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by Richard A. Epstein
A huge chunk of the Supreme Court’s work lies in interpreting the
statutes and regulations that govern every nook of American life. In
reading statutes, the justices oscillate uneasily between two
inconsistent approaches. Sometimes they distill the meaning of a
disputed provision by making their best independent judgment about its
structure and function. So they slap down any government officials who
exceed statutory powers. Alternatively, they lament the imprecision of
language, doubt their own expertise about social and political
complexities, and defer to whatever reading the official gives to the
statute that empowers him.
It is instructive to ask how consistently the four conservative justices
– Roberts, Scalia, Thomas and Alito – and their four liberal
colleagues – Stevens, Souter, Ginsburg and Breyer – apply these
approaches in the battle for supremacy, with Justice Kennedy frequently
the swing voter. Answer: not at all. In principle, it would nice if both
sides of the ideological spectrum displayed a sound and consistent
position on statutory construction. Unfortunately, each bloc is
opportunistic. The litmus test for this erratic behavior boils down to a
factor not found in any statute: trust.
The court’s two wings share one trait: They defer only to the government
officials they trust. Otherwise, they read a statute carefully to rein
in the authority of officials they don’t trust. The two factions don’t
differ in their philosophy of language, or in their on-again, off-again
adherence to the rule of law. Rather, the court’s liberal wing
profoundly distrusts this president, but has great confidence in the
domestic administrative agencies that regulate matters such as the
environment. The conservative wing of the court flips over. It willingly
defers to the president on national security issues while looking
askance at expansionist tendencies of the administrative agencies.
Consider two key cases of this past term. Hamdan v. Rumsfeld addressed
whether the Uniform Code of Military Justice authorized the president to
create special military commissions to try an alleged member of al Qaeda
with war crimes. These tribunals offer the accused none of the legal
protections available under the UCMJ, let alone in a federal district
court. The president’s power to establish these commissions unilaterally
depended critically on whether he considered it “practicable” to use the
standard UCMJ procedures. The liberal bloc held that a blanket
presidential order for special commissions did not make any effort to
show that it was impracticable to follow the UCMJ. The conservative wing
wanted to defer to the president’s near-limitless discretion over
foreign affairs, which courts have neither expertise nor knowledge to
question.
Both wings of the court did 180-degree turns in Rapanos v. U.S. The 1972
Clean Water Act makes it unlawful to pollute “navigable waters without a
permit” from the Army Corps of Engineers. “Navigable waters” are defined
as “the waters of the United States, including the territorial seas.”
The Corps’ original 1974 regulations stated that these waters included
only those on which navigation did or easily could take place. But
without explanation the Corps switched gears, so that today they embrace
not only all wetlands adjacent to navigable waters – itself a stretch
– but also every mudflat, slough or prairie pothole in the land. The
Corps used this definition to prosecute John Rapanos, criminally and
civilly, for filling in a 54-acre saturated plot of land located 11
miles from the nearest navigable river, without showing that any
material from the site could reach, let alone pollute, navigable water.
The Supreme Court’s liberal bloc duly announced its deference to the
Corps, while the conservatives rightly protested that such verbal
alchemy could not convert land into water, nor show a family resemblance
between a pothole and a territorial sea. Justice Kennedy honed in on the
irrelevant by asking whether the Corps could establish some “significant
nexus” between remote wetlands and navigable waters – without asking
what discharges, if any, could go from one place to the other.
In surveying the landscape, note first that neither question of
statutory construction is particularly difficult once the bogeyman of
judicial deference is ignored. In Hamdan, Justice Stevens was right to
chastise the president for flouting the Rule of Law (his caps) in
short-circuiting the UCMJ. But he never once asks why the Corps hasn’t
committed the same.
Often, the court is too reluctant to strike down legislation because it
exceeds Congress’s power under the commerce clause, or because it takes
private property for public use without just compensation. Justice
Stevens’s dreadful misreading of “public use” in Kelo, for example,
illustrates the danger of turning linguistic somersaults to allow state
land planners to drive people from their homes. But neither Hamdan nor
Rapanos raise any tension between democratic decision making and
judicial power. Both cases only ask whether the president or the Army
Corps of Engineers complied with their own statutory mandates, or chose
to make new laws under the guise of interpretation.
The key element of trust should play out the same in both cases. Our
Constitution starts out with a presumption of distrust of all government
actors, which is why it drew a sharp line between the legislative and
executive branches. We can argue until the cows come home whether
national security or environmental protection presents the greater
threat of executive or administrative misuse. But that ranking really
doesn’t matter, because there is no reason why the Supreme Court has to
defer to overaggressive public officials in either context. Justice
Stevens rightly chastised the president for flouting the rule of law in
Hamdan. But he was tone deaf on the easier question of statutory
construction when blessing the Corps’ extravagant reading of the statute
in Rapanos. We will get consistent and reliable statutory construction
only when all justices put aside the naïve fantasy that they lack
expertise and information to read the common language found in
congressional enactments.
Richard Epstein is the James
Parker Hall Distinguished Service Professor at the University of Chicago
and adjunct scholar of the Cato Institute. He coauthored an amicus brief
on behalf of Salim Hamdan and is author of How Progressives Rewrote the
Constitution.
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