After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the question of how executive branch officials approach statutory interpretation. While scholars have contrasted agencies’ interpretive practices from those of courts, they have not yet developed a theory of agency statutory interpretation.
This Article develops a purposivist theory of agency statutory interpretation on the ground that regulatory statutes oblige agencies to implement the statutes they administer in that manner. Regulatory statutes not only grant powers but also impose a duty on agencies to carry out those powers in accordance with the principles or purposes the statutes establish. To comply with that duty, agencies must develop a conception of the purposes that the statute requires them to pursue and select a course of action that best carries forward those purposes within the means permitted by the statute; in short, agencies must take a purposivist approach. Moreover, this Article argues that agencies’ institutional capacities—a familiar constellation of expertise, indirect political accountability, and ability to vet proposals before adopting them—make them ideally suited to carry out the task of purposive interpretation.
This Article reports the findings of the first empirical study of the use of televideo technology to remotely adjudicate the immigration cases of litigants held in detention centers in the United States. Comparing the outcomes of televideo and in-person cases in federal immigration courts, it reveals an outcome paradox: detained televideo litigants were more likely than detained in-person litigants to be deported, but judges did not deny respondents’ claims in televideo cases at higher rates. Instead, these inferior results were associated with the fact that detained litigants assigned to televideo courtrooms exhibited depressed engagement with the adversarial process—they were less likely to retain counsel, apply to remain lawfully in the United States, or seek an immigration benefit known as voluntary departure.
Drawing on interviews of stakeholders and court observations from the highest-volume detained immigration courts in the country, this Article advances several explanations for why televideo litigants might be less likely than other detained litigants to take advantage of procedures that could help them. These reasons include litigants’ perception that televideo is unfair and illegitimate, technical challenges in litigating claims over a screen, remote litigants’ lower quality interactions with other courtroom actors, and the exclusion of a public audience from the remote courtroom. This Article’s findings begin an important conversation about technology’s threat to meaningful litigant participation in the adversarial process.