Agency Polymorphism

Abstract

The Supreme Court is divided over a seemingly straightforward question: When a court interprets a statute in light of some canon of construction that applies to the person before it (A), does that interpretation then control later applications of the statute, even when, for example, the statute is applied to a person (B) who does not trigger the canon? According to the divided Supreme Court in Clark v. Martinez (2005), the answer is yes: the so-called “lowest common denominator” governs. But if B had challenged the statute before A, this would require the court to consider the absent A’s claim when interpreting the statute once and for all. That seems to violate prudential standing limitations. Alternatively, the court might have embraced polymorphism, rejecting B’s interpretation of the statute but reserving the right to interpret the statute differently as applied to A in the future. But this means that the statute’s meaning now turns on the identity of the challenger, which raises a host of constitutional and rule of law concerns. Complicating matters further, how should this dilemma be resolved in the administrative agency context, where courts and agencies partner in statutory interpretation?

Agency Polymorphism exposes and analyzes polymorphism in the administrative state, and argues that within appropriate limits polymorphism is advantageous because it empowers politically-accountable agencies to exercise their policymaking authority and to enforce constitutional norms. The Article also introduces the concept of hybrid polymorphism, in which courts and agencies signal to each other how to resolve future challenges by discrete categories of individuals. In all, even if one shares Justice Scalia’s view that judicial polymorphism is “dangerous,” there are strong reasons to be a pluralist when it comes to the administrative state.

Keywords: Administrative law, agency, canons of construction, constitutional avoidance, immigration law, statutory construction