Any effort to predict how Judge Amy Coney Barrett would approach pressing questions of administrative law if elevated to the Supreme Court faces two substantial obstacles. First, then-Professor Barrett didn’t write much about administrative law while at Notre Dame Law School. Second, now-Judge Barrett hasn’t yet written an opinion in any major administrative law case while on the Seventh Circuit Court of Appeals.
In this post, I’ll endeavor to overcome those obstacles by drawing upon Barrett’s extensive scholarship on statutory interpretation. That scholarship provides insight into how Barrett might approach one of administrative law’s most centrally important and controversial doctrines: Chevron deference, which requires judges to defer to “reasonable” agency interpretations of “ambiguous” statutory text.
It’s no secret that Chevron’s future is uncertain. Last term, the Court appeared to go out of its way to limit Chevron’s domain in several cases. In a concurrence in Pereira v. Sessions, Justice Anthony Kennedy expressed a concern that lower courts have misunderstood Chevron to require “reflexive deference” to agency departures from clear statutory text, and joined Justice Gorsuch and Justice Clarence Thomas in calling for Chevron’s reconsideration. In what follows, I’ll focus on three aspects of Barrett’s scholarship that have implications for how she might approach Chevron: her textualism, her understanding of the value of precedent, and her commitment to judicial restraint.
Like Justice Gorsuch and the late Justice Scalia, Judge Barrett is a textualist. Her scholarship stresses the importance of interpreting constitutional and statutory provisions consistently with the original public meaning of their text—the meaning that an ordinary member of the public would attach to their constituent words and phrases in context—and declining to depart from that public meaning when it’s clear. Although the importance of judicial fidelity to clear text is today generally accepted on the federal bench, Barrett favors a rule-like approach to ascertaining the meaning of text that generally eschews evidentiary sources that she deems unreliable but which intentionalist or purposivist judges might be more prepared to investigate. That rule-like approach may lead her to be less likely to conclude that agencies are entitled to Chevron deference than certain of her colleagues.
It’s black-letter law that Chevron is only triggered when statutory text is found to be ambiguous—when, after applying the “traditional tools of statutory construction,” judges conclude that Congress “has not spoken to the precise question at issue.” “Step One” of Chevron consists in determining whether the relevant text is ambiguous—only if it is ambiguous do judges defer at all. Different judges may take different approaches to Step One, depending upon their preferred methodology of statutory interpretation. In a 1989 article, Judicial Deference to Agency Interpretations of Law, Justice Scalia opined that “[o]ne 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.” Particularly late in his career, Justice Scalia took a hard-nosed textualist approach to Chevron’s Step One that seemed to differ little from the kind of de novo, truly independent inquiry into the meaning of statutory text that he would engage in outside of Chevron’s domain.
Since being elevated to the Supreme Court, Justice Gorsuch has taken an approach to Chevron Step One that closely resembles Justice Scalia’s. Consider Wisconsin Central Ltd. v. United States, in which Justice Gorsuch, writing for a 5-4 Court, determined that employee stock options weren’t taxable “compensation” under the Railroad Retirement Tax Act because they weren’t “money remuneration.” Why not? Because, Justice Gorsuch wrote—drawing upon several contemporaneous dictionary definitions—ordinary readers of the statute at the time of the Act’s enactment would have understood “money remuneration” to denote currencies issued to be used as mediums of exchange, and stock options can’t be so used. As Gorsuch acknowledged, however, other contemporaneous dictionary definitions of money were more expansive, and Justice Breyer in dissent pointed out that railroad employees can’t use their paychecks—uncontroversially taxable under the Act—as mediums of exchange any more than they can so use stock options. Justice Breyer therefore had recourse to statutory purpose—which he found to consist in “exclud[ing] certain in-kind benefits that are nonmonetary” from taxation—as well as changes made in the Act over the course of the legislative process, and concluded that the statute was ambiguous as to whether stock options were taxable. He therefore would have deferred under Chevron to the Treasury Department’s “reasonable” interpretation of “compensation” as covering stock options.
How might Barrett approach such a question? It’s doubtful that she’d have recourse to legislative purpose or history. Barrett has expressed doubts that the “the often-chaotic legislative process” yields products that are designed to serve discernible purposes. She has similarly indicated that she is wary of legislative history, on the grounds that it “do[es] not reliably reflect the views of the majority who supported the statute”—rather, it may reflect only efforts by members of a minority to skew subsequent interpretation of the statute in their favor despite having lost the political battle over the statute’s content. Such beliefs about legislative purpose and history have long led textualists to focus attention exclusively on the public meaning of the language that makes it all the way through the constitutionally-prescribed lawmaking process.
It would be wrong, however, to infer that Barrett believes that textualism will yield one linguistically “right” answer in every litigated case or that extratextual normative values are irrelevant to interpretation. In a 2010 article, Substantive Canons and Faithful Agency, Barrett grappled with the problems that canons of statutory construction which “advance policies independent of those expressed in . . . statute[s]”—like the rule of lenity, which requires courts to construe ambiguous criminal statutes in favor of defendants—present for textualists who view judges as “faithful agents” who are duty-bound to give effect to legislators’ will, to the extent that legislators are exercising their power consistently with the Constitution. While such linguistic canons as inclusio unius est exclusio alterius—“the inclusion of one is the exclusion of the other”—are designed to approximate ordinary language use and thereby either to capture legislatively-intended meaning or approximate public understanding of enacted text, substantive canons like the rule of lenity are designed to promote extratextual normative values. Barrett contended that use of substantive canons may be consistent with faithful agency, but only insofar as those canons are 1.) connected to “reasonably specific constitutional value[s]”; and 2.) actually promote those values.
Barrett’s qualified endorsement of the use of substantive canons is important because the interaction between substantive canons and Chevron generally—and the rule of lenity in particular—remains somewhat murky. Chevron may directly conflict with the rule of lenity, insofar as the former requires directs reviewing courts to defer to reasonable agency interpretations of ambiguous statutes and the latter requires that ambiguous criminal statutes be strictly construed. Since lenity is among the “traditional tools of statutory construction”—it can be traced back centuries—does it apply at Step One, thus trumping Chevron? Or, since it’s a substantive rather than linguistic canon, should it be treated differently? In Chevron itself, the Court suggested that the relevant “traditional tools of statutory construction” were those which could be used to “ascertain that Congress had an intention on the precise question at issue” and lenity isn’t about ascertaining congressional intent. Although the Court has assumed that Chevron trumps lenity in the context of criminal statutes, it hasn’t definitively resolved how to treat statutes that carry both civil and criminal penalties.
To the extent that there’s interest on the current Court in limiting Chevron’s domain, Barrett’s analysis suggests a useful framework for considering whether lenity ought to be used to do so. Lenity is associated with at least two constitutionally-grounded values: fair notice of the law’s obligations and the separation of powers. As Justice Oliver Wendell Holmes, Jr., memorably put it in McBoyle v. U.S.., lenity is said to promote fair notice by encouraging legislators to speak “in language that the common world will understand,” thus enabling people to plan their affairs in ways that avoid putting themselves at risk of criminal punishment. The rule of lenity also holds the potential to promote the separation of powers by forcing legislators to shoulder the full burden of their constitutional responsibility to make law rather than passing it off to judges—or agency officials. While it’s certainly debatable whether allowing lenity to trump Chevron will effectively promote those values, Barrett’s analysis usefully frames the relevant inquiry.
Barrett on Precedent
Judge Barrett identifies as a constitutional originalist—of the public-meaning rather than original-intentions variety. In a 2011 article, Precedent and Jurisprudential Disagreement, she forthrightly confronted a problem that has long troubled originalists: What weight, if any, should today’s Justices given to the erroneous constitutional conclusions of the Court in previously-decided cases? Chevron deference has been criticized by scholars, sitting Justices, and other appellate judges on President Trump’s short list as inconsistent with the original meaning of both the Constitution and the Administrative Procedure Act. Say the critics are right. What’s a faithful originalist Justice to do?
Barrett didn’t take the position that erroneous precedents must be immediately overruled. She recognized that adherence to precedent can help judges reduce decision costs, error costs, and even legitimacy costs. As to decision costs, Barrett observed that because “justices do not all share the same interpretive methodology, they do not always have an agreed-upon standard for identifying ‘error,’” precedent can serve as a means of “mediating intense jurisprudential disagreement” between those who deploy different interpretive methodologies. It can therefore make it easier for Justices to reach decisions than it would otherwise be. As to error costs, precedent can “force . . . a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach.” Precedent may therefore discourage overhasty votes to overrule that are themselves the product of interpretive error. Finally, as to legitimacy, Barrett noted that a “weak presumption of stare decisis” is particularly important in constitutional cases because it is “both realistic about, and respectful of, pluralism”—it “helps the Court navigate controversial areas by leaving space for reargument” by citizens who seek to “push back against the proposition that the Constitution embodies the principles the Court says it does.”
Barrett made plain that she “agree[d] with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” The preservation of erroneous precedents, after all, deprives people of the benefits of the rule of law set forth in the Constitution and perpetuates public misunderstanding of that law. But the qualification is important—the conflict must be clear, because there are costs to overruling as well as preserving erroneous precedents.
Although Barrett’s analysis focused on precedent specifically in constitutional cases, it’s also relevant to administrative law doctrine that is arguably inconsistent with the Constitution. A leading argument that Chevron is unconstitutional rests upon the premise that Chevron requires judges to abdicate a duty imposed upon them by the original meaning of Article III—a duty to exercise independent interpretive judgment, to “say what the law is” without regard to the beliefs or desires of other constitutional decisionmakers or those members of the general public. Barrett’s understanding of the value of precedent suggests a willingness to weigh the benefits of correctly determining whether Chevron and other controversial but long-established doctrines are constitutionally compliant against decision, error, and legitimacy costs in a way that is “both realistic about, and respectful of, pluralism.”
Barrett on Judicial Restraint
At a time when judicial engagement—understood as the independent judicial evaluation of the lawfulness of government actions without deference to the “political branches”—is ascendant within legal conservatism, Judge Barrett is an avowed champion of judicial restraint—understood as judicial deference to decisions by the political branches that aren’t clearly unlawful. Her restraint isn’t predicated upon an overriding commitment to political majoritarianism or a naive belief that legislators or executive-branch officials always behave in public-spirited ways. Rather, it’s predicated upon careful comparative institutional analysis—analysis that leads her to conclude that because judges are not well-positioned to detect and thwart the pursuit of illegitimate ends by political decisionmakers, deferential—but not toothless—judicial review of “run of the mill legislation” is generally desirable.
In a review of Professor Randy Barnett’s 2014 book, Our Republican Constitution—in which Barnett vigorously criticized conservatives’ attachment to judicial restraint—Barrett defended the broad contours of the tiered system of judicial scrutiny that is associated with Footnote Four of the Court’s 1938 decision in United States v. Carolene Products. Under this system, as Barrett put it, “[c]ourts apply heightened scrutiny to statutes implicating fundamental rights or suspect classes, but outside of that context, they are reluctant to interfere with the outcome of the democratic process.” In particular, courts are reluctant to interfere with what Justice Harlan Fiske Stone called “ordinary commercial legislation.”
Barrett argues that the Court was wise to “give federal and state legislatures wide berth in enacting social and economic legislation and apply only minimal scrutiny when evaluating federal statutes for consistency with the limits on federal power” while reserving heightened scrutiny for a subset of statutes. Barrett is skeptical of the value of the “more demanding . . . review practiced by courts in the Lochner era”—named for a decision in which the Court held unconstitutional a provision of New York’s 1895 Bakeshop Act which fixed the maximum hours during which covered biscuit, cake, and bread bakers could work at sixty hours per week. This despite the possibility that the hours provision was not actually designed to protect anyone’s health or safety but instead was—as Professor Rebecca L. Brown has put it—“a rent-seeking, competition-reducing measure supported by labor unions and large bakeries for the purpose of driving small bakeries and their large immigrant workforce out of business.” Although Barrett is wary of “legislative overreaching,” she submits that it’s “extraordinarily difficult—if possible at all—for a court to glean what was ‘really’ going on behind the scenes of a statute” and identify impermissible legislative ends.
It’s easy to see the relevance of Barrett’s restraint to concerns that the Supreme Court is poised to return to pre-New Deal judicial review of economic regulations—her restraint certainly doesn’t suggest that she’d have any interest in such a return. But the concern with the judiciary’s institutional competence that partly animates her restraint has implications for administrative law as well. In “Judicial Deference,” Justice Scalia defended Chevron as a means of capitalizing on agencies’ comparative institutional advantages over courts in making policy choices when the text of the law doesn’t require any particular action. That Barrett is sensitive to the difficulties associated with judicial inquiries into the constitutional legitimacy of legislative ends doesn’t warrant the conclusion that she’d accept this defense of Chevron, but it does suggest that she would be mindful of the judiciary’s institutional limitations in evaluating it and deciding whether to vote to extend, limit, or discard it.
To be clear, Barrett doesn’t favor reflexive deference to the political branches. She acknowledges Barnett’s “compelling case that modern courts have occasionally stretched even the existing rationality test too far” and states that “[a] rational basis test ought not mean that courts are obliged to accept explanations that beggar all belief”—nor, presumably, ought determinations of whether agency choices are reasonable under Chevron and Auer. She also avers that “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result” and suggests that the Court may have done so in both NFIB v. Sebelius and King v. Burwell—in which it upheld the Affordable Care Act against constitutional and statutory challenges, respectively. In Barrett’s view, the judge is first and foremost an agent of “We the People”—not Congress and not any executive-branch agency. Thus, “[w]hen a statute conflicts with the Constitution, the fundamental law of the Constitution must take precedence, and the ordinary law of the statute must give way—because, properly understood, it is not law at all.” The same presumably holds true for a regulation that conflicts with a statute—such a regulatory act is, properly understood, not law at all.
Of necessity, this post contains a good deal of speculation. Judge Barrett’s scholarship contains little direct evidence of what she thinks about Chevron. That said, her scholarship strongly suggests that she will think about not only Chevron but any administrative law questions which involve determining the meaning of legal texts, reconsidering controversial precedents, and shaping doctrine in a way that enables the judiciary to perform its constitutional function without exceeding the limits of its institutional competence, in a careful, cogent, and humble manner. Her scholarship is a pleasure to read, not only because of its erudition and concision, but because it sees her forthrightly acknowledging and confronting problems and tensions within her preferred methodologies of constitutional and statutory interpretation—originalism and textualism, respectively. It discloses a spirit that—to borrow from Judge Learned Hand—“is not too sure that it is right,” and recognizes that political decisionmakers often enjoy the discretion to choose from a variety of legally-permissible means of accomplishing their goals; a mind that is equipped with tools that can be used to identify determinate answers to legal questions when such answers are available; and a conviction that the people’s agents in the judiciary are duty-bound to give effect to the text of the law of the land and the values that “this Constitution” is designed to instantiate. We can be confident in her faithful agency.
Evan Bernick is a visiting lecturer at the Georgetown University Law Center and a fellow of the Georgetown Center for the Constitution. The views and opinions set forth herein are his own.