Strengthening Constitutional Self-Government

No Left Turns

Is Statutory Interpretation Just Policy Making?

In a clash of the University of Chicago titans, Seventh Circuit Judge Frank Easterbrook takes his colleague Judge Richard Posner to task for Posner’s pragmatist gloss of the Chevron opinion (which grants deference to certain administrative interpretations). Posner argues that "the interpretation of an ambiguous statute is an exercise in policy formulation rather than in reading." Easterbrook, known as a champion of the textualist approach to statutory interpretation, essentially argues that you don’t have to be a pinko pragmatist who believes that statutes are empty vessels to be filled with your wisdom in order to apply Chevron as a rule interpretating the division of decisionmaking between the branches. (Note: for those of you familiar with Easterbrook’s questioning style at oral arguments, I should specify that he did not actually use the word "pinko.") He goes on to offer what must really be heresy to Posner: the conclusion that "Interpretation differs fundamentally from regulation." Many thanks to Howard Bashman’s
How Appealing blog for bringing this to my attention. You can access Posner and Easterbrook’s respective opinions here.

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