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