Transcripts For CSPAN Separation Of Powers 20171026

Good afternoon, ladies and gentlemen. Welcome to the Heritage Foundation center for legal and judicial studies and to our 10th lecturer. Tinguished the name sake is joseph story. He was a remarkable patriot who carried out the founders vision of a constitutional before joining the Supreme Court, he had quite a career of his own. He was a congressman. He was a state legislature. He was a speaker of the massachusetts house of representatives. He was also while he was on the Supreme Court, a professor law chool. When he was 65 years old, that particular year, his book royalties gave him twice 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 in following year in february of 1812. As most of 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 on the constitution which he set forth the philosophy of judicial restraint. This is lecture that we celebrate his legacy to the United States and to the field of law. The previous lectures have been delivered by judge clarence thomas. Justice anthony kennedy. Udge robert bourque, judge ray randolph. Judge alice, judge Janice Rogers rown and judge carlos bea. As our guests this evening joining this distinguished group of judges and professors, is of course the honorable brett cavanagh. As you all know, he is a judge of the United States court of acourt of appeals for the districtor colombia circuit appointed by george w. Bush and took office on may 30, 2006. Before his appointment to the court, he served for more than five years in a white house in various capacities. He began as an associate council 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 practice with the firm of kirkland and ellis 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 judges, Justice Kennedy of the judge to have ninth circuit and the judge Walter Stapleton of the third circuit. He is a graduate of yale college and also of yale law school. Please join me in welcoming our joseph story distinguished lecturer for 2017. He honorable brett cavanagh. Thank you, general mees for the find destruction. Im honored to be here. A eneral meesesaid, he had profound influence as a scholar and im honored to deliver a lecture in his name. Im particularly honored to be here when i look at the 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 i have not been a regular attend ayee for the last few years. This year, i finally pulled rank and seniority and moved back a night. Tonight i am 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 fifth and sixth Grade Basketball Team has been an important part of my life for the past six years. Sometimes im scrambling out of the Court Thousands get to practice. Sometimes i dont always trazz i guess that well. Last year i was frustrated at practice and i finally blew the whistle. I guess yelled is a fair statement. Yelled at the girls, you cant dribble through a zone press. You have to pass the ball. I guess my voice must have been pretty loud. There was silence in the gym and there is never silence in the gym with a bunch of fifth and sixth graders. One of the girls on the team broke the silence and said ooh, he is using his judge voice on us now. [laughter] and they all started laughing at me. I love all of 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 you. Meesefor l to edwin the letter he wrote for me back in 2006. I thank many others in this room who also helped me through this process. My process was interesting. I think that is a good word for it. Interesting. Because i was serving in the white house when i was nominated for the judgeship. I worked there for five 1 2 years before i became a judge. And actually standing here today, some 12 years later, let me say first, i think the 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 more independent judge. Independent 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 and elena kagan will probably they their white house experiences likewise have made them better jurists, but at the time in 2006, it is fair 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. One senator at my hearing noted that i worked the white house for more than five years and said in his opening remarks. This is not just salt in the wound. This is the whole shaker. [laughter] 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. The short answer is that it can be if you let it. The day the president signed my commission to be a judge, tuesday, may 30, 2006 at 7 00 a. M. , not that you remember those things, i promptly went up the Supreme Court and Justice Kennedy for whom i clerked score me in in a private ceremony in his chambers and Justice Kennedy told me i would get to my new chambers that afternoon and there would be a phone and a computer and a desk and no one would ever call me again. So he advised me to get out and teach and speak and interact with students. Something he had regularly done on the ninth circuit and something he continued to do his many years of on the Supreme Court. Anyway, i listened. I taught classes every year for the last decade. I tried to get out to many bar events and visit law schools. Tonight im following his advice with the honor of delivering the story lecture. I want to thank general meese not just for hosting me here but far more importantly tr the central role he played in leading the revival of originalism in american law. I cannot emphasize enough how significant general meesehas been in changing direction of american law. I think often of chief Justice Rehnquist and Justice Scalia who helped bring about a revolution in legal theory and doctrine. We also must celebrate general meese. If courts were responsible for many landmark policies and pogs positions, in his role at the white house and attorney general. As attorney general, he took an interest in constitutional theory and doctrine. He delivered a famous speech on july 9, 1985 to the american bar association. It is a great speech and if yks give you an initial homework assignment tonight, it is this. 9, ead general meeses july 1985 speech. The first paragraph greeted the members of the house and delegates of the a. B. A. He said i know the sessions here will be very productive. When i read that last week, very productive meetings of the a. B. A. House of delegates, i wondered is that a laugh line, general meese . He proceeded to talk about how utterly unpredictable the Supreme Court of the 1980s ould be when rendering its decisions. The bad news is that the snail dogger won. The good news is that he didnt win under the 14th amendment. General meese then said that the court during its most recent term in 1984, 1985, continued to roam at large in a constitutional forest. He discussed three areas of the courts jurisprudence. Federalism, procedure and religion. Discussing federalism, he said it helped us better secure our ult goal through decentralized government. Well said. When discussing religion, he said to have argued that the First Amendment demands a strict neutrality between religion would have struck the founding generation as bizarre. The purpose was to prohibit religious tyranny, not to undermine religion generally. Well said. In summarizing his views, the general stated far too many of the courts opinions were on the whole for policy changes than articulation of constitutional principles. He noted in a critical pass passage until that there emerges a 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 mees speech struck a nerve. It represented a call to attention and a call to action for all of those who are concerned about the rule of law and the role of courts. More attention as he put it to the words of the constitution, if the framers to have constitution chose their words carefully, he said. It is sometimes said that the constitution is a document of majestic generalities. As i see it, as general meese described it, the constitution largely a document of majestic specificity. Those words have meaning which continue to bind us as judges, legislators and executive officials. If i can suggest another homework assignment from my talk today, it is this. In the next few days, block out 30 minutes of time and read the text of the constitution word for word. I guarantee youll come away with a renewed protion for our constitution. The text of the constitution binds all three branches and again thinking back to my confirmation process, i met with senator robert bird at one point during the process when i was trying to get confirm. This is an interesting meeting. 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. Turned out he was right. I said i have a 1yearold daughter. He said i have two daughters. They are 6 and 64. [laughter] then he pulled out his constitution. It was right there. I was prepared. I had this same constitution right there too. It is tattered now. I still have it. He pulled his out. He read to me article ones 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 youll remember senator bird, he really cared about the power of the purse. 1985 it is not complicated but it is profound and worth repeating often. The judges job is to interpret the law. Not to make the law or make policy. Read the words of the statute as written. Read the text to have constitution as written. Mindful of history and tradition. Dont make up new Constitutional Rights that are not in constitution. Dont shy away from enforcing Constitutional Rights that are in the text of the constitution. Changing constitution is for the amendment process. Changing policy within constitutional bounds is for the legislatures. 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 liberty. Structure protects liberty. Remember that courts, courts have a Critical Role when a party has standing enforcing those separation of powers and federalism limits. Simple but profound. Along with chief Justice Rehnquist and Justice Scalia. Judge bourque and judge ginsberg and many others in the 1970s and 1980s. General meeselaid the ground work for a rule of law and law of rules. The notion as he put it in 1985, the judges should not be roaming at flarge the constitutional forest. So a few months ago i told john malcolm that i would talk about the separation of powers. I suppose that was was not a limiting legislation is of a topic for me. If you were in my judicial chambers, you would hear me saying to my clerks, every case is a separation of powers case. 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 docket on the d. C. Circuit is interpretationor statutes. Usually when deciding whether an agency exceeded the 12567 tori authority or limbs. That question of policing the balance between the legislative and executive branches, our Administrative Law docket nstitutes one of the most in american law. 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, you would hear judge after judge ask council about the precise word of the statute or regulation at issue. Statutory interpretation is improved dramatically over the last generation. 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 text now. By emphasizing the words, Justice Scalia helped bring about a on the Supreme Court and in american law. But more work remains. N my views, certain aspects of statutory interpretation are still troubling. As i will explain one primary problem stands out. To begin, one overarching goal for me is to make judging a more neutral process in all cases. Not just statutory interpretation. It depends on neutral impartial judge who is say what the law is, not what the law should be. Judges are umpires or at least should always strive to be umpireses. In the Perfect World the outcomes of cases would not vary on the backgrounds or political affiliations or the policy views of judges. This is rule of law, the law of rules. The judge is umpire. Not free to roam in constitution al forest as he or she sees fit. This is not merely premps of mind. A constitutional mandate. Article one assigns the legislative branch along with the president the power to make laws. Article three grants the courts to power to interpret those laws in individual cases and controversies. When courts apply doctrines that allow them to rewrite the laws, they are encroaching on the legislatures article one power. This vision raises a natural question. How can we move toward that ideal in our judicial system when judges come from many different backgrounds and they policyvariety of strong, predispositions. To be sure on occasion, the constitutional statutory provision may require the judge perform ar policy and function, 101 is a good example. Many involve interpretation of a stafments text. Turned structure of the Constitution Congress and the president , not 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 principle or aspirations. This tenant to the text is neutral. The text may be probusiness or pro labor, Pro Development or environment, bro bank or consumer. Regardless, judges should follow the text where it leave, at the same time when the text of the statute is ambiguous rather than clear, judges may results to a variety of canons. These canons include one in ases of textural ambiguity raising constitutional questions. Two if, there is textural ambiguity, rely on the legislative history. Three, in casesor textural ambiguity, refer to the term tation of a statute. Here is the problem. And it is a major problem. All of these canons depend on a problematic threshold question. Cours may resort to canons 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 ambiguity dependent canons . Unfortunately there has all been 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. That should be the end of it. Case over. The other judge will respond i think the text is ambiguous. Meaning that one or another canon of construction should be employed to decide the case. Neither judge can convince the other. Thats because there is no right answer. It turns out 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 6040 in one direction, is that enough to call it clear . How about 8020 . Who knows . Second, lets imagine that we an agree on an 8020 clarity threshold. A judge may call it clear only if it is 8020 in one direction. Even if we say that is the necessary level of clarity, how do we apply that formula to particular statutory text . 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. 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 little ess readily than a couple. Approaching a 6535 or 6040 rule. If it is 6040, it is cleerks not ambiguous. Dont resorts to canons. A 9010 rule in certain cases. Only if the proper interpretation is at least 9010 clear will they call it clear. Otherwise ambiguous canons kick in. Who is right in that debate . Who knows . No case or canon of interpretation says that a 6040 approach o or a 90so approach or a 6545 approach. We still have to figure out whether the text this question surmounts that and that in itself is a difficult task. So the simple but very troubling truth is that no definitive guide exists for determining whether statutory lang Weather Channel is clear or ambiguous. The Supreme Court itself admitted there is no test for recognizing plain or unambiguous language. A professor has elaborated on this point arguing there are no rules or clear agreements among judges on how to decide whether a text is ambiguous. 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 the door to a more practical problem. Judgments about ambiguity can be dangerous because they can easily be biased by strong policy prempses 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 they are separating their policy views from what the law requires of them. It is not simply a matter of judges trying hard enough. Policy preference 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. They are all briefed at the same stage of the proceeding. A judge who decides to open the ambiguity door already knows what he or she will find behind it. Unfortunately more over the clarity to have ambiguity question plays into what many consider to be the worst of our professional training. As lawyers, were indocket nated from law school to find the mbiguity in even clearest of pronouncements. The Law School Exam preparation book is titled getting to maybe. The problem of difficult clarity versus ambiguity determinations would not be as significant if the issue affected case only at the margins but the outcome of many cases turns on the initial and incoherent dichotomy between clarity. A number of Supreme Court decisions, really important ones have implicated the clarity versus ambiguity problem. Consider some of the cases that have turned in the recent past. The healthcare case. The vote rights case. The right to Life Campaign finance case. Those were hugely significant cases that turned to a significant extent on an initial of whether the relevant statute was clear or ambiguous. If the statute was ambiguous, they can resort to constitutional voidance. If it is clear, no. All of those cases were important and they were all decided on the basis of a difficult evaluation of clarity versus ambiguity. Same with chevy ran deference. As Justice Scalia explained 25 years ago, how clear is clear . It is here if chevron is not abandonned that the future battles over acceptance and agency interpret tailses of law will be followed. And in fact, the court has skirmished in 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 of these cases came down to what turns out to be an entirely personal question. One subject to a certain sort, is the language leer or ambiguous clear or ambiguous . 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 to the problem, im 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 faithfully as possible. Uch of the term tation interpretation resolves around ambiguity. After more than 11 years on the d. C. Circuit, i have a definite sense that the clarity versus ambiguity term dation is the statute clear or am big swouse too often a barrier to the ideal that interpretation should be neutral, impartial, unpredictable among judges in different backgrounds. My points should not be misunderstood. Statute also always have ambiguities. That is the nature of language, including congress language. We cannot eliminate or avoid ambiguities wish them away. Even though ambiguity is unavoidable as a practical matter, perhaps we can avoid attaching serious consequences to binary ambiguity determination s that areso hard to make in a neutral, impartial way. In other words instead of injecting the ambiguity problem into the heart of the term tation, we can consider whether to sideline that 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 an arbitrary initial inquiry into whether the statute can be characterized as clear or ambiguous. We can try to make sure the judges do not or at least only rarely have to ask whether a statute is clear or ambiguous in the course of interpreting it. Instead interpretation can proceed in a twostep process. First courts can determine the best reading of the text of the statute by interpreting the words of the statutings taking into account the context to have whole statute and applying any other appropriate semantic canons of construction. Semantic canons are a fancy way of referring to general rules by which we understand the english language. Second, once judges have arrived at the best reading of the text, they can play openly and honestly any substantive canons such as the absurdity doctrine prudges of h as the territory or thality. Territo rinch ality. Thunder twostep approach, few if any interpret cases would turn on the way they do now. To be sure, to determine the best read of the statute is not always easy. We have tools to perform that task and communicate it to the parties and the in our opinions. Why layer on a whole separate inquiry is the statute clear or ambiguous that does not help uncover the best reading that is difficult to resolve in a neutral, impartial and predictable way. Let me take you into a few of those canons to show you what im talking about. The constitutional avoidance canon. Judges interpret ambiguous statutes to avoid a constitutional question or actually unconstitution at that uld arise if the ambiguity were to resolve in one direction or the other. There must be ambiguity in the statute. The initial problem, one initial problem with that constitutional avoidance doctrine is that it sometimes can look more like restraint. Ilure than another problem with it again apart from the ambiguity problem is that sometimes it is envoked when there are mere questions on their constitutionality. As a result, the doctrine gives judges enormous discretion to push statutes in one direction to avoid coming up with a of the constitutional line. Put aside those critiques of the avoidance doctrine. Apart from and in addition to those reasons, i would consider it for a different reason. The trigger the r the can op, clear or ambiguous is so uncertain. That fall was famously highlied. 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. Justices sclee gentleman, kennedy, thomas and alito on all of the ski issues raised about the individual mandate key issues raised about the individual mandate. They agreed about the scope of the taxing clause and they reed that the individual mandate provision was best read, best read, to impose a legal man tate, a penalty rather than a tax. Mandate provision was best 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 is too painful for you to do so. [laughter] what they disagreed on with respect to the individual andate and amazingly, all they disagreed on was how to apply the constitutional avodance canon. In particular, they disagreed about whether the individual mandate provision was sufficiently ambiguous that the court should resort to the constitutional avoidance canon. The dissenters said it wasnt ambiguous. The chief said it was. For all that has been written about the case, the decision on the individual mandate turned not on the proper interpretation of the constitution and the statute. It turned entirely on how much room judges have to find ambiguity when invoking the constitutional avoidance 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 enough to begin with. 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 centers have a better argument about the clarity or the ambiguity about the statute this question. I imagine people in this room have views about that. My point is that such a question arguably should not be part to have inquiry. Because despite the best efforts judges, a case of that magnitude should not turn on that canon. That is what the canon of constitutional voidance required. All judge were compelled to analyze it. If it was jetsonned, what would happen . Judges could instead determine the best reading of the statute based on the words of the statute. The context and the agreed upon canons of interpretation. If it turned out to be unconstitutional, then judges would say so and determine the appropriate remedy by applying several principles. So let me turn to the next one. Another ambiguitydependent canon. The principle that we should construe the statutes in light to have statutes legislative history. If the statute is clear, we have no reason to resort to legislative history. If it is ambiguous, some judge also say we should look at it. Many have criticized it on formal and functional grounds. As a function almatter, it reflects in efforts sometime business a subgroup in congress or worst, outside of it to reflect how a statute will be interpreted and implemented in ways the congress and the president may not have wanted. More over legislative history is conflicting arch. It can be in the end like looking out over a crowd and picking out your friends. Part from all of those critiques, 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 exasperates. 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 the finding of ambiguity, and if there is no set of principle wade to determine clarity or 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 determine nance of ambiguity, judges would instead decide on the best reading of the statute. That would will largely limbed to helping answer the question whether the literal leg of the statute produced enough absurdity. Most importantly in the world in that world, we would not make statutory interpretation depend so heavy heavily on the difficult assessment of whether the text is clear or ambiguous. Constitutional avoidance, legislative history. Two huge canons of interpretation used all the time depend on the additional clarity versus ambiguity. Now the third one that i will discuss. Chevron deference. Term chevron, if a statute if it is ambiguous, not the best reading, so long as it is readable. This principle is the one i encounter most as a judge on the d. C. Circuit. Now again, as constitutional voidance and legislative history, there are other critiques people make of crev ron. Just to mention a couple. To begin with, little or any basis in the text of the ledge slavet procedure act. In many ways, it 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 a moment, weighty as they may be. From the judges standpoint, different judges have wildly different conceptions whether a particular statute is clear or ambiguous. The key move from step one, stop if it is clear, to step two, thats where you go if it is ambiguous of chevron is not determined because of the threshold of ambiguity determination. As Justice Scalia. Ed out, this chevrons in armor. Now i see this problem all the time. All the time. N my many agency cases and have it has major practical consequences. In certain major chevron cases different judge also reach different results even though mark may actually agree what the eath is doing is contrary to the best read of the statutory text. I have been involved in many case where is 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 agencys interpretation of the statute. The supposed suppose the judges agree the three judges agree that the agencys reading the statute is not the best reading of the statute but two judge believer that the statute is ambiguous so that simple determination may affect billions of dollars, affect the rights of millions of citizens, labor laws, or the like, and yet there is no principled guide for making that clarity versus ambiguity decision and no good way for two judges to find neutral principles on which to debate and decide and talk about that question. This state of affairs is unsettling. Is to help make statutory interpretation and constitutional interpretation a more neutral, impartial process where lives are treated alike regardless of the issue and of advantage in the parties of the case. That has to be our goal. That objective is hard to triggerif the threshold for chevron deference is ambiguity. What is the solution to this one . Courts should still defer to agencies on cases involving broad and openended terms as they should under current law when they used terms like reasonable, appropriate, practical. Courts can say the agency can choose among reasonable options allowed by the statute, but that is the state farm doctrine. I mean bys know what the state farm doctrine. That is not the chevron doctrine. Cases where an agency is interpretative a specific statutory term or phrase, courts should determine whether the agencies interpretation is the best reading of the text. Judges are trained to do that. It can be done in a neutral and impartial way in most cases. There will still be disagreements about meaning, but it wont the sidelined by ambiguity versus clarity determination. Certain applications of chevron is that the doctrine is so indeterminate and antithetical to the neutral, impartial rule that initiale of clarity versus ambiguity decision. As with the legislative history canon, at we need to consider emanating that inquiry as part of the threshold trigger. Critical canons 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 determinations in a coherent and evenhanded way, courts should reduce the number of canons of construction that depend on initial finding of ambiguity. Courts should seek the best reading of the statute by interpreting the words of the statute, taking account of the context, and applying the agreedupon semantic canons. Once they discern the best readings of the text in that way , they can depart from that baseline if required by the subsequent canons, for example the absurdity doctrine or the presumption against extraterritoriality or the presumption against retroactivity. To be clear, i fully appreciate the disputed calls will always arise in statutory interpretation. Ofuring out the best reading the text is not always an easy task. Berraot a modernday yogi who once reportedly said that there would be no more if we no morefirstbase close calls if we just moved first space. Current situation in statutory interpretation is more akin to where empires can on at least some pitches largely defined their own strike zones. Toution is to find find the strikes on much more precisely so 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 pitches thrown. That is just too hard some might argue. Statutory interpretation is inherently complex people say. Anyway somelitics contend. I have heard all the excuses. I have been doing this for 11 years. I am not buying it. It is a mistake to think this current statutory interpretation is somehow the natural and unalterable order of things. In the realm of statutory interpretation. For the sake of the neutral and impartial rule of law, we must do better. We have made in enormous strides in constitutional statutory interpretation over the last 30 years thanks to Justice Scalia and general meese. As i like to say to micros basketball team, it is now up to us. That much is clear to my Girls Basketball team, it is up to us. That much is now clear. [applause] that was terrific. You who do not know me, i am john malcolm, the director of the meese center here. Before i call it means to the stage for a presentation, i thought i would ask a couple of questions. Your theme of statutory interpretation and constitutional imperatives, i want to touch on one aspect you did not address. His are any hope the courts can anda way to eliminate rivera five the nondelegation doctrine or is that too much water under the bridge . The way it is working right now is there is a doctrine related to the chevron doctrine that deals with broad delegation issues. I mention the chevron canon. Authoritycy is given and the statute is ambiguous, deferred to the agency. An important exception to that has been a dont apply chevron, in fact presuming nondelegation of the agency in cases involving socalled major questions. This was the brown and williamson tobacco case, invoked by Justice Scalia a few years ago. This is a critical doctrine in my view in the current Administrative Law world and how it will be applied. I have written about it in a few cases out there. I think it is quite important. What does the doctrine do . It says if a major issue or question i call it the major rules doctrine a major rule, then you dont defer to the agencies 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. In the 1980s first articulated Something Like in the Justice Breyer 1980s articulated Something Like this. The Supreme Court adopted it in the late 1990s. Even Justice Rehnquist articulated it. I think that is an important broadne right now for delegation to agencies. About are concerned agencies taking vague delegations and doing massive this majors, questions doctrine is critical. You see it in king versus burwell after the you a rg opinion. Uarg opinion. How major is major . Money, people, what . I threw out some things in a dissent i wrote last year that should be considered, but that is an important debate. Some rules are obviously made he major. That isis one issue difficult, the major rules doctrine. But that is a piece of the nondelegation story. The nondelegation doctrine does not have much teeth, but the major question doctrine is for broad delegations in a way that is putting a break on some what some agencies have done with broad and limited delegations to issue rules. There is a certain popular precession that other branches of the government 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 serving in the executive branch for a number of years. What role should the other they in play, or should do they come in terms of their own interpretations of the constitution . Congress andn executive branches under a duty to consider the constitutionality of what they are doing with the legislation or the executive branch to consider the legality of regulation they are issuing under the statute in question. Chevronell you about from building on my white house experience in general executive ranch experience. What is the real world impact in the executive branch . If you know the courts will defer to an interpretation of an ambiguity and you think the statute does not really do what we want to do here, but maybe we can convince the courts it is ambiguous and then we can do it. We have this huge policy objective. We were in the snow in i were running on this and lets call it ambiguous and hope for the best. That is a real world phenomenon. That is how chevron migrates to the executive branch. If you are an executive branch official, you want to go to the edge of the line and push the envelope right to the edge. And so chevron has this impact in the executive branch as well, terms of constitutional issues, yes, congress is under the duty to consider constitutionality, but the courts as general meese talked about in the july 9, 1985 marbury versus madison establishes the structure and intent of the constitution establishes the judiciary has the final word on whether congress of the executive branch has overstepped constitutional limits in a way that violates individual rights. This is terrific. Im going to bring general mise back up on the stage to make a special presentation. Back up onmeese stage to make a special presentation. Judge, i think you certainly have fulfilled our hope about this evening, and that is you would show both great scholarship, ace ands or humor, and a commitment to the constitution. For that, we thank you and therefore it is a pleasure to present to you our defender of the constitution award, a of justice i might clothed ande addressed to the honorable Brett Cavanaugh from the Heritage Foundation. Thank you very much congratulations. Thank you very much. [applause] we would also like to present to you and i am sure you know these well, for your library and working out in the morning [laughter] two copies of the commentaries of just a story and a much shorter version, the familiar exposition of the constitution of the United States by joseph story and a forward by me. [laughter] thank you general meese. Thank you. [applause] thank you. [laughter] thank you ladies and gentlemen for being with us. There will be a reception in the foyer out here. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2017] thiannouncer this week on q a. Was charlesget murray. It looked like he was going to fall to the ground. He was a 70 for your own man. I did what any decent person would do, i grabbed him by the arm. To make sure he didnt fall, but know how many, but i was fearful of being separated and left behind. That is when it all turned on me. Somebody pulled my hair and body sammy from another direction. Allison stinger discusses the violent protests on march followed by a scheduled lecture. Washer sunday night at 8 00 p. M. Eastern on cspans q an a. Announcer cspan, where history unfolds daily. 1979, cspan wacr