Legislation
Class Notes
Administrative law and statutory
interpretation
Courts
traditionally have tried to protect their common law powers from encroachments
from legislatures. And then courts may
be more suspicious of agency rules because they lack the same democratic
lineage that legislatures have. Agency
rules are not issued directly by elected officials and don’t always involve the
kinds of public participation that we see in the legislative process that tends
to legitimate action by government.
Should agencies or courts have greater authority in interpreting statutes? That’s the big question in the modern age of
administrative laws. Some statutes are
enforced directly by the courts. Some statutes
establish administrative agencies to make rules and then enforce them.
The
basic or traditional approach of Udall v.
Tallman is that courts give a lot of deference to the agency that is
charged with the enforcement of a statute that is being interpreted. We give special
deference when statutes are “untried and new” and there is a contemporaneous
construction issue. Why? Is that more a matter of expertise in legislative
intent or expertise in subject matter? Let
us focus on the intent issue, which seems particularly salient when we are
within “hailing distance” of what Congress is thinking. A key assumption in the BankAmerica case is that contemporaneous rules are more
authoritative because they are issued closer to the time of enactment. Is there any special problem with giving
deference to the agency based on the agency’s perception of what statutory
intent is? Why should we assume that
agencies are completely neutral? The
agencies may be partisan! They may be subject to outside lobbying. Maybe the administration didn’t even support
the bill. Sometimes the agency may have
opposed the bill, and thus it’s in their interest to interpret it in a
watered-down way.
About
whose legislative intent is the agency a likely expert? They are probably most aware of what the committee
is thinking. They probably didn’t spend
much time dealing with the rest of the House and Senate. Depending on how much you want to credit committee
reports, you may be okay with this. But
if you are like Scalia, for example, and see the committee process as being
prone to manipulation, you might be concerned about agency communication when
it’s based on communication with committee staff. This is what public choice theorists call the
“iron triangle”: committee
staffs, agencies, and interest groups who can create a particularly favorable statutory
interpretation and then defend it over time.
If
contemporaneousness is a proxy for legislative intent, is there an aspect of
the agency’s regulatory approach that should enhance or improve our view that
they really are competent? What makes us
comfortable with their competence? They
have a process! They give notice and
they ask for comments from the public.
It’s not as politically accountable as the legislative process, but it
does have a sort of democratic pedigree to it.
You won’t get a rule adopted just by announcing it. You issue a preliminary rule, you invite
interested groups to comment, and all of this generates a public record that
courts can review.
Insofar
as they have stood the political test of time, there is an implication that Congress
has acquiesced in the rule. If there was
something particularly troubling about a rule, they could have used their power
to revisit it. Also, the public begins
to rely on a long-standing rule. If the court
abrogates the rule, they could upset the reasonable expectations of many
people.
General
Electric Co. v. Gilbert
Rehnquist
is writing this opinion. Why don’t we
defer to the EEOC guidelines of 1972? When
Congress says: “We charge you as an agency to promulgate rules to further the
purposes of this Act”, the agency must go ahead and do that. The EEOC didn’t have that authority under
Title VII when this case was decided.
The EEOC was supposed to do many things, but their authority to issue
guidelines and interpretations was more limited because they weren’t given
formal rulemaking power. The standard is
dependent on how consistent you’ve been.
We want to know if the agency is consistent in its pronouncements. Why does the agency fail here, according to
Rehnquist? We have had a series of
divergent interpretations about whether pregnancy is covered in this
situation. The EEOC changed its mind
over a period of time. Is Skidmore the “kiss of death” in terms of
getting your guideline sustained?
This
is the major and still controlling Supreme Court statement of the role of
agencies in statutory interpretation.
This one concerns the EPA’s interpretation of the Clean Air Act. What is the two-step test that the Court sets
forth for when a court should defer to an agency’s construction? If Congress has spoken directly to the issue,
we override the agency and there is no deference. But if Congress has not spoken directly, and
the statute is silent or ambiguous with respect to the particular issue, then
the court must ask “whether the agency’s answer is based on a permissible
construction of the statute.” That
sounds like a pretty low level of scrutiny.
Regulations are given controlling weight unless the construction is impermissible. If the construction is “arbitrary, capricious,
or manifestly contrary to the statute”, then the court can override the
construction.
For
this form of deference, is the Court relying on traditional justifications for
trusting agencies? No. This reverses the traditional notion. By default, the courts will defer to agencies. In
circumstances where the legislation is not clear on its face, agencies have
more legitimacy than courts in being the primary interpreters. That’s a big step, and a sea change in the
way courts look at agency actions. Agencies
have been allowed to have a special perch because they are either experts on legislative
intent or have special expertise, but now the courts find that agencies have an
even more privileged positions than the courts do!
The
court recognizes three reasons why a statute might be ambiguous: (1) Congress
may intend to have the agency strike the balance. (2) Congress may have ignored the issue
entirely. (3) Congress may have failed
to strike a balance and thus agreed to leave it blank. But it doesn’t matter for judicial purposes
which of these things occurred.