Chevron and Auer undermine the rule of law.
In a previous post, I discussed my new paper, The Duty of Clarity. There I show that the original meaning of the Constitution requires a clear violation of its terms before invalidating legislation. But the Constitution also demands that judges use the ample interpretive methods available to clarify the precise meaning of our fundamental law. Both the obligations of clarity and clarification flow from the judicial duty, a duty that is an aspect of the judicial power granted under Article III of the Constitution.
My paper helps resolve the long standing debate about whether judges should defer to the legislature. Judges are empowered to use legal methods to clarify a constitutional provision, and if they can be made clear by these methods, the provision offers a basis to invalidate legislation. But if judges cannot disambiguate or eliminate vagueness, they have no authority to replace the legislature’s judgment with their own.
Since finishing a draft of the paper, I have come across one more powerful piece of evidence for this proposition. It is widely agreed among early Supreme Court justices that this duty of clarity exists and was binding on them. Nevertheless, I had not previously found any instance in which a justice claimed that the duty was the proximate cause of a refusal to hold legislation unconstitutional.
The case in which the duty of clarity appeared to be decisive was United States v. Ravara. The question in this appellate case was whether a lower court could entertain a prosecution against a foreign counsel. Article III provides “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” The issue was whether jurisdiction was exclusive in the Supreme Court. The majority of the Court held it was not exclusive and thus the statute was not unconstitutional. While the opinions of the case were sparsely reported, Justice James Iredell recollected what was dispositive for the majority:
I think the principal reasons assigned by Judge Wilson and Judge Peters were that the prosecution was within the general act of Congress. . . That tho’ an act of Congress plainly contrary to the Constitution was void, yet no such construction should be given in a doubtful case; and that in this case the Constitution tho’ it said “the Supreme Court should have original jurisdiction,” yet not having said it should be also exclusive, it was not necessary to give such an interpretation to it. I think these were substantially the reasons.
This is an important new piece of evidence, because it shows that duty was more than theoretical but had real bite. Nevertheless, we should not forget that in the vast majority of cases in the early Republic, justices used the interpretive methods available to clarify the meaning of the Constitution sufficiently not to have to invoke the duty as a dispositive to their decision. Thus, the duty of clarity is in tension with both some modern notions of “judicial engagement”(such as those that embrace construction), and some modern notions of judicial deference (such as those that embrace the view of James Bradley Thayer). But it is hardly surprising that original meaning does not always comport with modern notions that are dependent on jurisprudential and political theories that postdate the Founding Era.