Judge Amy Coney Barrett on Statutory

Interpretation: Textualism, Precedent,

Judicial Restraint, and the Future of
Chevron, by Evan Bernick
•
• July 3, 2018

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Any effort to predict how Judge Amy Coney Barrett would approach pressing
questions of administrative law if elevated to the Supreme Court faces two
substantial obstacles. First, then-Professor Barrett didn’t write much about
administrative law while at Notre Dame Law School. Second, now-Judge Barrett
hasn’t yet written an opinion in any major administrative law case while on the
Seventh Circuit Court of Appeals.
In this post, I’ll endeavor to overcome those obstacles by drawing upon Barrett’s
extensive scholarship on statutory interpretation. That scholarship provides
insight into how Barrett might approach one of administrative law’s most
centrally important and controversial doctrines: Chevron deference, which
requires judges to defer to “reasonable” agency interpretations of “ambiguous”
statutory text.
It’s no secret that Chevron’s future is uncertain. Last term, the Court appeared to
go out of its way to limit Chevron’s domain in several cases. In a concurrence
in Pereira v. Sessions, Justice Anthony Kennedy expressed a concern that lower
courts have misunderstood Chevron to require “reflexive deference” to agency
departures from clear statutory text, and joined Justice Gorsuch and Justice
Clarence Thomas in calling for Chevron’s reconsideration. In what follows, I’ll
focus on three aspects of Barrett’s scholarship that have implications for how she
might approach Chevron: her textualism, her understanding of the value of
precedent, and her commitment to judicial restraint.
B a rrett’s Textua lism
Like Justice Gorsuch and the late Justice Scalia, Judge Barrett is a textualist. Her
scholarship stresses the importance of interpreting constitutional and statutory
provisions consistently with the original public meaning of their text—the
meaning that an ordinary member of the public would attach to their constituent
words and phrases in context—and declining to depart from that public meaning
when it’s clear. Although the importance of judicial fidelity to clear text is
today generally accepted on the federal bench, Barrett favors a rule-like approach
to ascertaining the meaning of text that generally eschews evidentiary sources
that she deems unreliable but which intentionalist or purposivist judges might be
more prepared to investigate. That rule-like approach may lead her to
be less likely to conclude that agencies are entitled to Chevron deference than
certain of her colleagues.
It’s black-letter law that Chevron is only triggered when statutory text is found to
be ambiguous—when, after applying the “traditional tools of statutory
construction,” judges conclude that Congress “has not spoken to the precise
question at issue.” “Step One” of Chevron consists in determining whether the
relevant text is ambiguous—only if it is ambiguous do judges defer at all. Different
judges may take different approaches to Step One, depending upon their
preferred methodology of statutory interpretation. In a 1989 article, Judicial
Deference to Agency Interpretations of Law, Justice Scalia opined that “[o]ne
who finds more often (as I do) that the meaning of a statute is apparent from its
text and from its relationship with other laws, thereby finds less often that the
triggering requirement for Chevron deference exists.” Particularly late in his
career, Justice Scalia took a hard-nosed textualist approach to Chevron’s Step
One that seemed to differ little from the kind of de novo, truly independent
inquiry into the meaning of statutory text that he would engage in outside
of Chevron’s domain.
Since being elevated to the Supreme Court, Justice Gorsuch has taken an
approach to Chevron Step One that closely resembles Justice Scalia’s.
Consider Wisconsin Central Ltd. v. United States, in which Justice Gorsuch,
writing for a 5-4 Court, determined that employee stock options weren’t taxable
“compensation” under the Railroad Retirement Tax Act because they weren’t
“money remuneration.” Why not? Because, Justice Gorsuch wrote—drawing
upon several contemporaneous dictionary definitions—ordinary readers of the
statute at the time of the Act’s enactment would have understood “money
remuneration” to denote currencies issued to be used as mediums of exchange,
and stock options can’t be so used. As Gorsuch acknowledged, however, other
contemporaneous dictionary definitions of money were more expansive, and
Justice Breyer in dissent pointed out that railroad employees can’t use their
paychecks—uncontroversially taxable under the Act—as mediums of exchange
any more than they can so use stock options. Justice Breyer therefore had
recourse to statutory purpose—which he found to consist in “exclud[ing] certain
in-kind benefits that are nonmonetary” from taxation—as well as changes made
in the Act over the course of the legislative process, and concluded that the
statute was ambiguous as to whether stock options were taxable. He therefore
would have deferred under Chevron to the Treasury Department’s “reasonable”
interpretation of “compensation” as covering stock options.
How might Barrett approach such a question? It’s doubtful that she’d have
recourse to legislative purpose or history. Barrett has expressed doubts that the
“the often-chaotic legislative process” yields products that are designed to serve
discernible purposes. She has similarly indicated that she is wary of legislative
history, on the grounds that it “do[es] not reliably reflect the views of the
majority who supported the statute”—rather, it may reflect only efforts by
members of a minority to skew subsequent interpretation of the statute in their
favor despite having lost the political battle over the statute’s content. Such
beliefs about legislative purpose and history have long led textualists to focus
attention exclusively on the public meaning of the language that makes it all the
way through the constitutionally-prescribed lawmaking process.
It would be wrong, however, to infer that Barrett believes that textualism will
yield one linguistically “right” answer in every litigated case or that extratextual
normative values are irrelevant to interpretation. In a 2010 article, Substantive
Canons and Faithful Agency, Barrett grappled with the problems that canons of
statutory construction which “advance policies independent of those expressed
in . . . statute[s]”—like the rule of lenity, which requires courts to construe
ambiguous criminal statutes in favor of defendants—present for textualists who
view judges as “faithful agents” who are duty-bound to give effect to legislators’
will, to the extent that legislators are exercising their power consistently with
the Constitution. While such linguistic canons as inclusio unius est exclusio
alterius—“the inclusion of one is the exclusion of the other”—are designed to
approximate ordinary language use and thereby either to capture legislatively-
intended meaning or approximate public understanding of enacted
text, substantive canons like the rule of lenity are designed to promote
extratextual normative values. Barrett contended that use of substantive canons
may be consistent with faithful agency, but only insofar as those canons are 1.)
connected to “reasonably specific constitutional value[s]”; and 2.) actually
promote those values.
Barrett’s qualified endorsement of the use of substantive canons is important
because the interaction between substantive canons and Chevron generally—and
the rule of lenity in particular—remains somewhat murky. Chevron may directly
conflict with the rule of lenity, insofar as the former requires directs reviewing
courts to defer to reasonable agency interpretations of ambiguous statutes and
the latter requires that ambiguous criminal statutes be strictly construed. Since
lenity is among the “traditional tools of statutory construction”—it can be traced
back centuries—does it apply at Step One, thus trumping Chevron? Or, since it’s
a substantive rather than linguistic canon, should it be treated differently?
In Chevron itself, the Court suggested that the relevant “traditional tools of
statutory construction” were those which could be used to “ascertain[] that
Congress had an intention on the precise question at issue” and lenity isn’t about
ascertaining congressional intent. Although the Court
has assumed that Chevron trumps lenity in the context of criminal statutes, it
hasn’t definitively resolved how to treat statutes that carry both civil and criminal
penalties.
To the extent that there’s interest on the current Court in limiting Chevron’s
domain, Barrett’s analysis suggests a useful framework for considering whether
lenity ought to be used to do so. Lenity is associated with at least two
constitutionally-grounded values: fair notice of the law’s obligations and the
separation of powers. As Justice Oliver Wendell Holmes, Jr., memorably put it
in McBoyle v. U.S.., lenity is said to promote fair notice by encouraging legislators
to speak “in language that the common world will understand,” thus enabling
people to plan their affairs in ways that avoid putting themselves at risk of criminal
punishment. The rule of lenity also holds the potential to promote the separation
of powers by forcing legislators to shoulder the full burden of their constitutional
responsibility to make law rather than passing it off to judges—or agency officials.
While it’s certainly debatable whether allowing lenity to trump Chevron will
effectively promote those values, Barrett’s analysis usefully frames the relevant
inquiry.
B a rrett on P recedent
Judge Barrett identifies as a constitutional originalist—of the public-meaning
rather than original-intentions variety. In a 2011 article, Precedent and
Jurisprudential Disagreement, she forthrightly confronted a problem that has long
troubled originalists: What weight, if any, should today’s Justices given to the
erroneous constitutional conclusions of the Court in previously-decided
cases? Chevron deference has been criticized by scholars, sitting Justices, and
other appellate judges on President Trump’s short list as inconsistent with the
original meaning of both the Constitution and the Administrative Procedure Act.
Say the critics are right. What’s a faithful originalist Justice to do?
Barrett didn’t take the position that erroneous precedents must be immediately
overruled. She recognized that adherence to precedent can help judges reduce
decision costs, error costs, and even legitimacy costs. As to decision costs,
Barrett observed that because “justices do not all share the same interpretive
methodology, they do not always have an agreed-upon standard for identifying
‘error,’” precedent can serve as a means of “mediating intense jurisprudential
disagreement” between those who deploy different interpretive methodologies.
It can therefore make it easier for Justices to reach decisions than it would
otherwise be. As to error costs, precedent can “force . . . a justice to think
carefully about whether she is sure enough about her rationale for overruling to
pay the cost of upsetting institutional investment in the prior approach.”
Precedent may therefore discourage overhasty votes to overrule that are
themselves the product of interpretive error. Finally, as to legitimacy, Barrett
noted that a “weak presumption of stare decisis” is particularly important in
constitutional cases because it is “both realistic about, and respectful of,
pluralism”—it “helps the Court navigate controversial areas by leaving space for
reargument” by citizens who seek to “push[] back against the proposition that
the Constitution embodies the principles the Court says it does.”
Barrett made plain that she “agree[d] with those who say that a justice’s duty is
to the Constitution and that it is thus more legitimate for her to enforce her best
understanding of the Constitution rather than a precedent she thinks clearly in
conflict with it.” The preservation of erroneous precedents, after all, deprives
people of the benefits of the rule of law set forth in the Constitution and
perpetuates public misunderstanding of that law. But the qualification is
important—the conflict must be clear, because there are costs to overruling as
well as preserving erroneous precedents.
Although Barrett’s analysis focused on precedent specifically in constitutional
cases, it’s also relevant to administrative law doctrine that is arguably inconsistent
with the Constitution. A leading argument that Chevron is unconstitutional rests
upon the premise that Chevron requires judges to abdicate a duty imposed upon
them by the original meaning of Article III—a duty to exercise independent
interpretive judgment, to “say what the law is” without regard to the beliefs or
desires of other constitutional decisionmakers or those members of the general
public. Barrett’s understanding of the value of precedent suggests a willingness to
weigh the benefits of correctly determining whether Chevron and other
controversial but long-established doctrines are constitutionally compliant against
decision, error, and legitimacy costs in a way that is “both realistic about, and
respectful of, pluralism.”
B a rrett on Judicia l Restra int
At a time when judicial engagement—understood as the independent judicial
evaluation of the lawfulness of government actions without deference to the
“political branches”—is ascendant within legal conservatism, Judge Barrett is an
avowed champion of judicial restraint—understood as judicial deference to
decisions by the political branches that aren’t clearly unlawful. Her restraint isn’t
predicated upon an overriding commitment to political majoritarianism or a naive
belief that legislators or executive-branch officials always behave in public-spirited
ways. Rather, it’s predicated upon careful comparative institutional analysis—
analysis that leads her to conclude that because judges are not well-positioned to
detect and thwart the pursuit of illegitimate ends by political decisionmakers,
deferential—but not toothless—judicial review of “run of the mill legislation” is
generally desirable.
In a review of Professor Randy Barnett’s 2014 book, Our Republican
Constitution—in which Barnett vigorously criticized conservatives’ attachment
to judicial restraint—Barrett defended the broad contours of the tiered system
of judicial scrutiny that is associated with Footnote Four of the Court’s 1938
decision in United States v. Carolene Products. Under this system, as Barrett put
it, “[c]ourts apply heightened scrutiny to statutes implicating fundamental rights
or suspect classes, but outside of that context, they are reluctant to interfere
with the outcome of the democratic process.” In particular, courts are reluctant
to interfere with what Justice Harlan Fiske Stone called “ordinary commercial
legislation.”
Barrett argues that the Court was wise to “give federal and state legislatures wide
berth in enacting social and economic legislation and apply only minimal scrutiny
when evaluating federal statutes for consistency with the limits on federal power”
while reserving heightened scrutiny for a subset of statutes. Barrett is skeptical
of the value of the “more demanding . . . review practiced by courts in
the Lochner era”—named for a decision in which the Court held unconstitutional
a provision of New York’s 1895 Bakeshop Act which fixed the maximum hours
during which covered biscuit, cake, and bread bakers could work at sixty hours
per week. This despite the possibility that the hours provision was not actually
designed to protect anyone’s health or safety but instead was—as Professor
Rebecca L. Brown has put it—“a rent-seeking, competition-reducing measure
supported by labor unions and large bakeries for the purpose of driving small
bakeries and their large immigrant workforce out of business.” Although Barrett
is wary of “legislative overreaching,” she submits that it’s “extraordinarily
difficult—if possible at all—for a court to glean what was ‘really’ going on behind
the scenes of a statute” and identify impermissible legislative ends.
It’s easy to see the relevance of Barrett’s restraint to concerns that the Supreme
Court is poised to return to pre-New Deal judicial review of economic
regulations—her restraint certainly doesn’t suggest that she’d have any interest
in such a return. But the concern with the judiciary’s institutional competence
that partly animates her restraint has implications for administrative law as well.
In “Judicial Deference,” Justice Scalia defended Chevron as a means of capitalizing
on agencies’ comparative institutional advantages over courts in making policy
choices when the text of the law doesn’t require any particular action. That
Barrett is sensitive to the difficulties associated with judicial inquiries into the
constitutional legitimacy of legislative ends doesn’t warrant the conclusion that
she’d accept this defense of Chevron, but it does suggest that she would be mindful
of the judiciary’s institutional limitations in evaluating it and deciding whether to
vote to extend, limit, or discard it.
To be clear, Barrett doesn’t favor reflexive deference to the political branches.
She acknowledges Barnett’s “compelling case that modern courts have
occasionally stretched even the existing rationality test too far” and states that
“[a] rational basis test ought not mean that courts are obliged to accept
explanations that beggar all belief”—nor, presumably, ought determinations of
whether agency choices are reasonable under Chevron and Auer. She also avers
that “it is illegitimate for the Court to distort either the Constitution or a statute
to achieve what it deems a preferable result” and suggests that the Court may
have done so in both NFIB v. Sebelius and King v. Burwell—in which it upheld
the Affordable Care Act against constitutional and statutory challenges,
respectively. In Barrett’s view, the judge is first and foremost an agent of “We
the People”—not Congress and not any executive-branch agency. Thus, “[w]hen
a statute conflicts with the Constitution, the fundamental law of the Constitution
must take precedence, and the ordinary law of the statute must give way—
because, properly understood, it is not law at all.” The same presumably holds
true for a regulation that conflicts with a statute—such a regulatory act is,
properly understood, not law at all.
****
Of necessity, this post contains a good deal of speculation. Judge Barrett’s
scholarship contains little direct evidence of what she thinks about Chevron. That
said, her scholarship strongly suggests that she will think about not
only Chevron but any administrative law questions which involve determining the
meaning of legal texts, reconsidering controversial precedents, and shaping
doctrine in a way that enables the judiciary to perform its constitutional function
without exceeding the limits of its institutional competence, in a careful, cogent,
and humble manner. Her scholarship is a pleasure to read, not only because of its
erudition and concision, but because it sees her forthrightly acknowledging and
confronting problems and tensions within her preferred methodologies of
constitutional and statutory interpretation—originalism and textualism,
respectively. It discloses a spirit that—to borrow from Judge Learned Hand—“is
not too sure that it is right,” and recognizes that political decisionmakers often
enjoy the discretion to choose from a variety of legally-permissible means of
accomplishing their goals; a mind that is equipped with tools that can be used to
identify determinate answers to legal questions when such answers are available;
and a conviction that the people’s agents in the judiciary are duty-bound to give
effect to the text of the law of the land and the values that “this Constitution” is
designed to instantiate. We can be confident in her faithful agency.

Evan Bernick is a visiting lecturer at the Georgetown University Law Center and a fellow
of the Georgetown Center for the Constitution. The views and opinions set forth herein
are his own