Legislation
Class Notes
The
complexities of stage one judicial review under Chevron!
Babbitt v.
Sweet Home Chapter of Communities for a Great
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?