a common pain effecting tens of millions of americans but we're not doing anything about it. super fund is the host annoying frustrating thing to me. ronald reagan and mitch mcconnell voted on a method to fund the cleanup of super fund sites but we fail to reauthorize it. my generation and what's happening to super fund sites is increasing in our country and continuing to hurt and damage the lives of our children. so today i unveiled a piece of legislation that will go at a lot of these core issues that are unimaginable and indicative in many ways of the conversion of capitalism that we have -- >> we'll break away from this program. you can watch it of course any time you like at our website. get you out live to the heritage foundation now just a moment away from an event celebrating the legacy of jurs joseph story who is the youngest associate justice ever to serve on the u.s. supreme court.

he was appointed by madison in 1812. live coverage now of this event from the heritage foundation. >> we will be beginning momentarily. jessica does have note cards for those that have come from the legal strategy forum for the question and answer session. if you like some we'd be glad to get them to you. remind everyone please check that our mobile devices have been silenced or turned off as a courtesy as he prepare to begin. we should begin in about two or three minutes. mr. meese will introduce our special guest and john malcolm of our legal center will moderate the q&a following.

force. good afternoon, ladies and gentlemen. welcome to the heritage foundation center for legal and judicial studies and to our tenth annual joseph story distinguished lecture. as you might imagine the name sake of our lecture is that eminent juris joseph story. he was a remarkable patriot who carried out the founder's vision of a constitutional republic. before joining the supreme court he had quite a career of his own. he was a congressman, he was a state legislator, he was the speaker of the massachusetts

house of representatives and he was also, even while he was on the supreme court, a professor at the harvard law school. interestingly enough, he was also noted as one of the most successful authors of the first half of the 19th century. as a matter of fact when he was 65 years old that particular year, his book royalties gave him twice as much as money as his salary as a justice of the supreme court. he as many of you know he became when he was appointed at that time the youngest justice to serve on the supreme court and one of the youngest ever to serve. he was appointed by president madison in 1811 and was actually took office in the following year in february of 1812. as most of you know, i'm sure, he made a significant mark on american law in his 33 years on

the bench but his greatest contribution to juris prudence is his renowned comment triz on the constitution. he was quite enamored by the philosophical approach to the law of chief justice marshal and as he said, marshal's writings and the federalist were the two major sources as he was writing the commentaries. and so it is this lecture that we celebrate his legacy to the united states and to the field of law. the previous joseph story lectures have been delivered by judge clarence thomas, justice clarence thomas, justice anthony kennedy, judge robert bourque, professor john harris at virginia law school, judge ray randolph, judge alice, judge janis rodgers brown and judge

carlos beya. as our guest this evening that is joining this distinguished group of judges and professors is of course the honestly brett kavanagh. as you all know he's a judge of the united states court of appeal for the district of columbia circuit. he was appointed by george w. bush and took office on the 30th of may, 2006. before his appointment to the court, judge kavanagh served for more than five years in the white house in various capacities. he began as an associate council and then senior associate counsel to the president and was assistant to the president and staff secretary up until the time later on of his appointment. during his career the judge has been a partner in private practice with the firm here in washington, d.c. he was been an attorney in the

office of the solicitor general of the united states and he clerked for a number of distinguished judges justice kennedy for judge alice kosinski for the ninth circuit and judge walter stap willton of the third circuit. he's a graduate of yale college and also of the yale law school. please join me in welcoming our joseph story distinguished lecturer for 2017, the honorable brett kavanagh. [ applause ] >> thank you general meese for the kind introduction. i'm honored to be here to deliver the joseph story lecture. as general meese said, joseph story had a profound influence on the american law as supreme court justice and as a skoler and i'm honored to deliver a

lecture in his name. i'm particularly honored to be here when i look at the past list of distinguished speakers, my colleague ray randolph who i miss greatly. i will admit that i've not been a regular attendee at the story lecture for the last few years because as john malcolm of heritage knows, every year it seems to fall on the same night as basketball tryouts for the cyo girls basketball team i coach at blessed sackriment school in d.c. and this year i finally pulled rank at senior yort and i moved the team's tryouts back a night. so tonight i am with you. last night i was trying with limited success to get 47 fifth and sixth grade girls to listen to me. i will try not to use my coach voice with you tonight.

the tryouts were good. we're going to have a good team. you're probably not here to hear about that but coaching my daughters and the fifth and sixth grade has been a very important part of my life for the last six years and it sometimes means during the winter i'm scrambling out of the courthouse to get to practice and sometimes i don't always transition that well and last year i was frustrated at practice and i finally blew the whistle and i guess yelled is probably a fair statement, yelled at the girls. you can't dribble through a zone press. you've got to pass the ball. and i guess my voice must have been like it was there pretty loud because there was silence in the gym and there's never silence in the gym and one of the girls on the team tatum who has a future i believe as a stand-up comic broke the silence and said, ooh, he's using his

judge voice on us now. and they all started laughing at me. i love all those girls and with them in mind tonight i also will try not to use my judge voice on you. i'm especially honored to be here with general meese. to begin with on a personal level i'm grateful to him for the kind support of my confirmation, the wonderful letter he wrote for me back in 2006. i thank many others in this room who also helped me through this process. as general meese knows well, you don't forget your confirmation process and my process was interesting. i think that's a good word for it. interesting. because i was serving in the white house when i was nominated for the judgeship. i had worked there for 5 1/2 years before i became a judge. and actually standing here today some 12 years later, let me say

first that i think the white house experience made me a far better judge than i otherwise would have been. in terms of understanding of government, of the legislative process, of the regulatory process, of national security decision making, the pressure, the ups and downs and the ins and outs of how our government operates at the very highest level. i believe my white house experience made me a more knowledgeable judge, certainly and also a more independent judge. independent because working at the white house, least in my view helps give you the backbone and for the tud to say no to the government when the stakes are high. i think john roberts and elaina kagen both of whom had substantial white house experience, their experiences likewise have made them better juris but at the time in 2006 it is fair to say that certain senators were not sold on that.

they were not sold that the white house was the best launching pad for a position on the d.c. circuit. indeed one senator at my hearing noted that i had worked at the white house for more than five years and said in his opening remarks, this isn't just salt in the wound, this is the whole shaker. and this is true after the hearing about that senator, my mom said to me, i think he really respects you as only a mom can. so people often ask me whether the job of an appellate job is lonely or isolating and it can be if you let it. the day the president signed my commission to be a judge which was tuesday may 30th, 2006 at 7:00 a.m. not that you remember those things, i promptly went up to the supreme court and justice kennedy for whom i clerked swore me in a private ceremony in his

chambers with my family and justice kennedy and chief justice roberts entrepreneur. justice kennedy then told me i would get to my new chambers that afternoon and there would be a phone and a computer and a desk and no one would ever call mel again. so he advised me to get out and teach and speak and interact with the bar and students, something he had regularly done on the ninth circuit and that he's continued to do for he's many years on the supreme court. any way i listened. i've talked full term separation of powers and common law classes every year for the last decade. i try to get out to many bar events and visit law schools and tonight i'm following his advice with the honor of delivering the story lecture. when justice kennedy says something i listen. me and 320 million other americans. i want to thank general meese not just for hosting me here and helping me in the confirmation process back in 2006, but far

more importantly, for the central role he played in leading the revival of originalism and tex wallism in american law. i cannot emphasis enough how significant general meese has been in changing the direction of american law. i think often of chief justice ren quist and justice scalia two jurists who helped bring about legal drok trin. when we mention those two giants we also must celebrate general meese. if course was responsible for many landmark policies and important decisions in his role at the white house and as attorney general and as attorney general more than perhaps any attorney general in modern history, he took an interest in constitutional theory and doctrine. he delivered a famous speech on july 9th, 1985, to the american bar association. it's a great speech and if i can give you an initial homework

assignment tonight, it is this, go read general meese's july 9, 1985, speech. but let me give you highlights for now. his first paragraph greeted the members of the house of delegates of the aba. and he said, i know the sessions here will be very productive. now when i read that last week, very productive meetings of the aba house of delegates, i wondered, was that a laugh line, general meese? but general meese then proceeded to talk about how utterly unpredictable in his terms the supreme court of the 1980s could be when rendering its judgments. he referred to the snail darter case that had come out a few years earlier and remembered what someone had said when the case came down. the bad news is that the snail darter won. the good news is that he didn't win under the 14th amendment. general meese then said that the court during its most recent term in 1984/85 continue today

roam at large a constitutional forest. he discussed three areas of the court's juris prudence, federalism, criminal procedure and religion. discussing federalism general meese said that federalism helps us quote, better secure our ultimate goal of political liberty through decentralized government. well said. when discussing religion he said, quote, to have argued that the first amendment demands a strict neutrality between religion and irrelevant john would have struck the founding generation as bizarre. the purpose was to prohibit religious tirny not to undermine religion generally. well said. in summarizing his views the general stated that far too many of the court's opinions were on the whole more policy choices than articulation of constitution principles. noted in a critical passage that

until their emerges a coherent jur dis stance the work of the court will continue in this ad hoc fashion. he argued for a juris prudence of originalism to judge policies in light of principles rather than to remold principles in light of policies. general meese's speech struck a nerve in the american legal establishment and it represented a call to attention and a call to action for all those who are concerned about the rule of law and the role of courts. he urged more attention as he put it to the words of the constitution for the framers of the constitution chose their words carefully, he said. it is sometimes said that the constitution is a document of majestic general alts. as i see it, as general meese described it, the constitution is largely a document of majestic specificity and those specific words have meaning,

which absent constitutional amendment continue to bind us as judges, legislate rds and executive officials. so if i could suggest another homework assignment for my talked to, it is this, in the next few days block out 30 minutes of time and read the text of the constitution word for word. i guarantee you'll come away with a renewed appreciation for our constitution and for its majestic specificity. the text of the constitution binds all three branches and again thinking back to my confirmation process i met with senator robert bird at one point during the process when i was trying to get confirmed. and this was an interesting meeting and he -- he said i would never forget it. he said at the very start of the meeting. you will never forget this meeting and it turned out he was right. and first he asked about my family and at that point back in 2006 i said, well i have a 1-year-old daughter and he said, wow.

he said, i have two daughters. they're 68 and 64. but then he pulled out his constitution, he had his -- it was right there and i was prepared. i had this same constitution right there too. it's tattered now but i still have it and he pulled his out and he read to me article 1's language about the power of the purse. and why did he do that? he did that because the text of the constitution matters. and he did that because if you'll remember snoerl bird, he really cared about .power of the purse. so general meese's 1985 speech helped advance a straightforward philosophy of constitutional and statutory interpretation. it is not complicated but it is profound and worth repeating often judge's job is to interpret the law, not to make the law or make policy. so reads the words of the

statutes as written, read the text of the constitution as written, mindful of history and tradition. don't make up new constitutional rights that are not in the constitution. don't shy away from enforcing constitutional rights that are in the text of the constitution. changing the constitution is for the amendment process. changing policy within constitutional bounds is for the legislators. remember that the structure of the constitution, the separation of powers and federalism are not mere matters of et kit or architecture but are essential in protecting individual liberty. structure protects liberty and remember that courts, courts have a critical role when a party has standing enforcing those separation of powers in federalism limits. simple but profound. along with chief justice ren quist and justice scalia and judge bourque and judge silverman and many others in the

1970s and 80s, general meese laid the ground work for a rule of law as a law of rules. for the notion of judges as umpires and not as policy makers. for the notion as he put rule of what you. for the notion as he put it in 1985, the judges should not be roaming at large in the constitutional forest. a few months ago, i told john malcolm, i would talk about the separation of powers. you would hear me often saying to my clerks, every case is a separation of powers case. the bread and butter of our

docket on the d.c. circuit is interpretation of statutes. usually deciding when an agency exceeded its statutory limits. that balance constitutes one of the most critical separation of law. if you sat in our courtroom for a week or two and listened to case after case after case. and i do not advise that for anyone who wants to remain sane, if you did that, you would hear judge after judge from across the spectrum. ask council about the precise wording of the statute or regulation. statutory interpretation has improve improved statutory text matters much more than it once did. if it's clear, it usually

controls.text of the law is the law. just is scalia helped bring about a massive and enduring change on the supreme court and in american law. but more work remains. as i will explain, one primary problem stands out. to begin, one over arching goal is to make judgments in all cases, the american rule of law depends on neutral, impartial judges who say what the law is, not what the law should be. judges are umpires.

in a perfect world, the outcomes of cases would note often vary based solely on the backgrounds, political affiliations or policy views of judges. this is the rule of law is the rules. the judge is the umpire, not free to roam in the constitutional forest as he or she sees fit. this goal is not preference of mind but a constitutional mandate in a separation of power system. article one assigns the legislative branch along with the president the power to make laws. article three grants the courts to interpret those laws and cases in controversies. when courts apply doctrines that allow them to rewrite the laws in effect, they are encroaching on the article one power. this vision of judges raises a

natural question. how could we move toward that ideal in our judicial system, when judges come from many different backgrounds and have very strong policy predispositions. to be sure on occasion, the relative constitutional provision may require the judge to perform policy, federal rule of evidence 501 is a good example. many statutory cases involve interpretation of a statute's texts. under the structure of the constitution, congress and the president not the courts possess the authority and responsibility to legislate. as a result, clear statutes are to be followed. statutory texts are not just common law aspirations. this is neutral as a matter of politics and policy. the text may be probusiness or

prolabor. probank or proconsumer. regardless, judges should follow the text where it leads. when the text is ambiguous rather than clear, judges may resort to a variety of cannons of construction. these ambiguity dependent cannons include, avoid int interpretations raising constitutional questions. if there's tech tulle ambiguity, rely on the legislative history. in cases of tech tual ambiguity refer to a statute. here is the problem, and it's a major problem many all of these cannons depend on a problem attic threshold question.

courts may resort to the cans only if the statute is not clear, but is ambiguous. but how do courts know when a statute is clear or ambiguous. how much clarity is needed to ended case there, without triggering the ambiguity cannons. there's often no good or predictable way for judges to determine whether statutory text contains enough ambiguity to cross the line in my experience. and this is my personal experience, judges often go back and forth arguing over this exact point. one judge will say, the statute is clear, that should be the end of it, case over. the l the other judge will

respond, i think the text is ambiguous. neither judge can convince the other, that's because there's no right answer. it turnings out there are at least two separate problems, facing these disagreeing judges first the judges must decide how much clarity is enough to call a statute clear. if the statute is 60/40 in one direction, is that enough to call it clear? how about 80/20. let's imagine we could agree on an 80-20 threshold even if we say that 80-20 is the necessary level of clarity, how do we apply that formula to a particular statutory text. who knows. determining the level of ambiguity in a given piece of language is often not possible

in any rational way. one judge's clarity is another judge's ambiguity. and it's difficult for judges or anyone else to perform that kind of task in a neutral impartial and predictable fashion. i tend to be a judge who finds clarity more readily than some of my colleagues, perhaps a little less readily than a couple. i probably apply something, just ballparking it, approaching a 65-35 or 60-40 rule. it's clear, it's not ambiguous. i think a few of my colleagues and other judges around the country apply a 90-10 rule, at least in certain cases, only if the proper interpretation is 90-10 clear, will they call it clear, otherwise ambiguous cannons kick in. who is right in that debate? who knows. no case or cannon of

interpretation says a 60-40 approach you is the correct one or even a better one. even if my colleagues could agree, we have to figure out if the text itself surmounts that. the simple but very troubling truth is it that no definitive guide exists for determining weather statutory language is clear or ambiguous. there is no test for recognizing plain or una.mbiguous language. there are no rules or clear agreements among judges about just how to decide whether a text is ambiguous, as he puts it, for making that determination, no theory helps. it is simply a judgment about the clarity of the english and

whether it is reasonable to read it more than one way. the conceptual problem opens a door to a more practical problem. judgments about ambiguity can be dangerous, because they easily can be biassed by strong policy preferences that the makers of the judgments hold. because judgments about clarity versus ambiguity turn on a judge's instincts sometimes, it's harder for judges to assure they're separating their policy views from what the law requires of them. it's not simply a matter of judges trying hard enough, policy preferences can seep into ambiguity determinations in sub conscious ways. as a practical matter, judges don't make the clarity versus ambiguity determination behind a veil of ignorance. they're briefed at the same stage of the proceeding. a judge who decides to open the ago big uity door already knows

what he or she will find behind it. it plays right into what many consider to be the worst of our professional training. we're indoctrinated from the first days of law school to find ambiguity, it's no accident that the most popular book is titled getting to maybe. the problem of difficult clarity versus ambiguity determinations would not be quite as significant if the issue affected cases only at the margins, the outcome of many cases, turns on the initial and often incoherent dichotomy between clarity and ambiguity. a number of supreme court decisions, really important ones have implicated the clarity versus ambiguity problem. consider some of the cases that

have turned in the recent past, the health care case, the voting rights case. constant right to life finance case. those were hugely significant cases, each of which turned to a significant extent on an unusual question of whether the relevant statute was clear or ambiguous. if it was ambiguous, they can resort to constitutional avoidance. if it's clear, no. as justice scalia explained 25 years ago, how clear is here, it's here that the future battles over acceptance of an agency interpretation of law will be fault. and in fact, the court has skirmished and our court, particularly has skirmished over

this terrain numerous times in the last 25 years, in hugely significant cases. each of which turned to a significant extent on an initial question of whether the relevant statute was clear or ambiguous. all these cases came down to what turns out to be an entirely personal question. is the language clear or ambiguous. no wonder people suspect that judge's personal views are infecting these kinds of cases we have set up a system where that suspicion is almost inevitable, because the reality of the ambiguity versus clarity determination causing that is almost inevitable. in characterizing some of these examples, i want to be clear, i'm not suggesting the judges themselves are acting in an improper political manner most judges apply the doctrine as

faithfully as possible but too much of the current statutory interpretation revolves around personally instinctive assessments of clarity versus ambiguity. this threatens to undermine the stability of the law and neutrality both actual and perceived of the judiciary. after more than 11 years on the d.c. circuit, i have a sense that the statute is too often a barrier to the ideal that statutory assessments should be part of the backgrounds. my point should not be misunderstood, statutes will always have ambiguities, that's the nang h nature of language. including congress's language. we cannot eliminate or avoid ambiguities or wish them away.

even though it's unavoidable as a practical matter perhaps we c cannot attach them. instead of injecting the ambiguity problem into the heart of statutory interpretation, we can consider whether to sideline that threshold inquiry as much as possible. what is the solution? >> here's one idea. judges should strive to find the best reading of the statute, they should not be diverted by an arbitrary, initial inquiry into whether the statute can be characterized as clear or ambiguous, we can try to make sure that judges do not -- or at least only rarely have to ask if the statute is clear or ambiguous. instead it could proceed in a two step process, first, courts could determine the best reading of the text of the statute by

interpreting the words of the statute. taking account of the context of the whole statute, and applying any other appropriate semantic cannons of construction. semantic cannons are a fancy way of referring to the general rules by which we understand the english language. second. they can apply any substantive cannons. such as the presumption against extra tear tore yality, against retro activity that might justify departure from the best reading of the text. under this approach, few if any cases would turn on an initial finding of clarity versus ambiguity in the way they do now. now, to be sure, determining the best reading of the statute is not always easy, but we have

tools to perform that task and communicate it to the parties and the public in our opinions. why layer on a whole separate inquiry, is the statute clear or ambiguous that does not help uncover the best reading and is difficult to resolve in a neutral and impartial way let me show you what i'm talking about. let's start with the constitutional avoidance cannon. judges determine a.mbiguous statutes so as to avoid an unconstitutionality that would rise if the ambiguity were resolved in one direction rather than the other. there must be ambiguity in the statute. the initial problem -- one initial problem apart from the ambiguity, it can look more like

a failure to confront the constitutional question raised by the statute as written. and another problem with it, apart from the ambiguity problems. sometimes it's invoked on questions on unconstitutionality. it gives judges enormous leeway to impose the statute. apart from or in addition to those reasons, i would consider jet ising the constitutional avoidance cannon for a different reason. the trigger for the cannon is so uncertain. that flaw was famously highlighted in nfib versus sebelius. in analyzing that case, it's important to underscore something that seems to be overlooked by almost all observers, even though who should know better.

the chief justice agreed with justices scalia, kennedy, thomas and alito, on all of the key constitutional and statutory issues raised about the individual mandate. those five justices agreed about the scope of the commerce and necessary improper clauses. they agreed about the scope of the taxing clause. and they agreed that the individual mandate provision was best red to impose a legal mandate a penalty rather than a tax. in short, that they agreed the individual mandate best read could not be sustained under the taxing clauses. think about that for a moment, unless it's too painful for you to do so. what they disagreed on with respect to the individual mandate. and amazingly, all they disagreed on -- all they

disagreed on was how to apply the constitutional avoidance cannon. they disagreed about whether the mandate provision was ambiguous. the center said it wasn't ambiguous. the chief said it was. the decision on the individual mandate turned not on the proper interpretation of the constitution, and not on the best interpretation of the statute, it turned on how much room judges have to find ambiguity when invoking the constitutional avoidance cannon. this is a case of extraordinary magnitude, boils down to whether a key provision is clear or ambiguous, even though we have

no real idea of how much ambiguity is enough to begin with. my point here is not to reopen the debate about whether the chief justice or the centers had the clarity or ambiguity. i imagine people in this room have views about that. my point is that such a question arguably should not be part of the inquiry, despite the best efforts of conscientious judges, it is not answerable in a neutral, predictable or impartial way. a case of that magnitude should not turn on such a question, but that is what the cannon of constitutional avoidance required, which is why those five justices were all compelled to confront and analyze it. if the constitutional avoidance cannon were jettisoned, what

would happen? they could make their interpretation -- if it turned out to be unconstitutional, judges would say so. let me turn to the next one. we should construe legislative statutes. we have no need to resort to the legislative history. if it's ambiguous, some judges may say we should look at it. many have criticized formal and functional grounds. if it's a formal matter, they're not the law enacted by congress. and as a functional matter, committee reports reflected by a subgroup in congress or worse outside of it to affect how the

statute will be interpreted and implemented. in ways that congress and the president may not have wanted. legislative history is often conflicting because of different statements and report and the like. it can be like looking out over a crowd and picking out your friends. a35r9 from all those critiques, and those critiques are weighty, i have another major problem with how legislative history is used. the clarity versus ambiguity trigger for resorting to legislative history in the first place, means that the decision is often indetermine nat. that in turn greatly exacerbates the use of legislative history. all you need to pick out your friends, that is to pick out the result you think is most reasonable. if there's no set or principaled

way to determine some judges are more likely to find ambiguity. in a world without initial determinations of ambiguity. judges would decide on the best reading of the statute. and that would be largely limited to helping answer the question of whether the literal leg of the statute produced an absurdity. in that world, we would not make statutory interpretation depend so heavily on the difficult asessionment of whether the text is clear or ambiguous. constitutional avoidance, legislational history, two cannons of interpretation used all the time, depend on that initial determination of clarity versus ambiguity. let me go to the third and last one i'll discuss.

chevron. chevron deaf rans. under chevron. if a statutory term is deemed ambiguous, courts uphold an agency's authoritative reading of the statute, even if it's not the best reading, so long as the agency's reading is at least reasonable. now, this principle is the one i encounter most as a judge on the d.c. circuit. again, as with constitutional avoidance and legislative history. there are other critiques people make of chevron. just to make mention a couple. little or any basis in the text, so actually, chevron itself is an atech you'll invention by the courts. it operates as a judicially orchestrated shift of power from congress. the fundamental problem once

again, is that different judges have wild ly different interpretations whether a statute is clear or ambiguous. it's not determinant because it depends on the threshold clarity versus ambiguity determination. that determination is the chink in the armor. now, i see this problem all the time. all the time, in my many agency cases in our courts. and it has major practical consequences. in certain major chevron cases, different judges will reach different results even though they may actually agree that what the agency is doing is contrary to the best reading of the statutory text.

i have been involved in many cases where that has happened. think about the implications of that for a moment. consider a high profile case involving a major agency rule, that rests on the agency's interpretation of a statute. suppose the judges agree that the agencies reading of the statute is not the best reading of the statute. two judges believe the statute is ambiguous. those judges uphold the agency's interpretation, even though it's not the best interpretation in their view. the other judge says the statute is clear. that judge would strike down the determination. that may affect billions of dollars, billions of dollars. it could affect the individual rights of millions of citizens. affect the fate of clean air

rules, securities regulation, labor laws or the like. and yet there, is no particularly prince pilled guide for making that clarity versus ambiguity decision. in no good way for two judges to find neutral principles on which to debate, decide and talk about that question. this state of affairs in my view is unsettling. my goal is to help make statutory interpretation a more neutral and partial process, where like cases are treated alike, by judges of all ideological stripes, regardless of the issue and regardless of the identity of the parties in the case. that's the goal. i think that has to be our goal. but that objective is hard to achieve. if the threshold trigger is ambiguity. what's the solution to this one?

courts should still defer to agencies and cases involving statutes using broad and open ended terms. when they use terms like reasonable, appropriate, feasible or practicable. the agency may choose among reasonable options allowed by the text of the statute. but that's really the state farm doctrine. you legal nerds know what i mean. that's not really the chevron doctrine. in cases where an agency is interpreting a specific statutory phrase. courts should determine whether the agency's determination is the best reading of the text. judges are trained to do that, and it can be done in a neutral and impartial way in most cases, there will be disagreements about what the meaning is, it won't be sidelined by that threshold. put simply, the problem with certain applications of chevron

as i see it, the doctrine is so indeterminant. and can be annet thissical to the rule of law, because of that initial clarity versus ambiguity decision. here too, as with the legislative history cannon, we need to consider eliminating that inquiry as part of the threshold trigger a number of critical cannons of statutory interpretation, that have major real world effects, depend on an initial valuation of whether the text is clear or ambiguous. because it is so difficult to make those clarity versus ambiguity determinations in an even handed way. courts in my view should reduce the number of cannons of destruction, that depend on an initial finding of ambiguity. instead as i said, courts should seek the best reading of the statute, by interpreting the

words of the statute, taking account of the context of the whole statute, and the agreed upon semantics, once they've ze disearned the best read iing, t absurdity doctrine or the presumption against extra tear tore territoryality. i appreciate disputed calls will always arise. figuring out the best text to reiterate is not always an easy task. i am not a modern day yogi berra who once said, there will be no more close calls if we just moved first base. but the current situation as i see it, is more akin to a situation where umpires can at

least on some pitches largely define their own strike zones. my collusion is to find the strike zone and advance much more precisely, so each umpire is operating within the same guidelines. if we do that. we will need to worry less about who the umpire is when the next pitch is thrown. that's just too hard, some might argue. it's inherently complex, people say, it's all politics anyway. some contend. i have heard all the excuses. i've been doing this for 11 years. i am not buying it. in my view, it's a mistake to this think current mess is somehow the natural and unalterable order of things. put simply, we can do better for the sake of the neutral and impartial rule of law, we must do better.

we have made enormous strides in constitutional and statutory interpretation over the last few years. as i like to say to my girl's basketball team, it is now up to us. that much is clear. thank you. [ applause ] >> that was terrific. i am john malcolm, the director of the meese center here, and before i call ed meese back up to the stage for a presentation. i thought i would ask a couple questions sticking with the theme of your presentation. i wanted to touch on one aspect you didn't address, is there any hope the courts can devise an objective way of limitsing

congressional delegations of power to agencies and redefine the nondelegation doctrine, or is that too much water under the bridge? >> well, i think the way it's working right now, there is a doctrine related to the chevron doctrine that deals with nondelegate issues. if an agency is given authority and the statute defers to the agency. for the last 20 years it's been an important exception to that. it's really, don't apply chevron and presume a nondelegation of the agency involving major questions. this was in the brown and williamson case in the late 90s, it was invoked by justice scalia a few years ago. this is a critical doctrine in my view in the current administrative law world, and how daze going to be applied. i've written about it in a few

cases that are out there. and i think it's quite important, so what does the doctrine do? it says, if the issue is a major issue, a major question. i call it the major rules dock continue. then you presume that congress did not delegate to the agency, via authority to adopt, to issue a major regulation on the issue. justice breyer in the 1980s articulated something like this. and then like i said, the supreme court adopted it in the late 1990s, there are cases that appeared in some form before that. i think that's a really important doctrine right now for broad delegations to agencies. if you're concerned about

agencies taking vague delegations and doing massive agency rules. this doctrine is critical. two things on this. how major is major? money, people affected, what? i threw out some things in a dissent i wrote last year. i think it was last year, that should be considered. that's an important debate, some rules are obviously major. so that's one issue. that is difficult. but that is a piece of the nondelegation story. the nondelegation doctrine does not have much teeth. the major question doctrine is

broad delegations that is putting the brakes on some of what some agencies have done with limited and vague delegations to issue massive rules. >> there's a certain popular perception that the other branches of government, executive and legislative branches will do what they want to do, and let the courts figure it out. and tell them when they have overreached. you had the advantage of serving in the executive branch for a number of years. what role does. what role should the other kbranchs play, should they and do they in terms of their own interpretations of the constitution. >> well, i think everyone in congress and in the executive branch is under a doubtdy to consider the constitutionality of what they're doing. but let me tell you about chevron from building on my

white house experience. what does chevron do? what's the real world impact in the executive branch. if you know the courts are going to defer to a reasonable inat the pretaking of an ambiguity. you think, this statute doesn't real really do what we want to do here, maybe we can convince the courts it's ambiguous, and then we do it. we ran for office on this, and we were in the snow in iowa running on this, let's call it ambiguous and hope for the best, that happens. that's a real world phenomenon. that's how chevron doesn't just affect the courts if you're an executive branch official, you want to go to the edge of the line. chalk on your toes as said sometimes. chevron has this impact in the executive branch as well. but in terms of constitutional -- congress is

under a duty, responsibility to consider constitutionality. but the courts as general meese talked about, marbury versus madison establishes critically the structure and intent of the statute. whether the branch has overstepped the constitution in a way that violates rights. >> i'm going to bring general meese up to make a special presentation. >> i think you have fulfilled our hope about this evening.

you show both great scholarship, a sense of humor and a commitment to the constitution, for that we thank you. and, therefore, it is a pleasure to present to you what we call our defender of the constitution award. it's a picture of justice i might say fully clothed. and addressed to brett kafanov. >> thank you very much. >> i'd also like to present with you for your library and working out in the morning. two copies of the commentaries of joseph story and also a much shorter version of the

constitution of the united states by joseph story 37 with you will moodesty, i say a forward by me. >> yes. >> thank you. >> thank you, ladies and gentlemen for being with us, there will be a reception in the foyer out here.

we're going to be joining the house judiciary committee shortly as it continues to work on immigration legislation. we'll have live coverage of that markup here on c-span 3. while we wait, here's a portion of today's washington journal on the operations in niger. >> a member of the select intelligence committee here to join us to talk about a variety of topics this morning, good morning. where does this leave the tone of capitol hill particularly amongsted republicans, do you think?