Herring fishing is hard work on a crowded boat, but the federal government wants to make it even harder. Every inch of space on a small fishing boat is valuable room for supplies, fishers, and the catch. Space becomes even tighter when the government forces fishers to carry a monitor to track…
sets out a two‐step process that courts must follow when reviewing an agency’s interpretation of a statute. First, the court must apply the traditional tools of statutory interpretation and determine if the statute has a clear meaning. If the statute is clear, then the court must apply that clear meaning. So far so good. If, however, the statute is “ambiguous,” the court must move to the next step and defer to the agency’s interpretation so long as it is “reasonable.
thus biases the courts toward government agencies, stripping the judiciary of impartiality and denying litigants basic due process. must be overruled: it is ahistorical and unworkable. is ahistorical because courts did not reflexively defer to the executive at the time of the Constitution’s framing or for a hundred years after.
is unworkable because courts have failed to find a consistent definition of “ambiguous.” The Supreme Court itself has gone back and forth, sometimes applying all the tools of statutory construction rigorously at the first step and other times quickly deferring with little statutory analysis. Even as the Supreme Court has declined to defer over the last seven years, lower appellate courts have continued to find statutes ambiguous more than half the time.
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