20 Admin. & Reg. L. News 1 (1994-1995)

handle is hein.journals/admreln20 and id is 1 raw text is: Published by the Section of Administrative Law and Regulatory Practices American Bar Association  Fall 1994, Vol 20, No. 1
The Supreme Court, Textualism, and
Administered Law
by Peter L Strauss*

F our cases decided by the Supreme Court this
past Term seem to exemplify the Court's
growing attachment to textual approaches to
statutory interpretation. To this reader, that approach
threatens a significant destabilization of administra-
tive law, and a striking increase in judicial control
over administrative agency outcomes.
Section 10(b) of the Securities Exchange Act of
1934 makes it unlawful for any person, directly or
indirectly, ... to use or employ [in security trading] ...
any manipulative or deceptive device or contrivance
in contravention of such rules and regulations as the
7        [SEC] may pre-
-7scribe. In Central
o       .     Bank of Denver v.
ChirsJ -es age -      First Interstate
.I     n Tis       I-ssu       Bank, 114 S.Ct.
M:e ber Pr.ofi7 Sally Katzen  1439 (1994), five
3               Justices found that
Suprme  ourtNew  ~.this prohibition on
4-                the use of a
____-      -.  device did not
w  rreach the secondary
6i              j aiding and abetting
Se ion News        ,1of violations-cn
1 duct that the SEC
1 and the lower
News from the States'       n  h  oe
.     . 9    i      !     courts, in hundreds
________of judicial and
Rec't Artiles of Interest_,- administrative pro-
.$i~   .  :i:ceedings in every
circuit in the feder-
Member News           al system,' had
.6   7previously found
:             the statute reached.
Four Justices would
have relied on the course of conduct of the SEC and
the courts over the years, under Congressional over-
*Betts Professor of Law, Columbia University; Section Chair,
'Stevens, J., dissenting.

sight, to confirm that liability. While the case arose
in the context of a private action brought under Rule
1 Ob-5, the statute governing direct Commission
enforcement efforts is the same, and the SEC has
brought enforce-
ment actions
against aiders and
abettors in the past
Breye r t
on the same theo-
ries of statutory
meaning as were
here rejected.
The Resource
Conservation and
Recovery Act of
1976 created                           P6      i
sharply differing
regulatory schemes
for hazardous and
accustomed irriCK      tI
wastes, and autho-
rized the Environ-
mental Protection
Agency to identify
hazardous wastes by regulation. Since 1980, EPA's
regulations have provided that household waste and
the residues of its incineration in power generation
plants are not hazardous wastes, even though a
small portion of that waste stream (such as discarded
batteries) would ordinarily be regarded as hazardous
waste and even though the ash resulting from incin-
eration, if tested, would have met the ordinary defini-
tions of hazardous waste. Under that regulation,
however, incinerator ash from household waste would
become hazardous waste, if 1) the incinerator also
processed any industrial waste, even if the industrial
waste was not hazardous, and 2) the resulting ash
met the usual quantitative standards of hazardous-
ness. In 1984, Congress amended RCRA apparently
to meet this arguable anomaly. Section 3001(i), the
clarification of household waste exclusion, provided
Continted on page 12

Produced by the ABA Press
Copyright 0 1994 American Bar Association

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