The Volokh Conspiracy

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The Solicitor General Says It Is Not "Ever Too Late" to Get A Statute Right

Is the federal government giving up on statutory stare decisis?


Today's oral argument in United States v. Texas featured an interesting exchange between Chief Justice John Roberts and Solicitor General Elizabeth Prelogar on whether the Adminsitrative Procedure Act allows courts to vacate agency decisions. From the transcript:

GENERAL PRELOGAR: . . . our argument is that if you actually drill down on the text of 706 and look at its context and also look at the history of the APA, which was not intended to create any kinds of new remedies but instead to simply
provide for the remedies that had preexisted the statute's enactment and the traditional forms of legal action under Section 703, it demonstrates that the courts have erred here.


GENERAL PRELOGAR: And I don't think

CHIEF JUSTICE ROBERTS:—how many cases would you say that we have issued over the past year, decade, whatever, where we have upheld decisions vacating agency rulings under the APA?



GENERAL PRELOGAR:—done it in a—in a number of cases. Some of those involve special statutory review provisions, so I do want to box those off. But I acknowledge, yes, the Court has sometimes affirmed decisions that we think the agency —

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

GENERAL PRELOGAR: But also never with attention to the remedial arguments that we're making here, and I—I don't think it's ever too late for this Court to give the statute its proper construction when you actually look at its text, context, and history. 

Set aside the particular questions involving the proper scope of remedial authority courts have under the APA. In this statement (which was not followed up on), the Solicitor General appears to be saying that statutory stare decisis should not stand in the way of getting a statute right in light of its text, context, and history. This is quite a claim, and one that I wish the justices had pressed on. Among other things (as Ed Whelan notes here) this claim could have implications in other cases currently before the Court, including the cases challenging university admission policies, as the relevant precedents rest on a contested interpretation of Title VI.

I hope to have more to say about the United States v. Texas argument once I have had the chance to listen to the whole thing.