Mashaw and Perry on Administrative Statutory Interpretation in the Antebellum Republic

Administrative Statutory Interpretation in the Antebellum Republic is a new article by Jerry Louis Mashaw and Avi Perry, Yale Law School. it is forthcoming in the Michigan State Law Review. Here's the abstract:

There are many reasons to doubt whether administrative interpretation was an important part of lawmaking in the early American republic. The conventional wisdom of contemporary lawyers seems to be that until the Chevron case, statutory interpretation was primarily the role of courts. The modest attention to agency statutory interpretation prior to Chevron, combined with the avalanche of post-Chevron scholarly commentary, suggests that from the founding until 1984 the law followed the pattern of Chief Justice Marshall’s pronouncement in Marbury v. Madison, that saying “what the law is” was the province of the federal courts. Post-Chevron, of course, scholars have discovered not only that administrators interpret statutes, but have even argued that administrative interpretation has displaced adjudication in courts as the primary means by which federal common law is developed.

Historians and scholars of American political development have focused our attention in a similar direction. Professor Theodore J. Lowi famously declared that “[t]he first century was one of government dominated by Congress and virtually self-executing laws.” Equally famously, Stephen Skowronek labeled the pre-1877 national government a state of “courts and parties.” If statues were specific and self-executing, as Lowi claims, administrative interpretation could hardly be of much importance. Self-executing statutes contain their own behavioral requirements and
presumably, enforcement is through prosecution in the courts. Similarly, a government that is composed primarily of courts and parties is necessarily a government in which administrators play minor roles. Therefore, the interpretations of these bit players in the legal system are hardly worthy of sustained attention.

But nineteenth century congressional government followed by the twentieth century emergence of an administrative state is not the whole story. In short, well before the Civil War, national administration in the United States was substantial, and statutes were never self-interpreting. Moreover, statutory interpretation was largely an administrative function at the national level because administrative action was virtually free from appellate-style judicial review. This was not a system in which administrators had Chevron or some other form of deference. It was a system in which administrators had absolute and final authority to interpret the law.

In this Article, we explore two aspects of administrative interpretation in the antebellum republic. We first look at the structures and processes of administrative interpretation. Modern lawyers know where to look for agency interpretations. The Federal Register bristles with agency interpretive material, and formal opinions in agency adjudications are compiled and reported in much the same fashion as judicial opinions. Every agency is required by the Federal Register Act to publish a description of its internal organization and the processes by which it conducts business. Outsiders seeking an interpretation are generally informed about how to petition for a ruling of some sort, what types of interpretive statements an agency issues, and where the final authority to make binding pronouncements lies.

The structures and processes for agency interpretation were informal and eclectic in the nineteenth century, and certainly in the antebellum period. The internal processes of departments were opaque and no single source compiled or reported administrative decisions. There was no widely available process for unifying interpretation where administrative and judicial approaches diverged. Within departments there was a constant struggle between center and periphery for interpretive authority. The role of the Attorney General in unifying administrative interpretation across departmental jurisdictions was quite uncertain, and then, as now, the position of the President as “Interpreter-in-Chief” was contested.

Part I will address these structural and procedural issues. In Part II, we turn to the question of interpretive methodology. Evidence here is sketchy and conclusions must be quite tentative. Agencies, like courts, tend to address questions of methodology directly only when there is interpretive disagreement requiring an agency to explain its reasoning process. This is common today in hotly-contested adjudicatory or rulemaking proceedings. By contrast, in antebellum America, most administrative adjudication was informal and there was no required rulemaking process.

In this context, interpretive methodology must be discerned mostly from the administrative practices of line agencies. Officials provided interpretations in various documentary forms but only rarely attended to the meta-question of how statutes should be interpreted. In Part III, the interpretive practices of Attorneys General are considered. Opinions of the Attorneys General tended to be somewhat more self-conscious about method, particularly as these officers began to see their opinion-writing function as quasi-judicial. We will look at both sources of methodological evidence, but the results thus far are suggestive at best. The Article then concludes with some reflections on lessons learned and mysteries yet unsolved concerning agency interpretation in antebellum America.