A Strange Concurring Opinion by Chief Justice Roberts

The Supreme Court of the United States released Scialabba v. Cuellar de Osorio this week, an attempt to pick apart the entrails of a poorly drafted immigration provision designed to deal with the problem of "aging out". What happens when an immigrant has been on a waiting list for so long that he becomes too old and thus ineligible for processing?

Without going too deeply into the gory details, it seemed that one part of the provision in issue pointed one way (anyone on the list was 'aged back in') but one part pointed the other way (only those who met additional criteria were 'aged back in').

For the plurality, Kagan J. held that where statutory language points in two different directions, it is up to the administrative decision-maker -- here the Board of Immigration Appeals -- to decide which direction to take:

Were there an interpretation that gave each clause full effect, the Board would have been required to adopt it. But the ambiguity those ill-fitting clauses create instead left the Board with a choice—essentially of how to reconcile the statute’s different commands. (slip op. at p. 21).

And, she concluded:

This is the kind of case Chevron was built for. Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly. Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law. (slip op. at p. 33)

Though concurring, Roberts C.J. nonetheless disagreed on the interpretation of the statute (he held that there was no conflict) and, more importantly, on the principle applied by Kagan J.:

[W]hen Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice. Chevron is not a license for an agency to repair a statute that does not make sense. (slip op. at p. 2)

I do not understand the reference to "legislative choice". Once a statute becomes law, it has to be interpreted, typically either by an administrative decision-maker or by a court. The "choice" here is between administrative and judicial interpretation, so the invocation of "legislative choice" seems a misnomer. Moreover, if a statute does need to be repaired, why should the courts act as the mechanics; don't administrative decision-makers have the necessary tools? 

Have I missed something here? Does the reference to "legislative choice" have some meaning of which I am not aware? [Update: a reader suggests that Roberts CJ is leaving it up to Congress to fix the statute. Indeed, I take it that this must be what he is saying. But in the interim, who decides which direction to take?]

One other point of minor interest is the use by Kagan J. of the arbitrary and capricious standard to test the Board's choice of direction. For two reasons, the Board's choice was reasonable: it had the virtue of "administrative simplicity" and "reflect[ed] statutory purposes" (slip op. at p. 31). Note that the question of reasonableness here was distinct from the Board's interpretation of the statutory provisions. Consequences matter and, in the United States, they are usually assessed (there is some controversy on this point) by reference to the arbitrary and capricious standard.

The point here -- of which Canadian courts flirting with the concept of the range of reasonable outcomes should take note -- is that an analysis of the statutory text is not the sole task of a reviewing court; it must also exercise control over the substantive reasonableness of administrative interpretations of law. It is not possible to confine all issues to the determination of the range of reasonable outcomes.