Last week, Judge Brett Kavanaugh gave a keynote address at the Antonin Scalia School of Law’s Center for the Study of the Administrative State. (Neomi Rao and her colleagues put on a fantastic conference!). During his remarks, Judge Kavanaugh offered a preview of his book review of Judge Robert Katzmann’s book on statutory interpretation. The Harvard Law Review has now published the review, with a response by Judge Katzmann.
One of Judge Kavanaugh’s insights, which he stressed during his remarks at GMU, focused on the interchange between Chevron Step 1 and legislative history. From the abstract:
But more work remains. As Justice Scalia’s separate opinions in recent years suggest, certain aspects of statutory interpretation are still troubling.4 In my view, one primary problem stands out. Several sub- stantive principles of interpretation — such as constitutional avoid- ance, use of legislative history, and Chevron — depend on an initial de- termination of whether a text is clear or ambiguous. But judges often cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way.
In short, judges have wildly difference conceptions of what makes a statute ambiguous.
From the judge’s vantage point, the fundamental problem once again is that different judges have wildly different conceptions of whether a particular statute is clear or ambiguous. The key move from step one (if clear) to step two (if ambiguous) of Chevron is not de- terminate because it depends on the threshold clarity versus ambiguity determination.172 As Justice Scalia pointed out, that determination “is the chink in Chevron’s armor — the ambiguity that prevents it from being an absolutely clear guide to future judicial decisions.”173
I see that problem all the time in my many agency cases, and it has significant practical consequences. In certain major Chevron cases, different judges will reach different results even though they may ac- tually agree on what is the best reading of the statutory text.
We saw this dynamic throughout the Halbig and King litigation. On the D.C. Circuit, for example, Judges Griffith and Randolph thought “established by the state” was not ambiguous; Judge Edwards did.
Kavanaugh notes that the Court has retreated, somewhat, from Chevron deference, most recently in King v. Burwell. The decision, he notes, raises two questions:
And King v. Burwell in particular raises two significant questions that the Supreme Court will presumably have to confront soon: First, how major must the ques- tions be for Chevron not to apply? Second, if Chevron is inappropriate for cases involving major questions, why is it still appropriate for cases involving less major but still important questions?
So what’s the solution? The former White House lawyer writes that agencies still get deference for certain terms of art like “reasonable” or “appropriate.” But when interpreting a specific statutory phrase, Judges should interpret the text of the statute–presumably without resort to extraneous and malleable sources like legislative history. .
But in cases where an agency is instead interpreting a specific stat- utory term or phrase, courts should determine whether the agency’s in- terpretation is the best reading of the statutory text. Judges are trained to do that, and it can be done in a neutral and impartial man- ner in most cases.
In short, the problem with certain applications of Chevron, as I see it, is that the doctrine is so indeterminate — and thus can be antithet- ical to the neutral, impartial rule of law — because of the initial clarity versus ambiguity decision. Here too, we need to consider eliminating that inquiry as the threshold trigger.
Judge Katzmann seems intrigued by the proposal:
Judge Kavanaugh encourages us to ask when deference is due to an agency interpretation. He proposes distinguishing between statutes using broad and open-ended terms, where courts should generally give agencies the discretion to make policy judgments, and statutes with specific terms or phrases, where courts should determine whether the agency’s interpretation is the best reading of the statutory text. Judge Kavanaugh raises an issue well worth considering — whether under the current Chevron framework, there is undue deference to an agency’s interpretation of a statute where the court is in as good a position as an agency to make a competent determination.
Kavanaugh also critiqued the modern-day incarnation of Chevron, because it encourages the executive branch to be “extremely aggressive.” In effect, the courts share in the blame for executive overreach, because their judicial doctrine emboldens it.
In that regard, it is important to understand how Chevron affects the Executive Branch. From my more than five years of experience at the White House, I can confidently say that Chevron encourages the Executive Branch (whichever party controls it) to be extremely aggres- sive in seeking to squeeze its policy goals into ill-fitting statutory au- thorizations and restraints. My colleague Judge Tatel has lamented that agencies in both Republican and Democratic administrations too often pursue policy at the expense of law.165 He makes a good point. As I see it, however, that will always happen because Presidents run for office on policy agendas and it is often difficult to get those agen- das through Congress. So it is no surprise that Presidents and agencies often will do whatever they can within existing statutes. And with Chevron in the mix, that inherent aggressiveness is amped up signifi- cantly. I think some academics fail to fully grasp the reality of how this works. We must recognize how much Chevron invites an extreme- ly aggressive executive branch philosophy of pushing the legal enve- lope (a philosophy that, I should note, seems present in the administra- tions of both political parties). After all, an executive branch decisionmaker might theorize, “If we can just convince a court that the statutory provision is ambiguous, then our interpretation of the statute should pass muster as reasonable. And we can achieve an important policy goal if our interpretation of the statute is accepted. And isn’t just about every statute ambiguous in some fashion or another? Let’s go for it.” Executive branch agencies often think they can take a par- ticular action unless it is clearly forbidden.
And even if it is “clearly forbidden,” they do it anyway if no one has standing to challenge it (see House of Representatives v. Burwell).