During the ABA’s Administrative Law Conference on November 18th, The George Washington Law Review hosted a panel of scholars whose works have been accepted for publication in the Law Review’s Vol. 90 Annual Review of Administrative Law. The panel was moderated by The Honorable Neomi Rao from the U.S. Court of Appeals for the D.C. Circuit. With active commentary from the public and a uniquely accomplished group of panelists, the event gave scholars, practitioners, and students alike unrivaled perspectives on timeless administrative law issues.
The afternoon began with Professor Tara Leigh Grove’s discussion of her concerning the outputs of textualism. Professor Grove is the Charles E. Tweedy, Jr. Endowed Chairholder of Law at the University of Alabama School of Law. Her work raises questions about recent empirical studies which surveys whether statutory constructions under the guise of a statute’s “ordinary meaning” are consistent with the meanings prescribed by “ordinary people.” First, she challenges the conclusion that the ordinary meaning should be consistent with the popular meaning. Second, she argues that the empirical literature overlooks a key distinction between ordinary meaning and ordinary application. Surveying people about the ordinary meaning of a statute in a certain case is really another way of asking about how they think the statute applies in a certain case. This distinction is also relevant with respect to temporal shifts in application. Even if the meaning of a statute remains constant over time, the popular understanding of its application may change.
Professor Grove provided an example to demonstrate the shifting application of statutory meaning. In Church of Holy Trinity v. United States, the statutory question was whether the Alien Contract Labor Act of 1885 prohibited a church from contracting with a pastor in England to come to the U.S. for employment. The specific interpretative issue was whether a pastor engaged in “service or labor of any kind,” and was therefore barred from entering the U.S. as a foreign “laborer.” The court held that the statute only applied to cheap unskilled labor, not the work of ministers and pastors. While the meaning of “service or labor of any kind” in 2021 does not greatly differ from its meaning in 1885, the ordinary application has changed significantly. In a 2020 survey, the majority of respondents found that “service or labor of any kind” applies to pastors. Professor Grove asks whether the ordinary application of “service or labor of any kind” as applied to pastors would be different in a survey taken in 1885.
Finally, Professor Grove asks whether surveying actual peoples’ perceptions of statutory language is consistent with the reliance on the hypothetical reasonable person in the works of textualists such as Justice Antonin Scalia. The survey literature relies on the notion that actual people are the focus of ascertaining the ordinary meaning or application of statutory language. However, some textualists ascertain the ordinary meaning of language based on what the reasonable person, who is conversant with linguistic conventions, would understand the meaning of words to be in a specific case.
To provide some background, Professor Grove distinguishes ordinary meaning from technical meaning. She recalled a humorous situation when her mother inquired one day about the paper she was working on. When Professor Grove responded that the topic of her paper was about standing, her mother asked whether her future papers would be about sitting or walking! This scenario goes to show the difference between technical meaning of standing as a legal doctrine and the ordinary meaning of standing as a physical posture.
Following Professor Grove, Professor Robert L. Glicksman, along with his colleague Richard E. Levy, delved into the rising tide of separation of powers formalism by considering its implications for adjudicatory officials in administrative agencies. Professor Glicksman is the J.B. and Maurice C. Shapiro Professor of Environmental Law at GW Law. Professor Levy if the J.B. Smith Distinguished Professor of Constitutional Law at the University of Kansas School of Law.
Finally, Professor Bijal Shah—Associate Professor of Law at the Arizona State University Sandra Day O’Connor College of Law—completed the event by discussing her working paper currently titled Statute-Focused Presidential Administration. The project focuses on the extent to which the President impacts agency fidelity to the law. The impetus to the paper stems from Article II’s twin aims of authorizing Presidential discretion to faithfully execute laws and obliging respect for legislative supremacy. While scholars ordinarily assume that Presidential control over agencies should be leveraged for the President’s individual political purposes, Professor Shah argues that Presidents have a duty to diligently pursue the policy goals outlined by the statutory regime they are entrusted to execute. The project binds the legitimacy of presidential administration to the obligations of statutory execution and urges a normative shift in presidentialism towards the demands of statutory law as opposed to the President’s policy goals. Professor Shah outlined her primary argument that the self-centered focus presidential administration undercuts statutory law, and that Presidentialism should become more statute focused. To better uphold Presidential responsibilities, Professor Shah suggests that the Execute Branch be required to reconcile Presidential intervention in administrative action by demonstrating consistency with the purposes of the statute.
Finally, Judge Rao offered some questions and the event ended in a splash.
Summary written by Mher Mrktchian, Member, The George Washington Law Review.
