanding of the correct interpretation of the law. On the

other hand, it also requires that when that kind of constraint does not

53 Ibid., 521 (author’s emphasis). 54 Ibid., 520.