Document Type
Article
Publication Date
2025
Abstract
When might practice by the political branches settle the meaning of legal text? That question has mostly been taken up in the constitutional setting, with one strand of scholarship taking inspiration from Madison's statement in Federalist No. 37, that "{a}ll new laws ... are considered as more or less obscure and equivocal until their meaning be liquidated and ascertained by a series ef particular discussions and aqjudications." The prospect that post-enactment practice might liquidate the meaning of statutory text has been comparatively underexamined. That's not surprising. Under modern textualism, post-enactment considerations would seem to have little place. And under Chevron although courts deferred to executive branch actors) those actors lacked the ability to finally settle) or fix) statutory meaning -- a power usually associated with liquidation.
But in a spate of recent cases involving agency authority, the Supreme Court has embraced the idea that extrajudicial practice may settle the meaning of statutory text. In cases associated with the new major questions doctrine, the Court has confronted seemingly broad statutes only to narrow them, placing heavy reliance on the Court's judgment that the agency action under review represented a deviation from past agency practice that had effectively liquidated the statutes in question. And in Loper Bright the Court quoted approvingly from both Federalist No. 37 and Noel Canning, a case closely associated with constitutional liquidation, in service of its conclusion that longstanding and consistent agency interpretations are due special respect, especially when those interpretations are issued contemporaneously with the statute. By contrast, interpretations that break from the agency's prior views or are otherwise "novel" would seem to receive a kind of negative deference.
This Article traces the emergence of statutory liquidation in the Supreme Court's case law and explores it critically. It unpacks how statutory liquidation effects the constitutional separation of powers. And it tentatively explores various theories that may ground statutory liquidation. It argues that all such theories fall short in that they are either incomplete, fail to cohere with the Court's broader commitments, or do not justify features of statutory liquidation reflected in the emerging practice.
Recommended Citation
Deacon, Daniel. "Statutory Liquidation." Administrative Law Review 77, no. 3 (2025): 503-573.
Comments
2025, Published in Administrative Law Review, Vol. 77, No. 3, Summer 2025, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.