Patterico's Pontifications

5/20/2010

No, Scalia Does Not Truly Believe in Looking to Intent, Even in Construing Administrative Law Statutes

Filed under: General — Patterico @ 9:33 pm

Recently, a commenter quoted this passage as alleged evidence that Scalia supposedly cares deeply about legislative intent:

In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: “The extent to which courts should defer to agency interpretations of law is ultimately ‘a function of Congress’ intent on the subject as revealed in the particular statutory scheme at issue.”” [footnote] An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires: (1) Congress intended a particular result, but was not clear about it; or (2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency. When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion— i.e., whether its resolution of the ambiguity is reasonable. As I read the history of developments in this field, the pre-Chevron decisions sought to choose between (1) and (2) on a statute-by-statute basis. Hence the relevance of such frequently mentioned factors as the degree of the agency’s expertise, the complexity of the question at issue, and the existence of rulemaking authority within the agency. All these factors make an intent to confer discretion upon the agency more likely. Chevron, however, if it is to be believed, replaced this statute-by-statute evaluation (which was assuredly a font of uncertainty and litigation) with an across-the-board presumption that, in the case of ambiguity, agency discretion is meant.

In an e-mail exchange, I asked the commenter to send along the full text of Scalia’s article, which he graciously agreed to do. I’m glad he did, because the very next paragraph after the above quoted passage makes it clear that Scalia was merely describing the state of precedent, and was not expressing his agreement with it:

It is beyond the scope of these remarks to defend that presumption (I was not on the Court, after all, when Chevron was decided). Surely, however, it is a more rational presumption today than it would have been thirty years ago — which explains the change in the law. Broad delegation to the Executive is the hallmark of the modern administrative state; agency rulemaking powers are the rule rather than, as they once were, the exception; and as the sheer number of modern departments and agencies suggests, we are awash in agency “expertise.” If the Chevron rule is not a 100% accurate estimation of modern congressional intent, the prior case-by-case evaluation was not so either — and was becoming less and less so, as the sheer volume of modern dockets made it less and less possible for the Supreme Court to police diverse application of an ineffable rule. And to tell the truth, the quest for the “genuine” legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn’t think about the matter at all. [If this argument sounds familiar, it should — it is explicitly the same one I have made against applying “intentionalism” to statutory interpretation. — P] If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.

Incidentally, the commenter went to Protein Wisdom and claimed I had banned him after he had quoted this passage — which I had not done. It was roundly declared in comments there that the commenter had done research that destroyed my position; that I had banned him to squelch his devastating evidence; and that this was proof of what a dishonorable person I supposedly am.

The commenter has since withdrawn his accusation that he was banned, but continued to maintain (I believe incorrectly) that his point had not been addressed. (To be charitable to the commenter, who was very decent in his e-mail to me, my second comment to him apparently got eaten in the migration.) In any event, if there was any question about whether his point has been answered, I hope this post puts that to rest. The above passage makes it clear that what the commenter believed was a devastating riposte was in fact taken out of context (unintentionally, I believe; again, I think the commenter is a genuinely good guy) to suggest Scalia meant something that he didn’t really mean.

It’s too bad for Jeff Goldstein that the commenter retracted his accusation that I banned him, because Goldstein was positively drooling about the possibility of making some rhetorical hay out of it. Which is ironic, since if there has been any “banning” or dishonesty occurring in this debate, it has not occurred here. I’m not the one who has been deleting my opponent’s trackbacks; Goldstein has deleted several of mine. (I am apparently now banned from leaving trackbacks at his site.) Indeed, Goldstein’s base slander of Leviticus, in which he accused Leviticus of failing to return to a debate after Goldstein’s initial response (not true; Leviticus returned to leave SEVEN MORE COMMENTS in the same thread, as I have repeatedly pointed out), together with his failure to retract his rank falsehood, is perfectly symbolic of the level of “good faith” that has obtained from the intentionalist side of the aisle.

P.S. I don’t really intend to talk about this more any time soon, and I share the view expressed by many correspondents that I have wasted my time trying to discuss this topic with someone who never had any intention of carrying on an honest debate. That said, I make no promises that I will not discuss language here in the future, especially as it relates to the law. So: you didn’t like this post? Don’t comment on it; skip to the next one. The comments section is reserved for people who want to talk about the topic, not people who don’t.

Jump in Jobless Claims

Filed under: Economics — DRJ @ 8:26 pm

[Guest post by DRJ]

Jobless claims are up, the stock market is down, and the world is jittery.

— DRJ

Obama’s National Intelligence Director Resigns

Filed under: Obama,Terrorism — DRJ @ 8:19 pm

[Guest post by DRJ]

Obama Administration National Intelligence Director Dennis Blair has resigned, apparently under pressure:

“One official tells ABC News that President Obama sought Blair’s resignation earlier this week, but Blair pushed back, hoping to convince the president to change his mind.

That did not happen.

The official says that there were high-profile problems on Blair’s watch and those certainly didn’t help him, but the ultimate reason Blair is gone is because of the dissatisfaction President Obama and the National Security Staff had with Blair’s ability to share intelligence in a tight, coherent and timely way.

This was, the official said, the result of long pent-up dissatisfaction with Blair as the principal intelligence adviser to the president, responsible for briefing the president every day and briefing the National Security Staff. In short, officials didn’t think the briefings were relevant to what the president was focused on that day or time period. They weren’t crisp or well-presented.

At other times, Blair didn’t seem to take “no” for an answer, the official said. He was pushing an initiative dealing with intelligence and other countries, and he kept pushing it even after President Obama turned it down.”

Blair has had a “rocky tenure” in the Obama Administration so his departure is not surprising, but I don’t trust anonymous single-sourced reports to tell me the whole story.

Nevertheless, it seems clear that Obama turned to John Brennan for intelligence advice earlier this year. Some see that as unfortunate.

— DRJ

Snake in the Car

Filed under: General — DRJ @ 7:53 pm

[Guest post by DRJ]

In another story from Austin, a driver found a snake slithering out of her air conditioning vent:

“The snake kept coming out, slowly, then stopped and looked around. “I’m thinking about 31/2, 4 inches of his body was hanging out of my vent,” Patty said. “I started screaming, ‘There’s a snake in the car.’ ” She was glad her brother Darryl Cruise, a musician, was along for the ride. He told Sis she should pull over. It was timely advice.

“I was about to slam on my brakes and possibly get in a wreck,” Patty said.

So Patty pulls the SUV over on the side of South Congress Avenue, south of Ben White Boulevard, near Hill’s Cafe. It was time for a hasty exit from the car. “We couldn’t get out of our seat belts fast enough,” Patty recalled. “I grabbed the baby, and I still see the snake coming out of my vent, looking around.”

Now she’s out on the street, and other drivers are watching her, wondering what the big problem is. “I didn’t realize I had lost a shoe. And I’m running around with the baby, one shoe, panicky. People are looking, wondering what is going on.”

The rest of the story, with a photo of the now deceased snake, at the link.

— DRJ

Austin Astroturf

Filed under: Civil Liberties — DRJ @ 7:49 pm

[Guest post by DRJ]

Last week, the Austin, Texas, City Council joined the Arizona boycott. I didn’t mention it at the time because, let’s face it, the liberal side of Austin is just a blip in the political world. However, apparently they are astroturfing blips:

“While the Austin city council has likely not read the bill — and neither has the White House — Barack Obama’s political organizing group has decided to take action to defend Austin’s boycott. Will they actually read the bill? Are they scheduling protests? Not exactly. In an e-mail from Organizing for America that went out last night (and provided to us by a reader), OfA announces an Astroturf campaign to flood the newspaper with letters supporting the boycott.”

At the link, Hot Air has more information on the Astroturfing effort. Meanwhile, everyday Texans are writing letters opposed to the Austin City Council’s boycott and calling for their own boycotts of Austin.

— DRJ

Calderon Lectures the U.S.

Filed under: Immigration,International — DRJ @ 11:51 am

[Guest post by DRJ]

Mexican President Felipe Calderon appeared before Congress today and lectured America on drugs, guns, amnesty and Arizona’s immigration laws. Meanwhile, some El Paso Border Patrol agents were unavailable to hear Calderon’s lecture. Those not on duty were attending the annual Remembering Our Heroes U.S. Border Patrol Memorial Observance at the National Border Patrol Museum in El Paso. Since 1924, 106 Border Patrol agents have been killed while serving, including 18 from El Paso.

— DRJ

Polanski Accuser’s Evidence

Filed under: Crime — DRJ @ 11:28 am

[Guest post by DRJ]

John Nolte at BigGovernment thinks the latest Polanski rape accuser has corroborating evidence — a witness who may verify she made a contemporaneous outcry:

“When British actress Charlotte Lewis first came forward to accuse fugitive director Roman Polanski of abusing her in 1983 at a press conference last week, one of the more intriguing statements was made by her attorney Gloria Allred:

“[Ms. Lewis] did present fresh complaint evidence to law enforcement, and it is in their possession.”

The Polanski-loving media didn’t mention this. They prefer a ”He Said, She Said” argument. Upon hearing this, however, my first thought was that a witness would be interesting, though obviously unlikely.

This is me speculating, but in a just-released statement Ms. Lewis might have revealed what that fresh complaint evidence is. And while it’s not a witness to the crime, it is the next best thing:

I stand by my statements to the Los Angeles Police Department and the Los Angeles County District Attorney’s Office, and would welcome the chance to confront Roman Polanski face to face anytime, anywhere in the world because I am telling the truth and he knows it,” Ms Lewis said.

Further, shortly after the incident with Mr Polanski when I was 16 I told a friend the truth about how Mr Polanski had taken advantage of me.

“My attorney, Gloria Allred, delivered a notarised statement to law enforcement from that friend and it supports my statement.”

According to Ms. Lewis, under penalty of perjury, someone has made a sworn statement that Ms. Lewis told them Polanski took advantage of her — and told them shortly after the incident.”

Does California consider the testimony of a rape outcry witness as an exception to the hearsay code? My guess is that it does.

— DRJ


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