Welcome, everybody. Good afternoon. Thank you for coming. I am delighted to welcome you to the 2024 Scalia Lecture, titled Statutory Interpretation and Separation of Powers by Professor Aditya Bamzai of the University of Virginia School of Law. Before beginning, I want to say a few words about the lecture, before the lecture begins, but the lecture itself, its namesake, and our speaker. The Justice Antonin Scalia Lecture series was established at HLS in 2013 by an anonymous donor to promote and advance the understanding of the founding principles and core doctrines of the United States Constitution. Speakers are drawn from political science, history, philosophy, law, government, religion, and other disciplines. All are distinguished figures like our speaker today, who, through their work, elucidate the principles of the American founding. Justice Scalia, of course, was a towering figure in modern American jurisprudence. This, it turns out, was not always apparent, at least not to Justice Scalia himself. Looking back at his 3L year when he served as notes editor of the Harvard Law Review, along with our colleague Frank Michelman, Justice Scalia recalled being in a panic about flunking exams because he was too busy to study. Well, it turned out okay. Indeed, as his colleague and our former dean, Elena Kagan, remarked at her own Scalia lecture in 2015, ''The fact of the matter is you wake up in 100 years, and most people are not going to know most of our names," meaning justices. "I think that is really not the case with Justice Scalia, whom I think is going to go down as one of the most important, most historic figures on the court.'' For all his accomplishments, Justice Scalia was admirably down to Earth and engaging. Former Dean Martha Minow recounted that when she first met him, he began the conversation by saying, ''Just call me Nino.'' She also noted that despite their deep disagreements on vitally important questions of law, ''His warmth and his willingness to just be genuine was what overwhelmed me.'' Adding that his interest in having a genuine conversation, connecting about family, about religion, about law, about ideas, was thorough, complete, generous, and engaging. Interim provost and former Scalia law clerk John Manning, whom we are fortunate to have here today with us, has put it this way. Justice Scalia, ''Loved the law, he loved ideas, and perhaps above all, he loved to mix it up. That's how he learned, and that's how he encouraged others to learn.'' Justice Scalia was also a generous friend to his alma mater. He regularly returned to campus to Judge Moot Courts, to meet with students, to give lectures, and to teach classes. In these settings, too, he would engage in spirited, candid, and direct exchanges about ideas, doctrines, or decisions and always with a sense of humor. It is a testament to Justice Scalia's long and fruitful relationship with Harvard Law School that his family chose to donate his papers to our library, where they will inform and educate generations of scholars and students about his life and legacy. Now to our speaker today, Aditya Bamzai is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law at the University of Virginia. He teaches and writes about administrative law, civil procedure, computer crime, and conflicts of law. His scholarship has been published in leading law journals, and he is the co-author of a leading administrative law casebook. He has argued important issues concerning the separation of powers and national security in the US Supreme Court, the Foreign Intelligence Surveillance Court of Review, the DC Circuit, and other Federal Courts of Appeal. From 2019-2021, he served as a member of the Privacy and Civil Liberties Oversight Board, a federal agency charged with ensuring that the government's national security efforts are balanced with the need to protect privacy and civil liberties, and he is an elected member of the American Law Institute. Before entering the academy, Professor Bamzai was an attorney advisor in the Office of Legal Counsel of the US Department of Justice and an appellate attorney in both private practice and for the National Security Division of the Department of Justice. Earlier, he served as a law clerk for Judge Jeffrey Sutton of the US Court of Appeals for the Sixth Circuit and for Justice Scalia. He is a graduate of Yale University and of University of Chicago Law School, where he was editor-in-chief of the law review. Now, without further delay, please welcome Professor Aditya Bamzai. Well, thank you so much Dean Goldberg for that kind introduction. Thank you to you and John Manning for inviting me to give this talk. It's truly an honor to give this year's Scalia lecture and to have the opportunity to follow in the footsteps of the illustrious prior speakers. With the audience's indulgence, I'd like to begin with two personal stories. The first occurred after the completion of my 1L year of law school. On the very same day that we were taking our last final examination in the spring of 2002, which was Civil Procedure. I have to go off script here and say that it was Civil Procedure taught by Jack Cole Smith. Civil Procedure, the law school was hosting a visiting justice, John Paul Stevens. The school building was mostly empty, with many students having left for summer jobs and the few remaining students being the aforementioned 1Ls taking the exam, along with the few research assistants who were there for the summer. You can imagine the scene after finishing the last final examination, a bunch of shell shock students were shepherded into an auditorium like this one for a Q&A session with the justice. For my part, as someone who had just finished my first year of law school, I did not have a particularly sophisticated grasp of legal issues at this time, notwithstanding Herculean efforts by my professors. But there's one question in response that I remember all these years later. Another student, presumably a second or third year law student, asked the justice what he thought of the fact that his 1984 opinion in Chevron versus Natural Resources Defense Council was now one of the most cited cases in all of American law, more cited than the landmark cases of Marbury versus Madison and Erie Railroad versus Tompkins. I think at the time, I had never heard of Chevron, but I had at that point heard of Marbury and Erie. Perhaps that's why this particular response sticks out to me. Justice Stevens answered, and here I'm paraphrasing, of course, rather than quoting from memory, that it always surprised him how that turned out to be the case because he had not thought that he was saying anything particularly path-breaking in the Chevron opinion. Well, the second personal experience requires us to fast forward a few years from the post-1L experience I've just described to my own clerkship interview with Justice Antonin Scalia, my truly remarkable former boss in whose honor this lecture series has been established. After around 45 minutes or so of trying to bat around legal doctrine with Justice Scalia, my personal interview with him was coming to a close. The final topic we addressed was the question of stare decisis, the weight to be given to precedent in legal decision-making. We exchanged some words on the doctrine, and then at some point the justice must have decided that he'd heard enough. He got up and we shook hands. His last words as we walked out of the room together, and again, I paraphrase, were something along the lines of this: I do wonder on stare decisis whether we might end up like one of those medieval courtiers who having placed the knife in the back of the courtier who preceded him, now faces a knife in the back from the courtier who will succeed him. Well, here we are a couple of decades later, after I've had those experiences and the two topics, the meaning of the Chevron opinion, how to understand that opinion through the lens of stare decisis, and whether even to keep the doctrine it created in place are now pending before the Supreme Court of the United States in a pair of cases: Loper Bright and Relentless. In the next few minutes, I hope to address the set of issues that these cases raise. In a nutshell, to place my cards on the table, my own view is that the fundamental principle at issue in the Chevron opinion, whether and when courts should give weight to the legal interpretations articulated by agencies, has been around for centuries, both before and since Chevron. It won't go away. The critical question has always been about the proper scope or domain of that principle. That was true before the Chevron opinion remained true after Chevron and will remain true after the Supreme Court decides the pending cases. That doesn't mean that the pending cases are unimportant. To the contrary, the proper domain of a legal principle that will be applied in countless future statutory interpretation cases is a significant issue. The contours of legal doctrine ought to be established in a manner that is justifiable, coherent, and to the extent possible, predictable. Let's talk about this general issue from that perspective. I have little doubt that the members of this audience are far more sophisticated than I was as a 1L, but I remember being my 1L self. For those of you who are in a similar position, here's a bit of background. In Chevron, the court appeared to adopt a simplified two-step process for when courts should defer to an agency construction of a statute it administers. Chevron said that the first step was whether Congress has directly spoken to the precise question. If Congress's intent is clear, it must be given effect. As for how to establish that intent, Chevron said that a court should employ traditional tools of statutory construction. But Congress' drafting of statutes inevitably left gaps for agencies to fill, either explicitly or implicitly. If a statute contains such a gap, an agency had previously, and an agency had previously construed this provision, Chevron instructed that courts ought not to impose their own construction on the statute as would be necessary in the absence of an administrative interpretation, but rather ask whether the agency's construction was permissible. In this fashion, Chevron indicated that the court needn't conclude that the agency's interpretation was even the reading the court would have reached if the question initially had arisen in a judicial proceeding. The opinion that appeared to establish this two-step framework, first, the statute controls if Congress has spoken directly, and second, an agency interpretation controls if the statute is ambiguous. The opinion seemed to point to the types of cases where this framework might have bite. That universe, in my view, would be those cases where a court might have been able to arrive at an interpretation of the statute using standard tools of construction in the absence of an agency interpretation. But where the statute was sufficiently ambiguous that in the presence of an agency construction, that construction controlled and displaced the other tools of statutory construction. That universe of cases is, in my view, the critical subset where the framework articulated in Chevron has bite and matters. In justifying the framework, Chevron relied in part on precedents, to which I'll return below, and then also on a series of arguments about the relative competencies of courts and agencies regarding interpretation and policy. Judges, the opinion said, are not experts in the field of environmental regulation and are not part of either political branch of the government. Judges who have no constituency have a duty to respect legitimate policy choices made by those who do. Then to return to the first of my two personal experiences, the views of Chevron's author, Justice Stevens, on the cases import, scholars such as Professor Tom Merrill have long noted, consistent with my anecdote, that it doesn't appear that the Chevron court intended to change the underlying law in this area. Perhaps because of that, there were always different perspectives on the scope of Chevron itself. One perspective, which was for a long time associated with Justice Scalia, was of a relatively formal two-step process like the one I've described. Another perspective would have treated the framework in a much more contextual manner, perhaps even reserving pure questions of statutory construction for the courts to decide. The canonical case expressing this contextual perspective was United States versus Mead, where the court, a decade and a half or so after Chevron, explained the measure of deference that a court gives to an agency interpretation by saying that it depended in part on the formality of the agency's procedures. In doing so, the court reasoned, and this is a quote, "The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency's care, consistency, formality, relative expertness, persuasiveness of the agency's position." That has led to, according to the court, a spectrum of judicial responses, from great respect at one end to near indifference of the other, and a variety of judicial differences. A number of justices over the years adhered to this contextual, understanding of Chevron, Justice Scalia famously dissented in me. This contextual approach to judicial deference began to reveal some tensions when assessed against the arguments in Chevron itself about the relative competencies of courts and agencies. Recall that Chevron had said that deference was appropriate because, for example, judges have no constituency. They have a duty to respect policy choices made by those who do. Even for those who agree with that principle as I do, the question was how it applies in the context of statutory interpretation. That's because the contextual approach suggested that sometimes a simplified two-step framework applied to applying judicial deference, and sometimes it did not. How to tell one from the other, one instance, one case, one category of cases from the other, the question of scope or domain was the key question. The principle that judges should respect policy choices didn't quite tell us how to define the domain because it applied throughout the area of statutory interpretation where ambiguity was present. Defining that domain based on judgments about institutional competency pose these sorts of challenges. On the one hand, there certainly were considerations mentioned in Chevron about democratic accountability and expert judgment. On the other hand, there were considerations related to fair notice or to predictability, uniformity, that are ordinarily associated with independent court review of statutory questions. How to navigate these considerations, how to strike the appropriate balance, especially when the considerations might point in different directions in defining Chevron's scope or domain, proposed and created a set of vexing questions that led to cases. Those are the policy style justifications that were present in Chevron itself. A second type of justification in the Chevron opinion was the series of precedents that the case invoked. Perhaps, as I'd learned in my 1L year, the author of Chevron intended nothing more than to restate that pre-existing law. In that case, the question was, what had that law held? Here, too, though, the justification posed complications, though perhaps not insurmountable difficulties. That is because in the decades before Chevron, courts did not approach the topic of judicial deference to agency interpretation in a consistent fashion. A particularly cogent analysis of this problem can be found in an opinion by Judge Henry Friendly of the Second Circuit, which was written in 1976, eight years before Chevron was decided. In the opinion, Judge Friendly remarked on the ever troubling question, whether the interpretation of a statute is the kind of question which justifies or requires judicial deference. He said that as of 1976, he could discern two lines of Supreme Court decisions on the subject which are analytically in conflict with the result that a Court of Appeals must choose the one it deems more appropriate for the case at hand. Some leading cases, according to Judge Friendly, supported the view that great deference must be given to the decisions of an administrative agency. But other cases, according to him, sanctioned free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term. The opinion echoed the perspective of treatise authors such as Professor Kenneth Culp Davis, who wrote as early as 1951 that the one statement that can be made with confidence about applicability of the doctrine, and here he's referring to in 1941 case that appeared to apply a measure of deference to an agency statutory interpretation, was that sometimes the Supreme Court applies it and sometimes it does not. The search for a clearer understanding then of the boundaries, scope, and domain of the principle of judicial deference to agency interpretation in precedent thus poses its own difficulties. That is because in this immediately preceding era, these prominent authorities understood that the case law was not entirely consistent on when agencies received such deference. To be sure, courts sometimes articulated principles like the judicial deference framework of Chevron, but sometimes they ignored that kind of analysis altogether. When courts did defer to agency interpretations, they tended to rely on factors such as contemporaneousness, longstanding duration, consistency, and reliance, among other factors. But these authorities themselves then raised, at least for me, another question. The authorities being Judge Friendly and Professor Davis. Had the question of when to defer to agency interpretations always been so muddled? Or did the area have a degree of coherence at one point before becoming muddled over time? I'll return to these questions after first addressing two other potential sources for an answer to the question of the boundaries of judicial deference or when to give weight to agency interpretations. The two other potential sources were not discussed in Chevron itself, but they present a perhaps deceptively simple solution to the question of boundaries. They were, unlike muddled case law, written positive law in the form of Article 3 of the Constitution and the standard of review provision in the Administrative Procedure Act. Specifically, some argued that various provisions of the constitution, the vesting clause of judicial power in Article 3 and the due process clause, required de novo review of and it barred judicial deference to executive statutory interpretation in all circumstances. To be sure, there was some authority for this position, perhaps even from surprising sources. For example, Justice Brandeis had once appeared to articulate this perspective in a 1936 concurring opinion, reasoning that the supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied. At the time, academic commentators from this era, they did understand the statement as arguing that the constitution demanded de novo review of statutory questions without weight given to agency interpretations. But Brandeis' claim was not accompanied by analysis and, in my view, went by far too quickly. Terms like judicial power and due process don't define themselves. They must be assessed against historical practices to identify the proper boundaries of judicial authority. Against the relative backdrop, it doesn't appear that the Constitution mandates, as a general rule, de novo judicial review of statutes in all circumstances. For one thing, consider that Congress can, in appropriate circumstances, cut off or preclude judicial review altogether. Historically, in certain settings, Congress applied such a preclusive res judicata model, conferring finality on agency action without further review. If Congress can preclude judicial review, it stands to reason that it can authorize judicial review in circumstances more limited than full de novo review of legal questions. Another way to put it is that the greater power preclusion naturally includes the lesser, which would be limited review. For another thing, consider the history of mandamus review of executive action. Without significant constitutional objection for much of the 19th century, judicial review occurred in certain areas using a writ of mandamus, under which an Article 3 court would not resolve questions of law de novo. That practice suggests that deferential review of legal questions, again, in some cases, can be consistent with the Constitution. What does that mean, that the Constitution provides no backstop whatsoever for judicial review and no requirement of judicial de novo review in any circumstance? That topic is bigger than this talk. But here's a preliminary stab at the answer. The Constitution might require de novo standard of review in certain targeted areas. Specifically, if one looks at the line of cases addressing when non-Article 3 tribunals may adjudicate cases, the court has addressed the interaction between Article 3 and the appropriate standard for fact finding. I'm thinking, for example, of cases like Crowell versus Benson, which respects a standard of review case and holds that Article 3 requires de novo review of some agency fact finding in private rights cases. There are recent cases like Stern versus Marshall that have reiterated this framework. Stern prohibited a clearly erroneous standard for federal court review of fact finding by a non-Article 3 bankruptcy court. To be sure, justices have disagreed about the appropriate boundaries of these categories of public and private rights. Nevertheless, similar logic could explain the circumstances in which Article 3 requires a de novo standard of review for legal questions. That would mean that the Constitution might provide a minimum requirement of de novo judicial review in some circumstances, but doesn't contain a broad-based requirement of de novo review in all circumstances. Let's turn to the other possible positive law source for a standard of review, the scope of review provision contained in the Administrative Procedure Act. Here, too, there are complications, though, in my view, more determinacy than with Article 3. The APA was enacted in 1946, after a multi-year debate. The APA provides in its scope of review provision that a reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and set aside agency action not in accordance with law. Other provisions in the statute authorize reviewing courts to set aside agency action that is arbitrary and capricious, and an abuse of discretion, and to engage in deferential, substantial evidence review of fact finding in certain agency proceedings. As a textual matter, many, myself included, have viewed this language as requiring some form of de novo review for statutory issues. After all, what to make of the language? The courts shall decide all relevant questions of law and interpret constitutional and statutory provisions. But even that does not quite answer the question because courts might take into account agency interpretations in deciding all relevant questions of law and interpreting constitutional and statutory provisions. Indeed, prior to the APA's enactment, they did so. But again, the critical question is one of boundaries, domain, and scope. In what cases did they do so? Consider an analogy from the area of constitutional interpretation. There, the court often relies on contemporaneous or customary understandings of the text by actors from within the political branches. There are many examples, but consider Justice Breyer's opinion in NLRB versus Noel Canning, which, in the course of interpreting the recess appointments clause, relied on a set of United States Attorney General opinions from 1868. As Noel Canning's entirely conventional methodology illustrates, there's a form of respect for certain persuasive executive branch practices that is built into the structure of so-called de novo constitutional interpretation itself. Thus, at least one way to look at the question is whether and how interpretive principles ought to differ for different sorts of legal text, constitutions, statutes, regulations, and there are many others, contracts, for example. To be sure, there are differences and I can't go into all the nuances here, but there are also similarities at a high enough level of generality. In this regard, the approach in Noel Canning was once one of those similarities. Consider for example the Supreme Court opinion from 1932 that reflected similar principles in the context of statutory interpretation. This is an opinion by Chief Justice Hughes and it alluded to the, "Familiar principle that great weight is attached to the construction consistently given to a statute by the executive department charged with its administration." Hughes identifies a qualification of that principle that was as well established as the principle itself, namely that the court was not bound by an administrative construction. If that construction is not uniform and consistent, it will be taken into account only to the extent that it is supported by valid reasons. This opinion was by no means isolated, and I've found other opinions written by many other justices, Justice Brandeis, Justice Cardozo in this era that said much the same. Brandeis, for example, noted that an agency construction was neither uniform, general, nor long continued, and thus could not be given the force and effect of law. Cardozo explained that it was certainly true that administrative practice consistent and generally unchallenged will not be overturned except for very cogent reasons if the scope of the command is indefinite and doubtful. Many other cases said the same, though not all. Writing in 1941, then Professor Erwin Griswold, later the dean of this law school, summarized current law regarding deference as depending on two factors that, in his words, can be compressed into two long words: contemporaneousness and long continuedness. This was a point echoed by other treatise writers of the era. Here then is a possible solution to the question of the domain scope and boundaries of judicial deference to executive statutory interpretation. Such deference ought to be given to agency interpretations, either contemporaneous with the enactment of statutory language or that reflected customary practices that had developed under the statute. It isn't the case that agency interpretations never get deference. They sometimes do, but it isn't the case that they always do. That depends on whether the rationales for deference, contemporaneousness, and long continuedness were present. But here, too, there are complications. That is because in the era immediately surrounding the passage of the Administrative Procedure Act, several Supreme Court cases undercut a sharp distinction between questions of law and questions of fact for purposes of the standard of review. Recall that at least the latter was certainly understood to be reviewed deferentially under the substantial evidence standard that predated the APA and was later codified in the APA. For example, in a 1943 case, the case is Dobson versus Commissioner, Justice Jackson read into the statutory review provision involving the Board of Tax Appeals a deferential standard reasoning that when the court cannot separate the elements of a decision so as to identify a clear cut mistake of law, the decision of the tax court must stand. That in deciding law questions, courts may properly attach weight to the decision of points of law by an administrative body having special competence to deal with the subject matter. Remarking that, perhaps the chief difficulty in consistent and uniform compliance with the congressional limitation upon court review lies in the want of a certain standard for distinguishing questions of law from questions of fact. A similar case decided the same year Congress enacted the APA remarked on the difficulty in drawing a line between questions of fact and questions of law. By the way, parenthetically, Congress did in fact, overturn Dobson itself by statute, in the context of the tax court, two years after the APA was enacted. Some other cases from this era echoed Dobson's reasoning, others did not. That explains, I think, why commentators like Professor Davis and Judge Friendly years later found there to be two lines of Supreme Court decisions analytically in conflict when they sought to figure out the boundaries of judicial deference in 1951 and 1976 respectively. By blurring these boundaries between questions of law and questions of fact, with the latter undoubtedly viewed deferentially, the court had potentially altered the boundaries and scope the domain of judicial deference, at least in some subset of cases. The question then is what the APA intended to do with this blurring of the distinction between questions of law and questions of fact. In my own view, the most plausible interpretation is that, much like with the statutory repudiation of Dobson in 1948, Congress sought to establish the traditional scope of review for legal questions when it enacted the APA standard of review provision. In doing so, Congress sought to repudiate the blurring of the law fact distinction, but that would not mean a form of review that doesn't consider agency interpretation to the contrary, as we've discussed. By its very nature, de novo review incorporates traditional canons of construction, including the classical canons giving weight to contemporaneous and customary understandings of legal text. Those interpretive principles continue to apply with equal strength today. The arguments in favor of and against that understanding of the statute and precedence necessarily require a level of detailed analysis that would get further in the weeds than I have so far. But rather than do that, let me point out what the framework that this approach might create, what kind of framework it might create. Where the traditional tools of statutory construction suggest an outcome to a statutory interpretation question, the court would apply them. Among those tools would be a form of deference to agency action under appropriate circumstances. Where such deference occurred, the court would not be departing from the best meaning of the statute. Rather, the best meaning of the statute simply would require deference to the appropriate customary and contemporaneous agency interpretations. At the same time, where Congress used different terminology or more open-ended terms in an organic statute, perhaps terms like reasonable, appropriate, feasible, practicable, the agency's actions under that statute, including any decisions to change course on a perspective that the agency adopted, would generally be subject to other standards of review in the Administrative Procedure Act, such as the arbitrary and capricious standard or the substantial evidence standards, which would require a form of deference notwithstanding the customary and contemporaneous canons. Under these circumstances, it would make sense to say that the legal text doesn't speak to a matter, but rather the questions are left unresolved and are either questions of fact or questions of policy, not legal interpretation. Let me close by highlighting a letter that I found in Felix Frankfurter's files and I dug out from my own files while preparing for this talk. In the letter which was written to a member of the Harvard Law Faculty in December of 1955, Professor Lewis Jaffe, Justice Frankfurter suggests some disappointment in Professor Jaffe's letter to him and he says that, "I have to protest," and this is a quote, "to you, of all people, that you should saddle me with being enlisted under the fact verses law banner." Then I'll ellipses out a parenthetical that he has here. "The one thing that I had supposed I'd made clear in the body of my writing since I came on the court is my rejection of the fact versus law categories." Then there's more development here in the letter. There's actually an exchange of letters that's quite revealing and interesting on this point. But what I just wanted to close with is to point out the letter highlighting the importance of concepts in legal analysis. Yes, results in cases matter, but concepts matter to the results in cases. We see from the letter and Frankfurter's engagement with the law fact distinction which had been percolating in scholarship for decades earlier, made its way into case law in the early 1940s, and it is still being debated in the 1950s that the importance of concepts to this area of law. It's a lesson I think that applies not just in this context, but to legal analysis generally. At the end of the day, let's return to the two cases pending before the court. In my own view, whether the court retains the label, Chevron deference is not particularly significant. What ultimately matters is the substance of the analytical framework that the court employs, whether that framework is called Chevron or referred to by some other name. I've tried to sketch an approach here to the problem that provides a fair and relatively predictable way to approach this problem. Thank you so much for listening to my thoughts on this issue. I'm happy to take questions. Thank you for being here. Yes, sir, in the back. Hi, I'm Frank. One of the questions I have when you talked earlier about Justice Brandeis. Is there any argument or anything with the nature of judicial power that might necessitate de novo review or something like that? Because if there's an argument that that is the case, that there would be limitations to what Congress could do. Absolutely. It's a good question and one that I could only touch upon in my remarks today. The question being, well, is there something about Article 3 that requires de novo review? To reiterate, I think that I share an intuition with you that there ought to be some sort of backstop, that Article 3 has to provide some sort of review under some sort of circumstances. That's reflected in Supreme Court cases that are precisely not directly on point, but are in an analogous area where the court has said some form of de novo review is required of agency fact finding in some subset of cases. Then the court has disagreed about what that subset of cases is, and you may be familiar with this from a federal courts class in a discussion of private versus public rights. Potentially some comparable analysis would apply and demarcate here's a category of cases where a form of de novo review is required. Having said that, I don't think it fits with either practice or Article 3 to say that it's required in all circumstances. What I mentioned when I was talking about this in my remarks is the fact that Congress would set up certain statutory schemes, like schemes to distribute pensions to war veterans and cut off judicial review. Or alternatively, allow judicial review only through a writ of mandamus, which was then accompanied by some deferential standard on statutory questions. Perhaps one could take the position that when Congress did all that, over the course of centuries, it was just all unconstitutional. But I think that would be a heavy lift and it's just not a methodological approach that I'm here to embrace. That's why I push back on the notion that Article 3 requires a de novo standard in all cases. Perhaps in some cases it does, but that's then a narrower subset of cases. Then, for example, if we think of like the largest number of adjudicated cases within agencies today, Social Security cases, it's entirely possible that de novo judicial review is not required, but is required by statute. Professor Goldsmith. I want to push you on how relatively predictable this APA framework is by asking you about the customary administrative practice component. Sorry, is this working? I want to push you on how relatively predictable the framework is by asking about the customary administrative practice component. I don't know about customary administrative practice. Most areas of law I've looked at, especially in modern times where there's a claimed reliance on custom, is extremely contested. How widespread is it, is the custom? How long is it? Is it implicit? Is it explicit? Is the entity purporting to follow the custom doing so because it feels some compulsion or not? There's a whole lot built into customary administrative practice. I guess can you say a few more words about that? Is everything going to get shoved into that component of the test? Is that where the contestability is going to arise? I take your point. I think you're quite right. In sketching out this framework, the way in which I thought it poses some complications of its own is that the framework relies on categories that then have to be translated and applied in particular circumstances. You've pointed out one of the categories, which would be customary versus non-customary agency interpretations. Another one would be contemporaneous versus non-contemporaneous, which also could be disputed. But lurking in the background, there are other categories. I'm making a whole bunch of statements against interest in answering your question. But the categories would include things like law versus fact, which is being blurred by this set of 1940s cases. In some ways, the Chevron opinion decades later is picking up on that blurring of categories to establish the framework in Chevron itself. If you reimpose the categories, well, then it matters whether something is being described as a factual question or a legal question. Doesn't matter as much if you live in a world where the legal questions are also deferred to because who cares about the line drawing? Having said that, I think my response, as my response would be in the context of a case like Noel Canning or in the case of constitutional interpretation is that we don't seek complete predictability. We seek optimal predictability as balanced against a whole host of other factors. In this case, the framework is the one that best balances all of those various ways to approach the law. What I think it adds is a set of a sense of coherence in pushing and asking why statutory interpretation ought to be conceived of as a different enterprise from constitutional interpretation. How and when did that happen? I think that was at least part of the impetus that I had when I came up with this project. I think the nutshell response is that there is no way in which to achieve optimal perfect predictability. This is the best approach that we have on hand. Professor Manning, yes? Thank you. Really interesting talk and obviously anything about Chevron is super interesting. One question I have is about consistency and stability over time. One of Justice Scalia's big things was simplicity and something that was clear to litigants, to people who lived in a regime of administrative law. Something clear to Congress against which Congress could enact statutes with confidence that they knew what they were getting. Why do you think it is that the court, over so many years in an area so critical, has maybe sometimes not fully consciously, but changed what it's doing so often? I grew up under the Hurst Packard approach, the multi-factor approach. Then when I was a third year in law school, Chevron got decided. I was very happy. Then Mead came out. Then you could say, West Virginia versus EPA is another regime. Why doesn't the court feel a sense of stare decisis in this area? It's a very good question and I think that, in fact, in a way it relates to the earlier question that our 3L colleague asked about the judicial power. The way in which it relates is that judges might feel that this is my vision of how the law operates with respect to questions of interpretation. Now, why exactly that is true as opposed to I ought to apply the way in which things were done is one way that you can think about it. Just like I look at the Sutherland Statutory Construction Treatise and the way in which things are done, we just keep doing that. I'm not departing from that, versus justices like Justice Scalia have become associated with a vision of interpretation. Neither the positive law nor the way in which things were done seems to have a hold on them and I can't tell you exactly when that might have occurred. But that's something to puzzle over whether that's a more modern phenomenon, like decades old, or whether it's centuries old, but that's part of it. Then part of I think what happened in the case of Chevron itself, candidly, this is just what I think happened, is that there was Justice Scalia's urge to simplify the area. At least initially this two-step part process in Chevron appeared to be a simplification of what came before and what came before in the multi-factor approach. Hopefully, my explanation has gotten to the point that I'm trying to find a balance between the two approaches, which is sufficiently predictable but not the multi-factor approach and not the rigid two-part test. I think that might have motivated the initial applications of Chevron, but then of course was never brought into by many of the other justices who thought of it in a more contextual manner like Justice Breyer, like Justice Souter, like Justice Stevens himself, as he put it in various cases and speeches. I think that over time, the rigidity of the approach started to be undermined, and then the folks who are interested in the approach from the perspective of it is a formal approach, became disenchanted with the notion that it no longer is. Then they started to say, well, what is the optimal approach? How ought we to approach questions like this? I think what I've given as an answer to you is a conceptual answer and I feel that it will satisfy some people in the room, and then other people in the room will say that it's because they care about particular outcomes in particular cases, and this is how they're bouncing back and forth. I do want to acknowledge that we can never get inside the heads of people who are acting under these circumstances. Maybe the fairest answer that I can give there is that it is always an appropriate balance between conceptual issues as we've seen in Justice Frankfurter's case in his letter and what might be thought of as issues related to other factors like how cases come out. Perhaps the duty of people who are outside of the judiciary is to hold the feet to the fire in terms of let's focus on the conceptual issues. One more question. Thank you. Well, as an objective observer, I want to say this was a great talk. Your colleagues at Mr. Jefferson's law school would be very proud of you. I've got, I guess, one quick question and one longer question. Has Congress ever said in a statute for this area, "We don't want Chevron"? If they've never done that, what are we to make of the fact that they haven't done it when they could have done it, presumed? Because you haven't said that your regime and you certainly don't believe the Chevron regime is required. If it hasn't happened, then why is the court going to change everything given that Congress can just attach some writer to some omnibus resolution and just pass it. A couple of responses to that. The first is, in my talk, I mentioned how Congress, in 1948, did in fact reverse the deference that had been provided to the tax court by statute and it's very interesting the way that they did it. They kept in place language that is in fact incorporated into the Administrative Procedure Act and they included a statute that said we're characterizing the language as the way in which appellate court review is conducted of trial courts. They don't go change the language; they go change a characterization of the language. That, of course, predates Chevron. There are in fact statutes where Congress has departed from what it thought to be the Chevron framework. But that then opens up the question, what is the Chevron framework? If you remember the two anecdotes that I started with, one about I just thought Chevron was describing the pre-existing law and second being about stare decisis, I think it neatly poses the problem of what in fact is getting stare decisis, which vision of this doctrine is getting stare decisis weight in the current litigation, and which vision is Congress legislating against when it enacts statutes. I, myself, have not done this research, but there are in fact scholars who have attempted to get answers to this question by surveying people who work in Congress. The complications there are, of course, the people who work in Congress, namely staffers, they keep changing. So can you pin down a moment when they are of a certain view on Chevron, and then maybe that changes when the House changes over or something like that? I think there are complications from that trying to do that type of research, even though it's admirable to engage in it. I think that how I would characterize the results of that, though no doubt I'm simplifying and perhaps the people who conducted the research would characterize it a little bit differently, is that something more like the context specific version of Chevron Appears to be in the minds of the majority of the staffers who were surveyed at the time the survey occurred, which was some decades ago at this point. I think that's an answer to the question, which is number 1, it has happened in some circumstances that Congress has specified, in particular statute, a type of standard of review that is de novo, query what the lessons of that mean. Then the second is, well, what's the doctrine? What is the doctrine that is getting stare decisis weight and against which Congress is legislating?
