Zuni Public School District v. Dept of Education:
The Supreme Court handed down an interesting decision today in Zuni Public School District No. 89 v. Dept of Education, an administrative law case involving a federal program to assist local school funding in particular localities. The Department of Education had come up with a formula for calculating when states had "equalized expenditures" under state programs, letting states contribute less money and still receive federal assistance. The case considered whether the agency's method of calculating that was consistent with the federal statute creating and implementing the program.
A majority of the Court — Breyer writing for Stevens, Ginsburg, Kennedy, and Alito — upheld agency's practice under Chevron. The opinion reads rather oddly, though: Instead of just applying the usual Chevron two-step test, Justice Breyer primarily argues that he thinks Congress probably intended to let the agency make the kind of decisions it made. Justice Stevens added a concurrence, saying that he thought the legislative history was clear enough to make clear that the agency practice was okay. Justice Kennedy also wrote a short concurrence, joined by Justice Alito, noting the rather odd structure of Breyer's opinion but concluding that "we must give deference to the author of an opinion in matters of exposition."
Justice Scalia penned the main dissent, joined by Roberts and Thomas (and, for just one part, Souter). Scalia comes out swinging at Justice Breyer's approach to interpreting the statute:
A majority of the Court — Breyer writing for Stevens, Ginsburg, Kennedy, and Alito — upheld agency's practice under Chevron. The opinion reads rather oddly, though: Instead of just applying the usual Chevron two-step test, Justice Breyer primarily argues that he thinks Congress probably intended to let the agency make the kind of decisions it made. Justice Stevens added a concurrence, saying that he thought the legislative history was clear enough to make clear that the agency practice was okay. Justice Kennedy also wrote a short concurrence, joined by Justice Alito, noting the rather odd structure of Breyer's opinion but concluding that "we must give deference to the author of an opinion in matters of exposition."
Justice Scalia penned the main dissent, joined by Roberts and Thomas (and, for just one part, Souter). Scalia comes out swinging at Justice Breyer's approach to interpreting the statute:
In Church of the Holy Trinity v. United States, 143 U. S. 457 (1892), this Court conceded that a churchs act of contracting with a prospective rector fell within the plain meaning of a federal labor statute, but nevertheless did not apply the statute to the church: It is a familiar rule, the Court pronounced, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. Id., at 459. That is a judge-empowering proposition if there ever was one, and in the century since, the Court has wisely retreated from it, in words if not always in actions. But today Church of the Holy Trinity arises, Phoenix-like, from the ashes. The Courts contrary assertions aside, todays decision is nothing other than the elevation of judge-supposed legislative intent over clear statutory text.
I don't understand the backward approach of the majority myself, unless they thought that the rejection of the literal meaning was so serious an issue as to merit front-loading it. Still, the confusion that Justice Kennedy worries about is a very real concern.
Do you normally paper the internet with similar versions of the same comment? (See SCOTUSblog.)
I fall in love with him a little more every day...
Yes, but he's correct. When the congressional instructions are clear, unambiguous, and do not pertain to judgment that would be within the Secretary's sphere, it is unclear why Chevron would even apply.
As Professor Strauss has argued in a variety of papers, Chevron allows the Secretary to resolve ambiguity by choosing its interpretation from the range of interpretations that a Court might select, thus allowing the secretary to create regulations which satisfy the seperate circuits. But what court would have chosen that interpretation? It's just an odd interpretation, and appears to circumvent the regulation's demand for equality.
However, the question isn't "what court would have chosen that interpretation?" Its whether the agencies interpretation can fit within the statutory text. How rigorously one interprets the text is a line drawing question of course, or to put it another way, Chevron deference requires a interpretive choice about how long the judge must stick with the task of finding the best meaning.
Scalia may have a point that if you parse the language enough his reading is better, but he is one of the least deferential Justices when it comes to Chevron and I agree with Breyer that an initial look at the text allows the interpretation the agency adopted.
The opinion reads oddly, but not in the way asserted. Chevron has been slowly picked apart, and at least since US v. Mead the court (excepting Scalia) has inquired into the sort of power delegated. Scalia's real concern is federalism, which would be laudable if he applied it consistently (Raich anyone?).
Scalia's opinion is either incorrect or disingenuous (not least because he frequently does the same thing, he just calls it something else). Which is another way of saying he's either stupid or a jerk. You pick.
There are two common responses:
The (weak) general response is that it is far less likely that the Framers manipulated their legislative history, whereas current legislatures do that all the time, so the Federalist is simply more reliable.
The stronger response, which I think Scalia would make, is that just as he doesn't ask what Congress intended, he doesn't care the Framer intended. Rather, he looks founding era documents to find the original public meaning of a term. I.e., he applies a methodology of original understanding, not original intent. There is no need to look to statements of legislators today, because we know what the words mean.
This is, I think the formal justification, but I would agree with you that there is a tension in that the line between intent and understanding is incredibly fuzzy, and I would guess that a careful review of Scalia opinions would show that he crosses it sometimes.
It's not Scalia who's being a jerk. The jerk is Breyer who seems to think that a plainly worded statute agreed upon by our elected representatives is worthless in the face of an intent that Breyer expressly says is outside of the law. Say goodbye to rule of law, hello to rule of men. Men like Breyer, who love being in charge.
Scalia deserves praise for pointing that out.
This is indeed an interesting question. The short answers are:
1. The Constitution is written in relatively terse language with broader generalities than are federal statutes.
(A corrolary to this might be that in a given situation, the plain text of the Constituion is more likely to be found "ambiguous" than a statute.)
2. Statutes are almost always of much more recent vintage than are the pertinent portions of the Constitution.
3. The Constitution was written against a background of a common law system which was accepted throughout the 13 colonies which then became states. Unless it is clearly otherwise, the presumption is that what was accepted at the time should be consistent with the Constitution.
Most modern statutes, on the other hand, are meant to revise or "update" the common law, and many set up detailed, bureucratic regulation which was unknown to the common law system.
The above is not exhaustive, but I think does provide some broad differences between Constitutional and statutory interpretation.
People misspeak. So do legislatures. The courts have always been charged with fulfilling the intent of the legislature, and where the external evidence is a cinch for contradicting the letter of the statute, the issue really is not even a close one.
If the Congress thinks that the Court got its intent wrong, a simple remedy is available: pass a statute to that effect.
The Court's job is not to re-write plainly worded statutes, but to interpret them. If they fail to interpret the law, by saying "up" when the law says "down," and "red" when the law says "blue," then the judges should be impeached for violating their oath or removed from the bench for reasons of insanity.
Here's a better idea. How about, instead of your reckless "rule of men, not of laws" idea, we have judges who interpret statutes according to their plain meaning? Don't you think we should err on the side of plain meaning, instead of daring the legislature to fix an improper ruling? And what of the risk that this tendency to overthrow plain meaning will expand to areas that are not so easily corrected, like the Constitution? Last time I checked Article 1 of the Constitution, Congress has the power to make laws. Hmmm... You know what? I think it should stay that way. Congress writes the laws, the judges interpret them. If they have plain meaning, judge should be happy that their jobs are so easy, instead of getting drunk on power. I'm thinking that's a better idea than letting unelected, elitist, life-appointed, nine Nazgul.. er, judges, write laws. This IS a democracy, isn't it?
With all due respect, to add to Luddite's and Bored Lawyer's replies, there's really no tension between how Scalia's methodology (which, concededly, he has occaisionally stretched) treats statutes and the constitution: in both cases, the inquiry seeks the original meaning of the text, and then gives that meaning its most reading. Intent, Scalia would say, is spinach.
Your comparisons to The Federalist "which was not widely read during the founding" is an inapt analog to looking to legislative history in statutory interpretation (which I take to be the "same" referred to in your question "[w]hy can’t judges do the same to determine the meaning of a federal statute"). Even if Publius' essays - published in New York - were not read in every state, they were public writings by reasonable persons and can thus tell us something about what reasonable persons contemporary to the framing of the Constitution thought its words meant. Justice Scalia consults the Federalist Papers, principally written by Hamilton and Madison, "not because they were Framers and therefore their intent is authoritative and must be the law[,] but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood. Thus [he] give[s] equal weight to Jay's piece in The Federalist, and to Jefferson's writings, even though neither one of them was a Framer." Scalia, A Matter of Interpretation at 38 (1997 ed.). A better analog for the Constitution's "legislative history" would be Madison's notes of the convention, the procedings of which were not known to the public, and for that reason, I would generally resist resting too much weight on them.
Your comparison for the same purposes to Blackstone "which surely was not understood by the vast majority of people who voted for the Constitution" is also unpersuasive. It's irrelevant whether Blackstone was on the founding era equivalent of the New York Times bestseller list; the point is, as Bored Lawyer noted above, that "[t]he Constitution was written against a background of a common law system which was accepted throughout the 13 colonies which then became states. Unless it is clearly otherwise, the presumption is that what was accepted at the time should be consistent with the Constitution." Blackstone was widely accepted in the colonies as the definitive exposition of the common law, and so the authority Blackstone holds as to the meaning of certain constitutional provisions isn't because he was the very learned Sir William Blackstone, or that he sold many copies of his treatise, it is that the Constitution rests in part on the common law, and Blackstone was the contemporaneous leading authority on what the common law was.
The Federalist, etc. simply provides information on what the constitutional text might reasonably mean. The same is true of legislative history.
Um, Daniel, you may want to reconsider the "plain meaning" of the word "jerk."
Heh. So either I side with Scalia and conclude that he's right and also a jerk (and by praising him, so am I), or I side with the majority and conclude that the intent of the definition of a jerk was to apply to people who override laws passed by legislatures?
Heck with it. Call him, and me, a jerk if you must. Scalia is still right.
The common theme in Scalia's jurisprudence is the need to cabin the discretion of judges. Scalia is worried that judges use the rhetoric of the law to impose their personal policy preferences on society. He therefore has a pragmatic commitment to adopting theories of interpretation that tend to narrow judicial power. Scalia's views of both statutory and constitutional interpretation are consistent in that they both embrace the theory that is least likely to let judges reach whatever outcomes they like. If you're interpreting a statute, textualism generally narrows the role of judges over the likely alternatives; if you're interpreting the Constitution, originalism generally narrows the role of judges over the likely alternatives. Of course, we can doubt whether Scalia is actually a consistent defender of these themes, but I think that's the unifying idea.
One could say that, but I think it would be incorrect as an emperical matter. People reading a modern statute don't look to the legislative history to learn what "percentile" means.
An alternative explanation if you like, (one that Scalia may not adopt), is that unlike statutes, the Constitution is extremely difficult to amend. This is relevant since any harm that comes from adopting a textualist approach re: statutes can be overridden by the legislature. The benefit of restraining judges therefore comes at a low cost. In contrast, if judges ignored original understandings when they interpreted the Constitution, the benefit of judicial restraint would come at a high cost: an error would bid the legislature absent constitutional amendment.
I am afraid that I must disagree. The Federalist expresses the opinion of a few people as to what the Constitution means. Both the wisdom and meaning of the Constitution were widely disagreed upon - indeed, is this not why the Federalist and Anti Federalist papers were written? As such, it represents no more than the view of a limited number of people as to what the Constitution means; what it was understood to be. Many others obviously disagreed, and even more obviously did not know.
Thus, it appears to me that both the Federalist papers and Legislative history reflect the informed, and possibly self-serving history of those who were proposing the text at issue.
I would agree with those who have noted that the average person has a greater understanding of modern english than the language from the time of the drafting of the Constitution. For that reason, among others, I would tend to give greater weight to the Federalist papers. On the other hand, if I had to guess, I would say that statutes themselves are probably less clear.
Finally, I find the distinction between intent and understanding to be unpersuasive in this context. If a statute is not ambiguous, I would tend to agree that the analysis should be complete. However, if it is ambiguous, a statement of legislative intent is also a statement of understanding. "This is what we understood we were doing" is functionally identical to "This is what we were trying to do." Does one really believe that the legislature passed legislation in which they understood it to mean one thing, but intended it to mean another? Isn't their understanding as to what they were doing evidence of the public meaning of a phrase? Given the facility of attorneys with language, disregarding legislative statements simply allows judges free reign in inserting their own policy preferences through skillful manipulation of the words of a statute.
As others have noted, including Dr. Leiter, if your only concern is cabining judicial discretion, there’s lots of principles you could resort to that would be easier to apply and do a better job limiting judicial discretion. One silly example would simply be to always rule in the Government’s favor.
As a factual matter, I’m not sure how resorting to ambiguous secondary sources to interpret the Constitution provides any more or less judicial discretion than resorting to ambiguous secondary sources to interpret a federal statute.
. . .
As an aside, isn’t it a bit odd that “public meaning” Originalists and “original intent” Originalists consult the essentially same exact sources to determine the meaning of the Constitution?
. . .
Simon, if you’re really concerned about what the typical person thought a provision meant, why would you consult what a member of the rich, ruling class thought it meant? If we truly wanted to know what the current public meaning of “due process” is, do you think most people would share Scalia or Breyer’s understanding of that term?
. . .
As a final aside, I always find it interesting that you often see Originalism defended on the grounds that it is the “only way” to interpret the Constitution and any other way is an improper use of policy choices. But here we have a discussion of why you should use originalism, and we see all the policy choices that go into the original selection of choosing to use originalism. For example, it “cabins judicial discretion.”
So the policy choices that go into selecting Originalism are okay, but other policy choices are not okay. Weird.
Nor does your ease of correction argument help your case. Because it relies on the presumption that use of the Federalist will be correct and accurate (while you seem to presume that use of legislative history will be inaccurate). The greater difficulty for constitutional change is generally used as a reason to limit judicial discretion (and hence the materials they may use in interpretation).
Orin's point is that originalism will be used by judges to limit discretion in constitutional meaning, while legislative history will be used to expand discretion in statutory meaning but that's a presumption that is unsupported and contains an internal contradiction, it seems. If you can't trust judges to use legislative history sincerely and correctly, how can you trust them to use originalist materials sincerely and correctly.
My replies to other commenters will have to wait, but this one can be disposed of very quickly: the answer is that it's not a question of whether one trusts judges to use legislative history "sincerely and correctly" but whether there is a "sincere" and/or "correct" use of legislative history. See generally Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J.L. &Pub. Pol'y 61 (1993) (inter alia, "Changing the structure of laws, and the level of generality at which we read them, is not some consequence of reading legislative history 'badly.' It is an outcome of the process when done well"). Concededly, most textualists would not go quite as far as I would on this point (I don't care what the legislature's intent was, no matter how clearly expressed), but virtually all would agree with Judge Easterbrook that "[i]ntent is elusive for a natural person, fictive for a collective body."
I encourage all to read it for the sake of seeing what happens when a court lets one justice write the opinion, and are presumably too busy to read it before signing on.
No, it isn't. At least, it isn't if that's an expansion on your point above that "[i]f you can't trust judges to use legislative history sincerely and correctly, how can you trust them to use originalist materials sincerely and correctly." There is (or at least can be) a sincere and correct use of originalist materials, so it's a relevant question whether a judge can be trusted to put them to that use, whereas Easterbrook's point (and mine), adapted to our argot here, is that there isn't a sincere and correct use of legislative history, so I'd suggest that no matter how much you trust a judge's good faith that they will attempt to use them sincerely and correctly, it's an impossible task. Sorry if that's an inelegant way to put the point, but hopefully the point comes across.
Whatever one thinks about how this case should turn on the merits, this type of circular reasoning is embarrassing. I thought the whole purpose of the statutory analysis was to determine what Congress's purpose was. But instead, the Court first announces the purpose, and then imposes that purpose on the statute. WTF?...so now courts contort statutory language to fit the best policy rather than examine that language to determine Congress's policy?
I understand that SCOTUS justices aren't necessarily the best lawyers (or even best judges) in the country, but the fact that 5 justices could sign onto an opinion so stylistically absurd is troubling.
You thought wrong. The way the Court sees it, the purpose is to legislate from the bench. The Court will TELL you what Congress's purpose was, the text be darned.
Can anyone seriously say with a straight face that we're still living in a democracy, when even a pathetic law like some school funding statute is twisted by drunken, power mad elitists on the bench?
I find this argument very unpersuasive. Although there are borderline cases, smart judges acting in good faith can tell the difference between a technical error and a policy issue. And if they can't, they're not going to be able to distinguish textualism from intentionalism anyway.
Breyer's approach does not strike me as determining "what meaning would a reasonable legislator give?", but determining rather "what is the best policy a reasonable legislature would choose?" Breyer seems to focus on what is the best policy regarding school finance, not what is the best meaning of the statute -- he determined what was "reasonable" before even bothering to examine statutory language!
The statutory provision instructed the cabinet Secretary to "disregard local educational agencies with per-pupil expenditures or revenues above the 95th percentile or below the 5th percentile of such expenditures or revenues in the state."
The SCOTUS majority said: the Secretary may essentially make a list of all students in the state in order of per-pupil expenditure, and then disregard school districts that have students in the top or bottom 5% of students.
The SCOTUS minority said: the Secretary must instead make a list of school districts in order of per-pupil expenditure, and then disregard school districts in the top or bottom 5% of school districts.
Neither interpretation seems completely implausible.
Except that by endorsing the decision in this case, you're advocating exactly the opposite approach. You're telling the Court that if it thinks Congress got the statute wrong, it should amend the statute by judicial fiat.
If Congress wrote something other than what it intended, it is not the charge of the court to fulfill its "intent." It's the role of the court to give effect to the law it actually passed. If Congress thinks it should have passed something else, it can then proceed to amend the statute.
Intent is not the law. Intent is the mental feelings of some legislators. The statute is the law.