Kevin Stack on Regulatory Interpretations of Law
Kevin Stack has an excellent new paper entitled “Purposivism in the Executive Branch: How Agencies Interpret Statutes“. Here is the abstract:
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, not textualist, 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.
Non-American readers should not be put off by the textualist vs purposivist debate that provides the backdrop to this paper. Stack’s theory of how administrative decision-makers should interpret statutory provisions deserves a wide audience. In particular, Stack argues that different approaches are appropriate for administrative decision-makers and reviewing courts (a position I wholeheartedly agree with).
From the paper, here is Stack’s description of his preferred purposivist approach, which builds on Hart and Sacks’ legal process technique of statutory interpretation:
Hart and Sacks’s “technique” of statutory interpretation has four basic elements, which track the definition of purposivism provided at the outset: the court is to (1) “[d]ecide what purpose ought to be attributed to the statute and to any subordinate provision of it,” (2) “[i]nterpret the words of the statute immediately in question so as to carry out [that] purpose as best it can,” (3) make sure not to give the words “a meaning they will not bear, ”and finally, (4) not “violate any established policy of clear statement.”
For Hart and Sacks, statutory text serves a dual role. On the one hand, it constitutes a central source for inferring purpose. But statutory text also operates as a separate constraint. The “court ought never to give the words of a statute a meaning they will not bear,” and may infer a reasonable purpose for the legislation “unless the contrary unmistakably appears.” In this second role, statutory text is understood to establish a set of permissible interpretations or outside parameters, but not to decisively compel meanings. Accordingly, Hart and Sacks counsel that dictionaries and canons of semantic construction should only be relied upon to understand the range of permissible meanings, not to fix any particular meaning.
The textualist command to heed the text provides the agency no reason to select among alternatives that are equally plausible under the text. Purposivism does. It provides a criterion for the agent to invoke in selecting a course of action among those that are textually permissible: Further the statute’s ends. Developing a conception of the statute’s ends and evaluating alternatives in relation to them gives agencies grounds to act nonarbitrarily in exercising discretion. As a result, purposes should have priority for the agency, not only because Congress requires them to, but also because granting them priority supplies an account of practical reasoning that better fits and explains the agency’s operational needs to act nonarbitrarily.
Reviewing courts could organize this basic inquiry around the following issues: (1) the agency’s understanding of the statute’s purpose(s), (2) the connection the agency has drawn between its actions and those purposes, (3) whether the action is otherwise permitted by existing statutory and constitutional and other law, and (4) whether the action is well-founded in fact.
At a basic level, the agency’s duty is not simply to implement (go make rules!), but to implement in furtherance of the principles or purposes of the statute (go make rules to “protect the public against unreasonable risk of accidents” or to protect consumers from “unfair, deceptive, or abusive act[s] or practice[s]”). The agency’s obligation to implement is thus an obligation to conform its conduct in accordance with the purposes Congress has established, and at a minimum, the intelligible principle that validates the statute constitutionally. This duty of implementation structures the agency’s reasoning in concrete ways. First and most obviously, the agency must develop an understanding of the principle or purposes the statute sets forth. That understanding will depend upon the level of specificity or generality of the statute, and the way in which the general aims of the statute interact with its more specific provisions. But having identified the statute’s purposes or principles, the agency has an obligation to do something with them. Second, and in particular, it must evaluate alternatives in light of those purposes, and, third, ultimately select an alternative that, other things equal, best carries them forward. Of course, other things are rarely equal. Statutes may narrowly prescribe the means available or put some purposes in conflict with others. Directions from political supervisors can also reduce the range of options available to the agency. But the core prima facie duty a regulatory statute imposes is to carry forward its principles or purposes within the means the statute permits — a duty I refer to as “the purposive duty to implement.”
This content has been updated on October 14, 2015 at 11:34.