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.
Mr. Commenter deliberately left out the most salient portion of the opinion in order to advance his point. I think that is deliberate. Shame on him.
Arizona Bob (e8af2b) — 5/20/2010 @ 9:48 pmWell, he was very cordial in his e-mail to me and said many kind things, so let’s give him the benefit of the doubt. I’m trying harder to do that these days.
Patterico (c218bd) — 5/20/2010 @ 9:56 pmThe PW hive mind got revved up again? SHOCKA!!!!!
Locks like the prior post on this subject got munched moving to the second page or something.
daleyrocks (1d0d98) — 5/20/2010 @ 10:52 pmFor some reason all the individual posts now have “blog/” after “patterico.com.” So I just added that bit to the link to the slander of Leviticus. Because I know the people at PW are eager to learn the truth and insist that Goldstein correct the slander.
Just like they’re rushing to correct themselves for having eagerly accepted the false accusation that I banned Andrew, and for having fallen for the out-of-context Scalia quote.
Patterico (c218bd) — 5/20/2010 @ 11:01 pmI took a peek over there – that Ernst Schreiber guy is a massive waste of bloviating blog space. Makes a lot of comments with little content and keeps asking Jeff to reexplain concepts. Most of them don’t have the guts to admit they don’t understand Jeff, they just fake it.
daleyrocks (1d0d98) — 5/20/2010 @ 11:05 pmAh, but it was your INTENT to ban them that they were talking about.
See, they could interpret your INTENT by THEIR evaluation of some of your previous actions and words.
See how this works? Evaluations of INTENT are the touchstone of the perpetually aggrieved.
“I KNOW what you meant” (said regardless of what you SAID.)
By definition, words mean something. We give tacit approval of the definitions declared by the most popular and approved Dictionaries of the language by our use of the language. (Else we’d all be talking gibberish.)
Any ambiguity is a failure of the composer. It is when these ambiguities become law that there is difficulty but that’s what Courts are for.
The attempts to delve into INTENT by the courts have lead us to ‘penumbras’ and ’emanations’ being discovered where none had found them before. A sure source of future litigation and law school grads’ employment but not of stability and predictability for those affected.
jakee308 (aec1b8) — 5/21/2010 @ 5:50 am(we’re reminded of Clinton’s (in)famous phrase: “it depends on what the meaning of ‘is’ is.”
THAT was a succinct example of the mind set that is obsessed with INTENT and the chaos that obsession begets.)
daleyrocks,
As was revealed in the chat, not even Chief Sycophant dicentra understands Jeff’s theory as well as I do. The bulk of the chat was Jeff finding ways to avoid answering questions that proved that.
“If you nod and mean no, what does your nod mean? Isn’t the absolute meaning no?”. (asked 500 times)
“To whom? If you do one thing but signal another you will be misunderstood. Yes, you mean what you mean. Is that yes or no? It’s whatever you meant. The locus is the focus. With all the crosstalk it’s so confusing. Now let’s talk about my issue.”
Patterico (c218bd) — 5/21/2010 @ 6:20 amPatterico – That live chat revealed a lot as you say.
daleyrocks (1d0d98) — 5/21/2010 @ 6:43 amMe (about 12 times): “If she said salt but meant pepper, what was the absolute meaning of salt when she said it? Pepper, right?”
dicentra: “Don’t answer, boss! It’s a trap! Humpty Dumpty! Where are you going with this?”
Jeff: “To whom? Absolute meaning? The meaning is the meaning. Gunga galunga. Are you asking pepper or salt? What was the question again? With the pepper and the salt, and the salt and the pepper, who can keep track?”
(Two weeks later:)
Hahahahahahahahahaha!
Patterico (c218bd) — 5/21/2010 @ 6:54 amThe most insidious thing about intentionalism is that the ordinary citizen is put into a Catch 22. You cannot obey a law that you cannot understand. That’s why judges sometimes strike down a statute for being too vague. If the speed limit is set at whatever-is-safe-at-the-time, then the officer can pull you over according to his standard of whenever-he-feels-like-it.
Gesundheit (cfa313) — 5/21/2010 @ 7:02 am“Look at the live chat and see how handily he ignores plain language from two interlocutors who are answering him in real time.”
Like a bunch of sheep, they don’t challenge him on obvious bullshit. If they don’t understand it, how can they? That’s why the bulk of the comments are largely invective.
daleyrocks (1d0d98) — 5/21/2010 @ 7:15 amI have seen suggestions from the intentionalists that the judge can simply strike down a statute for vagueness, where the intent does not match the text. But that’s not what they do when the text is clear. They simply enforce the clear language — unless it is absurd on its face (which means the correct interpretation is available from the four corners of the text).
Patterico (c218bd) — 5/21/2010 @ 7:19 amHonest debate
In a staged debate, the two sides must maintain their positions and not be “convinced” by the other side regardless of logic, evidence, reason, rhetoric, whatever. Am I right?
In a private exchange of views, one expects that it is at least possible to convince ones opponent; a truly honest person admits to the possibility that he himself might be convinced.
If there is no likelihood of convincing your opponent, a private conversation is a useless time-waster. But, a public debate like this one at least has the virtue of exposing others to the arguments supporting your point of view.
I have no conclusions here, it just got me thinking.
Pious Agnostic (291f9a) — 5/21/2010 @ 7:47 amAn ambiguity in a statute committed to agency implementation
Whether one looks to intent in the context of an ambiguity, and whether one looks to intent in the context of clear statutory commands, are different questions.
It seems perfectly consistent to me for someone to say something approaching: “look, when the statute is clear, intent is irrelevant. but when the statute is unclear, the choices are either (a) look to the legislature’s intent, or (b) have the judiciary just make up shit which makes the judges happy – and (a) is preferable to (b).”
All of which is to say: even the quote sent to you doesn’t necessarily support the proposition the sender wants it to.
aphrael (73ebe9) — 5/21/2010 @ 9:41 amI seem to remember that there was a SCOTUS case where the law in question called for a moment of silence. However, the Court found in the committee hearing of the state legislature that passed the law a comment that this was a way to get prayer in schools without violating previous jurisprudence. The SCOTUS struck down the statute because while the plain text wasn’t a First Amendment violation, it was clear that for at least one state legislator, the intent was in violation.
Anyone know which case I’m talking about?
Am I remembering it correctly? If so, was Scalia on the Court? If so, what was his opinion regarding the reasoning of the case (assuming I’m remembering it correctly)?
Sorry, I’ll look it up when I get back from proctoring my final exam.
Fritz (be4675) — 5/21/2010 @ 10:29 amI think it’s Wallace v. Jaffree. No, Scalia wasn’t on the Court.
From the Case Brief Summary,
Fritz (be4675) — 5/21/2010 @ 10:35 amThank you for responding to my point (and for graciously accepting my apology and correction). After our emails last night, it struck me that we were in agreement. This is uncanny, because I am in agreement with Goldstein, too.
To explain these seemingly inconsistent positions, I think I’ll have to lay all of my cards on the table. Hopefully, this might enable some consensus.
As a threshold matter, I’d like to say that I’ve found both Frey and Goldstein to be challenging, insightful, and sharp-tongued interlocutors. Although I cannot speak to anyone else’s experience, both have treated me fairly, respectfully, and I think, were intellectually honest in responding to my arguments. What is more, Frey graciously accepted my apology and correction for when I claimed elsewhere that I had been banned. Our email exchange made clear what I had already presumed, which was that I was mistaken in this regard. Frey did not ban me or delete my comments.
Turning to the matter at hand, it seems to me that most of the dispute centers around the term “legislative intent.” In legal circles, this is both a term of art and a code word, i.e., a shibboleth. The passage from Scalia’s law review article quoted by Frey above, reflects this latter meaning and usage. In this view resort to “legislative intent” to construe a statute is an illegitimate interpretive act. By looking to statements of intent outside of the text of the statute, the interpreting judge glosses over, or even substitutes, the words of a statute with a “fictional, presumed intent,” that is generated entirely by the judge.
Scalia, however, uses “intent” in a different manner later on in the same law review article. He concludes with the following:
As I read this, when Scalia mentions “clarity,” he is talking about a different “legislative intent.” This is a more generic usage, something approaching “authorial intent.” This is revealed by his emphasis on “how clear is clear.” He’s referring, of course, to “plain meaning,” and what’s he’s asking is how clear, i.e., unambiguous, is Congress’ intent from the plain meaning of the text? If it is clear, it governs.
If so, then his remarks that he doesn’t care about “legislative intent” is disengenous if he is referring to the intent that is revealed by the plain text of the statute. If he is referring to the fictious, presumed intent, he is not. I believe that he is referring to the latter, in which case, his remarks are not out of line with anything else that he has said.
I do not purport to understand the nuances of authorial intention in semiotics, but I believe that Goldstein is referring to “legislative intent” in this more generic sense, rather than the loaded term it has become for some legal practitioners. Assuming that is the case, then Frey and Goldstein are attacking the same problem from two different ends.
In another comment on Goldstein’s site, I said:
Goldstein agreed that this was the contours of the argument, but dismissed the textualist concern as unfounded, while the intentionalist worry is warranted because of the textualist methodology.
After emailing with Frey last night and reviewing his comments, above, I would like to revise my position. What’s at issue is when judges privilege their interpretive voice over the text of the statute. The textualist concern over intentionalism implicates judges who impose their voices over the collective voice as expressed in the text, and who cloak their voices under the voices of individual legislators, staffers, lobbyists, and committees. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 568 (2005) (Kennedy, J.) (“Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise in ‘looking over a crowd and picking out your friends.'”). The intetionalist critique of textaulism is that it privileges the voice of the judge over the collective legislative voice, and that “plain meaning” readings fail to take into account the context in which the collective body spoke.
If that is true, then we have a consensus, albeit a small one. No one wants a judge to impose their voice over the law as enacted by the people’s representatives.
The disagreement is over what methodology is the best to effectuate the laws and not obliterate them with alternate meaning/intent in the interpretive act.
I would suggest that both methodologies must be merged to get the best of both worlds, to the extent it is possible.
In Allapattah, Kennedy states the following:
545 U.S. at 568.
This is similar to the statutory construction method employed by California state courts:
People v. Cole, 38 Cal.4th 964, 974-75 (2006).
If we begin with the presumption that the legislative’s authorial intent is best expressed through the plain language/words/marks, etc. in any given statute, then this method of analysis is far superior to anything else. I would argue that, as a practical matter, a legislature does not traffic in “secret meanings,” and if it did, then as a matter of due process and fundamental fairness to the people subject to the laws, such secret meanings should be disregarded.
Kennedy’s and the California courts’ hybrid methodology gives sufficient flexibility to the courts to interpret the laws while giving due deference to the legislature on separation of power grounds.
Again, the basic principle that I would adhere to is that the courts interpret the laws to effecutate the legislature’s intent, but that interpretation must, if possible, be confined to the intent that is revealed in the plain, clear, and unambiguous meaning of the text. Where the text is ambiguous, the Court is required to inquire into evidence of the legislature’s intent that is external to the text itself. It is difficult to prescribe what such an inquiry should look like, because every circumstance will be unique. In the case of certain statutes that implicate constitutional freedoms, such as penal codes, speech regulation, etc., any ambiguity or vagueness that does not put a defendant on notice of what behavior is proscribed or regulated cannot count against that defendant, i.e., tie goes the defendant.
This methodology is not certain, because it requires judges to consider concepts and convetions outside of the text. However, the methodology has the virtue of pragmatism, which, in the context of a profession that is geared to resolve disputes, cannot be understated.
Andrew (ce9a90) — 5/21/2010 @ 1:16 pm“Assuming that is the case, then Frey and Goldstein are attacking the same problem from two different ends.”
Andrew – I think this is a restatement of the obvious and appreciate your lengthy comment. To get a sense for whether you are indeed on the same page, how would you address the hypotheticals posed by Patterico?
daleyrocks (1d0d98) — 5/21/2010 @ 3:43 pmFirst Amendment analysis has nothing to do with American law generally. It’s like when you’re shooting a five-shot group from a bench rest and the first shot goes into the five ring and the other four give you MOA.
nk (db4a41) — 5/21/2010 @ 3:48 pmAndrew, what do you make of this from Jeff G, “[Scalia] is still appealing to (what he believes to be the original) intent. That he has decided to take on faith that the intent was signaled conventionally is not a sign that he ‘doesn’t care’ about original intent; instead, it is a sign that he relies upon it for interpreting ‘fairly’ to begin with.” He offers this in response to Scalia’s explanation of his interpretation of the words (“words”) of the Constitution: “the fairly understood meaning of those words.” This is his final post on the topic and he still won’t address the possibility that some or most of the voters are ignorant or worse.
I’m absolutely convinced at this point that he’s commenting in bad faith. He refuses to answer all hypos about statutory interpretation and offers only rebuttals about normal conversation or animals (and “old rocks,” a geologist he is not). From some light surfing at PW I think I’m politically very close to them, but Jeff G. seems like quite the case. I think he played the smartass by using redefined words that only John Evans Evans-John understands to upstage Scalia thinking the rednecks like myself would only attack his bizarre definitions of common words. Patterico instead used his intellectual curiosity and utter lack of time management to learn his language and disprove his basic points. It’s quite impressive really.
el duderino (fedc3d) — 5/21/2010 @ 9:03 pmDaleyrocks–which hypotheticals are you referring to exactly? “salt” v. “pepper”?
Andrew (816244) — 5/22/2010 @ 9:25 amDuderino–I’m not sure I understand. Do you mean that he is not acknowledging the possibility that the founders are ignorant? Let’s assume for a second that they are, how does that change the meaning of the text? That is to say, maybe they did not intend to mean what they said, but they said it nonetheless. If we second-guess the meaning of what was actually said, by attempting to show they did not intend to say it, aren’t we displacing the text with our own interpretation? It reminds me of that t-shirt with the guy with huge “bear” arms.
The minute we assume legislators have no idea what they are approving, then pandora’s box is opened. Judges would be free to rewrite the laws, even when they are unambiguous and clear. That’s contrary to the Constitution’s separation of powers, and a circumstance that none of us should abide.
Andrew (816244) — 5/22/2010 @ 12:20 pmDaleyrocks–which hypotheticals are you referring to exactly? “salt” v. “pepper”?
There was one about a statute where the legislature intended to apply a tax to people making over $10,000, but wrote $100,000. Goldstein thinks interpreting $100,000 as $100,000 “rewrites the text.”
There was one where a con artist agreed to sell a diamond ring but privately intended “diamond ring” to mean lump of coal. This was dismissed as outlandish, as fraud is apparently unheard-of in intentionalism land.
There was one about a bookshelf instruction manual writer who wrote instructions that were ironic. Must the builder ignore the plain language and go with the irony? This was Goldstein’s own, ergo not outlandish.
I wrote a lot of posts that you evidently did not read. You can probably find them using the search function.
Goldstein never gave a clear answer on any of these, choosing instead to restate well-worn points and quibble about definitions. El Duderino pretty much gets it.
Patterico (9bbf77) — 5/22/2010 @ 10:41 pm“Daleyrocks–which hypotheticals are you referring to exactly? “salt” v. “pepper”?”
Andrew – Nice try. Salt v. pepper was dicentra’s hypo and she didn’t even get that right according to Jeff. Patterico gives you what you need at #24.
daleyrocks (1d0d98) — 5/23/2010 @ 4:49 pmAndrew – dicentra even had links to the posts catalogued over at the PW Pub.
daleyrocks (1d0d98) — 5/23/2010 @ 4:50 pm