Towards an Administrative Rule of Lenity: Restoring the Constitutional Congress by Reforming Statutory Interpretation

19 Federalist Soc'y Rev. 8

27 Pages Posted: 8 May 2018  

Joel Nolette

Unaffiliated Authors - Independent

Date Written: April 19, 2018

Abstract

In this article, Joel Nolette proposes an “administrative rule of lenity” as a solution to structural problems besetting our federal government and the constitutional separation of powers. Borrowing from the rule of lenity and the contra proferentem doctrine, the Court should adopt a canon of strict construction for interpreting and applying federal statutes that delegate authority to agencies and regulations adopted pursuant to those statutes. Under this canon, an agency action will lack force or effect unless it is unambiguously authorized by statute or actually implements the unambiguous terms of a previously promulgated regulation. To determine whether a statute or regulation is unambiguous — and thus whether it actually authorizes the action in question instead of just leaving the matter unclear — the Court would use traditional tools of statutory interpretation. If the Court thereby concludes the statute or regulation is ambiguous, then it will construe the provision against the agency. This would replace the Court’s current practice of presuming an agency’s interpretation to be valid unless it is patently wrong. In other words, the Court would flip the presumptions of Chevron and Seminole Rock — if a law or rule is ambiguous, then the “tie” goes to the regulated rather than the regulator.

Note: Mr. Nolette’s article won First Place in the Article I Initiative Writing Contest, conducted by the Federalist Society’s Article I Initiative on the topic Restoring the Constitutional Congress. Prof. Lillian BeVier, Hon. C. Boyden Gray, and Hon. Chris DeMuth were the esteemed judges for the Writing Contest. They completed a blind review of the submitted essays addressing the contest topic, and they selected this paper as the winner. The Federalist Society takes no positions on particular legal and public policy matters.

Keywords: Administrative Law, Rule of Lenity, Contracts, Contra Proferentem, Chevron, Seminole Rock, Auer, Deference, Strict Construction

JEL Classification: K23

Suggested Citation

Nolette, Joel, Towards an Administrative Rule of Lenity: Restoring the Constitutional Congress by Reforming Statutory Interpretation (April 19, 2018). 19 Federalist Soc'y Rev. 8. Available at SSRN: https://ssrn.com/abstract=3167282

Joel Nolette (Contact Author)

Unaffiliated Authors - Independent ( email )

No Address Available

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