Monday, February 15, 2016

Justice Scalia on Chevron Deference (2/15/16)

The Country mourns the death of Justice Scalia.  Despite being prone to hyperbole, he was a force and, I think, generally for good.  He made us think about his statements which were the product of a keen mind.

I provide below some of the more substantive quotes and references in the tax procedure area from my Federal Tax Procedure book (the latest published version can be downloaded on SSRN - footnoted version here and nonfootnoted; I probably will have updated versions later this year).  Justice Scalia was not a tax lawyer, so his opinions in the tax area are few.  Most of his influence in the tax area is in the context of whether administrative agency pronouncement, principally Regulations, are subject to so-called Chevron deference.  In the tax context, the announcements are regulations and other announcement subject to Chevron or some lesser deference.  So most of the quotes below relate to Chevron deference in some of its many manifestations.  Justice Scalia early signaled the importance of Chevron deference in a lecture after the Chevron opinion reprinted in the Duke Law Journal (Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511,(footnotes omitted) here):
Administrative law is not for sissies -- so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture. There will be a quiz afterwards. 
Five Terms ago, the Supreme Court issued its opinion in the case of Chevron, U.S.A., Inc. v. NRDC, which announced the principle that the courts will accept an agency's reasonable interpretation of the ambiguous terms of a statute that the agency administers. Dealing with the question whether the Environmental Protection Agency could permissibly adopt the "bubble concept" -- that is, a plantwide definition of "stationary source" -- under the Clean Air Act, Justice Stevens for a unanimous Court adopted an analytical approach that deals with the problem of judicial deference to agency interpretations of law in two steps: 
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.  
Failing an affirmative response to the first inquiry, the Chevron analysis moves to step two: 
If, however, the court determines that Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
So, with that introduction, here are the significant Scalia quotes and references in my Federal Tax Procedure Book, primarily on Chevron:

On giving primacy to the text over other forms of statutory interpretation:
Some jurists, Justice Scalia the most visible, give primacy to the statutory text and are reluctant to look beyond the statutory text (for example, to the legislative history) for assistance in determining how the statutory text should be interpreted. fn15  They may discern what they often call the “plain meaning” to statutory text; in such cases, they profess to give little or no credence to broader legislative context, including legislative history (such as Committee Reports), because, they reason, only the statutory text was enacted by Congress and the text means what they believe it plainly says. fn 16  This approach to statutory interpretation is often called textualism. fn 17  If context is relevant at all to textualists, it is internal context (i.e., context within the statute itself rather than context determined from sources external to the statute) and perhaps the context of what the legislative words would mean to the hypothetical reasonable person versed in the English language as of the date of enactment (thus, for example,  permitting resort to a contemporaneous dictionary).  Other jurists find that broader legislative context assists in interpreting text and are willing to look to that broader context, most immediately the legislative history, to determine how the enacted text should be interpreted.  This approach to interpretation has different iterations that go by the terms intentionalism, purposivism and the practical reason (or dynamic) method.
   fn 15 Justice Scalia’s impact in the debate in terms of influencing others to the same position has been questioned.  See David S. Law and David Zaring, Law Versus Ideology: The Supreme Court and the Use of Legislative History, 51 Wm. and Mary L. Rev. 1653, 1659 (2010). Other authors conclude from smaller and perhaps less sophisticated samplings that Justice Scalia has had a significant impact, if not so much on other Justices on the Supreme Court then in the lower courts.  Id. 1671-1672, 1682.  Professors Law and Zaring, however, question the sophistication of the prior analyses to address the determinants in the use of legislative history.
   fn 16 Earlier in his career while on the D.C. Circuit Court of Appeals, Justice Scalia so pronounced by quoting a marvelous floor dialog between Senator Armstrong and Senator Dole, then Chair of the Finance Committee, in which Senator Dole denied having written or even read or even knowing whether any Senator wrote or even read the Committee Report and denied that the Report had been voted on by the Committee.  Hirschey v. F.E.R.C., 250 U.S. App. D.C. 1, 777 F.2d 1, 7 n.1 (D.C. Cir. 1985) (Scalia, J., concurring) (quoting 128 Cong. Rec. S8659 (daily ed. July 19, 1982)). Senator Armstrong concluded the dialog with the following comment: “[F]or any jurist, administrator, bureaucrat, tax practitioner, or others who might chance upon the written record of this proceeding, let me just make the point that this is not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.”
   fn 17 See (also containing a fair general description of the concept and noting the difference between textualism, of which Justice Scalia is a proponent, and strict construction, of which Justice Scalia is not a proponent). 
On the use of legislative history in statutory interpretation, I quote from a law review article::

Finally, we reject the oft-expressed hypothesis that Justice Scalia's vocal criticism of legislative history helps to explain the overall decline in legislative history usage since the Burger Court.  The decline is more likely attributable to the overall rightward shift in the composition of the Court, for which no single Justice can be assigned either credit or blame.  Liberal Justices who were inherently predisposed to use legislative history have, on the whole, been replaced by conservative Justices who are not. Controlling for such factors as the ideology of each Justice, we found no evidence that Justice Scalia has influenced the legislative history usage of other members of the Court.
   fn 31 David S. Law and David Zaring, Law Versus Ideology: The Supreme Court and the Use of Legislative History, 51 Wm. and Mary L. Rev. 1653, 1659 (2010); see also Nicholasa R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266, 270-271 (2013).
On the issue of subsequent legislative history, I quote the following as Justice Scalia in top form:
The legislative history of a statute is the history of its consideration and enactment. “Subsequent legislative history” -- which presumably means the post-enactment history of a statute's consideration and enactment -- is a contradiction in terms. The phrase is used to smuggle into judicial consideration legislators' expressions not of what a bill currently under consideration means . . . but of what a law previously enacted means. fn 46  fn 46 Sullivan v. Finkelstein, 496 U.S. 617, 631 (1990) (Scalia, J., concurring). 
On the use of the Joint Committee Explanation of Legislation (often called the "Blue Book") I quote the following from United States v. Woods, ___ U.S. ___, ___,134 S. Ct. 557, 568 (2013) (case citations and quotations omitted for readability).
Woods contends, however, that a document known as the “Blue Book” compels a different result. See General Explanation of the Economic Recovery Tax Act of 1981 (Pub. L. 97-34), 97 Cong., 1st Sess., 333, and n. 2 (Jt. Comm. Print 1980). Blue Books are prepared by the staff of the Joint Committee on Taxation as commentaries on recently passed tax laws. They are written after passage of the legislation and therefore do not inform the decisions of the members of Congress who vot[e] in favor of the law.  We have held that such post-enactment legislative history (a  contradiction in terms) is not a legitimate tool of statutory interpretation.” While we have relied on similar documents in the past, our more recent precedents disapprove of that practice. Of course the Blue Book, like a law review article, may be relevant to the extent it is persuasive. But the passage at issue here does not persuade. It concerns a situation quite different from the one we confront: two separate, non-overlapping underpayments, only one of which is attributable to a valuation misstatement.
In talking about the Chevron two-step analysis, I have the following in footnote 245 of my current draft:
Sometimes the steps are conflated or ignored at the extremes.  In his dissent in United States v. Home Concrete, ___ U.S. ___ ___ n. 1, 132 S.Ct. 1836, 1846 n.1 (2012), Justice Scalia pithily observed (case and law review citation omitted):
“Step 1" has never been an essential part of Chevron analysis. Whether a particular statute is ambiguous makes no difference if the interpretation adopted by the agency is clearly reasonable -- and it would be a waste of time to conduct that inquiry. The same would be true if the agency interpretation is clearly beyond the scope of any conceivable ambiguity. It does not matter whether the word “yellow” is ambiguous when the agency has interpreted it to mean “purple.”
In talking about the first step of the Chevron analysis, how do you determine when the statutory text is plain or clear:
I cannot resist the temptation to tie this lecture into an impenetrable whole, by observing that where one stands on this last point -- how clear is clear -- may have much to do with where one stands on the earlier points of what Chevron means and whether Chevron is desirable. In my experience, there is a fairly close correlation between the degree to which a person is (for want of a better word) a “strict constructionist” of statutes, and the degree to which that person favors Chevron and is willing to give it broad scope.  The reason is obvious. One 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.  It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally adopt.  Contrariwise, one who abhors a “plain meaning” rule, and is willing to permit the apparent meaning of a statute to be impeached by the legislative history, will more frequently find agency-liberating ambiguity, and will discern a much broader range of “reasonable” interpretation that the agency may adopt and to which the courts must pay deference.  The frequency with which Chevron will require that judge to accept an interpretation he thinks wrong is infinitely greater. fn 260
   fn 260 Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511 (1989). 
On the issue of whether, after a court, particularly the Supreme Court, has interpreted text that is not plain or clear, the IRS can then interpret the text differently with Chevron deference to its interpretation and responding to Justice Thomas's majority statement:  “Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.”
fn 283:  Justice Scalia in typical pungent fashion disagreed in dissent: “When a court interprets a statute without Chevron deference to agency views, its interpretation (whether or not asserted to rest upon an unambiguous text) is the law.”  The result, he urged unsuccessfully, is that the agency then cannot change that interpretation by mere interpretation otherwise entitled to Chevron deference.
I am sure that there are other, perhaps even better, Scalia quotes and references on Chevron deference.  If readers know of any, please let me know by comment or by email.

Finally on a lighter note:   In advising that I provide two versions of the book, one without footnotes (for students) and one with footnotes (for practitioners), I have the following from oral argument in Cuno v. DaimlerChrysler, Inc., 545 U.S. 1165 (2006), responding to a question from Justice Scalia:
Mr. Enrich:  In a footnote in Flast [v. Cohen], the Court specifically says, “Having now decided that there's Establishment Clause standing, we can also reach the free-exercise question without discussing whether there would be independent standing.” 
Justice Scalia:  I had not recollected that footnote. I will -- I will find it. I don't read footnotes, normally.

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