For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law
Liz Fisher
‘A statute in both thought
and word is semi-architectural’. That was Karl Llewellyn in a verse he once
wrote for his students. The reference to architecture is a reminder that a
statute, like a building, is a significant construct designed to serve a
function or functions. It
may be designed more or less well. Some provisions may be more load bearing
than others. And crucial to the design is the environment it is constructed in.
Some legal landscapes have firmer foundations than others.
Any statutory design is
also working with both positive and negative space. A statute creates
obligations and powers in relation to specific issues, but those obligations
and powers are dependent on the surrounding context for their definition.
Legislation that regulates railroad rates only gains definition by
understanding the railroad industry and the ways in which problems arise in
relation to rates. The architecture of statutes is also interrelated with the
architecture of administrative institutions. In the administrative law
context, statutory regimes are also administrative regimes and thus the capacity
and authority of an administrative body is legally relevant.
Thus, there is a lot for
courts to legally analyse in adjudicating questions concerning the legal
validity of administrative interpretations of a statutory framework. To
determine whether an administrative body has made a legal error requires
getting out the blueprints and doing some careful and very focused legal
analysis. It
is substantive legal work.
A similar approach can be seen in Australia and as the Australian judge and
scholar Mark
Leeming notes extrajudicially, the
idea that statutory interpretation ‘“must” start and end with the consideration
of the text, is not be applied literally’.
Thus in O,
Lord Hodge notes,
For a US administrative
lawyer schooled on the two steps of Chevron,
this may appear odd.
But as I have argued with Sid Shapiro, the two step test of Chevron with its apparent division of power between court and agency hides the complex legal analysis that courts are undertaking when they apply Chevron. For example, whether Congress has ‘directly spoken to the precise question at issue’ requires legal consideration of administrative capacity – it is a form of contextual legal analysis. Likewise, what is a ‘permissible construction’ under Step Two requires legal analysis of what is ‘permissible’. It is never just deference.
Indeed, the approach seen
in Anglo-Commonwealth courts is a good example of what Shapiro and I describe
as administrative law doctrine being a law of public administration. That is a
body of law in which administrative
competence legally figures.
What one thinks of the quality of that body of law is another question.
Such a doctrinal approach,
just like any form of rigorous legal analysis, gives rise to complex legal
questions. Thus, in O, as in other cases, there were arguments about the interpretative
significance of legislative materials produced in the introduction of the
relevant legislation – an issue that raises constitutional questions and issues
of legal certainty. The approach of the courts is measured. As Lady Arden noted
in relation to their legal relevance:
For the lawyer who wants
their doctrinal tests neat, all of the above will frustrate. But as Llewelyn
use to make his students chant ‘Never paraphrase a statute’. The detailed
architecture of a statute always matters to its legal analysis and there are no
easy short cuts to making sense of the legal nature of statutory architecture.
Whatever doctrinal approaches a judicially reviewing court takes, it cannot
ignore that fact.
Liz Fisher, Professor of
Environmental Law, University of Oxford, liz.fisher@law.ox.ac.uk
Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained [29].
Statutes are legal instructions transmitted into an existing, highly developed framework of legal values and expectations. The existing law, modes of reasoning, and established localized value systems provide the interpretive context in which a statute is read. Upon receipt of a statutory text, lawyers and the judiciary seek to knit it into the fabric of the law.All this means that statutory interpretation is highly particularised work. Take O. It concerned whether delegated legislation (what in the US would be described as a rule) was marred by legal error because it set the fee for a child or young person registering as a British citizen at a level which many found to be unaffordable. To determine whether the Secretary of State did have the power, the Court, among other things, had to determine whether primary legislation empowered such delegated legislation. To do that the Court had to scrutinise a number of statutes carefully and to isolate the interrelationship between them and the surrounding legal context, including the rights involved. The Court upheld the delegated legislation. In doing so, the Court was both engaging in an ‘objective assessment’ of the statute and recognising the power of the Secretary of State. As Lord Hodge started:
The appropriateness of imposing the fee on children who apply for British citizenship under section 1(4) of the 1981 Act is a question of policy which is for political determination. It is not a matter for judges for whom the question is the much narrower one of whether Parliament has authorised the Secretary of State to set the impugned fee at the level which it has been set [51].That statement may seemingly echo ideas of Chevron deference – the important point, however, is that all of this is a form of legal analysis – Anglo-Australian judges do not talk of deference in the statutory construction context. Rather as the Australian High Court has noted in a different doctrinal context, the approach of the Court is a ‘product of ‘basic principles of administrative law respecting the exercise of discretionary powers’ (Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135, [44]).
But as I have argued with Sid Shapiro, the two step test of Chevron with its apparent division of power between court and agency hides the complex legal analysis that courts are undertaking when they apply Chevron. For example, whether Congress has ‘directly spoken to the precise question at issue’ requires legal consideration of administrative capacity – it is a form of contextual legal analysis. Likewise, what is a ‘permissible construction’ under Step Two requires legal analysis of what is ‘permissible’. It is never just deference.
To obtain the meaning most likely to have been that intended by Parliament is a multi-dimensional exercise and, as I see it, the judge should draw on all the material which is properly available to him or her. Of course, he or she must consider the material with a critical eye so as to be sure that it really does help in interpreting the enactment [72].The contextual approach discussed above has also frustrated scholars who seek coherence in doctrine. Unlike Chevron it does not yield a single doctrinal test that can be easily remembered and recited like a magical incantation. As Mark Aronson has documented in a masterful survey of scholarly and doctrinal debates that relate to to the issue, some commentators are concerned that the heavy emphasis on statutory interpretation ‘weakens doctrinal stability’ in that the subject cannot be abstracted to a handful of core principles. But as Aronson underscores, given that statutes and their contexts are so diverse, it should come as no surprise that doctrinal analysis of questions concerning statutory interpretation will also be diverse and in need of particularised legal analysis. As many Anglo-Commonwealth judges have argued, there is a need to take statutes as legal constructs more seriously.