Statutory Liquidation

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 of particular discussions and adjudications." 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. <br><br>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.<br><br>This Article traces the emergence of statutory liquidation in the Supreme Court's case law and explores it critically. It unpacks how statutory liquidation affects the constitutional separation of powers. And it tentatively explores various theories that may ground statutory liquidation. I argue that all 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.