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tv   Separation of Powers  CSPAN  October 27, 2017 8:03am-9:05am EDT

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reporters, myself included come from the stage of rallies, and have the crowd, encouraged the crowd to essentially turn on us and who was. >> at 9 p.m. eastern on "after words", journalist and a former host of cbs face the nation of sheep are on the impact of changing technology on journalism in his book, overload. he is interviewed by politico susan glasser. >> the first thing rich keep doing is doing what we're doing, and that is trying to sort out the true from the false. that's an overwhelming job now. it's a bigger responsibility than we've ever had because we did with so much more information. we now have access to more information than any people in the history of the world. but when running a little short on curators right now. we're getting so much information that we really can't process it.
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>> for more of the schedule go to booktv.org. >> d.c. circuit court judge brett kavanaugh spoke recently the heritage foundation about the judiciaries role in maintaining the constitutional separation of powers. he's introduced by former attorney general ed meese. this is one hour. >> good afternoon ladies and gentlemen. welcome to the heritage foundation center for legal and judicial studies and to our tenth annual joseph story distinguished lecture. as you might imagine the namesake of our lecture is that eminent jurist, joseph story he was remarkable patriot who carried out the founders' vision of a constitutional republic. before joining the spring for it quite a career of his own. he was a congressman.
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he was a state legislator. he was the speaker of the massachusetts house of representatives, and he was also even while he was on the supreme court a professor at the harvard law school. interestingly enough he was also noted as one of the most successful authors of the first half of the 19th century as a matter fact, when he was 65, that particular year, his book royalties gave him twice as much money as his salary as a justice of the supreme court. as many of you know he became, when he was appointed at that time the youngest justice to serve on the supreme court and one of the youngest ever to serve, he was appointed by president madison in 1811 and was actually, took office the following year in february of 1812. as most of you know i'm sure, he
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made a significant mark on american law in his 33 years on the bench, but his greatest contribution to jurisprudence is his renowned commentaries on the constitution in which he set forth a philosophy of judicial restraint. he was quite enamored by the philosophical approach to the law of chief justice marshall, and as he said, marshall's writings and the federalist with the two major sources as he was writing the commentaries. and so it is this lecture that we celebrate his legacy to the united states and to the field of law. the previous joseph story lectures have been delivered by judge clarence thomas, justice clarence thomas, justice anthony kennedy, judge robert bork, professor john harrison at virginia law school, judge ray randolph, judge alice
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batchelder, judge poe scanlan, judge rogers brown and judge carlos maya. as our guest this evening that is joining this distinguished group of judges and professors is of course the honorable brett kavanaugh. as you all know he is a judge of the united states court of appeals for the district of columbia circuit. he was appointed by george w. bush and took office on the 30th of may 2006. before his appointment to the court, judge kavanaugh served for more than five years in the white house in various capacities. he began as an associate counsel and that senior associate counsel to the president and was assistant to the president and staff secretary up until the time later on of his appointment. during his career the judge has been a partner in private
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practice with a firm here in washington, d.c. he has been an attorney and office of the solicitor general of the united states, anti-court for a number of distinguished judges -- and he clerk -- justice committee, judge alex kozinski of the ninth district and judge walter stippling of the third district. he's a graduate of yale college and also of the year law school. please join me in welcoming our joseph story distinguished lecturer for 2017, the honorable brett kavanaugh. [applause] >> thank you, general meese, for the kind introduction. i'm honored to be a to deliver the joseph story lecture. as germany said, joseph story had a profound influence on
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american laws as supreme court justice and as a scholar. i'm honored to deliver a lecture in his name. i'm particularly honored to be when i look at the distinguished list of past speakers, justice kennedy, justice thomas, my colleague ray randolph, my former colleague judge janice rogers brown whom i miss greatly. i will admit that i've not been a regular attendee at the story lecture for the last two years because, as john malcolm of heritage knows, every year it seems to fall on the same night as basketball tryouts for the cyl girls basketball team i cochaired blessed sacrament school in d.c. this year i finally pulled rank and seniority and i moved the teams tryouts back tonight. so tonight i am with you. last night i was trying with limited success to get 47 -fifth and sixth grade girls to listen
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to me. [laughing] i will try not to use my coach voice with you tonight. the tryouts were good. we're going to have a good team. you are probably not here to hear about that, but coaching my daughters and the fifth and sixth grade girls possible team has been an up or part of my life for the last six years. it sometimes mentoring the winter unscrambling out of the courthouse to get to practice and sometimes i don't always transition that well. and last year i was frustrated at practice and i finally blew the whistle, and i guess yelled is probably a fair statement, yelled at the girls, you can't dribble to a zone press. you've got to pass the ball. i guess my voice must have been like it was there, pretty loud because there was cited in the gym and there's really never cited in the gym with a bunch of fifth and sixth graders. one of the girls on the team,, tatum, has a few doublet as a
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standup comic, broke the silence and said, he's using his judge voice on us now. [laughing] and they all started laughing at me. i love all those girls, and with him and mine tonight i also try not to use my judge voice on you. i'm especially honored to be here with the general meese. to begin with on a personal level, i'm grateful to him for the kind support of my confirmation, the wonderful letter he wrote for me back in 2006. i think many others in the show will also helped through this process. as general meese knows well, you don't forget your confirmation process, and my process was interesting. i think that's a good word for it, interesting, he goes i was serving in the white house when i was nominated for the judgeship. i had worked there for five and half years before i became a
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judge. actually standing here today some 12 years later, let me say first that he think the white house experience made me a far better judge that otherwise would have been. in terms of understanding of government, of the legislative process, of the regulatory process, of national security decision-making, the pressure, the ups and downs and ins and outs of our government operates at the very highest level. i believe my white house experience made me a more knowledgeable judge certainly and also a more independent judge. independent because working at the white house, least in my view, helps give you the backbone and fortitude to say no to the government when the stakes are high. i think john roberts and elena kagan both of whom have substantial white house experience would probably say that their white house experiences likewise have made them better jurists. but at the time in 2006 it is
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fair to say that certain senators were not sold on that. they were not sold the white house was the best launching pad for a position on the d.c. circuit. indeed, one senator at my hearing noted that i'd worked at the white house for more than five years, and said in his opening remarks, this isn't just salt in the wound. this is the whole shaker. [laughing] this is a true, after the hearing about that senator, my mom said to me, i think he really respect you, as only a mom can. [laughing] so people often ask me whether the job of an appellate judge is lonely or isolated. and the short answer is that it can be if you let it. the date the president signed my commission to be a judge, which was tuesday may 30, 2006 at 7 a.m. not that you remember those things, i probably went up
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to the supreme court, justice kennedy for whom i had clicked for me in a private ceremony in his chambers with my family and justice kennedy chief justice roberts present. a justice kennedy been told i would get to my new chambers that afternoon and it would be a a phone and a computer and a desk, and no one would ever call me again. [laughing] so he advised me to get out and teach and speak and interact with the bar and students, something he had regularly done on the ninth circuit at that he has continued to do for his menus on the supreme court. anyway, i listened. i've taught full-term classes the plastic it i try to get out to many of our events and visit law schools, and tonight i'm following his advice with the honor of delivering the story lecture. when justice kennedy says something, i listen. me and 320 million other americans. i want to thank general meese
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not just for hosting me here and helping me in the confirmation process back in 2006, but far more importantly for the central role he played in leaving the revival of originalism and textualism in american law. i cannot emphasize enough how significant general meese has been in changing the direction of american law. i think often of chief justice rehnquist and justice scalia as to jurists who helped bring about a revolution in legal theory and legal doctrine. when we mention those two giants we also must celebrate general meese. he of course was responsible for many landmark policies and important decisions in his role at the white house and as attorney general. and as attorney general more than perhaps any attorney general in modern history, he took an interest in constitutional theory and doctrine. he delivered a famous speech on july 9, 1985, to the american
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bar association. it's a great speech, and if i can give you an initial homework assignment tonight, it is the best, go read his july 9, 1985 speech. but let me give you some highlights for now. his first paragraph, he said, i know the session she will be very productive. when i read that last week, very productive meeting of the aba house of delegates, i wondered, was that a lifeline, general meese? [laughing] by general meese then proceeded to talk about how utterly unpredictable his words in the supreme court of the 1980s could be when rendering its judgments. he referred to the snail darter case that he come out a few years earlier and remembered what someone said when the case came down. the bad news is that the snail darter one. the good news is that he didn't win under the 14th amendment. general meese then said that the
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court during its most recent term in 1984-85 continued to roll at large in a variable constitutional forest. he discussed three areas of the courts jurisprudence, federalism, criminal procedure, and religion. discussing federalism and genovese said that that federalism helps us, quote, better secure our ultimate goal of political liberty through decentralize government. well said. when discussing religion he said, quote, two of argued that the first amendment demands of strict neutrality between religion and irreligion would obstruct the founding generation as bizarre. the purpose was to prohibit religious tyranny, not to undermine religion generally. well said. in summarizing his views that general stated that far too many of the courts opinions were on the whole more policy choices that articulation of
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constitutional principles. he then noted in a critical passage that until there emerges a coherent jurisprudential stance, the work of the court will continue in this ad hoc fashion. he argued for a jurisprudence of originalism. to judge policies in light of principles rather than to remold principles in light of policies. general meese's speech struck a nerve in the american legal establishment, and represented a call to attention and a call to action for all those who are concerned about the rule of law and the role of courts. he urged more attention as he put it to the words of the constitution for the framers of the constitution chose their words carefully, he said. it is something said that the constitution is a document of majestic generalities. as i see it, as general meese described it, the constitution is largely a document of
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majestic specificity. and though specific words have meaning, which absent constitutional amendment continue to bind this as judges, legislators and executive officials. so if i could suggest another homework assignment for my talk today, it is of this. in the next few days block out 30 minutes of time and read the text of the constitution word for word. i guarantee you'll come away with a renewed appreciation for our constitution and its majestic specificity. the text of the constitution binds all three branches, and begin thinking back to my confirmation process, i met with senator robert byrd at one time during the process when windows trying to get confirmed. this was an interesting beating, and he said i would never forget it. he said that at the very start of the meeting. he said you will never forget this meeting, and it turned out he was right. first he asked about my family,
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and at that point back in 2006 i said i have a one-year-old daughter. and he said wow, he said i have daughters. they are 68 and 64. [laughing] but then he pulled out his constitution. you know, it was right there and i was prepared. i had this same constitution right there, too. it is tattered now but i still have. he pulled his out and he read to meet article one language about the power of the purse. why did he do that? he did that because the text of the constitution matters. he did that because if you remember senator burr, he really cared about the power of the purse. so general meese 1985 speech helped advance a straightforward philosophy of constitutional and statutory interpretation. it is not complicated but it is profound and worth repeating often. judges job is to interpret the
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law, not to make the law or make policy. so read the words of the statute as written. read the text of the constitution as written, blindfold history and tradition. don't make up new constitutional rights that are not in the constitution. don't shy away from enforcing constitutional rights that are in the text of the constitution. changing the constitution is for the amendment process. changing policy within constitutional bounds is for the legislators. remember that the structure of the constitution, the separation of powers and federalism, are not mere matters of etiquette or architecture but are essential to protecting individual liberty, structure protects liberty. and remember that courts, courts have critical role when a party has a standing enforcing the separation of powers in federalism limits. simple but profound. along with chief justice rehnquist and justice scalia and
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judge bork, judge silverman, judge ginsburg and many others in the 1970s and 1980s, general meese laid the groundwork for a rule of law is a lot of rules. for the notion of judges as umpires and not as policymakers. for the notion as he put in 1985, that judges should not be roaming at large in the constitutional forest. so a few months ago i told john malcolm i would talk tonight about the separation of powers. and i suppose that was not really a limiting selection of a topic for me. because if you are in my judicial chambers, really at any point, you would hear it often my clerks, every case is the separation of powers case. and i believe that. who decides is the basic separation of powers question at the core of so many legal disputes. and the bread and butter of our
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docket on the d.c. circuit is interpretation of statutes. usually when deciding whether an agency exceeded its statutory authority or statutory limits. that question of policing the balance between the legislative and executive branches, our administrative law docket, constitutes one of the most critical separation of powers issues in american law. and the most important factor is the precise wording of the statutory text. if you sat in our courtroom for a week or two and listened to case after case after case, and they do not advise everyone who wants to remain sane, but if he did that you would hear judge after judge from across the ideological spectrum asked counsel about the precise wording of the statute or regulation at issue. statutory interpretation has improved dramatically over the last generation. statutory text matters much more than it once did. if the text is sufficiently clear, the text usually
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controls. that text of the law is of the law. as justice kagan recently stated, we are all textualist now. by emphasizing the centrality of the words of the statute, justice scalia help to bring about a massive and enduring change on the supreme court and in american law. but more work remains. in my view, certain aspects of statutory interpretation are still troubling. and as i will explain, one primary problem stands out. let me begin, one overarching goal for me is to make judging a more neutral, impartial process in all cases, not just statutory interpretation. the american rule of law as i see it depends on neutral impartial judges who say what the law is, not what the law should be. judges are umpires, or at least should always strive to be umpires.
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in a a perfect world alleys asi envision it, the outcomes of cases would not often very basis sold on the backgrounds, logical affiliations or policy views of judges. this is of the rule of law as the law rules. the judge is on fire. the judge is not free to roam in the constitution or statutory forest as he or she sees fit. in my view this goal is not merely preference of mind-body constitutional mandate and a separation of powers system. article one assign the legislative branch along with the president the power to make laws. article iii grants the courts the judicial power to interpret those laws in individual cases and controversies. when courts apply doctrines that allow them to rewrite the laws, in effect, they are encroaching on the legislatures article one power. but this vision, this vision of judges umpire raises a natural question.
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how could we move toward that ideal in our judicial system when judges come from many different backgrounds and they had a bright and very strong ideological, political or policy predispositions? to be sure on occasion the relative constitutional or statutory provision may actually require the judge to consider policy and perform a common-law like function. federal rule of evidence 501 is a good example. let me statutory cases involve interpretation of a statutes text. under the structure of the constitution congress and the president, not the courts, possess the authority and responsibility to legislate. as a result, clear statutes, clear statutes are to be followed. statutory tax are not just common-law principles or aspirations. this tenet adhere to the text is neutral as a matter of politics and policy. the text may be pro-business or
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prolabor, prodevelopment or proenvironment, probate or proconsumer. regardless, judges should follow the text where it leads. at the same time when the text of the statute is ambiguous rather than clear, judges may resort to a variety of canons of construction. these ambiguity dependent canons include wine in case of tactual ambiguity, avoid interpretations raising constitutional questions. number two, if there is tactual ambiguity, rely on the legislative history. three, in cases of potential ambiguity, defer to an executive agencies regional interpretation of the statute, also known as chevron deference. here is the problem, and it's a major problem. all of these canons depend on the problematic thresholds
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question. courts may resort to the canons only if the statute is not clear but rather is ambiguous. but how do courts no when a statute is clear or ambiguous? in other words, how much clarity is efficient to call a statute clear and to end the case there without triggering the ambiguity dependent canons? unfortunately, there is no good or any predictably for judge determine whether tactual -- text contains enough ambiguity to cross the line where courts may resort to the constitutional avoidance doctrine, legislative history, chevron deference. in my experience, and this is my personal experience, judges often go back and forth arguing over this exact point. one judge will say the statute is clear. that should be the end of it, case over. the other judge will respond, i think the text is ambiguous,,
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meaning that one or another canons of constructions should be deployed to decide the case. neither judge can convince the other, and that's because there's no right answer. it turns out that there are at least two separate problems facing these disagreeing judges. first, the judges must decide how much clarity is enough to calls statute clear if the statute is 6040 in one direction, is that enough to call clear? how about 80/20? who knows? and second let's imagine we could agree on in 80/20 80/20 y threshold. in other words, suppose a judgment call it exclude only if it's 80/20 or more in one direction. even if we say that 80/20 is in a certain level of clarity, held within apply that for the two particular statutory text? again, who knows? determining the level of ambiguity and a given piece of statutory language is all but not possible in any rational
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way. one judges clarity is another judges ambiguity. it is difficult for judges or anyone else to perform that kind of task in a neutral, impartial, and predictable fashion. i came to be a judge to finds clarity more readily than some of my colleagues, perhaps a little less readily that a couple. i probably provide something, just ballpark income approaching a 65-35 or 60-40 will. ..
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>> even a better one. even if my colleagues, as i said, could agree on 60/40 we have to decide if the text in question surmounts that and that's a troubling task. no guide exists determining whether statutory language is clear or ambiguous. a considerable understatement, the supreme court itself admitted that there is, quote, no errorless test for identifying or recognizing plain or unambiguous language. professor ward farnesworth ewill be rated on this point arguing there are no rules or clear agreement among judges just how to decide a text is ambiguous, to making that determination, no theory helps. judging clarity of the english and whether it's reasonable to
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read it more than one way. the conceptual problem opens the door for a practical problem. they can easily be biased by strong policy preferences that the makers of the judgments hold. because judgments about clarity versus ambiguity turn on a little more than a judge's instincts sometimes, it's harder for judges to ensure that they're separating policy from what the law requires of them. it's not simply of a matter of judges trying hard enough, they look at determinations in subconscious ways. as a practical matter, of course, judges don't make the clarity versus ambiguity behind the veil of ignorance. the issues are briefed at the same stage of the proceedings, so, a judge who decides to open the ambiguity door knows what
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he or she could find behind it. unfortunately, it plays right into what many consider to be the worst of our professional training. as lawyers were indoctrinated in the first days of law school to find the clearest of pronouncements, it's no accident the book is titled "getting to maybe." >> the problem of difficult clarity versus ambiguity determinations would not be quite as significance if it affected cases only at the margins. but the outcome of many cases turns on the initial and often incoherent dichotomy between ambiguity and clarity. determinations of ambiguity are the linchpin of statutory determination. a number of supreme court decisions, really important ones, have implicated the clarity versus ambiguity problem.
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consider some cases that have turned in the recent past, the health care case, voting rights case, wisconsin right to life campaign finance case. those were hugely significant cases, each of which turned to a significant extent on an initial question of whether the relevant statue was clear or ambiguous. if the statute was ambiguous, then they can resort to constitutional avoidance. if the statute is clear, no. all of those cases were important and they were all decided on the basis of a difficult valuation of clarity versus ambiguity. the same with chevron, as justice scalia explained 25 years ago, quote, how clear is clear? it is here if chevron is not abandoned, that the future battles over agency interpretations of law will be followed, and in fact, the court has skirmished and our court particularly has
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skirmished exactly over this terrain numerous times over the last 25 years in hugely significant cases. each of which turned on a significant extent whether the relevant statute was clear or ambiguous. all the cases came down to what turned out to be a personal question, is the language clear or is it ambiguous. no wonder people suspect that judge's personnel views are infecting these kinds of cases. we have set up a system where that suspicious is almost inevitable because the reality of the ambiguity versus clarity determination causing that is almost inevitable. of course, in characterizing some of these decisions as examples of the problem, i want to be clear, i'm not in any way suggesting that the judges themselves are acting in an improper political manner. to the contrary, most judges apply the doctrine as
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faithfully as possible, but too much of the current statutory interpretation regime revolves around personally instinctive assessment of clarity versus ambiguity. this kind of decision making threatens to undermine the stability of the law and the neutrality both actual and perceived, of the judiciary. after more than 11 years on the d.c. circuit, i have a deficit sense that the clarity versus ambiguity determination is the statute clear or ambiguous is too often a barrier to the ideal of statutory interpretation should be neutral, impartial and predictable among judges of different partisan backgrounds and ideological predilections. my point should not be misunderstood. statutes will always have ambiguity, that's the nature of lang language including congress's. you cannot wish them away. even if ambiguity is
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unavoidable as a practical matter, perhaps we can avoid attaching serious interpret tiff consequences binary ambiguity determinations that are so hard to make in a neutr neutral impartial way. instead of injecting that into the heart of the decision, we can side line that threshold inquiry as much as possible. what is the solution? here is one idea. judges should strive to find the best reading of the statute. they should not be diverted by the initial query whether it can be characterized as clear or ambiguous. in other words, we can make sure that judges do not or at least rarely have to ask whether a statute is clear or ambiguous in the course of interpreting it. instead, statutory interpretation could proceed in a two-step process. first, courts could determine the best reading of the text of the statute by interpreting the
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words of the statute, taking account of the context of the whole statute, and applying any other appropriate semantic canons of construction. semantic canons are the way we understand the general rules of understanding the english language. once they read the text, judges can reply openly and honestly, any canons, documents and presumption defense extra territoriality, of an mensrea, or departure from the best reading of the text. under this two-step approach, few if any statutory interpretation cases would turn on the finding of clarity versus ambiguity on the way they do now. to be sure to determine the best reading of the staut tut is not always easy.
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we have tools to perform that task and communicate it to the parties and the public in our opinions. why layer on a whole separate inquiry, is the statute clear or ambiguous? it does not help uncover the best reading and inherent in a neutral and impartial and predictable way. let me take you into a few of the canons to show you what i'm talking about. start with the avoidance cannon. under that, judges interpret ambiguous so as to avoid a constitutional question or unconstitutionality that would arrive if the ambiguity were resolved in one direction or the other. for the cannen to be triggered there must be ambiguity to the statute. the initial problem, or one initial problem with the constitutional avoid dance doctrine apart from the doctrine, it could look like judicial, and a failure to
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confront the way the statute is written. apart from the ambiguity problem, sometimes it's invoked when there are questions of constitutionality, rather than actual unconstitutionality. as a result the doctrine give judges to push in one direction to avoid coming up with the constitutional line. and put aside those critiques of the avoidance doctrine which i think are serious and weighty. apart from and in addition to those, i would suggest avoiding the constitutional cannon for different reasons. it's so uncertain. that flaw was famously outlined, in analyzing a case it's perhaps important to underscore something that seems to be overlooked about almost all observers.
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the chief justice agreed with the justices scalia, thomas, alito about the individual mandate and five justices agreed about the scope of the commerce and unnecessary causes. they agreed on the scope of the taxing clause and they agreed that the individual mandate provision was best read, best read to impose a legal mandate, a penalty rather than a tax. in short, that they agreed that the individual mandate best read could not be sustained as constitutional under the commerce necessary and proper and taxing clauses. think about that for a moment, unless it's too painful for you to do so. [laughter] >> what they disagreed on with respect to the individual mandate and amazingly all they disagreed on, all they disagreed on, was how to apply
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the constitutional avoidance can cannen. they disagreed whether it was sufficiently ambiguous with the avoidance canon. that the center said it was-- the chief said it was ambiguous. for what was written about the case, the individual mandate turned not on the proper interpretation of the constitution and not on the best interpretation of the statute, it turned entirely on how much room judges have to find ambiguity when invoking the constitutional avoid dance canon. in my view, this is a very odd state of affairs. a case of extraordinary magnitude boils down to whether a key provision is clear or ambiguous. even though we have no real idea of how much ambiguity is
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enough to begin with. nor how to ascertain what level of ambiguity exists in a particular statute. my point here is not to reopen the debate about whether the chief justice or the florida centers have the argument about the clarity or ambiguity of the statutory provision in question. i imagine people in this room have views about that. my point was that such a question arguably should not be part of the inquiry because despite the best efforts of conscienceous judges, it's not answerable in a neutral, predictable or impartial way. a case of that magnitude should not turn on that, but that's why all five justices were compelled to confront and analyze it. if the constitutional avoidance
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canon, justice could judge based on rdz would of the statute and agreed upon canons of interpretation. if it was unconstitutional judges would say so and determine the appropriate remedy by applying several principles. so, let me turn to the next one, another ambiguity candidate, imbue statutes in light of the statute's legislative history. you see this all the time. if the statute is clear we have no need to. and if it's ambiguous some justices say look at. some have criticized on formal and functional ground. the formal matter committee reports and they're not the law enacted by congress and as a functional matter, the committee reports in four statements, reflects an effort sometimes by a subgroup in congress and worse outside of it to affect how the statute
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will subsequently interpreted. more often it's conflicting because of different statements and the like. and it can be in the end looking over a crowd and picking out your friends. but apart from all of those critiques of legislative history and again, those critiques are weighty, i have another major problem with how legislative history is used. the clarity versus ambiguity trigger for resorting to legislative history in the first place, means that the decision is often indeterminate. that, in turn, greatly exas baits the problems with the use of legislative history. and just think about this. if you, as a judge, all you need to pick out your friends, that is to pick out the result you think is most reasonable, is a finding of ambiguity, and if theres no set or principled way to determine clarity versus ambiguity, then some judges are
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going to be more likely to find ambiguity in certain cases. that is obvious as a matter of common sense and basic human psychology. in a world without initial determinenations of ambiguity, judges would instead decide on the best reading of the statute and that world, legislative history would be largely limited to answering whether the literal leg of the statute produced absurdity. most importantly in the world, in that world we would not make statutory interpretation depend so heavily on the difficult assessment whether the text is clear or i am big use. all right, so constitutional avoidance, legislative history. two huge canons of interpretation used all the time to determine clarity and ambiguity. now the third i'll discuss,
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chevr chevron. under chevron if a statutory term is deemed ambiguous, they hold authoritative reading of the statute, even if it's not the best reading so long as the agency's reading is at least reasonable. now, this statutory interpretation principle is the one i encounter most as a judge on the d.c. circuit. now, again, as with constitutional avoidance and legislative history there are other critiques that people make of chevron. just to mention a couple. to begin with, little or any basis in the text of the administrative procedure act. so actually chevron itself is an atextual by the courts. an orchestrated shift from congress to the executive branch, but put aside those kret critiques of chevron for the moment, weighty as they may
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be, the fundamental problem is different judges have wildly different conceptions whether a particular statute is clear or ambiguous. the key move from step one, stop it's clear, to step two, where you go if it's ambiguous, of chevron is not determinate because it depends on the threshold clarity versus ambiguity determination. as justice scalia pointed out, that determination is quote, the chink in chevron's armor, that prevents it from being an absolutely clear guide to future judicial decisions. now, i see this problem all the time, all the time, in my many agency cases in our carts, many agency cases and it has major practical consequences. in certain major chevron cases, different judges will reach different results, even though they may actually agree that what the agency's doing is contrary to the best reading of the statutory text.
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i have been involved in many cases where that has happened. now, think about the implications of that for a moment. consider, for example, high profile case involving a major agency rule that rests on the agency's interpretation of the statute. and suppose the judges agree, the three judges agree that the agency's reading of the statute is not the best reading of the statute. but two judges believe that the statute is ambiguous, so those judges, nonetheless, uphold the agency's interpretation, even though it's not the best interpretation in their view. the other judge says that the statute is sufficiently clear so that judge would strike down the agency's interpretation. that simple determination of clarity versus ambiguity may affect billions of dollars, billions of dollars. it could affect individual rights of millions of citizens, affect the fate of clean air
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rules, security regulations, labor laws or the like and yet, as i'm emphasized there's no particularly principled guide as i see it for making that clarity versus ambiguity decision and no good way for two judges to find neutral principles on which to debate, decide, talk about that question. this state of affairs, in my view is again, unsettling. as i've stated before, my goal is to help make statutory interpretation, and constitutional interpretation, a more neutral, impartial process where like cases are treated like by judges of all ideological stripes, regardless of the issue, and regardless of the identity of the parties in the case. that's the goal. i think that has to be our goal. but that objective is hard to achieve, at least in many cases, if the threshold trigger for chevron deference is ambiguity. what's the solution to this one? to begin with, courts should
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still defer to cases using statutes with broad and open-ended terms at least current law, when using feasible, practical. in those cases the courts could say the agency could choose among reasonable options allowed by the text of the statute. that's the statefarm doctrine. you legal nerds might know what i mean by the statefarm doctrine. that's not the chevron. and courts should determine whether the agency's interpretation is the best reading of the statutory text. judges are trained to do that and it can be done in a neutral and impartial way in most cases. of course, there will be disagreements about what the meaning is, but it won't be sidelined by that threshold, ambiguity versus clarity determination. put simply, the problem with certain applications of chevron as i see it, is that the
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doctrine is so indeterminate and thus, can be and thet-- antithetical to that rule, because of that initial ambiguity decision. as with constitutional avoidance and the history c canon, we need to eliminate that as part of the threshold trigger. in sum, a number of critical, really critical canons of statuto statutory, depends whether the statutory text is clear or ambiguous, but because it's so difficult to make those clarity versus ambiguity determinations in a coherent and even-handed way, courts in my view should reduce the number of canons construction that depend on an initial finding of ambiguity. instead, courts should go to the best working of the
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statute. applying the agreed upon semantic canons and once they've discerned the best that way, they can have a baseline as required to by any of the subsequent canons, for example the absurd doctrine the settled presumption against extra territoriality, or mensrea or presumptive activity. to be clear, i fully appreciate that calls will arise in statutory interpretation, figuring out the best reading of the text to reiterate is not always an easy task. i am not a modern day yogi berra who once reportedly said there would be no more close calls if we just moved first base. [laughter] >> but the current situation in statutory interpretation, as i see it, is more akin to situations where umpires can,
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at least on some pitches, largely define their own strike zones. my solution is to find the strike zone in advance much more precisely so that each umpire's operating within the same guidelines. if we do that, we will need to worry less about who the umpire is when the next pitch is thrown. that's just too hard, some might argue. statutory interpretation is inherently complex, people say. it's all politics anyway, some contend. i have heard all the excuses. i've been doing this for 11 years. i am not buying it. in my view, it's a mistake to think that this current statutory interpretation is somehow the natural and unalterable order of things. put simply, we can do better in the realm of statutory interpretation. for the sake of the neutral and impartial rule of law, we must do better. we have made enormous strides
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in constitutional statutory interpretation over the last 30 years, thanks to people like justice scalia and general meese. but as i like to say to my girl's basketball team, it's now up to us. that much is clear. thank you. [applaus [applause] >> that was terrific, judge. for those who may not know me, i'm john malcolm, referred to a couple of times, from the mee meese, and sticking to your theme of statutory interpretation and constitutional imperatives. is there any hope the courts can devise a way in some way re
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visiting this or too much water under the bridge? >> well, i think the way it's working right now, there is a doctrine related to the chevron doctrine i'll mention that deals with nondelegation issues or broad delegation issues. so, i mentioned the chevron canon. if an agency is given authority and the statute is ambiguous defer to the agency. the last 40 years an important exception to that, i don't apply a chevron and presume a nondelegation agency in so-called major questions. this was in the brown and williamson tobacco case in the late '90s, invoked by justice scalia and uarg and the case a few years ago, this is a critical doctrine, in my view, in the current administrative law world and how it's going to be applied.
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i've written about it in a few cases out there and i think it's quite important. so what does the doctrine do? it says if the issue is a major issue, a major question, i call it the major rules doctrine, if it's a major rule you don't actually defer to the ambiguity. you presume that congress did not delegate to the agency the authority to adopt, to issue a major regulation on the issue. and justice pryor in the '80s articulated something like this in articles, and like i said, the supreme court adopted it in the late 1990's, actually, there are cases that appear in some form before that, even justice rehnquist in the benzine case articulated it. i think it's an important doctrine right now for having broad delegations to agencies. in other words, if you're concerned about agencies taking
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vague delegations and doing massive agency rules, this major questions doctrine is critical. and you see it even in king versus burwell, the chief justice referred to it after the arg decision. and two things, i'll be quicker, two things, how major is major? how major is major? money, people affected, what? i threw out some things in a dissent i wrote last year, i think it was last year, that should be considered, but that's an important debate. some rules are obviously major under any conception including the one i was writing about at the time, in my view. so that's one issue that is difficult to the major rules doctrine. about you that is a piece of the nondelegation story. the nondelegation doctrine does not, under current supreme court precedent have much teeth, but the major question doctrine is important on broad
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delegations, i think is putting the brakes on what some agencies have done with what limited massive rules. >> so there's a certain popular perception that the other branches of government, executive and legislative branches, will sort of do what they want to do and let the courts figure it out and tell them when they have overreached. you have the advantage of having served in the executive branch for a number of years. what role does, you know, well, what role should the other branches play and should they and do they, in terms of their own interpretations of the constitution? >> i think that everyone in congress and in the executive branch is under a duty to consider the constitutionality of what they're doing of legislation or in the executive branch to consider the legality of a regulation they're issuing under the statute in question. but let me tell you about chevron from building on my white house experience and
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general branch experience. chevron, what is the real impact in the executive branch. if you know that the courts are going to refer to ambiguity and you think, boy, this statute doesn't do what we want to do here, but maybe we can convince the court that it's ambiguous and then we can do it. and we have this huge policy objective and we ran for office on this and we're in the snow in iowa running on this and let's call it ambiguous and hope for the best. that happens, that's a real world phenomenon, that's how chevron doesn't just affect the courts, but migrates to the executive branch. understandably if you're an executive branch official you want to go to the edge of the line and push the envelope on the edge, chalk on your toes is said sometimes in the national security context. and so, chevron has this impact, i think, in the executive branch as well. but in terms of constitutional, yes, congress is under a duty
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and responsibility to consider constitutionality and so is the executive branch, but the courts, marbury versus madison, they talked about, the constitution establishes the judiciary has the final word on whether congress or the executive branch has overstepped constitutional limits in a way that violates individual rights. >> we'll leave this event at this point and go live now as former health and human services secretary sylvia burwell, one of the featured speakers at a health care policy forum hosted by american university where she now serves as president. these will be her first comments on health policy since being appointed president of american university. a judicial order to denied the states requests to force the trump administration to continue to make cost saving subsidy payments.
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[inaudible conversations] [inaudible conversations] [inaudible conversations]
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[inaudible conversations] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] >> good morning. we have a remarkable panel here today to help wake you up with your coffee. today we're talking about-- well, first of all, i'm associate professor at school of public affairs here at

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