At Law & Liberty, John McGinnis: The Post-Chevron Separation of Powers. From the introduction:
Under our Constitution’s separation of powers, Congress enacts the laws, the Executive executes them, and the Judiciary interprets them. Chevron deference undermined that essential structure because it created a space where the Executive, not the Judiciary, determined meaning of the law. In doing so, it freed Congress from some of its accountability for writing statutes. As applied to substantial questions, it allowed Congress to abdicate its legislative role by delegating to an agency the power to interpret the limits of its own powers. Eliminating Chevron would help return us to the separation of powers that helps guarantee liberty.
But as Adam White recognizes in his excellent essay, overruling or limiting Chevron would provide only a first step in restoring constitutional administration. Here I offer some additional ideas to help keep the branches in their respective lanes. First, as White also recognizes, many administrative statutes are ambiguous. But ambiguity tempts the judiciary to smuggle in its own policy views as the decisive factors of statutory construction. Without Chevron, the courts, and particularly the Supreme Court, must resolve ambiguity by law—not policy preference—if they are to respect the separation of powers themselves.
Thus, an essential project for the post-Chevron world is for the Court to create a framework of rules for statutory interpretation that apply across subject matters. That enterprise creates a discipline that helps prevent judicial policy frolics. The beginning of this discipline is to recognize that statutes of any complexity (and most administrative statutes are extraordinarily complex) possess a legal meaning. Thus, the Court should not look at a statute’s words in isolation, but in the context of all related statutes—the relevant corpus juris. This corpus juris also includes relevant interpretative rules extant at the time the statute was enacted. The rich legal background of most statutes provides more fixed points to resolve ambiguity.
This suggestion might seem to conflict with some justices’ past statements, where they say they will interpret their statutes according to their “ordinary meaning.” But these declarations are confusing because the term “ordinary meaning” is ambiguous: ordinary as opposed to legal meaning? Or ordinary as opposed to unusual meaning? In his treatise Reading Law, Justice Scalia called for the application of “ordinary legal meaning,” and in practice, most justices follow this method most of the time (albeit not always with the necessary clarity about what they are doing). If lower court judges as well as the Supreme Court justices will no longer be able to punt to administrative agencies when interpretation gets difficult, the Court should reticulate ample available legal resources to disambiguate statutes.
Posted at 6:02 AM