Sunday, December 13, 2009
Glen Staszewski (Mich. St.) just published his thoughtful article on statutory interpretation and separation of powers, Textualism and the Executive Branch,on SSRN. The piece is part of an impressive symposium that Staszewski organized at MSU on administrative statutory interpretation, including some of the most active and impressive scholars in this area. Staszewski's introduction is here; links to other symposium articles in the MSU Law Review are here. (The entire issue is well worth a look.)
Staszewski argues that a commitment to textualism and a commitment to a strong executive--commitments often held by the same people--are fundamentally incompatible. In short, textualism--the approach to statutory interpretation that looks to the meaning of a statute's words at the time of their adoption, and not to legislative history--is a restrained method of interpretation. For adherents, it's thus an effective device to control an active judiciary. But this kind of restraint won't work for a powerful executive. A powerful executive needs broad, not restrained, interpretive authority, and adherents enthusiastically support the deference the executive gets through Chevron. Textualism is thus incompatible with a powerful executive; and when the same person holds both positions, argues Staszewski, there's a problem.
Staszewski traces both textualism and the push for a powerful executive to the Reagan administration. He shows that textualism evolved in the executive branch as a way to rein in an active judiciary--to limit the power of the courts in matters of statutory interpretation, and thus expand the power of the executive. But in the textualists' enthusiasm for controlling the courts, they fundamentally overlooked the fact that all their arguments for the textualist technique applied with equal force to the executive: By the textualists' own reckoning, textualism should also apply to executive statutory interpretation. But this is inconsistent with a powerful executive.
Staszewski reviews some recent scholarship that has attempted to reconcile textualism and a powerful executive based on claims, for example, that the courts occupy a different role and have a different institutional competence than the executive. Moreover, the courts are not accountable in the same way that the executive is. And the courts do "law," where the executive does "policy." For each of these reasons, the courts, the argument goes, should interpret statutes differently than the executive. Staszewski rejects these arguments, first because they're mostly beside the point (because the primary arguments for textualism apply to the executive as well as the courts, these points notwithstanding) and second because they're riddled with problems.
Staszewski concludes that the incompatibility of these two positions ultimately undercuts textualism:
Rather, the point of this Article is to show that a legal theory that simultaneously embraces the new textualism and unbridled executive discretion is fundamentally incoherent. A faithful agent of Congress could always adhere to the plain meaning of statutory language or exercise a reasonable degree of policy discretion, but a true believer in modern textualism cannot have it both ways. When textualists nonetheless advocate broad and unconstrained executive discretion, they are effectively acknowledging that their understanding of the legislative process and constitutional structure is ultimately not controlling. Although a heavy emphasis on the text could still be defended in statutory interpretation on other grounds, modern textualist theory loses most of its content and force when stripped of those underpinnings.
Check it out.