Text(Plus-Other-Stuff)ualism:Textualists' Perplexing Use of the Attorney General's Manual on the Administrative Procedure Act

Abstract

Textualist judges, such as U.S. Supreme Court Justice Antonin Scalia, are well known for their outspoken, adamant refusal to consult legislative history and its analogues when interpreting ambiguous provisions of statutory terms. Nevertheless, in administrative law cases, textualist judges regularly quote the Attorney General’s Manual on the Administrative Procedure Act, an unenacted Department of Justice document that shares all the characteristics of legislative history that textualists find odious: unreliability, bias, and failure to pass through the bicameralism and presentment processes mandated by the U.S. Constitution. As a result, judges that rely on the Manual in administrative law cases arguably reach inaccurate results that aggrandize the Executive Branch. This Note canvasses the possible explanations for this phenomenon and ultimately concludes that there is no principled way that textualist judges can reconcile their use of the Manual with their jurisprudential philosophy. In other words, there is no principled reason to rely on the Manual while simultaneously rejecting more traditional forms of legislative history.