The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary's Structural Role

Abstract

Recent scholarship on statutory interpretation has emphasized that certain approaches to interpretation may have "instrumental" effects on lawmaking. In this article, Professor Molot argues that judicial influence over legislative behavior is not a new idea, but rather is an important component of our original constitutional structure. Examining the Founders' ideas on language and interpretation, Professor Molot suggests that most Founders viewed law as moderately indeterminate, such that ambiguity could not be completely eliminated but judicial interpretation was constrained by well-established canons of construction. Professor Molot posits that under the constitutional structure, these constraints on judicial interpretation also exerted a moderating influence on the legislative process. Powerless to control interpretation through political means, legislators had incentives to internalize judicial values of fairness and rationality and engage in careful deliberation and drafting. Professor Molot cautions, however, that if the judiciary was positioned by our original constitutional structure to influence legislators, modern doctrines of deference may undermine the judiciary's structural role. Judges today routinely defer to reasonable agency interpretations of ambiguous statutes and regulations, rather than resolving ambiguity themselves. To the extent that interpretative power now resides with politically accountable agencies, rather than politically insulated judges, Professor Molot warns that we may lose an important extra-political influence over legislative deliberation and drafting.