The complexities of stage one judicial review under Chevron!
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Both sides use many interpretive tools in support of their position. This is kind a good review mechanism. The case arises under the Endangered Species Act which forbids anyone from “taking” an endangered species. There are many definitions of the word “take”. A regulation interprets “harm” pretty broadly. The appellate court held that the regulation exceeded the agency’s authority, but the Supreme Court reverses.
Stevens invokes textual analysis to support the Secretary’s approach. How does he do that? This is a variation on the surplusage canon or the Whole Act Rule. If all harm does is to reiterate what the other words mean, then why would they have put it in? It must go beyond the other verbs and say something different than the other ones say. What does Scalia have to say about the other verbs? He says that they are all affirmative, intentional acts rather than omissions or negligent behavior. But what about “harass”? That could happen indirectly. Some of these verbs may be broader than simply intentional. What about “wound” or “kill”? Can’t you do that unintentionally? Is this a list that is sufficiently consistent such that we should “fold” harm into the other ones, or does each verb actually add something to the mix? If Prof. Llewellyn was looking down on this debate, he would be pleased. He would argue that this shows that the canons are totally bogus!
What else does Scalia argue about in his dissent as part of his textual justification? He has a series of arguments that support, in his view, the conclusion. Recognize that this is a debate about whether the statute is so clear that the agency has no discretion to implement its own interpretation of the statute. Scalia’s position is that this is so clear that the agency has no discretion and they got it wrong. Stevens’s starting point is that it’s so clear that the agency is acting according to the intent of Congress that they’ve got it right. Each justice thinks the statute is clear; they just think it’s clear in opposite directions.
So just what does “take” mean? Where can we go to find out? We can look at other statutes, for example. We don’t know how they defined “take” in other statutes.
Here is a really important and classic Chevron move: Stevens says the statute is clear, so they win on stage one. But you can argue that the statute is actually ambiguous. Congress wasn’t manifestly clear. We should go on to stage two! And at that stage, the agency has a lot of discretion. And what about the intent and purpose from legislative history?
Scalia spends a lot of other opinions refusing to consider legislative history at all. But he wades into that fray here. Scalia thinks it’s clear from the legislative history that they wanted the active definition of taking. Does he do this without acknowledging his usual view on this subject?