Wednesday, January 28, 2004

Chevron's Station

Let me begin by saying that Ben is kind to characterize Scalia's position in his speech last year as "no matter what Stevens said Chevron meant, he (Justice Scalia) knew better." What Scalia actually said was more like: "Justice Stevens doesn't have the slightest clue what Chevron means. He still hasn't figured out what he did, the old geezer." Let's try and figure out why Scalia said this.

The Chevron story continues with cases like INS v Cardoza Fonseca (the Fonz to his friends), 480 US 421 (1987). The facts are unimportant for our purposes, except to say that the INS and the lower courts disagreed on which standard was the best in asylum decisions under the Refugee Act of 1980. The text gets us nowhere.

Ok, so let's make our call right here: the agency and the courts disagree. Who wins? Remember, Justice Stevens said in Chevron that "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency." Easy, right? It's a clear rule, and it means that the agency wins. No problem.

Wrong. Justice Stevens felt in this case that there is a distinction between how a standard is applied and what the standard is. He says Chevron stands for deference to agencies for the former, not the latter - Courts are still free to use statutory tools to construe statutes regardless of what the agency thinks.

Scalia picks up on all this weirdness and notes that "[t]he Court first implies that courts may substitute their interpretation of a statute for that of an agency whenever, '[e]mploying traditional tools of statutory construction,' they are able to reach a conclusion as to the proper interpretation of the statute. . . .This is not an interpretation, but an evisceration of Chevron."

You see, for Scalia, Chevron means the courts won't play the he said/we said game with agencies - the agencies just plain win, so long as they don't interpret an HHS statute to mean that Tommy Thompson gets a lifetime supply of bon bons. Stevens would rather apply Chevron deference only when he can't figure out the statute himself. Like when you want to take a stab at putting that Ikea entertainment center (you know, "Kradk" or "Bjork" or whatever they call it) together, but you also want the right to give it up and have your much smarter little sister do it for you.

One more. In Young v Community Nutrition Institute, 476 US 974 (1986), there were two potential readings of the operative statute - either the bon bon guzzling HHS Secretary "shall, as he finds necessary, promulgate regulations" to do blah blah blah or "shall promulgate regulations" on blah blah blah, but can do so "as he finds necessary." The latter requires the Secretary to regulate, but he can do so with some discretion (as Zack from Rage put it: You say "jump," I say "how high"), while the former gives the Secretary discretion over whether to regulate at all (you say "jump," I say, "not right now, thank you, I just ate"). The agency wants discretion over whether to regulate at all, and says this is how it's interpreted the statute for a long time; Congress never complained. The majority rules, under Chevron, that HHS is entitled to make this choice.

Justice Stevens disagrees. He says both that the "intent of Congress" is clear, and that "to say that the statute is susceptible of two meanings, . . . is not to say that either is acceptable." Thus, the statute has no acceptable meaning, and yet the intent of Congress is clear. Don't ask. Building on this piercing logic, Stevens notes Chevron does not herald that "the singularly judicial role of marking the boundaries of agency choice is at an end . . . [t]he Court, correctly self-conscious of the limits of the judicial role, employs a reasoning so formulaic that it trivializes the art of judging."

I will bet you $100 dollars that when Scalia read the "formulaic" line, he laughed out loud. "That's the whole point!" he must have yelled - you know, from his leather chair in the smoke-filled room where he sits by a bustling fireplace with brandy and a pen, planting seeds of the conservative conspiracy dicta by dicta. But I digress. Scalia thinks Chevron took the mish-mashed inconsistency of previous cases and replaced it with a clear rule of deference. That Stevens fails to see this means that he fails to see what he did in Chevron - it's not the most cited case in the history of law because it codified old rules, added a small twist to recent cases, or did some other boring thing the Court usually does. This is why Scalia felt confident saying to 500 students and professors at Stevens' alma mater that ol' John Paul just doesn't get it.

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