Regulatory Textualism

70 Pages Posted: 15 Sep 2015 Last revised: 24 Oct 2015

See all articles by Jennifer Nou

Jennifer Nou

University of Chicago - Law School

Date Written: September 14, 2015

Abstract

This Article proposes a textualist approach to regulatory interpretation. Regulatory textualism, however, should be distinct from statutory textualism. Judges should interpret regulations armed not with dictionaries or other general linguistic aids, but rather with a hierarchy of sources that sheds light on the text’s public meaning. Methodologically, this approach tailors positive political theory insights to the rulemaking process. That process features a number of pivotal actors, or veto-gates, who must sign off on a regulation before it can proceed. The court’s interpretive task is to privilege those statements that are more likely to be credible — sincere, not strategic — reflections of the text’s public meaning.

Specifically, the judge should first consider the preamble’s provision-by-provision explanations, which frequently respond to public comments raising potential ambiguities. If ambiguity persists, the judge should then consult the regulatory analyses, which predict the rule’s consequences under specific factual scenarios. Both congressional and presidential veto-gates, as well as the public more generally, rely on these analyses when engaging with the regulatory process. Finally, if these materials conflict, the court should then defer to the agency’s interpretation — provided that the agency provides a reasoned explanation. In this manner, regulatory textualism asks how the reasonable reader of a rule would have understood its meaning as negotiated by the President, Congress, and other politically legitimate actors.

Keywords: regulatory interpretation, textualism, purposivism, intentionalism, veto-gates, positive political theory, Seminole Rock, Auer

Suggested Citation

Nou, Jennifer, Regulatory Textualism (September 14, 2015). 65 Duke Law Journal 101 (2015); U of Chicago, Public Law Working Paper No. 544. Available at SSRN: https://ssrn.com/abstract=2659980

Jennifer Nou (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

HOME PAGE: http://https://www.law.uchicago.edu/faculty/nou

Register to save articles to
your library

Register

Paper statistics

Downloads
168
Abstract Views
928
rank
176,726
PlumX Metrics