The Canons of Regulatory Textualism

Abstract

By cabining Auer deference, Kisor v. Wilkie has made new space for regulatory interpretation. Yet the lower courts have given barely a thought to the fundamental methodological questions, particularly whether the appropriate tools of regulatory interpretation might differ from those of statutory interpretation. Academic commentators have given the issue more attention, positing intentionalist, purposivist, and first-generation textualist approaches. This Article proposes a new approach that follows the formalist move made by textualism’s second generation. While textualism’s first generation largely concerned itself with positivist critiques of the idea of congressional intent, the second generation concerned itself with the constitutional legitimacy of enacted text.
Using the details of the Administrative Procedure Act to separate the legitimate and legally effective regulatory text from the merely legally significant regulatory preamble, this Article considers several tools (organized as canons) for decoding the public meaning of a regulation. In contrast to statutory textualism, several such canons make use of materials generated throughout the administrative process. A Whole Text Rule incorporates the published “statement of basis and purpose.” A Hard Look Canon favors interpretations consistent with the reasons given in the administrative record. A Logical Outgrowth Canon reads ambiguous language so that it is not too far afield from the notice of proposed rulemaking. And, finally, a Delegation Canon avoids interpretations necessarily premised on an agency’s untenable view of its statutory authority.

Keywords: regulatory interpretation, regulatory textualism, textualism, purposivism, interpretation, hard look review, whole text rule, Scalia, constitutional avoidance, delegation, logical outgrowth, canon against invalidity, Administrative Procedure Act, Kisor, Decker,