Normative Canons in the Review of Administrative Policymaking

62 Pages Posted: 5 Apr 2008 Last revised: 23 Nov 2011

See all articles by Kenneth A. Bamberger

Kenneth A. Bamberger

University of California, Berkeley - School of Law

Date Written: November 18, 2011


Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congress - norms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separation of powers? One the one hand, courts have traditionally sought to protect these constitutionally inspired values by applying normative canons of construction. Such interpretive default rules - like reading statutes so as not to raise constitutional issues, not to preempt state tort protections, or not to affect tribal power detrimentally - provide a judicial means for resolving statutory ambiguity with background norms in mind. One the other hand, after the Supreme Court's Chevron decision, authority to interpret unclear regulatory statutes generally belongs, not to judges, but to agencies.

This question has polarized courts and commentators. A majority, including the Supreme Court, adopt a categorical approach in which canons trump Chevron, displacing the agency's interpretive role altogether. A minority, including the Ninth Circuit, conclude the opposite: that courts should not apply canons, but leave full interpretive discretion to agencies.

This Article rejects both categorical approaches. The first ignores the fact that, while normative canons are intended to promote judicial restraint in resolving political questions, they often give judges great discretion in deciding whether or not important background norms should, or should not, be protected, and in making broader public policy choices unrelated to the normative canon itself. Exercising that discretion, moreover, frequently involves assessments regarding the practical impact of those choices, and about the merits of administrative policy generally, which judges are often ill-suited to make. The minority approach, by contrast, recognizes that agencies - because of their policy expertise, their sensitivity to political forces, and their ability to provide a forum for representation and accommodation in policymaking - may sometimes provide the best location for reconciling policy goals with background norms. Yet it fails to provide agencies with any incentive to engage in such behavior, or reflect any discernment regarding when administrative capacity could be helpful, and when it would not. It constitutes, essentially, an abdication of responsibility for norm protection.

The Article then proposes an alternate analytic framework. It argues that whether an agency policy comports with background norms should be considered as part of Chevron's case-by-case step-two inquiry into whether the policy is reasonable. Unlike the categorical approaches, this context-sensitive solution creates incentives for robust agency norm-protection in the first instance, but also permits courts to apply normative canons independently when administrative decisionmaking either offers little advantage, or fails to account for the background values it implicates. This solution also cabins judicial discretion to resolve broader policy questions, and compels courts to be clearer about when, and why, different canonic formulations should apply, and the implications for agency input. In sum, it best enlists the capacity of the administrative state to promote accountable and informed deliberation on the balance between regulatory goals and norms of constitutional dimension.

Keywords: Judicial Review, Statutory Interpretation, Canons of Construction, Administrative Law, Administrative Decisionmaking, Agency Interpretation, Constitutional Avoidance, Federalism, Presumption Against Preemption, Native American Canons, Separation of Powers, Chevron

JEL Classification: K2, K4, K23, D7, D73, D78

Suggested Citation

Bamberger, Kenneth A., Normative Canons in the Review of Administrative Policymaking (November 18, 2011). Yale Law Journal, Vol. 118, p. 64, 2008, UC Berkeley Public Law Research Paper No. 1116782, Available at SSRN:

Kenneth A. Bamberger (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall NA446
Berkeley, CA 94720-7200
United States
(510) 643-6218 (Phone)


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