Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].
The Federalist Society's Article I Initiative Writing Contest recently sought submissions from across the country with the theme, “Restoring the Constitutional Congress.” Along with my fellow contest Judges, Lillian BeVier and Chris DeMuth, I was happy to review the many interesting papers submitted for our blind review. After careful consideration and discussion, we selected Joel Nolette’s excellent paper titled, “Towards an Administrative Rule of Lenity: Restoring the Constitutional Congress by Reforming Statutory Interpretation,” as the first place winner. In it, he proposes that the Supreme Court adopt a rule of strict construction in all cases, criminal or civil, that arise regarding statutes in which Congress delegates policymaking discretion to an administrative agency. For this new “administrative rule of lenity” he explains:
The Court would use traditional tools of statutory interpretation. If the Court thereby concludes the statute or regulation is ambiguous, then it will construe the provision against the agency. This would replace the Court’s current practice of presuming an agency’s interpretation to be valid unless it is patently wrong. In other words, the Court would flip the presumptions of Chevron and Seminole Rock—if a law or rule is ambiguous, then the “tie” goes to the regulated rather than the regulator.
Joel’s paper and his central thesis are well crafted and worthy of serious consideration; we congratulate him. We also congratulate the other writing contest winners and look forward to more innovative thought and discussion from the Article I Initiative on how the legislative branch may be restored to its rightful place in our constitutional order.
