Textualism and the Executive Branch

Abstract

This contribution to a Symposium on Administrative Statutory Interpretation examines the applicability of textualism to the executive branch. It claims that contrary to the conventional wisdom, the primary theoretical arguments for the new textualism apply with full force to statutory interpretation by administrative agencies and most other executive officials. It also points out, however, that proponents of the new textualism have endorsed a variety of legal doctrines that increase executive power in ways that are incompatible with textualist theory. The Article claims that recent efforts by prominent textualists to explain the apparent tension between their theories of executive and judicial power are either beside the point or unpersuasive. It therefore concludes that their broader legal theory, which simultaneously embraces the new textualism and unbridled executive discretion, is fundamentally incoherent.

Keywords: textualism, statutory interpretation, executive branch, administrative law, separation of powers