A dearth of legislative vetoes: why the Council and Parliament have been reluctant to veto Commission legislation

Several reforms have taken place at the EU level to try and address the criticism that EU decision-making suffers from a democratic deficit. Drawing on recent research, Michael Kaeding and Kevin M. Stack assess one such reform: the provision of powers for the Council of the European Union and the European Parliament to veto so called ‘secondary legislation’ put forward by the European Commission. They find that the use of these veto powers has been extremely limited, although this does not necessarily mean the reforms have been ineffective, but rather that they may have impacted on the bargaining dynamics of informal negotiations between the institutions

Obama\u27s Equivocal Defense of Agency Independence

You can\u27t judge a President by his view of Article II. At the very least, only looking to a President\u27s construction of Article II gives a misleading portrait of the actual legal authority recent Presidents have asserted. President Obama is no exception, as revealed by his defense of the constitutionality of an independent agency from challenge under Article II in Free Enterprise Fund v. Public Company Accounting Oversight Board\u27 (PCAOB) in the Supreme Court this term. The PCAOB is an independent agency, located inside the Securities Exchange Commission (SEC), created to regulate accounting of public companies in the wake of the WorldCom and Enron accounting scandals by the Sarbanes-Oxley Act of 2002.2 The Supreme Court\u27s decision to review the constitutionality of the PCAOB required the Obama Administration, in its first year, to take a stance on several issues that are viewed as litmus tests for theories of Article II, including whether the appointments clause permits the agency\u27s appointment to be vested in the SEC3 and whether the good cause restriction on its removal by the SEC4 violates Article II and separation-of-powers principles. At the level of constitutional doctrine, the fact of President Obama\u27s defense of the constitutionality of the PCAOB might suggest his acquiescence in isolating executive officials from presidential supervision. At the very least, it appears to place his Administration at the opposite end of the spectrum on executive power from the Reagan Administration, which actively sought a Supreme Court ruling overturning the removal restrictions on independent agencies as violating the President\u27s power under Article II. But the contrast between President Obama\u27s and President Reagan\u27s constitutional positions on independent agencies is revealing, I shall argue in this early reflection on President Obama\u27s views on executive power, in part because it vastly overstates the differences in the powers these Presidents claimed to possess

Purposivism in the Executive Branch: How Agencies Interpret Statutes

After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies’ interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation. This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose a duty on agencies to carry out those powers in accordance with the principles or purposes the statutes establish. To comply with that duty, agencies must develop a conception of the purposes that the statute requires them to pursue and select a course of action that best carries forward those purposes within the means permitted by the statute; in short, agencies must take a purposivist approach. Moreover, this Article argues that agencies’ institutional capacities — a familiar constellation of expertise, indirect political accountability, and ability to vet proposals before adopting them — make them ideally suited to carry out the task of purposive interpretation. Understanding agency interpretation as purposive by statutory design has significant implications for long-standing debates. First, it suggests that the focus of judicial review should be on the agency’s specification of the statute’s purposes and chosen means to implement those purposes, questions that are not squarely addressed by the Chevron doctrine. Second, by providing an account of the character of the agency’s statutory duties, this analysis helps to distinguish appropriate from inappropriate political and presidential influences on the agency. Finally, investigating the debate between purposivism and textualism beyond the courts exposes a renewed promise — and project — for purposivism

The Divergence of Constitutional and Statutory Interpretation

There is a peculiar point of agreement between prominent defenders of originalist and dynamic interpretive methods, that their preferred interpretive approach applies not just to statutes or to the Constitution, but to both. In this Article, I challenge this shared position - as represented by Justice Antonin Scalia\u27s originalist textualism and Professor William Eskridge\u27s dynamic interpretive theory. I argue that the democratic and rule-of-law values that these theories invoke in fact suggest that different interpretive approaches govern constitutional and statutory interpretation. I contend, first, that disjunctures between the democratic justification for originalism in constitutional and statutory interpretation reveal the distinct democratic foundations of these two forms of enacted law, and provide reasons for interpreting them differently. I next argue that the rule-of-law virtue of stability developed in Professor Eskridge\u27s theory pushes constitutional and statutory interpretation apart because, on Professor Eskridge\u27s view, predictive judgments about how other institutions will respond to a decision are central to the Court\u27s interpretive exercise, and those predictive judgments will differ depending on the interpretive domain at issue. Finally, I defend this interpretive particularism by suggesting reasons why interpretive approaches should vary depending on the theory of legal authority applicable to the type or class of law in question

The Inference from Authority to Interpretive Method in Constitutional and Statutory Domains

Should courts interpret the Constitution as they interpret statutes? This question has been answered in a wide variety of ways. On the one hand, many scholars and jurists understand constitutional and statutory interpretation as largely overlapping, continuous, or converging. For some, this overlap follows directly from the Constitution\u27s status as a form of legislated law. In this way of thinking, because the Constitution, like a statute, was bargained over and formally adopted, it should be interpreted in accordance with general principles applicable to legislated law. Proponents of this view argue that if constitutional interpretation appears distinctive in practice, that is because it involves the application of usual principles to an unusual text, not because special principles apply. For others, the commonality between constitutional and statutory interpretation follows from more general commitments about the character of law. The premise, for instance, that the fundamental imperative for courts is to make decisions-whether constitutional, statutory, or common law-that align with contemporary values renders constitutional, statutory, and common law methodology continuous

Agency Statutory Interpretation and Policymaking Form

In this short symposium contribution, I take up this invitation to examine the relevance of the agency\u27s policymaking form to its approach to statutory interpretation. The core point I wish to advance is a relatively basic one--namely, that an agency\u27s approach to statutory interpretation is in part a function of the policymaking form through which it acts. My strategy is to examine two of the most important policymaking forms--notice-and-comment rulemaking and formal adjudication--and to argue that the considerations that distinguish agency and judicial interpretation have a markedly different place in these two agency policymaking forms. For purposes of exposition, I focus on two dimensions that distinguish agency and judicial statutory interpretation: (1) the role of political influence in general, and presidential direction in particular; and (2) the role of internal management constraints, and considerations of budget in particular

Lessons from the Turn of the Twentieth Century for First-Year Courses on Legislation and Regulation

article published in law journalThis essay — part of a special journal issue on Legislation and Regulation and Regulatory State courses as core elements of the law school curriculum — approaches the debate over adopting these courses by looking back to the controversy stirred by teaching administrative law in law schools at the beginning of the twentieth century. This essay argues that sources of resistance to administrative law at that time not only help to explain the slow pace of adoption of “Leg-Reg” and “Reg-State” courses today, but also inform what material these new courses should cover. At the turn of the century, both commitment to the case method as the exclusive pedagogy for law teaching and jurisprudential principles that understood courts to be the privileged sources of law resulted in early administrative law courses being normalized within the case method, excluding the internal law and decisionmaking of administrative agencies from their coverage. Based on the premise that law students should confront the primary sources of law in our current regulatory legal system, first-year Leg-Reg and Reg-State courses should not replicate the traditional, exclusive focus on judicial decisions. Rather, these new courses are the right occasion to introduce regulatory and congressional materials as primary sources. That coverage choice, moreover, provides preparation for an upper-level administrative law course focused on how courts review agency action, while minimizing duplication in coverage. Even more importantly, treatment of nonjudicial primary sources in these new courses helps to bring the image of law conveyed to first year students closer to the true dimensions of our legal order

Purposivism in the Executive Branch: How Agencies Interpret Statutes

After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies’ interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation. This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose a duty on agencies to carry out those powers in accordance with the principles or purposes the statutes establish. To comply with that duty, agencies must develop a conception of the purposes that the statute requires them to pursue and select a course of action that best carries forward those purposes within the means permitted by the statute; in short, agencies must take a purposivist approach. Moreover, this Article argues that agencies’ institutional capacities—a familiar constellation of expertise, indirect political accountability, and ability to vet proposals before adopting them—make them ideally suited to carry out the task of purposive interpretation. Understanding agency interpretation as purposive by statutory design has significant implications for long-standing debates. First, it suggests that the focus of judicial review should be on the agency’s specification of the statute’s purposes and chosen means to implement those purposes, questions that are not squarely addressed by the Chevron doctrine. Second, by providing an account of the character of the agency’s statutory duties, this analysis helps to distinguish appropriate from inappropriate political and presidential influences on the agency. Finally, investigating the debate between purposivism and textualism beyond the courts exposes a renewed promise—and project—for purposivism

Interpreting Regulations

The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The neglect of regulatory interpretation is not only a shortcoming in interpretive theory but also a practical problem for administrative law. Canonical doctrines of administrative law - Chevron, Seminole Rock/Auer, and Accardi - involve interpreting regulations, and yet courts lack a consistent approach. This Article develops a method for interpreting regulations and, more generally, situates regulatory interpretation within debates over legal interpretation. It argues that a purposive approach, not a textualist one, best suits the distinctive legal character of regulations. Administrative law requires agencies to produce detailed explanations of the grounds for their regulations, called statements of basis and purpose. Courts routinely use these statements to assess the validity of regulations. This Article argues that these statements should guide judicial interpretation of regulations as well. By relying on these statements as privileged sources for interpretation, courts not only grant deference to agencies but also treat these statements as creating commitments with respect to a regulation\u27s meaning. This approach justifies a framework for interpreting regulations under Chevron, Seminole Rock/Auer, and Accardi that is consistent with the deferential grounding of these doctrines, and provides more notice to those regulated than does relying on the regulation\u27s text alone. This Article also shows how regulatory purposivism constitutes a new foothold for Henry Hart and Albert Sacks\u27s classic legal process account of purposivism. Hart and Sacks\u27s theory is vulnerable to the criticism that discerning statutory purpose is elusive because statutes do not often include enacted statements of purpose. Regulatory purposivism, however avoids this concern because statements of basis and purpose offer a consistent and reliable source for discerning a regulation\u27s purpose. From this perspective, the best days for Hart and Sacks\u27s legal process theory may be ahead