Transcripts For CSPAN3 Separation Of Powers 20171121

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. Matter of fact, when he was 65 years old, 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 you know, im sure, he made a significant mark on american law in his 33 years on the bench. But his greatest contribution to jurisprudence is his 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. As he said marshall was the leading subject in the commentaries. We celebrate his legacy to the United States and the field of law. The previous lectures have been delivered by judge clarence thomas, justice clairence thoma. Professor John Harrison ray randolph, judge oscanlan. As our guests this evening that is joining this distinguished group of judge and professors, is the honorable brett cavanaugh. He was appointed by george w. Bush and took office on the 30th of may, 2006. Before his appointment, he served for more than five years in the white house in various capacities. He began as an associate counsel to the president. And was assistant to the president. During his career, the judge has been a partner in private practice with the firm of kirkland and ellis here in washington, d. C. He has been an attorney in the office of the solicitor general of the United States and clerked for a number of distinguished justices. Justice kennedy and judge water stapleton. Hes graduate of yale college and also of the yale law school. Please join me in welcoming our joseph story, distinguished l lecturer, the honorable brett cavanaugh. [ applause ] thank you for the kind introduction. Im honored to be here to deliver the joseph story lecture. His story had a profound effect on the United States. And im proud to deliver a lecture in his name. When i look at the distinguished list of past speakers, Justice Kennedy, justice thomas, ray randolph, my former colleague judge Janice Rogers brown who i miss greatly. I will admit ive not been a regular attendee because every year it seems to fall on the same night as basketball tryouts for the cyo Girls Basketball team i coach in d. C. This your, i finally pulled rank as seniority and i moved the teams tryouts a night. Tonight im with you. Last night, i was trying with limited success to get 47 fifth and sixth grade girls to listen to me. I will try not to use my coach voice with you tonight. The tryouts were good. Were going to have a good team. Youre probably not here to hear about that. Coaching my daughters in the fifth and sixth team Girls Basketball team has been an important part of my life for the last six years. It sometimes means during the winter im scrambling out of the courthouse to get to practice. Sometimes i dont always transition that well. And last year, i was frustrated at practice and i finally blew the whistle. I guess yelled is probably a fair statement. Yelled at the girls. You cant dribble through a zone press youve got to pass the ball and i guess my voice must have been like it was there, pretty loud. There was silence in the gym. There is really never silence in the gym with a bunch of fifth and six graders. One of the girls on the team, tatum, who has a future, i believe as a standup comic, broke the silence and said oh, hes using his judge voice on us now. And they all started laughing at me. I love all those girls and with them in mind, tonight i also will try not to use my judge voice on you. Im especially honored to be here with general niece. To begin with on a personal level, im grateful to him for the kind support of my confirmation, the wonderful letter he wrote for me back in 2006. I thank many others in this room who also helped me through the process. You dont forget your confirmation process. And my process was interesting. I think thats a good work for it. Because i was serving in the white house when i was nominated for judgeship. I worked there for five and a half years before i became a judge. Standing here today, some 12 years later, let me say first that i think a white house experience made me a far better judge than i 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 the ins and outs of how 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. Because working at the white house, at 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, who had substantial white house experience, would say his experiences have made him a better jurist. I think its fair to say to say that certain senators were not sold on that. They were not sold that 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 had worked at the white house for more than five years and said in his opening remarks this isnt just salt in the wound, this is the whole shaker. This is true after the hearing about that senator my mom said to me, i think he really respects you. As only a mom can. So people often ask me whether the job of an appellate judge is lonely or isolating. And the short answer is that it can be if you let it. The day the president signed moo icommission to be a judge which was tuesday may 30, 2006, at 7 00 a. M. Not that you remember those thing. I went up to the Supreme Court and Justice Kennedy swore me in in a private ceremony in his champi chambers. Justice kennedy then told me i would get to my new chambers that afternoon and there would be a phone and commuter and a de desk and no one would call me again. He encouraged me to speak and teach and interact with the bar and students. Something he had regularly done on the ninth circuit and something he has continued to do during his many years on the Supreme Court. I taught full term separate of powers every year for the last decade. I try to get out to many bar events and visit law schools. Tonight im 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 you not just for hosting me here and helping me in the confirmation process back in 2016, but more importantly for the central role he played in leading the revival of originalism in american law. I cannot emphasize enough how significant he has been in changing the direction of american law. I think often of chief Justice Renquist and scalia as jurists. We also must celebrate general niece, he of course was responsible for many landmark policy and important decisions in his role at the white house and his 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 19th, 19th, 1985, to the an bar association. Its great speech. If i can give you an initial homework assignment, its this. Go read his speech. Let me give you highlights for now. His fir he said i know the sessions here will be very productive. When i read that last week, very productive meetings of the aba house of delegates. I wondered was that a laugh line . But he then proceeded to talk about how utterly unpredictable the Supreme Court of the 1980s could be when rendering its judgments. He referred to a case that had come out a few years earlier and what somebody had said. The bad news is that the snail darter won the good news is he didnt win under the 14th amendment. General niece said the court during its most recent term in 1984 continued to roam at large in a constitutional forest. He discussed three areas of the courts jurisprudence. Federalism, criminal procedure and religion. Discussing federalism, he said that federalism helps us, quote, better secure our ultimate goal of political liberty through decentralized government. Well said. When discussing religion, he said, quotes, to have argued the First Amendment demands a strict neutrality between religion and ir irruligion will have struck the founders as bizarre. Well said. In summarizing his views, the general stated far too many of the courts opinions were on the whole more policy choices than articulations of constitutional principles. He noted in a critical passage that until there emerges a coherent 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 prir principles rather than to remold principles in light of policies. His speech struck a nerve in the american legal staestablishmentd represented 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 sometimes said that the constitution is a document of majestic generalities. As i see it, and as the general described it, the constitution is largely a document of majestic specificity. And those specific words have meaning, which absent constitutional amendment continue to bind us as judge, legislators and executive officials. So if i could suggest another homework assignment its 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 youll come away with a renewed appreciation for our constitution and for its majestic specificity. The text of the constitution binds all three branches. Again, thinking back to my confirmation process, i met with senator robert byrd at one point during the process when i was trying to get confirmed. This was an interesting meeting. He said i would never forget it. He said you will never forget this meeting. It turned out he was right. He asked about my family. At that point back in 2006 i said i have a oneyearold daughter. He said i have two daughters. Theyre 68 and 64. Then he pulled out his constitution. It was right there. I was prepared i had this same constitution right there, too. Its tattered now, but i still have it. He pulled his out and read me article is language about the power of the purse. He did that because the text of the constitution matters. He did that because if you remember senator byrd, he really cared about the power of the purse. So general nieces 1985 speech helped advance a straightforward philosophy of constitutional and statutory interpretation. Its not complicated but its profound and worth repeating often. The judges job is to interpret the law, not to make policy. Read the words of the statute as written. Read the text of the constitution as written, mindful of history and tradition. Dont make up new Constitutional Rights that are not in the constitution. Dont shy away from 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 et kit or architecture but are essential in protecting individual liberty. Structure protects liberty and remember that courts, courts have a Critical Role when a party has standing enforcing those separation of powers in federalism limits. Simple but profound. Along with chief Justice Rehnquist and Justice Scalia and judge bourque and judge silverman and many others in the 1970s and 80s, general meese laid the ground work for a rule of law as a law of rules. For the notion of judges as umpires and not as policy makers. For the notion as he put it in 1985 that judges should not be roaming at large in the constitutional forest. A few months ago, i told john malcolm, i would talk about the separation of powers. And i suppose that was not really a limited selection of a topic for me. If you were in my judicial chambers, at really any point, you would hear me often saying to my clerks, every case is a 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 . The bread and butter of our docket on the d. C. Circuit is interpretation of statutes. Usually deciding when an agency exceeded its 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 the 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 i do not advise that for anyone who wants to remain sane, if you did that, you would hear judge after judge from across the ideological spectrum ask counsel about the precise wording of the statute or regulation at issue. Statutory interpretation has improved statutory text matters much more than it once did. If the text is sufficiently clear, the text usually controls. The text of the law is the law. As Justice Kagan recently stated, were all textualists now. Justice scalia helped 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 intercepti statutory interpretation are still troubling. And as i will explain, one primary problem stands out. To begin, one over arching goal is to make judgments 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. In a perfect world, the outcomes of cases would not often be vary based solely on the backgrounds, political affiliations or policy views of judges. This is the rule of law is the rules. The judge is the umpire, not free to roam in the constitutional or statutory forest as he or she sees fit. In my view too, this is a constitutional mandate in a separation of powers system. Article one assigns the legislative branch along with the president the power to make laws. Article three 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 of judges umpire raises a natural question. How can we move toward that ideal in our judicial system . When judges come from many different backgrounds and may have a variety of very strong ideological, political or policy predispositions. To be sure, on occasion the relevant constitutional or statutory provision may actually require the judge to consider policy and perform a common lawlike function. Federal rule of evidence 501 is a good example. But many 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 texts are not just common law principles or aspirations. This tenet adhered to the text is neutral as a matter of politics and policy. The text may be pro business or pro labor. Pro development or pro environment. Pro bank or pro consumer. Regardless, judges should follow the text where it leads. At the same time, when the text to the statute is ambiguous rather than clear, judges may resort to a variety of cannons of construction. These ambiguitydependent cannons include, one, in cases of textual ambiguity, avoid interpretations raising constitutional questions. Two, if there is textual ambiguity, rely on the legislative history. Three, in cases of textual ambiguity, defer to an executive agencys reasonable interpretation of a statute, also known as chevron deference. Here is the problem. And its a major problem. All of these cannons depend on a problematic threshold question. Courts may resort to the cannons only if the statute is not clear, but rather is ambiguous. But how do courts know when a statute is clear or ambiguous . In other words, how much clarity is sufficient to call a statute clear and to end the case there without triggering the ambiguitydependent cannons . Unfortunately, there is often no good or predictable way for judges to determine whether statutory text contains enough ambiguity to cross the line where courts may resort to the constitutional voidance 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. Thats the end of it. The other judge will respond, i think the text is ambiguous, manying one or another should avoid the case. Neither judge can convince the other. And thats because there is 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 call a statute clear. If the statute is, say, 60 40 in one direction, is that enough to call it clear . How about 80 20 . Who knows . And second, lets imagine that we could agree on an 80 20 clarity threshold. In other words, suppose the judges may call a text clear, only if its 80 20 or more in one direction. And even if we say that 80 20 is the necessary level of clarity, how do we then apply that formula to particular statutory texts . Again, who knows . Determining the level of ambiguity in a given piece of statutory language is often not possible in any rational way. One judges clarity is another judges ambiguity. And it is difficult for judges or anyone else to perform that kind of task in a neutral, impartial and predictable fashion. I tend to be a judge who finds clarity more readily than some of my colleagues. Perhaps a little less readily than a couple. I probably apply something just ballparking it, approaching a 65 35 or 60 40 rule. In other words, if its 60 40 clear, yeah, its clear. Its not ambiguous. Dont resort to the cannons. I think a few of my colleagues and other judges around the country apply of more, a say, 90 10 rule. Only if the proper interpretation is at least 90 10 clear will they call it clear. Otherwise, ambiguous, the cannons kick in. Who is right in that debate . Who knows . No case or cannon of interpretation says that a 60 40 approach or a 90 10 approach or 55 45 approach is the right one or correct one. If we could agree, we still have to figure out whether the text in question surrender mounts that. And that itself is a difficult task. So the simple but very troubling truth is that no definitive guide exists for determining whether statutory language is clear or ambiguous. And a considerable understatement, the Supreme Court itself has admitted that there is, quote, no arrowless test for identifying or recognizing plain or unambiguous language. Professor Ward Farnsworth has elaborated persuasively on this point, arguing there are no rules or clear agreements about just how to decide whether a text is ambiguous. As he puts it, for making that determination, no theory helps. It is simply a judgment about the clarity of the english, and whether it is reasonable to read it more than one way. The conceptual problem opens a door to a more practical problem. Judgments about ambiguity can be dangerous, because they can easily be biased by strong policy preferences that the makers of the judgments hold. Because judgments about clarity versus ambiguity turn on little more than a judges instincts sometimes, it is harder for judges to ensure that theyre separating their policy views from what the law requires of them. And its not simply a matter of judges trying hard enough. Policy preferences can seep into ambiguity determinations in subconscious ways. As a practical matter, of course, judges dont make the clarity versus ambiguity determination behind a veil of ignorance. Statutory interpretation issues are all briefed at the same stage of the proceeding, so a judge who decides to open the ambiguity door already knows what he or she will find behind it. Unfortunately, moreover, the clarity versus ambiguity question plays right into what many consider to be the worst of our professional training. As lawyers, were indoctrine natured from the first days of law school to find ambiguity in even the clearest of pronouncements. It is no accident that the most popular Law School Exam preparation book is titled getting to maybe. The problem of difficult clarity versus ambiguity determinations would not be quite as significant if the issue 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 lynch pin of statutory interpretation. Now, a number of Supreme Court decisions, really important ones, have implicated the clarity versus ambiguity problem. Consider some of the cases that have turned on constitutional avoidance cannon in the recent past. The nfib health care case. The Voting Rights case. Consequence at that time 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 statute was clear or ambiguous. If the statute was ambiguous, then they could resort to constitutional avoid anls. If the statute is clear, no. All those cases were important, and they were all decided on the basis of a difficult evaluation of clarity versus ambiguity. Same with chevron deference. 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 acceptance of an Agency Interpretations of law will be false. End quote. And, in fact, the court has skirmished, and our court particularly, has skirmished over exactly this terrain numerous times in the last 25 years. In hugely significant cases. Each of which turned to a significant extent on an initial question of whether the relevant statute was clear or ambiguous. All these cases came down to what turns out to be an entirely personal question. One subject to a certain sort of ipse dixit. Is the language clear or am big out. No wonder people suspect judges personal views are affecting these kinds of cases. We have set up a system where that suspicion 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. Im not in any way suggesting the judges themselves are acting in an improper or political manner. To the contrary. In my experience, most judges apply the doctrine as faithfully as possible. But too much of the current statutory interpretation regime revolves around personally instinctive assessments of clarity versus ambiguity. This kind of decisionmaking 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 definite sense that the clarity versus ambiguity determination, is the statute clear or ambiguous, is too often a barrier to the ideal that it 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 ambiguities. That is the nature of language. Including congress language. We cannot eliminate or avoid ambiguities or wish them away. But even though ambiguity is unavoidable as a practical matter, perhaps we can avoid attaching serious interpretive consequences to binary ambiguity determinations that are so hard to make in a neutral, impartial way. In other words, instead of injecting the ambiguity problem into the heart of statutory interpretation, we can consider whether to sideline that threshold inquiry as much as possible. What is the solution . Heres one idea. Judges should strive to find the best reading of the statute. They should not be diverted by an arbitrary initial inquiry into whether the statute can be characterized as clear or ambiguous. In other words, we can try to make sure that judges do not or least only rarely have to ask whether a statute is clear or ambiguous in the course of interpreting it. Instead, statutory interpretation could proceed in a twostep process. First, courts could determine the best reading of the text of the statute by interpreting the words of the statute, taking account of the context of the whole statute and applying any other appropriate semantic cannons of construction. Semantic cannon, by the way, are really just a fancy way of referring to the general rules by which we understand the english language. Second, once judges have arrived at the best reading of the text, they can apply openly and honestly any substantive cannons, such as the absurdity doctrine or settled plain statement rules, such as the presumption against extra territoriality, the presumption of a mens raya requirement, the presumption of retro activity that might justify departure from the best reading of the text. Under this twostep approach, few if any statutory interpretation cases would turn on an initial finding of clarity versus ambiguity in the way that they do now. Now, to be sure, determining the best reading of the statute is not always easy. But 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 that does not help uncover the best rating and is difficult to resolve in a neutral, impartial and predictable way. Let me take you into a few of these cannons to show what im talking about. Lets start with the constitutional avoidance cannon. Under that cannon, judges interpret ambiguous statutes so as to avoid a serious constitutional question, or actual unconstitutionality that would arise if the ambiguity were resolved in one direction rather than the other. For the cannon to be triggered, there must be ambiguity in the statute. The initial problem or one initial problem with the constitutional avoidance doctrine, apart from the ambiguity, it sometimes can look more like judicial abdication, a failure to confront. And another problem with it, again, apart from the ambiguity problem, sometimes its invoked when there are mere questions of unconstitutionality rather than actual unconstitutionality. As a result, the doctrine gives judges enormous discretion to push statutes in one direction so as to avoid even coming within a penumbra of the constitutional line. But put aside those critiques of the constitutional avoidance doctrine, which i think are serious and weighty. Apart from or i guess in addition to those reasons, i would consider jettisoning the constitutional avoidance cannon for different reason. The trigger for the cannon, clear or ambiguous, is so uncertain. That flaw was famously highlighted in nfib versus send hellous. In analyzing that case is perhaps important to underscore something that seems to be overlooked by almost all observers, even those who should know better. The chief justice agreed with the Justice Scalia, kennedy, thomas and alito on all of the key constitutional and statutory issues raised about the individual mandate. Those five justices agreed about the scope of the commerce and necessary improper clauses. They agreed about 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, 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 its too painful for you to do so. What they disagreed on with respect to the individual mandate, and amazingly, all they disagreed on, all they disagreed on, was how to apply the constitutional avoidance cannon. In particular, they disagreed about whether the individual mandate provision was sufficiently ambiguous that the court should resort to the constitutional avoidance cannon. The dissenter said it wasnt ambiguous, the chief said it was ambiguous. For all that has been written about the nfib case, the decision on the individual mandate turned not on the improper constitution and not on the best interpretation of the statute. It turned on how much room judges have to find ambiguity when invoking the constitutional avoidance cannon. 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 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 about the clarity or ambiguity of the statutory provision in question. I imagine people in this room have views about that. My point is that such a question arguably should not be part of the inquiry. Because despite the best efforts of conscientious judges, it is not answerable in a neutral, predictable or impartial way. A case of that magnitude should not turn on such a question. But that is what the cannen of constitutional avoidance required, which was why those five justices were all compelled to confront and analyze it. If the constitutional avoidance canon were jettisoned, what would happen . Judges could instead determine the best reading of the statute based on the words of the statute. The context and the greed upon cannons of interpretation. If the statute turned out to be unconstitutional, then judges would say so. And determine the appropriate remedy by applying proper severability principles. So let me turn to the next one. Another ambiguitydependent cannon is the principle we should construe in legislative history. You see this all of the time. If the statute is clear, we have no need to resort to the lens active history. If its ambiguous, some judges will say we should look at it. Many have criticized the use of legislative history on formal and functional grounds. Formal matter, Committee Reports and floor statements are not the law enacted by congress. As a functional matter, Committee Reports and floor statements reflect an effort sometimes by a subgroup in congress or worse, outside of it, to affect how the statute will subsequently be interpreted and implemented. In ways that congress and the president may not have wanted. Moreover, legislative history is often conflicting because of different floor statements, reports and the like. And it can be in the end like looking out over a crowd and picking out your friends. But apart from all those critiques of legislative history, and those critiques are weighty, he 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 indeterminant. That, in turn, greatly exacerbates the problems with the use of legislative history. 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 there is no set or principled way to determine clarity versus ambiguity, then some judges are 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 determinations of ambiguity, judges would instead decide on the best reading of the statute. And that world legislative history would be largely limited to helping answer the question of whether the literal leg of the statute produced an absurdity. Most importantly, in that world, we would not make statutory interpretation depend so heavily on the difficult assessment of whether the text is clear or ambiguous. So constitutional avoidance, legislative history. Two huge cannons of interpretation used all of the time depend on that initial determination of clarity versus ambiguity. Now let me go to the third that ill discuss. The third and last one that ill discuss. Chevron. Chevron deference. Under chevron, if a statutory termed is deemed ambiguous, courts uphold an agencys authoritative reading of the statute, even if its not the best reading, so as long as the agencys 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 with legislative history, there are other critiques people make of chevron. Just to mention a couple. To begin with, has little or any basis in the text of the administrative procedure act. So actually, chevron itself is an atextual invention of the courts. And in many ways, operates as little more than a judicially orchestrated shift of power from congress to the executive branch. But put aside those critiques of chevron for the moment, weighty as they may be. From the judges vantage point, the fundamental problem, once again, is different judges have wildly different conceptions of whether a particular statute is clear or ambiguous. The key move from step one, stop if its clear, to step two, thats where you go if its ambiguous, of chevron, is not determinant, because it depends on the threshold clarity versus ambiguity determination. As Justice Scalia pointed out, that determination is, quote, the chink in chevrons armor. The ambiguity that prevents it from being an absolutely clear guide to future judicial decisions. Now, i see this problem all of the time. All the time in my many agency cases and in our courts 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 is doing is contrary to the best reading of the statutory text. I have been involved in many cases where that has happened. Now, think about the implications of that for a moment. Consider, for example, a highprofile case involving a major agency rule that rests on the agencys interpretation of a statute. Suppose the judges agree the three judges agree that the agencys 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, up hold the agencys interpretation, even though it is not the best interpretation, in their view. The other judge says the statute is sufficiently clear, so that judge would strike down the agencys interpretation. That simple determination of clarity versus ambiguity may affect billions of dollars. Billions of dollars. Could affect the individual rights of millions of citizens. Affect the fate of clean air rules, securities regulation, labor laws, or the like. And yet, as ive emphasized, there is 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 and decide, talk about that question. This state of affairs, in my view, is, again, unsettling. As ive stated before, my goal is to help make statutory interpretation and constitutional interpretation a more neutral, impartial process, where like cases are treated alike by judges of all ideological stripes, regardless of the issue and regardless of the identity of the parties in the case. Thats 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. Whats the solution to this one . To begin with, courts should still defer to agencies in cases involving statutes using broad and openended terms, at least they should under current law, when they use terms like reasonable, appropriate, feasible or practicable. In those cases, courts can say that the agency may choose among reasonable options allowed by the text of the statute. But thats really the state farm doctrine. You legal nerds here tonight know what i mean by the state farm doctrine. Theres a lot of us. But thats not really the chevron doctrine. In cases where an agency is interpreting a specific statute or phrase, courts should determine whether the agencys 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 wont 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 doctrine is so indeterminant and can be neutral to the impartial rule of law. Because of that initial clarity versus ambiguity decision. Here too, as with constitutional avoidance, as with the legislative history cannon, we need to consider eliminating that inquiry as part of the threshold trigger. In sum, a number of critical really critical cannons of statutory interpretation that have major realworld effects depend on an initial evaluation of whether the statutory text is clear or ambiguous. But because it is so difficult to make those clarity versus ambiguity determinations in a coherent and evenhanded way, courts, in my view, should reduce the number of cannons of construction that depend on an initial finding of ambiguity. Instead, as ive said, courts should seek the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute and applying the agreed upon semantic cannons. And they can depart from that baseline if required to do so by any of the relevant substantive cannons. For example, the absurdity doctrine or settled presumptions such as the presumption against extra territoriality or the presumption of mens raya. To be clear, i fully appreciate the disputed calls will always arise in statutory interpretation. Figuring out the best reading of the text to reiterate, is not always an easy task. I am not a modernday yogi berra, who once purportedly said there would be no more close calls if we just move to first base. But the Current Situation in statutory interpretation, as i see it, is more akin to a situation where umpires can, 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 is 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. Thats just too hard, some might argue. Statutory interpretation is inherently complex, people say. Its all politics, anyway, some contend. I have heard all the excuses. Ive been doing this for 11 years. I am not buying it. In my view, it is a mistake to think that this current mess in 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 in constitutional and statutory interpretation over the last 30 years thanks to people like Justice Scalia and general meese. But as i like to say to my Girls Basketball team, it is now up to us. That much is clear. Thank you. [ applause ] that was terrific, judge. To those of you who may not know me, im john malcolm, i was referred to a couple of times. Im the director of the meese center here. And before i call ed meese back up to the stage for a presentation, i just thought i would ask a couple of questions. So sticking with the theme of your presentation about statutory interpretation and constitutional imperatives, i wanted to touch on one aspect that you didnt address. Is there any hope that the courts can device an objective way of limiting congressional delegations of power to agencies ask thereby in some way rei didnt havefying the nondelegation doctrine . Or is that too much water under the bridge . Well, i think the way its working right now is there is a doctrine related to the chevron doctrine that ill mention that deals with nondelegation issues, or broad delegation issues. So i mentioned the chevron cannon. If an agency is given authority and the statute is ambiguous, defer to the agency. But for the last 20 years, its been a very important exception to that. Its really a dont apply chevron. And, in fact, presume a nondelegation of the agency in cases involving socalled major questions. Ask this was in the brown and williamson tobacco case in the late 90s, invoked by Justice Scalia a few years ago. This is a critical doctrine. In my view, in the current Administrative Law world. And how its going to be applied. I have written about it in a few cases that are out there. And i think its 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 its a major rule, then you dont actually defer to the agencys interpretation of the ambiguity. In fact, you presume that congress did not delegate to the agency the authority to adopt to issue a major regulation on the issue. And justice breyer, actually, in the 1980s first articulated Something Like this in law view articles. And then, like i said, the Supreme Court adopted it in the late 1990s. Actually, there are cases that appeared in some form before that. Even Justice Rehnquist, frankly, in the 1980 benzine case, articulated it. I think thats a really important doctrine right now for cabining broad delegations to agencies. In other words, if youre concerned about agencies taking vague delegations and doing massive agency rules, this major questions doctrine is critical. You see it even in king versus burwell, the chief justice referred to it after the uarg opinion. Ill be quicker. Two things on this. 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 thats 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 thats one issue that is difficult with the major rules doctrine. But 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 an important cabining of broad delegations in a way that i think is putting the brakes on some of what some agencies have done with somewhat limited and vague delegations to issue massive rules. So theres 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 had 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, or should they and do they in terms of their own interpretations of the constitution . Well, i think everyone in congress and in the executive branch is under a duty to consider the constitutionality of what theyre doing of the legislation. Or in the executive branch to consider the legality of a regulation theyre issuing under the statute in question. Let me tell you about chevron from this, again, building on my white house experience and general executive branch experience. What does chevron do . Whats the realworld impact in the executive branch . So if you know that courts are going to defer to a reasonable interpretation of an ambiguity, and you think, oh, boy, this statute doesnt really do what we want to do here, but maybe we can convince the courts that its ambiguous. And then we can do it. And we have this huge policy objective, and we ran for office on this, and we were in the snow in iowa running on this. And, you know, lets just call it ambiguous and hope for the best. That happens. That is a realworld phenomenon. That is how chevron doesnt just affect the courts, but then it migrates to the executive branch. If youre an executive branch official, you want to kind of go to the edge of the line. You want to push the envelope right to the edge. Chalk on your toes is said, sometimes, in the National Security context. And so chevron as this in the executive branch, as well. But in terms of constitutional, yes, congress is under a duty, a responsibility to consider constitutionality. So is the executive branch. But the courts, marbury versus madison as general meese talked about in the july 9, 1985 speech, marbury versus madison establishes critically i think the structure and intent of the constitution established at the judiciary has the final word on whether congress or the executive branch has overstepped constitutional limits in a way that violate individual rights. Well, judge, this was terrific. Im going to bring general meese back up on the stage for a moment to make a special presentation. Judge, i think you have certainly fulfilled our hope about this evening, and that is that you would show both great scholarship, a sense of humor and a commitment to the constitution. For that we thank you. And therefore, it is a pleasure to present to you what we call our defender of the constitution award. It is a picture of justice i might say, fully clothed. [ laughter ] and addressed to the honorable brett cavanaugh, defender of the constitution award, 2017, from the heritage foundation. Congratulations. Thank you very much. [ applause ] we would also like to present with you, im sure you know these well, for your library, and also for working out in the morning [ laughter ] two copies of the commentaries of joseph story. And also a much shorter version, the familiar exposition of the constitution of the United States by joseph story. And with all modesty, i say a forward by me. [ laughter ] thank you. Thank you. [ applause ] thank you, ladies and gentlemen, for being with us. And there will be a reception right in the foyer out here. Coming up on cspan3, current and former government officials from canada and mexico discuss nafta negotiations, and possible changes to the threeway trade agreement. Then, members of Congress Talk about the impact of the Opioid Crisis and suggest what can be done about it. And American History tv is in prime time all this week while congress is on break. Want t tonight, a look at women in history starting at 8 00 eastern, with author eve la plant on her block, american jezebel, the woman who defied the pure tons. Tonight on cspan, former Vice President joe biden and Ohio Governor, john kasich, on how to deal with partisanship in the trump era. Heres a portion where mr. Biden describes a conversation with one Prime Minister in europe about president trump. But i was recently with one Prime Minister in europe. I went over to speak at a conference. And he wanted to see me. And so i thought it was a courtesy call. And i thought it was going to last ten minutes. It lasted twoandahalf hours. And at one point, this Prime Minister said, and did you see what he did . Were sitting in the same side of a conference table, as close as you and i are. And he said, he stood up, and he said, he took the president and shoved him aside, stuck his chest out, and his chin, and all i could think of was, el douche. Not a joke. Not a joke. Thats what people are thinking. Thats what people are thinking. Violating the norms of personal conduct. Generates more anxiety and fear than any policy prescription that this president has enunciated. And that was just part of a conversation with former Vice President , joe biden, and Ohio Governor john kasich on how to deal with partisanship in the trump era. Hosted by the Biden Institute at the university of delaware. See the entire event tonight, starting at 8 00 eastern on cspan. Cspan, where history unfolds daily. In 1979, cspan was created as a Public Service by americas Cable Television companies. And is brought to you today by your cable or satellite provider. The u. S. Is waiting to hear from canada and mexico about some proposed changes to the threeway trade deal known as nafta. Dentons, an International Law firm, hosted a conference on the nafta negotiations and the potential policy implications of the ongoing trade talks. This hourlong portion with current and former government officials from mexico and canada was moderated by former canadian ambassador to the u. S. , gary doer. Good morning. Good afternoon. Bon jour. Bun ow bun owes deas. Welcome. Im the Office Managing Partner here in washington. And were very pleased to welcome you to the Washington Office for the nafta 2. 0 summit. Given our topic today and who we have here with us, it seems appropriate to say not only welcome, but also [ speaking in Foreign Language ] we are pleased to be able to have you here and to present this Great Program today. Which is streaming live, even as we speak. And will be available afterwards on the dentons website. Change can be unsettling, but it also presents a lot of opportunity, which im sure will be part of the discussions da