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::