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’s 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’s text alone. This Article also shows how regulatory purposivism constitutes a new foothold for Henry Hart and Albert Sacks’s classic legal process account of purposivism. Hart and Sacks’s 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’s purpose. From this perspective, the best days for Hart and Sacks’s legal process theory may be ahead

The Interpretive Dimension of Seminole Rock

A lively debate has emerged over the deferential standard of review courts apply when reviewing an agency’s interpretation of its own regulations. That standard, traditionally associated with Bowles v. Seminole Rock & Sand Co. and now more frequently attributed to Auer v. Robbins, states that a court must accept an agency’s interpretation of its own regulations unless the interpretation is plainly erroneous or inconsistent with the regulation. This Article argues that a court’s choice of method for interpreting regulations — including how it determines which agency interpretations are inconsistent with the regulation — may be just as important, if not more important, to the outcome of review as the standard of review the court applies. The point that the outcome of review is a function not only of the standard but also of the interpretive method is long-acknowledged in the debate over Chevron. It applies to review of the interpretation of regulations as well. If the ultimate framework of review is a problem with two important dimensions — the standard of review and the interpretive method — then there is reason to evaluate the likely effects of different methods of regulatory interpretation. The Article then argues that a purposivist approach, one which requires readings of regulations to be consistent with those in the regulation’s preamble, identifies a narrower range of acceptable readings and offers greater notice of the regulation’s meaning than relying on the regulation’s text alone. As a result, this regulatory purposivist method holds promise for addressing many of the concerns motivating challenges to the Seminole Rock/Auer standard whether or not that standard is retained

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

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

Preambles as Guidance

Debates over administrative agencies’ reliance on guidance documents have largely neglected the most authoritative source of guidance about the meaning of agency regulations: their preambles. This Article examines and defends the guidance function of preambles. Preambles were designed not only to provide the agency’s official justification for the regulations they introduce, but also to offer guidance about the regulation’s meaning and application. Today, preambles include extensive guidance ranging from interpretive commentary to application examples. Based on the place of preamble guidance as part of the agency’s formal explanation of the regulation and the rigorous internal agency vetting which accompanies that formal role, this Article argues that preamble guidance has greater authority than other forms of guidance. That greater authority has important implications. Under current judicial doctrine, preamble guidance warrants greater deference than other forms of guidance. Preamble guidance’s superiority also grounds the agency’s obligation to act consistently with it—and to revise preamble guidance only in documents issued by the agency, as opposed to lower-level officials, with the same publicity as the original preamble. This obligation should be expressly adopted as a form of internal administrative law either by individual agencies or central executive branch regulators

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

The Constitutional Foundations of Chenery

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court\u27s opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency\u27s action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of agency action depend on the validity of the agency\u27s justification, Chenery\u27s settled rule enforces an aspect of the nondelegation doctrine that has been obscured by more recent decisions that understand nondelegation as involving only a demand for legislative standards, or intelligible principles. The neglected arm of the nondelegation doctrine, which Chenery enforces, holds that a delegation is constitutionally valid only if it requires the agency exercising the delegated authority to state the grounds for its invocation of power under the statute. Chenery\u27s enforcement of this norm polices the political accountability of agency action by ensuring that accountable decision-makers, not merely agency lawyers, have embraced the grounds for the agency\u27s actions, and it promotes the regularity and rationality of agency decision-making by enforcing a practice of reason-giving. This nondelegation account of Chenery explains why agencies must engage in reasoned decisionmaking to obtain deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Chenery insists that, to receive Chevron deference, accountable agency actors must explain the bases for their decisions that bind with the force of law. By grounding Chenery in the enforcement of the nondelegation doctrine, this account also suggests that the President\u27s own exercise of statutory power is not immune from Chenery\u27s demands

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