What is the Future of Textualism?

[Music]

 

Chayila Kleist:  Hello, and welcome to The Federalist Society’s webinar call. Today, June 1, 2023, we discuss “What is the Future of Textualism?” My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today’s program, as The Federalist Society takes no position on particular legal or public policy issues. Now in the interest of time, we’ll keep our introductions brief. But if you’d like to know more about any of our speakers today, you can access their impressive full bios at fedsoc.org.

 

      Today, we are fortunate to have with us as our moderator the Honorable Judge Gregory Katsas. Judge Katsas was appointed to the D.C. Circuit in December of 2017. Before joining the bench, Judge Katsas argued more than 745 appeals, including 3 cases before the Supreme Court and 13 cases in the D.C. Circuit.

 

By appointment of the chief justice, he served on the Advisory Committee on Appellate Rules from 2013 to 2017. In 2016, he was elected membership in the American Academy of Appellate Lawyers. And before that, between 2001 and 2009, he served in a variety of senior positions in the Department of Justice, including the Assistant Attorney General for the Civil Division and Acting Associate Attorney General. I’ll leave it to him to introduce the rest of our panel.

 

One last note. Throughout the panel, if you have any questions, please submit them via the question and answer feature so that our speakers will have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Judge Katsas, the floor is yours.

 

Hon. Gregory G. Katsas:  Thank you. In the 2015 Scalia lecture at Harvard Law School, Justice Kagan famously declared that, “We are all textualists now.” That was a striking claim for two reasons. First, when FedSoc began in 1982 and when Justice Scalia went on the Supreme Court in 1986, we were definitely not all textualists. In fact, most lawyers and most judges were not textualists.

 

      The claim was also striking coming from Justice Kagan. She was and is the intellectual leader of the Supreme Court’s progressive wing, and textualism over the last few decades has been most closely identified with judicial conservatism. So if everyone from Antonin Scalia to Elena Kagan was now a textualist, was the debate over textualism essentially over? Well, maybe not.

 

      In West Virginia v. EPA, Justice Kagan recently lamented that textualism had become a doctrine of convenience to be set aside opportunistically with what she called “special canons,” like the major questions doctrine which magically appear as “get-out-of-text free cards”—her words, not mine.

 

      In the 2023 Scalia lecture delivered just a few weeks ago, Professor Baude asked whether textualism for all of its apparent ascendency might be missing something important in downplaying too much the significance of unwritten law. And he asked whether some of Justice Kagan’s special canons might be justified as rules or at least interpretative presumptions grounded in that unwritten law.

 

      Today, we have an all-star panel to pick up where the Scalia lecture left off. Our panel will discuss questions of textualism in general and, as is appropriate, for the administrative law and practice group will focus some attention on the foundational statute in this area, the Administrative Procedure Act, and on some of the special canons of ad law, including Chevron and the emerging major questions doctrine.

 

      Leading off fittingly enough is the deliverer of the Scalia lecture. Will Baude is a Professor at the University of Chicago Law School, where he teaches constitutional law and fed courts. He coedited a casebook called The Constitution of the United States, and he’s an Affiliated Scholar at the Center for the Study of Constitutional Originalism. He clerked for then Judge Michael McConnell on the Tenth Circuit and for Chief Justice John Roberts. In 2017, Will won the FedSoc’s Joseph Story Award.

 

      Nick Bagley is a Professor at the University of Michigan Law School, where he teaches and writes on administrative law, regulatory theory, and health law. He was previously an attorney with the appellate staff of the Civil Division DOJ. Nick began his career as a law clerk to my colleague, Judge David Tatel, on the D.C. Circuit and to Justice John Paul Stevens.

 

      Chris Walker is a Professor at the -- also a Professor at the University of Michigan Law School. He teaches Administrative Law, Constitutional Litigation, and Fed Courts—among other subjects. He too served on the appellate staff, and he presently serves as a public member of the Administrative Conference of the United States. He clerked for Judge Alex Kozinski on the Ninth Circuit and for Justice Kennedy. And he won the Joseph Story award in 2022.

 

      Emily Bremer is an Associate Professor at the University of Notre Dame Law School. She teaches and writes on administrative law, civil procedure, and business associations. She is a Public Member of ACUS, a graduate of NYU and NYU Law School, former associate at Wiley Rein, and a former law clerk to Judge Andrew Kleinfeld on the Ninth Circuit. Will, the floor is yours.

 

Prof. William Baude:  Thank you, Judge, and thank you all for coming. So I’ll just start by saying I am aware that I’m walking a fine and potentially dangerous line here in that I’m a textualist. I think textualism is important, healthy, and basically correct in describing the attitude that we—and especially judges and lawyers—should have in interpreting statutes.

 

      But I do have the concern that we are at risk of taking it too literally. And if we don’t pay more attention to that, if we take textualism itself too literally, the consequences could be sufficiently bad in the long run that it’s time to start thinking about it more carefully and rigorously now.

 

      Now, when I say it’s important, healthy, and basically correct, I just want to provide a little bit of context about what I see as the central textualist insight and why it’s so important and then why that insight might go further.

 

      So the central insight is that when deciding a case, judges should do what the statute says. And they should do that not what they think the legislature would have said if the legislature could somehow be called back into being to opine on the current controversy or contacted by séance if it’s the -- a long, dead legislature that wrote the APA or the Judiciary Act of 1789—not what they would have said, but what they said.

 

That’s the central question, the central theme. That’s the law. There are a lot of reasons for that. We’ll talk about it in a second. And judges should not do -- certainly should not do what they think the legislature should have said—not just what they would have said, but what -- the legislature being full of reasonable people, had they thought about this more carefully would have done the reasonable thing, which is usually what the judge, who is also a reasonable person, thinks is the right thing to do.

 

The insight of textualism is that what the legislature would have said and what the legislature should have said are tempting questions. But they are not the law, and they are not the right questions to ask. And so we should discipline the task of statutory interpretation and of federal law more generally by focusing on what the statute says.

 

I think that insight, as I said, is important, healthy, and basically correct. And it’s striking how far our legal system has come in recognizing that for all the reasons Judge Katsas alluded to. You can for fun open up random federal reporters from 40 or 50 years ago and see a very different attitude towards the product of legislatures—one that I think is fair to say doesn’t really prevail anywhere today. And that’s good.

 

So I’m aware that the risk of saying anything more other than, “Hosanna say, so say we all” is that we might lose the central insight that brought us here so far. Okay. But I do think we need to say more.

 

The problem is that the text itself—just the words in the -- on the page—are not all of the law in our legal system and do not answer all of the questions that our legal system needs to ask. And, of course, judges can’t help but discover that on hard cases. And so when we get to those hard cases, we need to think a little bit more carefully about what it is we’re supposed to do.

 

And in particular, I think we need to think about the insights of textualism. Why is it that judges are supposed to follow what the text says and not what the legislature would have said or should have said? And then what does that tell us about how to decide the hard cases?

 

So as I see it, the key insights of textualism are really two deeper legal theories: positivism and formalism. The positive insight is that judges are supposed to follow external sources of law rather than assume that it’s up to them to make their decision because they’re supposed to figure out not what is the right thing to do here, but what does somebody else in our legal system is the right thing to do here—some other source of law that’s been -- come from somewhere is supposed to answer the question rather than jurisdiction just giving the judge the discretion to be the lawmaker themselves.

 

That’s a basic incentive separation of powers. The judges have judicial power rather than executive power. And that is the argument for why you look at what the text says rather than what the text should have said. That’s the argument for textualism as opposed to policy making. For text over policy, it’s this kind of positivism.

 

It’s not that it is a job to decide what’s the best thing—all things considered, not that it is a job to decide what would make our legal order better rather than worse. It's the judge’s job to figure out what is the answer—some other documents, some other body of law has already provided for this question, and how can I apply it here?

 

The other key insight of textualism is formalism. And formalism is the argument that the purpose for the rule or the reasons for having a rule or not the same thing as a rule and that there are good reasons in our system to have rules and not just reasons.

 

Now, of course, this has consequences. Sometimes, rules are overbroad—the reason for enacting the rules to deal with the situation, but the rule is more categorical. Sometimes, the rules are under broad. There’s a big problem, and the rule attacks a part of the problem but doesn’t attack it as thoroughly as you might if that were all that you cared about.

 

And textualism recognizes that when judges enforce the law, the law’s rule might be different from what the ultimate purpose behind the law might be. And this insight also draws heavily on some of the basic insights of public choice over the last 50 years that statutes are created as a product of political compromises.

 

So it’s almost always a fallacy to say that a rule has a single purpose, that we imagine the rules of pursuing single-mindedly the rules of product of a lot of different factions with competing purposes and makes choices to go this far and no farther and to deal with this but not that for all the reasons of ordinary politics that we’re all too familiar with.

 

But these are the arguments that push for textualism as opposed to intentionalism—the reason to follow the text rather than what the legislature would have said is because the text is the way that we create and memorialize legal compromises in our system. So judges should follow the text rather than the imagined or known intent of the people who enacted the law.

 

So they’re forcing a rule that comes from outside themselves, and they’re enforcing the rule, not just what they imagined to be the purposes that come from outside themselves. Those two things work together in most cases to create the basic insight of textualism, right? The job of an interpreter is to enforce rules that come from someplace else, not to make the rules herself and not to imagine rules that were never actually made law anywhere.

 

But once we have those two insights, then we see that they don’t themselves necessarily stop at textualism, right? Sometimes, we have positive law that may be rules or standards that come from someplace other than statutes. Federal statutes are, of course, enacted on top of a fabric of state law and state statutes, but they’re also enacted against a background of unwritten law which governs interpretation and creates background principles against which interpretation takes place.

 

And I think for the future of textualism to be secure, we’re going to need more attention to enforcement of, recognition of, thought of unwritten law and how it works. I’m just going to take a couple more minutes so I don’t monopolize the panel for too long.

 

The first thing to say about unwritten law sounds kind of scary. It sounds like I might be saying, “The secret to textualism is anti-textualism. The secret to textualism is actually letting judges do whatever they want after all.”

 

Unwritten law is not the same thing as judges doing whatever they want. Unwritten law is the fabric of the common law—or at least it was the fabric of the common law in the world before Erie Railroad v. Tompkins and legal realism and law and economics and a lot of modern twentieth century intellectual -- I was going to say innovations. But change caused us to lose sight of the importance of unwritten law and how it works.

 

But unwritten law is a body of settled principles that are not written down in any particular statute but that lawyers and jurists can recognize, articulate, apply—sometimes update. But they form real background presumptions of our system. And they are often doing a lot of hard work in the hard, textualism cases.

 

Now then, the challenge is how to think about unwritten law that doesn’t fall prey to Justice Kagan’s criticism, that unwritten law magically appears whenever the judge needs it to and magically disappears when it’s inconvenient and serves as a get-out-of-text free card. I think the way to do this is the tension to actual history to deeper legal principles to the way the common law method used to work. And I think it has important insights for some of the specific controversies we’re surely going to talk about in a minute.

 

I’ll give two more quick examples. One is I think a lot of the canons of statutory interpretations—so-called “substantive canons”—that the people debate about, the rule against that sovereign immunity can only be abrogated by a clear statement or what have you.

 

A lot of those are instances of something like the candidate against implied repeals. Sovereign immunity is a form of unwritten law known for hundreds of years, recognized in many cases. And the rule that you need a clear statement to abrogate sovereign immunity is just another way of saying the candidate against implied repeals. There’s a law of sovereign immunity, and statutes should not likely be assumed to repeal that law unless they say so more or less fairly the way we would treat any other statute -- that sort of long-standing statutory rule.

 

Something like the major questions doctrine is harder. Maybe the major questions doctrine is a form of unwritten law designed to enforce a constitutional law doctrine called the nondelegation doctrine. I’m sure that’s fighting words on this call—maybe. That’s Justice Gorsuch’s suggestion.

 

Another possibility I think is more promising is that the major questions doctrine really just recognizes a common-sense linguistic principle that if you’re going to interpret instructions to do something dramatic, you need to be pretty sure that’s what the person meant that when the stakes are low, you can have a low standard of proof. When the stakes are high, you need a higher standard of proof.

 

I’m not convinced that’s enough to totally close the loop on justifying the major questions doctrine, but it’s the right way to think about the question. Justice Kagan has a right to be asking it. I think textualism can think about this, and it can provide answers, but the answers are not going to come from the text. They’re going to come from unwritten law. Thank you.

 

Hon. Gregory G. Katsas:  Thank you, Will. Nick?

 

Prof. Nicholas Bagley:  Yeah. Thanks for having me today. I find myself in the agreeable position of agreeing with lots of what Will said. But I’d like to put his comments into broader conversation with where I think textualism is heading today.

 

      One way of understanding what Will is up to is as intervening in an interpretive debate that’s quietly simmering in the federal courts right now about what kind of textualism we’re going to have. And from my part, I’m not as persuaded as Will is that what we need is to resort to a greater regard to -- for unwritten law.

 

      But I am in complete agreement with him that textualism needs saving. I think the crisis, though, may run even deeper than a need to place the subset of canons on a firm foundation or some of the other legal norms that we’re used to with a firmer legal footing.

 

      Let me back up, though. So when Justice Kagan made her statement in 2015 about all being textualists now, there was a lot of scribbling from lefty professors about whether she had gone soft or whether she was just opportunistic sop to conservative justices. I think she was just speaking the plain truth.

 

      And the reason for that is that by 2015, textualism really had evolved away from the astringent literalism that Scalia at his most bombastic sometimes seemed to endorse. Chief Justice Roberts in particular, who is the hinge on the Court at that point, had embraced a contextually rich approach to textualism—one that asked how the statutes’ words fit with what Congress meant to accomplish.

 

      And that approach found intellectual support from academics like Caleb Nelson, who argued that there’s just no way to make sense of what a statute means without attempting to understand what the enacting Congress meant to communicate. You’ve got to situate the statute’s text in context.

 

      The same time, a lot of leftwing jurists, including Kagan, were persuaded by the textualist claims that Will outlined in his comments—persuaded that principles of legislative supremacy, judicial restraint that counseled against a kind of freewheeling intentionalism.

 

      So in this new détente in 2015, it started to seem like everyone agreed that the interpretive project was about assigning meaning to the words that Congress used. And so yeah. We’re all textualists now. The differences between textualists seems to be about the extent to which context could shape statutory interpretation, to what extent you’d look to that even where the semantic meaning of a snippet of text might look like the statute meant something different.

 

      But at the base level, there was no—at least for mainstream jurists—no deep disagreement about what courts were supposed to be up to. Since 2015, I think a lot has changed. We’ve had a big lurch to the right on the Supreme Court, and we’ve had a generation of conservative firebrands who’ve taken their seats in the lower federal courts.

 

      And together, that’s put pressure on the notion that the kind of contextually sensitive textualism practiced by Chief Justice Roberts—whether that’s actually textualism at all. Maybe it’s just purposivism in a textualism garb.

 

      And in 2015, too, you got King v. Burwell, where Roberts and Kagan came together to reject what they saw as an overly simplistic literal interpretation of part of the Affordable Care Act. And a lot of right-leaning lawyers and jurists saw Roberts’ decision not as a vindication of textualism but as a trail of textualist principles in a case that made the ideological blood boil.

 

      So the upshot of all of this is that what textualism means and how it’s practiced is now contested or more contested than it was before with a fair number of right-leaning jurists urging an abandonment of an approach that’s now tarnished by association with the squishy chief justice.

 

      So if I’m right about that, what does this new approach to textualism look like? Tara Grove has called it “formalistic textualism with approval.” I’ve characterized it more pejoratively and provocatively as a kind of know-nothing textualism. But whatever you call it, this mode of textualism doubles or even triples down on the insight that there’s no way to determine the intent of a multi-member body.

 

      And as such, there’s no point in trying to understand what Congress means to communicate, except with reference to the narrow semantic meaning of legislative text. And resorts to context on this view is just going to tempt judges to read statutes in line with their political preferences to ask the “would” or “should” questions, that Will says rightly, they ought to avoid.

 

      Instead, what judges are going to do is just stick with a literal meaning of the words—the semantic meaning of the words—however foolish or counterproductive that might seem to be. That kind of radically decontextualized approach to textualism was on display most vividly during the arguments in the big Obamacare case that came after King v. Burwell.

 

      Remember there that a group of plaintiffs had argued that Congress, when it illuminated the penalty for going without insurance, meant to transform the individual mandate into a coercive command. And because that command was unconstitutional under NFIB v. Sebelius, plaintiffs argued that fidelity to Congress required the courts to strike down the entire ACA.

 

      Now, more commentators on the outside—conservatives and liberals alike—thought that these arguments were, to put a fine point on it, ridiculous. The notion that a Republican-controlled Congress would have adopted a coercive legal command that it knew to be unconstitutional and that the proper remedy for its action was the invalidation of the whole law was, for many people, a bridge too far.

 

      But I still think it’s notable that a solid majority of the Republican-appointed jurists who actually heard the case in the courts—so that’s the district court, two of the three judges on the Fifth Circuit, and two on the Supreme Court—they sided with the plaintiffs. They didn’t laugh this argument out of court. They took it seriously and indeed adopted it.

 

      I think you see a similarly decontextualized approach to statutory interpretation at work in Bostock, where Justice Gorsuch’s opinion is the apotheosis of literalism—a kind of only the written word is the law approach to statutory interpretation that normally the liberal justices would have shied away from.

 

      What I’d like to say is I think a few years ago when I was teaching legislation, I could have said that, “No-nothing textualism was just textualism done badly.” But I now no longer think that. I now think that textualism is up for grabs on the right in a way that it wasn’t back in the 2010s. And maybe that’s just a function of the current political moments.

 

      Maybe this is just the selective application of formalistic textualism, maybe in the context where high stakes ideological battles give conservative jurists some incentive to give the sitting administration a black eye. Maybe that’s it.

 

      But I think that habits developed today are likely to inform interpretation tomorrow, and I fear that this kind of highly literalistic approach to interpretation is in a sentence and indeed in many quarters, firmly to be desired.

 

      If I’m right about that, then I do think textualism is in a bad place. That’s why I think Will’s intervention is important and why I think textualists need to pause and take stock of where we are at. As I see it, this kind of formalistic textualism is a dead end. It’s a very strange way to make sense of language for one thing.

 

If I told you that you and I could have a conversation but that I would take everything you said literally and that I would make no allowance for context, non-verbal cues, social convention, or shared understandings, you’d think I was being rude, disrespectful. And you’d be at risk of being misunderstood in all sorts of ways that you could only dimly appreciate, that you could dimly anticipate. And you certainly wouldn’t see me as working in good faith to assign your words their most accurate meaning.

 

      And the same goes for statutory interpretation. Predictably, literalists are going to get Congress wrong much more often than they would if they took context into account. And over time, if they insist on a literalistic approach to interpretation, I think we’re going to find that judges no longer appear to be committed to legislative supremacy, no longer appear to be committed to the kind of positivism that Will mentioned in his opening comments. And that’s going to be especially the case if formalistic textualism is taken off the shelf and applied selectively in highly charged ideological cases.

 

      Beyond that, I also think that this approach to interpretation portrays a certain cynicism and even nihilism about the whole project of democratic governance. Judges are now openly saying that they have no interest in trying to read congressional statutes to make sense on their own terms.

 

      They’ve given up as if it’s not worth bothering because what Congress means to accomplish, what it means to do in the world just isn’t that important. And that reinforces, I think, some of the worst tendencies in American politics today—to assume that the worst of our policymakers, to distrust our institutions, to reduce everything to the petty spoils of ideological warfare.

 

      All of which is to say that textualism needs to find a healthier way to engage with legal texts. Will’s approach, maybe that’s one approach that’s worth considering. I’m not sure that we need to consider the unwritten law. I think that détente of the mid-2010s honestly had a lot going for it. But for sure, something has got to change.

 

Hon. Gregory G. Katsas:  Thank you, Nick. Who’s next? Chris, you’re next.

 

Prof. Christopher J. Walker:  All right. Well, this is really fun. So we’re going to -- I think Emily and I are going to kind of dive more into the Administrative Procedure Act, administrative law side of this debate. And I’m going to focus my opening on an essay I wrote for a Notre Dame law review symposium that Emily organized earlier this year celebrating the history of the Administrative Procedure Act.

 

      And what I did in that essay with my research assistant, Scott McGowan, was to try to capture where we’re at on competing theories of APA, Administrative Procedure Act, interpretation. And I wanted to tell a story, a chronological story. We started out here. We went there. Then we went here, and then we went here.

 

      And it just turns out it doesn’t work that way. It turns out that jurists use all four of the methods of interpretation. Sometimes, the same jurors uses multiple -- and so instead, it’s more of trying to put in large buckets some of the competing ideas on how to interpret the Administrative Procedure Act, which, of course, as the ad law geeks on this call know, was enacted in 1946.

 

Justice Scalia called it the “quasi constitution of the administrative state.” Others have called it a “super statute.” I’ll call it a framework statute. It’s a statute that’s only been amended less than two dozen times in over 70 years.

 

      And that’s what governs. At least that’s the default rules for the federal administrative state. And as Scott and I looked through the different approaches to statutory interpretation of the APA, we did have these four buckets emerge, and I’ve given them labels. I hate labeling things because they don’t quite capture exactly what you want.

 

      But it’s going to give you a sense of -- if you look back to the earlier 70s, 80s version, you see something similar to what I’ll call “APA pragmatism.” It’s a textually constrained purposivism. It’s where you generally follow the text, but you keep in mind the spirit of what motivated the APA and the compromise that happened. But you are kind of tethered to the text.

 

      You kind of see in response to or growing out of that something that a lot of scholars have called “administrative common law making.” Gillian Metzger is probably the leading scholar on this. And the idea here is that the APA doesn’t just set the default ceiling of what is required. It actually just sets a floor and then encourages judges to recognize the ability to create additional common law on top of that floor.

 

      For Professor Metzger, that is a constitutionally required administrative common law making a lot of situations. I think most administrative common law jurists would view it much more as an opportunity and not a constitutional requirement. And I’ll give a few examples in a minute.

 

      Then you have Vermont Yankee come to the Supreme Court, and you kind of see this whiplash effect where the Court says, the APA is the law when it comes to what agencies have to do. Courts shouldn’t be in the business of adding more requirements onto what agencies have to do. It’s Congress that does that.

 

      And from that, you see a growth of textualism. And I think it fits more into what Nick was calling more a “literalist textualism,” although the scholarship is really all over the place. Some of it’s a bit more richer context and the like.

 

      But you see this kind of pushback to say, “We’re only bound to the words of the APA. That’s all agencies have to do, and that’s what courts should do when they review agency actions.” And that really was from the 90s all the way through today.

 

      But in the last decade or so, you’ve seen a variant on this, which it’s not my label. APA originalism is what a lot of folks have called it. Evan Bernick is one that’s done this. Jeff Kozlowski [sp] had also advanced one version of it. And this is the idea that contrasting it to Tara Leigh Grove’s more formalist, more literalist textualism is the idea that you have to look at the law as it was understood at the time against the backdrop principles of law that existed.

 

      And so that’s the project that I think most conservative -- judicial conservatives are engaged in now when it comes to administrative law, although I’m curious to see if others disagree with me. And it’s a very different project than just enforcing the text of the statute. You do much deeper dives. So I’ll give you three examples.

 

      The debate we’re going to have in the fall, again and again, it’s probably not going to go away. The Supreme Court is not going to get rid of Chevron deference. It’s Chevron deference, right? The APA says that the Court shall decide all questions of law. There are some that have argued, like John Duffy, that just as a literal, textual meaning, that means no deference to the agency statutory interpretation.

 

      That debate, though, has evolved greatly in the last 15 years. I think I would credit Adesha Bonsai [sp] for really pushing it in an article he published in The Yale Law Journal. He took a deeper dive in understanding what was the existing common law? What was the backdrop at the time the APA was enacted?

 

      He doesn’t find that Chevron deference is the backdrop, but he does find that there were deference principles at play that were incorporated into the APA’s command. Now, Cass Sunstein, Ron Levin have really pushed back on that, looking at the same time period trying to figure out what was the existing understanding of the law when the APA was enacted. But I think that’s one debate that we’re going to see at the Supreme Court where that’s going to be front and center.

 

      Another one that’s been going on for the last few years is the nationwide injunctions in the administrative law context. There, the APA says that if the agency messes up, the Court shall set aside an agency action. Does “set aside” mean just set aside it for the parties? Does it mean set aside the entire rule for everyone and send it back to the agency? If you just apply a textualist/literalist approach, I’m actually not sure you get an answer.

 

      But Mila Sohoni, Sam Bray, Ron Levin, and John Harrison—among others—have done a much deeper dive to understand what did those words at the time, and what was the backdrop understanding of administrative law when Congress enacted the APA? So those are two big debates that are ongoing at the Supreme Court and the lower courts.

 

      And then the last one would be the major questions doctrine. And is it literal textualists? Is it even an interpretation of the APA? I mean, 706 of the APA sets the standard review that courts have. As I mentioned, that’s, “Court’s shall decide all questions of law.” I don’t think you get an answer there. It sure is a great purposivist interpretation of the APA maybe, but we’ll leave that maybe for the Q&A.

 

      Is it an originalist in the APA originalism understanding? I think Justice Gorsuch tries to make that argument, and we’ll kind of flesh out what that might look like. Or am I just way off base by even trying to categorize it as an interpretation of the APA? Is it something different? So those are the different approaches.

 

      In the essay, we obviously focus mainly on just mapping out the literature. Where are we at to help us more crystalize the debate? But we do it with kind of where we’re at, and that’s this idea that this APA originalism should be the approach in interpreting the APA. But because so many of these judicial precedents have been around for a very, very, very long time, agencies, regulated entities, Congress have all relied on those interpretations.

 

      Stare decisis should really play a huge role when it comes to framework statutes, like the APA. So we conclude by encouraging courts and scholars to think more carefully about stare decisis. If there are open questions about interpreting the APA, maybe harmless error—which Nick has written a lot on—is one of those open questions. Then APA originalism in its more fuller idea would apply.

 

      But if they’re closed questions, like Chevron deference or at least more closed questions like Chevron deference, we really should just leave the status quo in place unless Congress wants to change it. I think that’s where the state of the play is when it comes to APA interpretation. And I guess I’ll let Emily—who has done much, much deeper historical dive of the APA—tell me why I’m wrong.

 

Hon. Gregory G. Katsas:  Go ahead, Emily.

 

Prof. Emily Bremer:  Thank you so much, and thank you for having me. I’m not going to tell you why you’re wrong because I think I agree. There’s a lot of agreement on this call, which I am appreciating.

 

      As Chris suggests, I’m coming to this discussion as someone who doesn’t write about interpretative methodology as such. Instead, my focus is, especially lately, the meaning and operation of the Administrative Procedure Act of 1946.

 

      And as of a few years ago, I had been studying and writing about administrative procedure for over a decade. And so I thought I knew all there was to know about the APA, and I really especially focused on the APA’s procedures for rulemaking and for adjudication. And I think I—like maybe most people who work -- who either practice or teach in administrative law—assumed everyone loves this statute. Everyone has talked about this statute obsessively since the moment it was enacted. What could there possibly be left to know?

 

      But a few years ago, I decided, and I had reasons. I swear. But I decided to undertake the project of reading all the work that forms what Kenneth Cole Davis [sp] once referred to as “the APA’s intellectual foundation.” And that’s really the work of the Attorney General’s Committee on Administrative Procedure, which was a body convened at FDR’s request to study the actual procedures and practices of administrative agencies.

 

      It worked between the years of 1938 and 1941 and produced a very voluminous set of research about administrative agencies. In fact, that’s the green books that will be in my office until someone from the library comes and pries them out of my cold, dead hands.

 

      But anyway, so this work included 27 monographs on the actual practices and procedures of administrative agencies. And those monographs informed a 474-page report to Congress that included proposed legislative texts from both the conservative minority and the liberal majority of the committee. And that text was introduced into Congress, and the bill that was mostly supplied by the conservative minority eventually became the APA, of course, after World War II was over.

 

      And I’m going to speak somewhat in generalities. I’m happy to give more precise examples in the Q&A if it’s helpful. But I want to reflect a little bit on what I’ve learned from this work. And my bottom line is actually a lot like Will’s.

 

      I was really startled to discover that much—maybe even most—of the meaning of the APA’s text is really not supplied by the literal words in the statute but rather is supplied indirectly through background principles and context that the reader often subconsciously brings to the text, right?

 

      And so that includes unwritten law. I agree with that absolutely, but I define it more broadly to include other contexts, right? In the context of the APA, you’re often talking about other written laws, other statutes that structure the administrative state and the agencies.

 

But you’re also talking about a lot of information about the way those institutions are structured and how they operated as well as other contexts: the problems or mischief that Congress was trying to remedy when it enacted the APA, the success that it intended to affirm or to codify, as well as an understanding about the matters about which Congress made no decision at all—things that it decided consciously not to regulate.

 

      The hardest bit, though, is that these principles are often understood and agreed upon. This context is really widely shared in the legal profession, I think, at the time the APA is enacted and in the years afterwards.

 

      But because it’s all understood and agreed upon, it often goes unarticulated, right? And anyone who has been a summer associate in a law firm or a first-year associate in a law firm knows exactly what I’m talking about because they save this kind of project up for summer associates, right?

 

      And the project always takes the form of, “Here’s this principle that is absolutely foundational and that we all know is true. Go find me a cite.” And they’re impossible research projects because no one bothers to say the things that everyone knows to be true, right? And so it puts us in an awkward position where the things that are really important for understanding the operation of the law are often the things that go unsaid.

 

      And so if over time the legal profession -- and, of course, we’re just people, and this is a society. And over time, our understandings about those fundamental principles shift, and they change. And as they change, the way we understand the law—including and perhaps most especially the written texts—can shift and change with it, right?

 

      And the combination of these two observations, I think, really reveals a danger because you’ve got a lot of often invisible but crucially important underlying principles and contexts that you have to know in order to understand the meaning of the words in a text, right?

 

      But because they can shift and because we don’t say them out loud, they can shift without us realizing it. And then when you look at the text and you’re looking at it with a different set of background principles, a different kind of contextual grounding, the words can mean something different. And so I think it’s really -- and without us realizing it, right?

 

      So in the context of the APA, I think the danger here—and this danger, I think, grows as we get further away from 1946—there’s an increasing danger that you get kind of a rigid or shallow textualism, which I think my other panelists were talking about, that actually not just deprives the statute of its full meaning but actually can warp the meaning of the statute in a way that what ultimately is produced by a literal textualism divorced from that context is not the statute that Congress enacted.

 

      And so I’ll end with a couple of suggestions. I mean, one that Chris said that I completely agree with, I think stare decisis is really important, right? This, for me, has made more coherent that principle that stare decisis should be especially strong with statutory interpretation, which frankly I always thought was kind of weird. Why? You’ve got the text there. What do you need stare decisis for?

 

      And the answer is that, “Well, it’s to preserve the context that maybe is lost over time.” And if you adhere to stare decisis in terms of interpretations that are closer in time to the adoption of the text, I think you’re more likely to get a real understanding of what that text means.

 

      And then the other thing is, this has really impressed upon me the importance of the legal profession having a really robust shared understanding of our law and of our institutional context. And one thing that maybe we don’t value as much now as I think scholars did in earlier times is the value of those scholarly projects identifying the things we all agree on, right?

 

      I mean, legal scholarship, I think, today tends to focus on the things we disagree about and especially the things we disagree about most vehemently and passionately. But I think it’s a really important project, too, to maintain and to say out loud the things that are really crucially important but that are not contested and that are shared understandings. And maybe reinvigorating our appreciation for the value of that scholarly project could help us to retain some of the context that is otherwise lost over time. And I’ll end there.

 

Hon. Gregory G. Katsas:  Thanks. If folks want to start submitting questions, that’s great. In the meantime, I’ll give each of our panelists a couple of minutes. We’ve got about 15 minutes left, so please keep it to let’s say two minutes if you can. Will?

 

Prof. William Baude:  I love how much agreement there’s been, so I need to spoil that now as thoroughly as possible. I’ll just take two. One is I do think King v. Burwell is definitely wrong. I think it’s a classic example of the Court substituting both what Congress would have said and what Congress should have said from what Congress actually did say in the statute.

 

      Now, some of that is totally understandable because the drafting of the Affordable Care Act confronted us a unique set of political problems and political opportunities where there wasn’t as much opportunity to refine the text as maybe what would have happened in an ideal world. And that’s fine. That’s the way law gets made, but then it has consequences, and the courts have to figure out how to sort out those consequences.

 

      And I tend to think that, obviously, there was a scrivener’s error there in the drafting of the statute and the way you cut and paste various parts of the statute together. And so the interesting question is, how ready should judges be to recognize scrivener’s errors, and should we have a more liberal law of scrivener’s errors because we can trust judges to unpack that process?

 

      I’m suspicious about the answer to that, and that’s very much not the kind of move beyond textualism that I’m advocating. But I’m definitely in the minority on that in the academy. I’m in the minority on that on the courts. I’m aware of that. But for those wondering if we all agree about everything, I will say that is not what I meant at all. That is not it at all.

 

      I haven’t thought about this carefully until Emily’s thought-provoking comments, but I am skeptical of the argument for statutory stare decisis. I think the argument for humility makes a lot of sense, that here you come to the APA.

 

Having been appointed to the bench for becoming a graduate from law school in the past 10 years, don’t just assume I read the APA and I can throw out all this junk people said about it before. That seems right.

 

But stare decisis is often actually a form of judicial arrogance masquerading as humility because stare decisis privileges the most recent diktats from the courts over the oldest ones, right? So there are early cases interpreting the APA and adopting one framework for deference agency interpretation.

 

And then 40 years after the enactment of the APA, you got Chevron. Stare decisis would tell us, “Stick to Chevron because surely Chevron—adopted 40 years after the APA—is a better guide to the background principles of the APA.”

 

But I think the humility principles that Emily actually points to would tell us, “No, no. Go back to Hearst or cases in the 40s. Those are probably the ones that actually understand the background principles better.” I mean, maybe the problem is that Chevron did not respect stare decisis, and therefore, we must do unto Chevron what Chevron did unto those that came before.

 

But there’s this worry when you have an old, old statute that if you just stare decisis, you’re going to be stuck with some set of principles that don’t reflect the original picture of the statute or what they think makes sense. So I think we need a better model for what the right way to understand the context and humility of a statute is. And I worry that the stare decisis model may kind of lock us into exactly the wrong place.

 

Hon. Gregory G. Katsas:  Nick?

 

Prof. Nicholas Bagley:  Yeah. I certainly didn’t mean to impugn or to imply, Will, that you were on the side of King v. Burwell. What I do think is important to notice about the cases—not so much the outcome, which I think reasonable people can disagree about—but the way that the Court went about trying to make sense of the statute as a whole because there was no way to read that provision as the plaintiffs would have read it without doing pretty serious violence to other portions of the statute.

 

      So you step back and you say, “Okay. Well, hold on. How do we make sense of this big, complication contraption as a whole?” That, I think, is a move that a contextually informed textualist ought to be willing to embrace.

 

      And whether you call it “scrivener’s error,” I mean, I think it’s a kind of scrivener’s error when you say we can’t look at this part of the statute in isolation to mean X or other parts are just not going to function in any kind of plausible way. But whatever you call it, I do think there’s got to be room for something like that.

 

      I’ll also add that if what -- if the move that you’re endorsing, Will, is to say, “Look. We need to take a wooden” -- and I’m sure I’m putting words in your mouth, so please feel free to push back. “We need to take a pretty wooden approach to statutory interpretation when it comes to making sense of the text.”

 

But then we should be looking at lots of unwritten law to bring in principles to help us resolve any doubts we might have about that highly wooden interpretation and kind of jump over the highly contextual understanding of a whole and just leave that to one side. That strikes me as pretty odd.

 

I would think that you’d first look at the statutory text in isolation, look at it as part of the whole. And when you can’t resolve the answer, then you turn to the background principles. And it seems to me like you’re maybe—at least on my perhaps polemical recitation of what you’re up to—skipping that middle part.

 

Prof. Christopher J. Walker:  And just two quick reactions to Will’s point. On the first one, this would be a place where Chevron deference probably cleans up some stuff with badly, poorly drafted statutes that I always though the Court would have said that such exchange would allow for some room for the agency to come in and do something. But we obviously lost that -- I lost that one.

 

      On the statutory stare decisis, the one point I want to add to that discussion is, while the APA itself has not been amended many times in its history, Congress has enacted and amended hundreds of statutes that depart from the APA or that change for different -- whether it’s immigration or antitrust or the like.

 

      And they are legislating against a backdrop of those judicial interpretations in ways that I think are really meaningful. And Will didn’t say anything contrary. But I do think when we think about stare decisis in this context, there’s the one view—like the Katy Kovacs view—of just read the text and just run with it because it’s a framework statute, and it hasn’t been amended.

 

      There’s the [inaudible 48:39] Eskridge view of, “This is a rich statute that stare decisis should play a big role in.” And I would just jump in and say, well, it is a framework statute that has been amended hundreds of times in other contexts with Congress relying on the judicial interpretation of the APA. So I think that’s an important factor that comes into play when we’re deciding whether a court should be throwing away a precedent that interprets the APA.

 

Hon. Gregory G. Katsas:  Okay. Emily?

 

Prof. Emily Bremer:  So, Will, I take your point, but I think humility is the bigger lesson—and judicial humility but also scholarly humility. One thing I think a lot about is I -- some of what I have learned about the APA just totally flipped my understanding of the statute.

 

      And I have seen agencies rely on earlier work of mine to come to conclusions that I now understand were -- are wrong. And one aspect I think of, scholarly humility has to be to -- be willing to look and to dig for the things that we’ve assumed that might not be right and that are doing more work than sometimes I think we realize when we’re trying to understand the law and also to be able to acknowledge when we’ve been blind to something that actually does significantly alter our views.

 

      And one thing I think a lot -- there’s fewer better commitment pro-ego devices than publishing something, right? So you put it on the record as a thing you believe, and I think there can be a really compelling impulse to adhere to it no matter what.

 

      And one thing I do think we as scholars need to strive to do is to not succumb to that and to have the humility and the -- to be able to say what’s wrong. I just got tenure. Hooray. And I’ve had the thought that maybe what I should do now is write a little essay on the things I got wrong pre-tenure, which I can re-up in five or ten years. I don’t think I will, but I should probably.

 

Hon. Gregory G. Katsas:  All right. Let’s go to some Q&A. So let me start. Will, I want to ask you about something you mentioned in the Scalia lecture but not yet today.

 

The unwritten law you put into three different buckets. One is a lot of substantive canons that can be justified through the linguistic canon against implied repeals. Another is some other substantive canons that maybe can be justified through constitutional avoidance. You also mentioned natural law. How does that fit into the scheme?

 

Prof. William Baude:  Just a little, I think. So I think natural law is not by itself part of positive law, and judges are only supposed to apply positive law. But a lot of our substantive canons and rules against implied repeals, in turn -- it’s not a coincidence that they are what they are.

 

      We have rules against presumption. Look at retroactivity. We don’t call it a “natural law rule.” We just think of that as lawyers as pretty natural. But it exists to serve a natural law purpose. But I think in our system, the right answer is that most of natural law got filtered in only indirectly into these kinds of canons.

 

      Now, I’m cribbing heavily here on my colleague Dick Helmholz’s work, who has this whole book, Natural Law in Court. It tracks the history of natural law arguments in America. The result is, there were a lot of them, but they really operate at the margins, and judges are usually pretty careful not to just dump -- jump whole headfirst into the barrel. But that’s my view.

 

Hon. Gregory G. Katsas:  Anybody else? Okay. I’m going to try to toss out some questions here, reading as we go. So one question jumping off point is modern textualism has a lot of complexity. And one of the virtues that the proponents of textualism 101 way back in the ‘80s and ‘90s thought was really important: to make the law easily explainable to the citizenry, easily understood by the citizenry, and words on the page people can read.

 

      But if we’re talking about original message versus whatever 5.0, that has a very academic and theoretical quality to it. So how do we explain to the average citizen the complexity that you academics are now engaged in in interpreting either the Constitution or statutes? This is for anyone who wants to jump in. No takers?

 

Prof. William Baude:  I’ll start. I mean, I think this is one of the -- ideally, a lot of the unwritten law or context or things you’re drawing upon ideally won’t be totally at odds with common sense, right?

 

      Ideally, there might be principles that they aren’t there on the page when you say to somebody, “Yeah, I know it says that, but also, there’s this general principle that we don’t hide elephants in mouseholes. We don’t assume that you’re sneaking in a really big thing into a sort of weird provision.”

 

      Ideally, that’d be something that even the primitive man on the street would say, “Oh yeah. That makes sense.” I wouldn’t have known that looking at the statute, but it’s not -- it doesn’t sound like something that a malicious lawyer made up.

 

      Now, I don’t know that our canons and unwritten law always live up to that task. I think that’s one of the things that you think about as we try to make principles that make sense. But ideally, that’s actually one of the things I would be keeping an eye on.

 

Prof. Nicholas Bagley:  Go ahead, Chris.

 

Prof. Christopher J. Walker:  Nick, go. Oh, you can go, Nick.

 

Prof. Nicholas Bagley:  I was just going to say, when -- we have a rich, intuitive understanding of how language works interpersonally. And it turns out when you try to write down the rules about why we know language to work the way it does, they’re very complicated.

 

      And filtering those principles that we all take intuitively into the law requires us to come up with a lot of canons and presumptions and ways the language works. And when you write it down, it does look complicated.

 

      But stepping back, I agree with Will. You should be able to put it into a common-sense context that this is just another way that language works. We’re trying to explain how it works. And sometimes, that’s complicated. But the core intuition should be natural.

 

Prof. Christopher J. Walker:  I do think on the general law and an aspect of the unwritten law side that Will talks about in his Harvard lecture, I mean, it does worry me. And so Chas Tyler has a neat, new paper out where he applies general law to a bunch of different contexts, including Section 1983 of the Civil Rights Act, to figure out what qualified immunity is.

 

      And he looks at all the states and does state-by-state surveys of common law and statutes. And one, it’s a ton of work, and two, the error rate is really high. And so I’m kind of left with what the questioner is saying. If that’s what we’re doing -- I’m not saying that’s what Will wants us to do.

 

      But if we’re trying to look back and survey all state law that existed, that’s not the type of textualism where you read the text and you know how to order your affairs based on it. You’ve actually got to be a lawyer, a legal historian, and have access to state archives. And even then, you’ll probably still get it wrong because state-by-state surveys are really hard.

 

      And so, I mean, I don’t know. I do worry if we go into that type of approach to understand old statutes. The costs and the error rates just get way too high.

 

Hon. Gregory G. Katsas:  Okay. One minute left. I’ll try for one more here. To what extent should we be worried that overruling or weakening Chevron will unduly empower—we—imperial judges? And you won’t offend me however you answer it.

 

Prof. Nicholas Bagley:  I think that the short answer, Judge, is that we don’t totally know. I think there’s a good argument to be made that not much will change, that courts defer because of their own internal recognition of the epistemic limitations and their desire to defer to somebody who knows a little better than they do about the statutory scheme and about what the agency is trying to accomplish.

 

      But I think there’s a risk that especially in a highly polarized environment where the one -- the party that’s out of power is going to be looking to take swings at the party that’s in power. It’s going to shift some power to judges who may not always wield it responsibly. I do worry about the long-term chipping away of the authority of agencies to do their job without too much undue interference in what they’re up to.

 

Prof. Christopher J. Walker:  Yeah. I would just add on to that. I also worry and don’t know how it’s going to affect how agencies regulate and how folks litigate. And it’s going to be really hard to separate out those different factors in assessing what happens in a world without Chevron because agencies might be more careful, conservative, cautious. Litigants might be more involved in it. We just don’t know. And so I think that there’s a lot there that you have to tease out to see what the future would look like.

 

Hon. Gregory G. Katsas:  We are out of time, so I’m just going to thank the panelists for a wonderful set of presentations and turn it back to Chayila.

 

Chayila Kleist:  Absolutely. On behalf of The Federalist Society and myself, I want to thank our experts for the benefit of their valuable time and expertise today. And thank you for our audience for joining and participating.

 

      We welcome listener feedback at [email protected]. And as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.

 

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