John F. Manning

Deputy Dean

Bruce Bromley Professor of Law

Areeda 230

617-495-5547

Assistant: Margaret Flynn / 617-496-2074

Biography

John F. Manning is the Bruce Bromley Professor of Law at Harvard Law School, whose faculty he joined in 2004. He has also been Deputy Dean since 2013. Prior to coming to Harvard, Manning was the Michael I. Sovern Professor of Law at Columbia Law School, where he began teaching in 1994. Manning teaches administrative law, federal courts, legislation and regulation, separation of powers, and statutory interpretation. His writing focuses on statutory interpretation and structural constitutional law. Manning is a co-editor of Hart & Wechsler’s Federal Courts and the Federal System (6th ed., 2009) (with Richard Fallon, Daniel Meltzer, and David Shapiro), and Legislation and Regulation (2d ed., 2013) (with Matthew Stephenson). Prior to entering teaching, Manning served as an assistant to the Solicitor General in the U.S. Department of Justice (1991-94), an associate in the D.C. office of Gibson, Dunn & Crutcher (1989-91), and an attorney-advisor in the Office of Legal Counsel in the U.S. Department of Justice (1986-88). He served as a law clerk to Hon. Antonin Scalia on the Supreme Court of the United States (1988-89) and to Hon. Robert H. Bork on the U.S. Court of Appeals for the D.C. Circuit (1985-86). Manning graduated from Harvard Law School in 1985 and Harvard College in 1982. He is a member of the American Academy of Arts and Sciences.

Areas of Interest

John F. Manning, Foreword: The Means of Constitutional Power, 128 Harv. L. Rev. 1 (2014).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
,
Statutory Interpretation
,
Separation of Powers
,
Federalism
Type: Article
Abstract
This Foreword argues that the constitutional text favors an approach to both statutory and structural constitutional law that defers, within broad bounds, to congressional authority to determine how to implement constitutional power. In several important contexts, the Constitution grants implementation powers to Congress. These grants include the Necessary and Proper Clause, which provides that Congress shall have the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The upshot of that explicit assignment is not hard to describe. Unless it violates some other provision of the Constitution, when Congress specifies a reasonable means of carrying out its own power or the powers of the coordinate branches, the other branches must respect that decision. This Foreword argues that the Rehnquist and Roberts Courts have given effect to this allocation of implementation power in statutory cases, but not in structural constitutional cases. The Court’s “new textualism” in statutory interpretation builds on a post-New Deal tradition that treated the Necessary and Proper Clause as a broad source of congressional authority to enact odd, and even silly, laws, as long as they satisfied a very minimal threshold of rationality. By enforcing the statutory text, warts and all, textualism enables Congress to use its words reliably to prescribe — and make stick — rough, awkward, and often ill-fitting solutions to complex and contested social problems. In contrast, the Court's “new structuralism” in constitutional law transforms the Necessary and Proper Clause into a delegation of power to the courts to define abstract structural policies. In a novel reading of the clause, both the Rehnquist and Roberts Courts have held that a law is not “proper” if it cannot satisfy the Court's own conception of freestanding principles of federalism and separation of powers. Contrary to the Constitution’s express allocation of implementation power, this approach gives the Court rather than Congress primary responsibility for determining what means are “necessary and proper.”
John F. Manning, Separation of Powers as Ordinary Interpretation, 124 Harv. L. Rev. 1939 (2011).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Statutory Interpretation
,
Separation of Powers
Type: Article
Abstract
The Supreme Court applies the structural provisions of the Constitution by relying on an overarching framework of “separation of powers.” Its cases reflect two distinct visions of the doctrine. Functionalist decisions presuppose that Congress has plenary authority to compose the government under the Necessary and Proper Clause, subject only to the requirement that a particular governmental scheme maintain a proper overall balance of power. Formalist opinions, in contrast, assume that the constitutional structure adopts a norm of strict separation which may sharply limit presumptive congressional power to structure the government. This Article contends that, to the extent that these theories each rely on a freestanding separation of powers principle derived from the structure of the document as a whole, both contradict the idea that the Constitution is a “bundle of compromises” that interpreters must respect if they are to show fidelity to the constitution-making process. The historical record reveals that the founding generation had no single baseline against which to measure what “the separation of powers” would have required in the abstract. The U.S. Constitution, moreover, not only separates the powers of the three branches, but also blends them in order to provide mutual checks among the branches. In so doing, it strikes many different balances and expresses its purposes at many different levels of generality. When a provision carefully specifies which branch will exercise a given power and in what manner, interpreters must respect that specific compromise by prohibiting alternative means of exercising that power. Conversely, when the Constitution speaks indeterminately to a particular question, constitution-makers should not rely on abstract notions of separation of powers to displace Congress’s assigned power to compose the federal government. Rather than invoking any overarching separation of powers theory, interpreters should apply tools of ordinary textual interpretation to construe the particular clauses that make up the constitutional structure.
John F. Manning, What Divides Textualists from Purposivists?, 70 Colum. L. Rev. 106 (2006).
Categories:
Government & Politics
Sub-Categories:
Statutory Interpretation
,
Congress & Legislation
Type: Article
Abstract
Recent scholarship has questioned whether there remains a meaningful distinction between modern textualism and purposivism. Purposivists traditionally argued that because Congress passes statutes to achieve some aim, federal judges should enforce the spirit rather than the letter of the law when the two conflict. Textualists, in contrast, have emphasized that federal judges have a constitutional duty to give effect to the duly enacted text (when clear), and not unenacted evidence of legislative purpose. They have further contended that asking how a reasonable person would understand the text is more objective than searching for a complex, multimember body’s purpose. Writing from a textualist perspective, Professor Manning suggests that the conventional grounds for textualism need refinement. Modern textualists acknowledge that statutory language has meaning only in context, and that judges must consider a range of extratextual evidence to ascertain textual meaning. Sophisticated purposivists, moreover, have posited their own “reasonable person” framework to make purposive interpretation more objective. Properly understood, textualism nonetheless remains distinctive because it gives priority to semantic context (evidence about the way a reasonable person uses words) rather than policy context (evidence about the way a reasonable person solves problems). Professor Manning contends that the textualist approach to context is justified because semantic detail alone enables legislators to set meaningful limits on agreed-upon compromises. In contrast, he argues that by authorizing judges to make statutory rules more coherent with their apparent overall purposes, purposivism makes it surpassingly difficult for legislators to define reliable boundary lines for the (often awkward) compromises struck in the legislative process.
John F. Manning, Inside Congress’s Mind (Symposium in Honor of Peter L. Strauss), 115 Colum. L. Rev. 1911 (2015).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Congress & Legislation
,
Statutory Interpretation
Type: Article
Abstract
In recent years, most would associate “intent skepticism” with the rise of modern textualism. In fact, however, many diverse approaches — legal realism, modern pragmatism, Dworkinian constructivism, and even Legal Process purposivism — all build on the common theme that a complex, multimember body such as Congress lacks any subjective intention about the kind of difficult issues that typically find their way into court. From that starting point, competing approaches have tended to focus on which interpretive method will promote appropriate conceptions of legislative supremacy and the role of the courts in our constitutional system. The debates, in recent years, between textualists and modern defenders of Legal Process purposivism (such as Professor Peter Strauss) nicely illustrate that emphasis. A new generation of empirical scholarship, however, has raised questions about the intent skepticism that has long framed the interpretation debate. Most prominently, Professors Abbe Gluck and Lisa Bressman conducted an extensive survey of the understandings and practices of 137 members of the congressional staff who are engaged in legislative drafting. According to the authors, the resultant findings show, inter alia, that some interpretive approaches cannot be squared with legislative intentions while others nicely reflect such intentions. Ultimately, however, this Essay concludes that the study’s findings, although illuminating, do not alter the baseline of intent skepticism against which the statutory debate has proceeded. Indeed, the very idea of legislative intent remains unintelligible without a normative framework that structures what should count as Congress’s decision.
Matthew Stephenson & John F. Manning, Legislation & Regulation and Reform of the First Year, 65 J. Legal Educ. 45 (2015).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Statutory Interpretation
,
Congress & Legislation
,
Administrative Law & Agencies
,
Legal Education
Type: Article
Abstract
This essay discusses the development of a Legislation and Regulation course (or Leg-Reg) as part of a 1L curriculum reform that the Harvard Law School faculty unanimously adopted in 2006. The reform was adopted following three years of work by a Committee on Educational Innovations appointed by then-Dean Elena Kagan and chaired by future Dean Martha Minow. The Leg-Reg piece of the new curriculum aims to broaden the 1L program's perspective from the essential, but by today's standards incomplete, focus on private law topics and common law reasoning that had dominated the 1L curriculum since 1873. Leg-Reg instead focuses on statutes and the regulations that implement them. The course emphasizes not only the interpretation of those materials, but also the lawmaking process, institutional context, and political dynamics that shape the production and interpretation of statutes and regulations. This essay discusses several aspects of the Harvard experience with Legislation and Regulation. First, because reforming the 1L curriculum is such a daunting process, the paper provides a brief account of the extensive curricular reform process that successfully produced this and two other new 1L courses. Second, the essay discusses the course's strategy for fitting novel and somewhat different techniques, materials, and concepts into a 1L course. In particular, it will discuss the fact that, while the Leg-Reg incorporates many topics and methods that are touched on only tangentially, if at all, in other 1L courses (such as textual exegesis, legislative procedure, and public choice theory), it does so primarily by asking students (a) to learn and assess concrete, real-world legal decisions and then (b) to build out, through note material, to the broader concepts implicated by the cases. In addition, the version of the Leg-Reg course developed at Harvard is consciously transsubstantive, rather than focused on a particular policy area. Third, this essay elaborates on this pedagogical approach by giving some detail about the way Leg-Reg presents certain key cases on statutory interpretation. Fourth, the essay examines the administrative law (“Reg”) component of the course. In particular, the essay explains how starting with statutory interpretation addresses the often-voiced concern that administrative law is simply too complicated for 1Ls. This part of the essay also discusses the impact of 1L Leg-Reg course on enrollments in Administrative Law and related public law offerings.
John F. Manning, Why Does Congress Vote on Some Texts But Not Others?, 51 Tulsa L. Rev. 559 (2015) (reviewing Robert Katzmann, Judging Statutes (2014)).
Categories:
Government & Politics
Sub-Categories:
Statutory Interpretation
,
Judges & Jurisprudence
,
Congress & Legislation
Type: Article
Abstract
In Robert A. Katzmann, Judging Statutes (2014), Judge Katzmann argues that because the Constitution authorizes Congress to prescribe its own procedures, judges should pay close attention to the internal nitty-gritty of the legislative process when determining what interpretive fidelity to Congress entails. In particular, he writes that, because Congress treats legislative history “as essential in understanding [statutory] meaning,” a textualist judge who refuses to consult that resource “may... undermine the constitutional understanding that Congress's statute-making should be respected as a democratic principle.” In taking this position, Judge Katzmann joins an array of scholars who want judges to take better account of the impact of congressional rules of procedure, the way legislative staffers understand drafting practices on the ground, and the role norms of legislative behavior play in shaping statutes. This new line of inquiry might be described as a “Legislative Process school,” which tries to link the meaning constructed by interpreters more tightly to the precise means by which drafters generate that meaning. The review essay raises the following question about the Legislative Process school’s position on legislative history: Namely, if legislative history is as central to the legislative process as the Legislative Process school suggests — that is, if the most important forms of legislative history (viz. committee reports) are generated by key legislators to advise other legislators of a statute's meaning, if rank-and-file members base their votes on the legislative history, and if legislative history is more probative of the legislative “deal” than is the statute itself — then why does Congress choose to vote on the dry, technical bill alone, and not on the legislative history or, indeed, on both sets of texts in tandem? Both the bill and the accompanying committee reports are texts; both are generated by the legislative process; both are available before the final vote. So what are we to make of the fact that Congress typically chooses to vote on the bill alone? That question is sharpened, moreover, by Congress's continued failure to put legislative history to a vote three decades into a textualist campaign that has put legislative history on uncertain footing in the federal courts. Absent a convincing answer, one might wonder whether pivotal legislators think it unlikely that they could pass the full complement of legislative history — or even high value items such as committee reports — if they put those materials to a vote instead of, or even alongside, the text.
John F. Manning, Chevron and the Reasonable Legislator, 128 Harv. L. Rev. 457 (2014).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
,
Statutory Interpretation
,
Biography & Tribute
Type: Article
Abstract
This Essay uses the Court's shifting doctrines of judicial deference to agency interpretations of law to examine larger questions about the Legal Process approach to interpretation. Since the New Deal, the Court has adopted several distinctive deference regimes. First, the Hearst-Packard framework predicated the availability of judicial deference on a nonexclusive, multifactor test that asked, in effect, when it made sense, under all of the circumstances, to assume that Congress would want a court to defer. Second, the Chevron doctrine adopted a more categorical approach that instructed courts generally to defer to an agency's "reasonable" interpretation of a statute the agency administered. Third, the Mead doctrine, which is the Court's current approach, takes the intermediate position. Mead gives Chevron deference to agency interpretations announced through notice-and-comment rulemaking or formal adjudication. However, Mead also leaves open the possibility that other, unspecified factors might disclose a legislative intention to delegate interpretive lawmaking power to an agency outside those safe harbors. This Essay argues that all of these seemingly diverse approaches reflect a common foundation. They all grow out of the methodology of Legal Process School, which directs judges (a) to presume that legislature consists of "reasonable persons pursuing reasonable purposes reasonably" and (b) to read statutes accordingly. In determining appropriate deference frameworks, the Justices have almost never looked into the original meaning (if any) of the judicial review provisions of the Administrative Procedure Act (APA). Nor have they explored the background legal expectations (if any) against which those provisions were enacted. Rather, virtually every Justice to address the question has asked, in effect, what deference framework a hypothetical reasonable legislator might prefer. Whatever else, this phenomenon tells us that Legal Process reasoning continues to exert a hold on the broader legal imagination—even, on occasion, that of the Court's textualists.
John F. Manning, Chevron and Legislative History, 82 Geo. Wash. L. Rev. 1517 (2014).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Statutory Interpretation
,
Supreme Court of the United States
,
Courts
Type: Article
Abstract
The Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. presupposes that when Congress leaves indeterminacy in an organic act, that indeterminacy reflects an implicit delegation of power to the agency to fill in the details of statutory meaning. Accordingly, a reviewing court must accept the agency's interpretation if reasonable. At its threshold the Chevron test requires the reviewing court to use the "traditional tools of statutory construction" to determine if Congress expressed a clear intention concerning the interpretive question or, by virtue of indeterminacy, left the question for agency resolution. In the era in which it decided Chevron, the Court felt free to use legislative history to help determine whether Congress had directly spoken to the question at issue in the case. In the years since Chevron, the Court's understanding of the "traditional tools" of statutory interpretation has changed. Contrary to its practice at the time of Chevron, the Court has made it flatly impermissible for interpreters to rely on legislative history in a way that contradicts the text of the statute. This Article argues that the Court's new approach to legislative history precludes the Court's use of that tool of construction to resolve indeterminacy under the Chevron doctrine. If as Chevron suggests, an administrative statute's indeterminacy presumptively reflects a legislative intention to delegate broad policy-making discretion to the responsible agency, then the reviewing court's use of legislative history to narrow that discretion contradicts the implemental design of the statute by narrowing the delegation effectuated by the text.
Richard H. Fallon, John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler's the Federal Courts and the Federal System 6th, 2013 Supplement (Found. Press 6th ed. 2010).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Federalism
,
Courts
,
Legal Education
Type: Book
Abstract
This supplement brings the main casebook up to date with recent developments in the law.
John F. Manning & Matthew Stephenson, Legislation and Regulation (Found. Press 2nd ed. 2013).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Legal Education
Type: Book
Abstract
The book aims to familiarize students with tools and techniques that lawyers and judges use when crafting legal arguments in statutory or regulatory contexts, and to give students a sense of the larger questions of institutional design ...
The Honorable Antonin Scalia & John F. Manning, A Dialogue on Statutory and Constitutional Interpretation, 80 Geo. Wash. L. Rev. 1610 (2012).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Statutory Interpretation
Type: Article
Abstract
This dialogue addresses oft-discussed questions of statutory and constitutional interpretation. The topics include the reasons for treating statutory text as determinative, the arguments for not treating legislative history as authoritative evidence of statutory meaning or legislative intent, the permissibility of excising absurd results and/or scrivener’s errors from a statute’s scope, the proper method of interpreting often-technical legal texts, and the differences between statutory and constitutional interpretation (with emphasis on the proper role for The Federalist in constitutional adjudication).
John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113 (2012).
Categories:
Government & Politics
Sub-Categories:
Statutory Interpretation
,
Supreme Court of the United States
Type: Article
Abstract
Throughout most of the twentieth century, the Court subscribed to the traditional purposivist framework of Holy Trinity Church v United States, which held that Congress enacts statutes to achieve certain purposes, and that judges may reshape statutory language to fulfill those purposes. On that view, the “letter” of the law had to yield to its “spirit” or purpose. The Court, however, has not cited Holy Trinity positively for more than two decades. Rather than sacrificing letter for spirit, the Court has become increasingly inclined to adhere strictly to a clear statutory text, even when doing so produces results that fit poorly with the apparent purposes that inspired the enactment. Conventional wisdom ascribes this development to the rise of textualism. And the Court's leading textualists — Justices Scalia and Thomas — took the lead in pressing the claim that an enacted text must take priority over its unenacted purposes. Of interest here, however, the Court’s nontextualist Justices have also increasingly subscribed to the idea that judges must enforce text over purpose. This article examines why Justices who came out of the purposivist tradition might have gone along with rejecting Holy Trinity. In particular, the paper suggests that the Court's current approach may reflect a new understanding of what purposive interpretation properly entails. The new approach may assimilate a growing sense that the law's “purpose,” properly understood, embodies not merely a statute's substantive ends (its “ulterior purposes”), but also Congress's specific choices about the means to carry those ends into effect (its “implemental purposes”). On this account, purposive interpretation takes seriously the implemental signals that Congress sends through the level of generality reflected in its choice of words. A precise and specific command (“no dogs”) signals an implemental purpose to leave relatively little discretion to the interpreter. An open-ended and general command (“no disruptive animals”) signals the opposite. This article suggests that this “new purposivism” — one that accounts for implemental as well as ulterior purposes — may explain recent shifts in statutory methodology and the broad acceptance of those shifts by almost all of the Justices.
David L. Shapiro, Richard H. Fallon, John F. Manning & Daniel J. Meltzer, Hart and Wechsler's The Federal Courts and the Federal System (Found. Press 6th ed. 2009).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Federalism
,
Courts
,
Legal Education
Type: Book
Abstract
Previous editions published : 5th (2003) and 1st (1953).
John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 Yale L.J. 1663 (2004).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Eleventh Amendment
,
Statutory Interpretation
,
Federalism
,
Sovereign Immunity
Type: Article
Abstract
In recent years, the Supreme Court has frequently observed that most statutes involve compromise. In particular, when Congress enacts a clear and precise statutory text--one that articulates not only a set of relevant aims but also the specific means of their pursuit--the Court has assumed that the operative details of such a statute may reflect a (frequently unrecorded) compromise to go so far and no farther in pursuit of its background goals. Accordingly, even when a precise statute seems over- or underinclusive in relation to its ultimate aims (as is often the case), the Court now hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes. One might think that similar principles would apply with equal, if not greater, force to constitutional interpretation. The constitutional lawmaking processes prescribed by Articles V and VII reflect a conscious design to give political (or at least geographical) minorities extraordinary power to block constitutional change. Such political minorities, therefore, also have extraordinary power to insist upon compromise as the price of assent. Although constitutional scholarship tends to emphasize those constitutional texts that are framed in open-ended terms, many of the document's clauses--including some rather important ones--articulate their policies at a level of detail that suggests compromise over the acceptable means of pursuing such clauses' apparent background aims. In this Article, I argue that, just as in the case of statutes, when the Court confronts a precise and detailed constitutional text, it should adhere closely to the prescribed solution rather than stretch or contract the text in light of the apparent ratio legis. Indeed, the heightened protection assigned to minority interests in the amendment process may make it especially crucial for a court to adhere to the compromises embedded in a precise constitutional text.
John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387 (2003).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Statutory Interpretation
,
Supreme Court of the United States
Type: Article
Abstract
From the earliest days of the Republic, the Supreme Court has subscribed to the idea that judges may deviate from even the clearest statutory texts when a given application would produce otherwise absurd results. This approach has been an important safety valve in the Court’s case law even during its most textualist phases. The absurdity doctrine is predicated on the idea that Congress enacts legislation against the constraints of limited foresight, resources, and time, and that general language will sometimes produce unanticipated results. The doctrine then assumes that when a statute’s plain meaning produces a result that is contrary to society’s widely shared values, the result must have been unanticipated — something Congress would not have “intended” had it considered the question explicitly. Under that assumption, the Court has been able to avoid apparent statutory oddities without perceiving itself to have violated the constitutional premises of legislative supremacy. This article contends that the insights of modern textualism and public choice theory make that assumption harder to sustain. The legislative process is untidy, and the particular wording of a statute may have been, for unknowable reasons, essential to its passage. Thus, rather than identifying legislative intent, the Court’s invocation of “absurd results” to disturb a clear statutory text, in fact, risks displacing whatever bargain legislators actually reached through the complex and path-dependent legislative process. Moreover, treating the absurdity doctrine, in the alternative, as a normatively justified element of the federal judiciary's law-declaration power not only violates important assumptions underlying our constitutional structure, but also creates an unexplained incongruity between the constitutional assumptions applied in the Court's statutory cases and those applied in constitutional cases involving rationality review. After developing its critique of the absurdity doctrine, the article then considers alternative interpretive doctrines that have enabled the Court to avoid some but not all statutory absurdities.
John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1 (2001).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Statutory Interpretation
,
Supreme Court of the United States
Type: Article
Abstract
Recent scholarship has sought to challenge textualist interpretive methods by reviving the ancient English doctrine of the equity of the statute-a doctrine that treated atexual, purposive interpretation as an inherent attribute of judicial authority. In particular, modern proponents contend that this common law doctrine, rather than the currently prevailing faithful agent theory, more accurately reflects the original understanding of "the judicial Power of the United States." In this Article, Professor Manning argues that the English equity of the statute doctrine failed to survive the structural innovations that differentiated the U.S. Constitution from its English common law ancestry. He further contends that while early American history is somewhat mixed, the faithful agent theory came to be the dominant federal interpretive theory quite early in the republic. Finally, Professor Manning argues that, contrary to the critics of textualism, current rejection of the equity of the statute will not lead to rigid and literal interpretive methods.
John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223 (2001).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Statutory Interpretation
,
Supreme Court of the United States
Type: Article
Abstract
This article examines the Court’s practice of enforcing the nondelegation doctrine through the canon of constitutional avoidance rather than through Marbury-style judicial review. Traditionally, the Court has said that Congress may not delegate its Article I authority to administrative agencies. Nonetheless, under the prevailing “intelligible principle” test, the Court has almost never invalidated an Act of Congress on the ground that it delegates excessive discretion to an agency. Instead, the Court developed a practice of construing statutes to avoid what the Court regards as a grant of discretion broad enough to raise a serious nondelegation concern. Using the Court’s decision in FDA v. Brown & Williamson Tobacco Corp. as the primary example, this article questions the Court’s strategy of using the canon of constitutional avoidance to enforce the nondelegation doctrine. As many critics of the canon of constitutional avoidance have noted, that canon makes a difference only if it enables the Court to opt for something other than the best or most natural reading of a statute. In Brown & Williamson, which asked whether the FDA had statutory jurisdiction to regulate tobacco, the Court artificially narrowed the broad language of the Federal Food, Drug, and Cosmetic Act, in part, to avoid the inference that Congress had delegated power to regulate the tobacco industry without saying so explicitly. In reaching that conclusion, the Court used a number of specific interpretive techniques that it had, in other recent cases, deemed unreliable bases for identifying statutory meaning. This article argues that even if the Court embraces the canon of constitutional avoidance in other contexts, that approach seems a particularly inapt way to enforce the nondelegation doctrine. The entire point of the nondelegation doctrine is to ensure that Congress is responsible for basic statutory policy decisions. If, in the name of enforcing that doctrine, the Court effectively rewrites the statute, then it is not ensuring that Congress is responsible for the policy articulated in the (rewritten) statute. Indeed, building on work by Jerry Mashaw, this article suggests that using the canon of avoidance rather than judicial review to enforce the nondelegation doctrine may, if anything, be more corrosive of congressional prerogatives. If the Court invalidates a statute in the exercise of judicial review, then Congress must go back to the drawing board and bargain over how to enact its policy validly. If, however, the Court rewrites a statute, then the Court’s preferred policy point may become entrenched if it is closer to the preferences of the House, the Senate, or the President than to any alternative on which all three could agree.
John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Statutory Interpretation
,
Judges & Jurisprudence
Type: Article
Abstract
Chevron U.S.A. v. Natural Resources Defense Council, Inc. settled the now familiar principle of federal administrative law that a reviewing court must accept an agency's “reasonable” interpretation of a gap or ambiguity in a statute the agency is charged with administering. Less familiar is Bowles v. Seminole Rock & Sand Co., in which the Supreme Court explained that “the ultimate criterion” for judicial construction of an ambiguous regulation “is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Under that principle, a reviewing court must accept a “plausible construction of the . . . regulation,” even if it is not “the best or most natural one by grammatical or other standards.” The Chevron and Seminole Rock principles are superficially similar, but they presents vastly different structure incentives in the administrative state. Chevron affords an administrative agency deference to its interpretation of a statute enacted by Congress; hence, ambiguity in such a statute gives discretion to to Congress’s constitutional rival, the Executive Branch. In contrast, if Seminole Rock tells us that an agency's rules mean whatever it says they mean (unless the reading is plainly erroneous), the agency effectively secures the power of self-interpretation. This authority permits an agency to fill in regulatory gaps or ambiguities of its own making and relieves the agency of the cost of imprecision that it has produced. This state of affairs makes it that much less likely that an agency will give clear notice of its policies either to those who participate in the rulemaking process prescribed by the Administrative Procedure Act (APA) or to the regulated public. Seminole Rock deference also contradicts a major premise of our constitutional scheme and of contemporary separation of powers case law — that a fusion of lawmaking and law-exposition is especially dangerous to our liberties. From that starting point, this Article argues that the Court should replace Seminole Rock with a standard that imposes an independent judicial check on the agency's determination of regulatory meaning. In particular, it argues that courts should evaluate agency interpretations of regulations under the standard of judicial review prescribed by Skidmore v. Swift & Co. Under Skidmore, a court gives an agency interpretation the weight it deserves in light of the “thoroughness evident in the [agency's] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it the power to persuade, if lacking power to control.” That approach would restore an independent judicial check on the agency's interpretation of its own regulations while also recognizing that agency experience and expertise may be valuable in the interpretive process and that courts should be open to persuasion when an agency advances a well-reasoned interpretation of its rules.

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Assistant: Margaret Flynn / 617-496-2074