The Anti-Parroting Canon
If an agency regulation and the statute authorizing the regulation have identical (or at least very similar) wording, do the statute and the regulation always mean exactly the same thing? The Supreme Court recently said yes,1 naming the new doctrine the antiparroting canon2 because it denies extra deference to agencies that parrot the words of a statute into a regulation.
At first glance, this seems like a triumph for plain meaning interpretation—words have meaning, and the same words always have the same meaning. But, as recognized in other areas of law, the contextual information of who is speaking sometimes makes an interpretive difference.
The speaker’s identity can be important when interpreting a statement because the identity tells us about the role and knowledge of the speaker. Agencies play a different role in the governmental structure than Congress does, and they have a higher level of expertise and knowledge in their subject areas. Both of these factors can lead agencies to convey different meanings even when using the same words that appear in a statute. The Supreme Court was mistaken when it categorically denied the possibility that the same words, spoken by two different institutional actors, can ever have different meanings.
Despite the flawed justification for adopting it, however, the anti-parroting canon does have merit. It is not a textual canon, but a structural one. The Court employed the anti-parroting canon in a way that prevents agencies from unilaterally seizing more power than Congress has granted them. While the canon is cloaked in textualist explanations, it actually grows out of the same separation of powers concerns that underlie the modern nondelegation doctrine.
Part II of this Article explains the anti-parroting canon as it was created and adopted by the Supreme Court, as well as the surrounding doctrine that created the need for it. Part III argues that the canon is not justified by ideas about plain meaning. Textualists recognize that plain meaning must be understood in context, and the identity of the speaker is a relevant contextual data point. Part IV makes the case that the anti-parroting canon is nonetheless a good one and explains the structural considerations that support its adoption.
