The Solicitor Common Says It Is Not “Ever Too Late” to Get A Statute Proper

At this time’s oral argument in United States v. Texas featured an fascinating trade between Chief Justice John Roberts and Solicitor Common Elizabeth Prelogar on whether or not the Adminsitrative Process Act permits courts to vacate company selections. From the transcript:

GENERAL PRELOGAR: . . . our argument is that when you really drill down on the textual content of 706 and take a look at its context and likewise take a look at the historical past of the APA, which was not meant to create any sorts of latest cures however as a substitute to easily
present for the cures that had preexisted the statute’s enactment and the standard types of authorized motion underneath Part 703, it demonstrates that the courts have erred right here.

CHIEF JUSTICE ROBERTS: How —

GENERAL PRELOGAR: And I do not suppose

CHIEF JUSTICE ROBERTS:—what number of circumstances would you say that we’ve got issued over the previous 12 months, decade, no matter, the place we’ve got upheld selections vacating company rulings underneath the APA?

GENERAL PRELOGAR: The Court docket has —

CHIEF JUSTICE ROBERTS: 1000’s?

GENERAL PRELOGAR:—performed it in a—in numerous circumstances. A few of these contain particular statutory overview provisions, so I do need to field these off. However I acknowledge, sure, the Court docket has typically affirmed selections that we expect the company —

CHIEF JUSTICE ROBERTS: No, no, typically, over and again and again.

GENERAL PRELOGAR: But in addition by no means with consideration to the remedial arguments that we’re making right here, and I—I do not suppose it is ever too late for this Court docket to offer the statute its correct building while you really take a look at its textual content, context, and historical past. 

Put aside the actual questions involving the correct scope of remedial authority courts have underneath the APA. On this assertion (which was not adopted up on), the Solicitor Common seems to be saying that statutory stare decisis mustn’t stand in the best way of getting a statute proper in mild of its textual content, context, and historical past. That is fairly a declare, and one which I want the justices had pressed on. Amongst different issues (as Ed Whelan notes right here) this declare may have implications in different circumstances presently earlier than the Court docket, together with the circumstances difficult college admission insurance policies, because the related precedents relaxation on a contested interpretation of Title VI.

I hope to have extra to say concerning the United States v. Texas argument as soon as I’ve had the possibility to hearken to the entire thing.