tailieunhanh - THE CONSTITUTION OF LAW Part 7

Học thuyết này bao gồm hai bước. Để bắt đầu, thì Toà án phải xác định xem Quốc hội có ý định "rõ ràng" và "rõ ràng thể hiện khi ban hành các quy chế trong câu hỏi. | maintaining the rule of law 145 This doctrine consists of two steps. To begin with the court must determine whether Congress had a clear and unambiguously expressed intent when enacting the statute in question. If the court finds that Congress did have such an intent that is the end of the matter and the court has no authority to modify or interfere with the interpretation or implementation of the statute. However if no such intent can be discovered the court must determine whether the administrative agency came to its decision on the basis of a permissible construction of the statute .49 Justice Scalia supports the Chevron doctrine - the introduction of an an across-the-board presumption that in the case of ambiguity agency discretion is meant .50 But he does not do so on grounds to do with agency expertise nor with the separation of powers and the inappropriateness of judges deciding policy issues. In respect of expertise he says that if it were true that officials were better situated to determine the purpose of legislation than judges this would constitute a good practical reason for accepting the agency s view but hardly a valid theoretical justification for doing so . In respect of separation of powers he argues that the courts are constantly in the business of determining policy especially when it comes to working out what is the intention or range of permissible intentions that can be attributed to a statute so that this task cannot be reserved to the Instead his approval of Chevron is based on the rise of the modern administrative state. The kind of statute-by-statute assessment that was common prior to Chevron was becoming increasingly difficult to implement given the complexity of present-day administrative decisionmaking. In addition he contends that in the majority of cases Congress does not have a clear intention and it does not mean to provide an agency with discretionary powers. Instead it simply fails to consider the matter. .