The Solicitor General as Mediator Between Court and Agency
36 Pages Posted: 23 Feb 2009
Agencies today play a central role in shaping much of statutory law. They do so, however, in the shadow of the courts. Courts review most forms of agency action - and some forms of inaction - and scrutinize agencies' interpretive decisions for consistency with the relevant statutory scheme. The appropriate division of labor between courts and agencies therefore is a recurring question in administrative law. It lies at the heart of ongoing debates about whether and to what extent judges should defer to agencies' statutory interpretations. The court/agency divide similarly animates the growing body of scholarship addressing agencies' interpretive methodologies: Should agencies mimic judicial modes of statutory interpretation, or should they engage in a distinctive approach to interpretation that exploits their very different institutional roles and capacities?
In this essay, prepared for a symposium on administrative statutory interpretation, I assume that agencies do have something unique to add to our law - that their expertise, practical experience, and political ties can generate valuable insights into many questions of statutory meaning and application. Current law recognizes as much when it urges courts (with varying degrees of intensity) to defer to agencies' judgments about the statutes they administer. The call for deference is grounded in an acknowledgement that attributes like expertise and political accountability give agencies a special claim to interpretive authority. My aim here is not to make the case for such authority, but rather to expose and evaluate a potential threat to it: the Solicitor General (SG). The SG controls all agency litigation in the Supreme Court, and as a result he or she stands between agencies and the nine Justices who ultimately will decide whether to embrace or reject the agencies' views of what the law is and should be. As I seek to show, the SG plays an active role in shaping the arguments that reach the Court; in a significant percentage of cases involving agency statutory interpretations, the briefs filed on behalf of "The United States" are not joined by the relevant agency and may or may not reflect the agency's views. Other commentators have identified a tension between the SG's authority over briefing and argument in the Court and the independence of so-called independent agencies. The point here is different. I argue that the SG's intervention is more legalistic than political, and that his role in filtering the arguments presented to the Court may leave insufficient room for a distinctive agency voice.
Keywords: Solicitor General, SG, statutory interpretation,separation of powers, Chevron, administrative law, agency litigation
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