As I ponder various adlaw riddles, I often find myself asking: “What would Justice Scalia have thought about this?" And word 'round the campfire is I'm not alone in that habit. See Andrew Hamm, Alito Eulogizes Scalia at Federalist Society, SCOTUSblog (Nov. 17, 2016, 1:55 p.m.), http://www.scotusblog.com/2016/11/alito-eulogizes-scalia-at-federalist-society/ (reporting that, in a speech delivered shortly after Justice Scalia’s unexpected death, Justice Alito “expressed concern about the expansion of executive and legislative powers,” and referred to the expression “What would Scalia do?” as a once playful and “highly sacrilegious” expression that, after Justice Scalia’s death, “takes on new significance and serves as a call to action”). This post describes my latest review of some of Justice Scalia's ideas.
In my previous posts here and over at the Yale Journal on Regulation's Notice & Comment blog, I said that while I was aware of courts that had treated the arbitrary-and-capricious standard of review as overlapping with Chevron at Chevron Step Two, I was not aware of any court having conceived of that overlap extending to Chevron Step One. I asked for anyone who knew of other examples--in addition to the Fifth Circuit's SWEPCO v. EPA opinion, that is--to let me know. Since then, no one has brought any such examples to my attention.
But as I was researching another issue, I came across my old copy of Justice Scalia's Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 513-17, 521 (1989), where Justice Scalia himself seems to think that there is nothing at all unusual about the strong-overlap these Judge Duncan's SWEPCO opinion endorsed (at least according to my reading of the opinion). Here's what Justice Scalia says:
[I]t seems to me that the “traditional tools of statutory construction”' include not merely text and legislative history but also, quite specifically, the consideration of policy consequences. Indeed, that tool is so traditional that it has been enshrined in Latin: “Ratio est legis anima; mutata legis ratione mutatur et lex.”' (“The reason for the law is its soul; when the reason for the law changes, the law changes as well.”') Surely one of the most frequent justifications courts give for choosing a particular construction is that the alternative interpretation would produce “absurd”' results, or results less compatible with the reason or purpose of the statute. This, it seems to me, unquestionably involves judicial consideration and evaluation of competing policies, and for precisely the same purpose for which (in the context we are discussing here) agencies consider and evaluate them—to determine which one will best effectuate the statutory purpose. Policy evaluation is, in other words, part of the traditional judicial tool-kit that is used in applying the first step of Chevron—the step that determines, before deferring to agency judgment, whether the law is indeed ambiguous. Only when the court concludes that the policy furthered by neither textually possible interpretation will be clearly “better”' (in the sense of achieving what Congress apparently wished to achieve) will it, pursuant to Chevron, yield to the agency's choice. But the reason it yields is assuredly not that it has no constitutional competence to consider and evaluate policy.
Although Chevron and Auer raise distinct issues (see the concurring opinions of the Chief Justice and Justice Kavanaugh in Kisor), it must be said that the views of this early-vintage Justice Scalia seem, on the surface at least, at odds with Justice Kagan's view of the "traditional tools of construction" in Kisor. She repeatedly emphasized that "the core theory of Auer deference is that sometimes the law runs out, and policy-laden choice is what is left over." In her view, the whole point of judicial deference to agency interpretations of genuinely ambiguous regulations is to ensure that the agency--not the court--exercises any policy judgment necessary to resolve an interpretive conundrum:
In short, it seems that Justice Kagan's theoretical justification for Auer deference is incompatible with Justice Scalia's view of the judicial role. Of course, we're talking about the Justice Scalia of 1989; his views changed quite a bit over time--particularly on Chevron and Auer. See Greenwire, Alito Snubs Chevron, Obama EPA’s “Eraser” (Nov. 17, 2016), https://www.eenews.net/greenwire/2016/11/17/stories/1060045952 (Justice Alito reportedly confirming what many had begun to suspect: “Before his death, Nino was also rethinking the whole question of Chevron deference.”). So, who is right? Do you think Justice Scalia's views in this regard shifted over time? If so, when and for what reason? Does Justice Scalia's overt resort to policy preference explain this famous Nino-ism:
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.
Would Justice Scalia agree with Justice Kavanaugh regarding the interplay between policy judgement and State Farm:
I'll ask it again: What would Justice Scalia say?