Noga Morag-Levine, Michigan State University College of Law, has posted
Agency Statutory Interpretation and the Rule of Common Law, which is forthcoming in
Michigan State Law Review (2009). Here is the abstract:
American administrative theory and law have long treated as an axiom the notion that agencies are subordinate to the statutes that govern their mandates, and that statutory interpretation is central to the implementation of these mandates. And yet, as recent discussions among administrative law scholars have made evident, statutory interpretation is frequently a poor descriptor of administrative practices that more closely resemble direct policy making. This article argues that the explanation for this dissonance is to be found in the process through which British and later American administrative law came to construct the mandate of agencies through the language of statutory interpretation. Central to this process were long-standing divisions in England over the compatibility of continental-styled royal law-making prerogative with British constitutional principles. The victory of Parliament and the common lawyers at the end of the 17th century formally deprived the executive of prerogative authority in domestic matters, subordinating instead the scope of executive regulatory authority to the terms of statutory mandates. But this formula soon served to disguise unresolved disagreements on whether and when administrators were entitled to make, rather than strictly interpret law. Following England’s lead, the American administrative state evolved over the course of the 19th century through protracted conflict over the legitimacy of continental administrative paradigms and the supremacy of common law principles. I argue that as was the case in England, the view of agencies as interpreters of statutory mandates offered a workable compromise between those who viewed administrative power as incompatible with common law constitutionalism and those who argued for the necessity and legitimacy of agency autonomy in the modern administrative state. The compromise proved resilient largely due to the ambiguous scope of the pertinent interpretive mandate and the broad range of administrative activities that could arguably fit under its expansive umbrella. In the process, longstanding divisions over executive lawmaking were recast as administrative law debates over the degree of deference to be accorded to agency interpretation. The relevance of the historical conflict over prerogative lawmaking to contemporary controversies regarding the nature of administrative power has largely receded from view. On occasion, however, unresolved tensions at the core of the compromise resurface, as in the recent disagreement between Professor Mashaw and Pierce over the existence of a distinct agency policymaking authority. The core values at stake in current discussions of agency statutory interpretation become easier to recognize when viewed in the context of deep-seated historical disagreement over the legitimacy of executive law making within the common law world.
Image credit: A.V. Dicey
