I.
The Common Law of Interpretation

Such interpretive rules of thumb are judge-made.  I argue, therefore, that the common law should be understood to encompass interpretive methodology in addition to the traditional substantive common law subjects, such as the law of torts.  Judge-made rules of interpretation develop because methods of legal reasoning attach to results and weakly constrain judges in future cases.  Thus, the canons form a body of interpretive common law that legitimizes sources and methods of legal reasoning, all with an eye toward how the legislature would want its intent to be effectuated.  The common law canons do more to limit the sources of legal reasoning than they do to order them with precision: resorting to context is fine, resorting to statutory purpose is fine, but employing outlandish extrinsic sources of meaning is not.  However, the common law of interpretation has no prevailing rules for when an interpretation based on statutory purpose should trump a conflicting interpretation based on context.  In this sense, though the “canons of construction are no more than rules of thumb that help courts determine the meaning of legislation,”¹ they do, in fact, constrain and direct interpretive approaches to statutory construction, albeit weakly.

Judges, however, are not the only players in the development and ordering of canons of construction.  When a legislature enacts statutes, its members have certain ideas about how those words convey meaning.  To economize language and the legislative process, the legislature may rely on prevailing rules of interpretation extrinsic to that particular statute.  Legislatures may even prescribe rules and methods by which they wish their statutes to be construed.  Scholars and commentators often discuss “legislative preferences,” as expressed in statutes, with respect to particular policies.² But “legislative preferences,” as expressed in statutes, with respect to interpretive method remains an uncharted subject.

 
II.
The Codified Canons

Every legislature in the United States has codified canons—interpretive rules of thumb—to guide statutory interpretation, but these codifications have received virtually no attention in the academy.  By comparing the code-wide interpretive preferences of each legislature in the United States with the common law canons,³ I ask whether the common law canons, and the dominant theories of statutory interpretation underlying them, are consistent with how legislatures want their statutes to be interpreted.

I have classified common law canons as codified or rejected by a particular statute.  The principle I have used to determine whether there is a codification or rejection is whether a codification forecloses or endorses the use or nonuse of a particular canon.  These classifications should be treated as signposts to the common law canons rather than fully textured enactments.  It is crucial to consult the source codification because whenever complicated and diverse rules are forced into simplified boxes, resolution is lost; as is clear from the large variety of codifications quoted in the full paper, the rules are complex and multifarious.  This is what the catalog of general interpretive directives looks like: http://www.georgetownlawjournal.org/issues/pdf/98-2/Scott_AppendixB_FullColor.pdf.⁴

 
III.
Interpretive Methodology in an Age of Codified Canons

These legislative interpretive directives, however, are not expressed in a vacuum—the enactments often ratify or reject judge-made canons of construction.  Because the canons are nothing more than methodological common law, legislative enactments that repudiate or support canons should not only be included in any conversation about the canons, but also considered important and controlling.

The codified canons, therefore, provide a measure against which a particular common law canon can be compared.  The three dominant theories of how statutes should be interpreted—new textualism, intentionalism, and pragmatism—are each comprised of a collection of assertions about which interpretive rules are appropriate or legitimate sources of meaning.  Each theory claims individually to be the most appropriate method for construing statutes in a democracy.  Just as the legitimacy of a particular common law canon is tied to each theory’s normative claim that it is the most appropriate method for construing statutes in a democracy, conversely, the legitimacy of each theory depends on whether legislatures have ratified or rejected the interpretive rules upon which the theory relies.  Because the three dominant theories of statutory interpretation are comprised of particular rules (and in some cases a hierarchy of those rules), the codification patterns permit conclusions to be drawn about the extent to which each of the three major theories can vindicate their claim of being the most appropriate interpretive method for democratically enacted statutes.

The codifications suggest that the prevailing interpretive toolbox should be revised and recalibrated, and that the three currently dominant theories of statutory construction—and their claims to being the most appropriate approach for construing statutes in a democracy—should be re-evaluated in light of legislative choices. In short, legislative preferences (1) validate intentionalism despite critical concern about what constitutes dispositive legislative intent, (2) vindicate textualism’s commitments to plain meaning, context, integrity, and coherence, but not textualism’s embargo on extratextual sources, which runs contrary to the law of many jurisdictions, and (3) support pragmatic theory’s elevation of concrete methods of reasoning over abstract methods and its organization of sources of meaning in a hierarchical fashion (for example, statutory text, legislative purpose, specific and general legislative history, the evolution of the statute, and finally, current policy), but legislative preferences do little to create a finely variegated list of which canons trump each other.

These general conclusions, however, should not obscure the fact that interpretive method is jurisdictional; it depends on how the jurisdiction’s legislature directs its statutes to be construed.  In jurisdictions where there are no codified canons and no relevant constitutional provisions, the common law canons—insofar as those baseline rules can be identified—prevail.  But in the absence of legislative or constitutional directives, the common law of interpretation should at least be informed by prevailing legislative preferences.  In the development of the common law generally, courts will look to other jurisdictions for new developments.  As a result, when a judge approaches the common law of interpretation, the interpretive rules of similar jurisdictions should matter in some degree.  Even though “such legislative expressions may not be directly applicable or binding,” in the exercise of their common law jurisdiction “courts should be responsive” to canons codified elsewhere as expressive of legislative interpretive preferences, which “can serve to shape and add content to the common law.”⁵ This is especially so where some codification patterns shake the underlying assumption of common law canons: that they reflect legislative interpretive preferences.  Each time a judge deploys a common law canon, the selected interpretive method should be carefully scrutinized to determine whether it is sound.  The common law judge can either dismiss a canon codified elsewhere as foolish or ill advised—legislatures, after all, can be wrong—or conclude that the codified canon is a sensible aid to statutory interpretation. But legislative preferences in this area should not simply be ignored or ruled out of bounds.

Therefore, interpreters in jurisdictions where common law canons have not been displaced by interpretive statutes or constitutional directives should note the pattern of codifications.  They should resist interpreting statutes in ways that have been widely rejected by legislatures (such as strict constructionism).  Where a canon has been uniformly rejected, even if by only a few legislatures (such as the last antecedent rule or expressio unius), or is fraught by disagreement between jurisdictions that have spoken on the issue (such as the difference between “and” and “or”), an interpreter must do more work to justify its use.

Conversely, interpreters in jurisdictions without interpretive codifications should more freely rely on common law canons that have been vindicated by legislative preferences (such as reference to context, construing statutes liberally, interpreting ambiguous statutes so as to best carry out their purposes, and using legislative history).  Reliance, however, does not mean blind and dispositive acceptance.  The eclecticism reflected in the codifications demands that interpreters evaluate many sources of statutory meaning before settling on the most plausible interpretation.  A legislature should get the type of interpretation it wants, subject to constitutional limitations.  The particular interpretive philosophy of individual judges may matter less where legislatures have codified the methodology they prefer.

Finally, the high degree of legislative activity seeking to control both interpretive method and sources of meaning exposes the lurking constitutional question of whether legislative control over judicial interpretive methodology is consistent with a jurisdiction’s constitution.  The power struggle between courts and legislatures over interpretive methodology is already, in some jurisdictions, a live issue.⁶ At all events, the mass of legislative preferences should play a role in statutory interpretation unless and until courts declare that legislative activity in this area is unconstitutional.

Acknowledgments:

Copyright © 2010 Georgetown Law Journal.

Jacob Scott is an associate in the Boston office of Ropes & Gray LLP.

This Legal Workshop Editorial is based on the following Article: Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 GEO. L.J. 341 (2010).

My initial reaction to the lawsuits—before I had chance to examine the relevant Ohio statutes—was that Republicans should lose the first case and win the second. That is, I entered into the statutory analysis with a thumb on the scale in favor of voter enfranchisement, which could be overcome only by clear statutory language to the contrary or strong competing policy reasons. Eventually, the Ohio Supreme Court, relying on such a canon of construction favoring voters, indeed sided with the voters in both cases.¹

This “Democracy Canon” of statutory construction, as I call it, has long and broad support in state courts, from cases in the 1800s through those decided in the 2008 election season. But it has been ignored by legislation and election law scholars and appears to have no independent vitality in federal courts. Its origins trace back to at least 1885. In that year, the Supreme Court of Texas declared in Owens v. State that “[a]ll statutes tending to limit the citizen in the exercise of [the right of suffrage] should be liberally construed in his favor.”² The Owens court rejected an argument by one of the candidates in an election contest that ballots marked with information such as the name and address of the President and Vice President or the counties in which presidential electors resided should not be counted because they violated a state statute barring the counting of ballots containing pictures, signs, vignettes, stamp marks, or devices.

The Democracy Canon is a legitimate tool of statutory interpretation that should be expanded to federal courts, or at least be accepted in federal courts as a legitimate tool of statutory interpretation by state courts. To be sure, the Canon’s use raises some dangers of exacerbating the actuality and appearance of the politicization of the judiciary and, in some cases, some knotty federalism questions. Nonetheless, state legislatures, rather than federal courts, are the institutional actors best situated to rein in potential state court overreaching.

 
I.
History and Importance

The Democracy Canon is the Rodney Dangerfield of canons.³ Because of its use primarily in state courts rather than federal courts, it is not on canonical lists of statutory canons; nor is it discussed in legislation or election law casebooks. Nonetheless, the Canon has had long and consistent acceptance in state courts. The rule announced in 1885 by the Supreme Court of Texas in Owens has been followed by courts throughout the United States. Interpretations of statutes in favor of a broad right to vote continued to be prevalent throughout the twentieth century, and many of the same themes have carried through into modern cases, with cases as recent as the 2008 election season relying on the Canon.

Since Owens, the Democracy Canon has been applied primarily in three contexts: vote counting cases, in which someone relies upon the Canon to argue, following an election, for the counting of ballots that have not been counted because of minor voter error, election official error, or a disputed reading of a relevant statute; voter eligibility/registration cases, in which someone relies upon the Canon to argue, before an election, that a voter or certain group of voters who have been told they cannot vote should be allowed to cast a ballot that will be counted even though election officials have determined they cannot register or vote because of minor voter error, election official error, or a disputed reading of a relevant statute; and candidate/party competitiveness cases, in which a candidate or political party relies upon the Canon (and particularly upon the voters’ right to vote in a competitive election) to argue, before an election, that a certain candidate or party should be allowed to run in an election or appear on an election ballot, even though election officials have excluded the candidate or party from the ballot because of minor candidate or party error, election official error, or a disputed reading of a relevant statute. Vote counting cases are the most prevalent type of cases relying on the Democracy Canon, but the Canon has been deployed in all three kinds of cases across a number of states over more than a century.

The Canon’s stated purposes usually are described in terms of its role in fostering democracy. Its purpose is “to give effect to the will of the majority and to prevent the disfranchisement of legal voters.”⁴ It plays a role in “favoring free and competitive elections.”⁵ It recognizes that the right to vote “is a part of the very warp and woof of the American ideal and is a right protected by both the constitutions of the United States and of the state.”⁶ Liberal construction of election laws serves “to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidate on the ballot, and most importantly to allow voters a choice on Election Day.”⁷

Though the Democracy Canon is usually the result of judicial declaration, it sometimes appears explicitly as a legislatively drafted rule of interpretation. For example, a provision of the Kansas statutes governing rules for regulating elections and voting states that “[t]he provisions of this act shall be construed liberally for the purpose of effectuating its purposes.”⁸ Though the state courts have relied heavily on the Democracy Canon for well over a century, it has been cited much more rarely in federal courts. I have not discovered any federal cases considering whether federal laws governing the casting and counting of ballots—such as the Help America Vote Act (“HAVA”),⁹ the National Voter Registration Act (“NVRA”),¹⁰ or the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”)¹¹—should be liberally construed in favor of the rights of voters.

The Canon likely has not had yet gained independent vitality in federal courts for two reasons. First, since the founding of the Republic, there has been much more state law rather than federal law governing the nuts-and-bolts of voting and registration thanks to the decentralized nature of elections in this country. Thus, federal courts until recently simply have not had the same opportunities to construe election statutes as have states courts; there has not been much federal statutory election administration law to construe. Federal courts have certainly been active in election law cases, especially since the 1960s. But these have been primarily constitutional cases, not statutory cases involving the interpretation of federal statutes governing the nuts-and-bolts of election administration.

Second, the Canon has not spread to federal courts because legislation courses and treatises tend to focus on canons in federal courts. As the Democracy Canon’s widespread and longstanding use in state courts becomes more widely known in the legislation and election law fields, federal courts are more likely to adopt it.

Though the Canon’s use in state courts is longstanding and broad, there is some variation in (1) the scope and reach of the Canon; (2) the strength of the Canon; (3) and when it is triggered. In addition, the Canon’s reach is subject to two important limitations. First, courts will not apply the Canon when there are serious allegations of fraud. Second, in those cases involving voter error or candidate/party error, courts tend to limit the reach of the statute to cases involving minor errors (what the courts often term “substantial compliance” with the relevant statute).

Before turning to a normative defense of the Canon, and a discussion of political and federalism issues surrounding its use, it is worth putting the debate over the Canon’s application in perspective: there is a lot more election law litigation now, and most of it is statutory. In the pre-2000 period, state and federal courts handled an average of about 94 election-related cases per year. In the 2000-2008 period, that number has more than doubled to an average of 237 election cases per year. Considering only state election law cases, statutory interpretation questions arise in the vast majority of cases. In 2008, for example, over 81 percent of cases involved either statutory interpretation questions (70.8%) or a mix of statutory and constitutional issues (10.6%).

 
II.
Normative Defense of the Democracy Canon

The Democracy Canon is a “substantive canon.” Substantive canons “are generally meant to reflect a judicially preferred policy position. [They] reflect judicially-based concerns, grounded in the courts’ understanding of how to treat statutory text with reference to judicially perceived constitutional priorities, pre-enactment common law practices, or specific statutorily based policies.”¹²

Substantive canons are quite controversial.¹³ Justice Scalia, though he sometimes applies them, argues against substantive canons, which he characterizes as “the use of certain presumptions and rules of construction that load the dice for or against a particular result.”¹⁴ In contrast, William N. Eskridge and Philip P. Frickey have defended them as part of an “interpretive regime” serving rule of law and coordination functions.¹⁵ That is, substantive canons can act as gap-filling devices that provide clarity for the law and allow courts to signal policy preferences to legislatures, who may draft around such preferences when desired.¹⁶ Eskridge and Frickey further defend them as “a way for ‘public values’ drawn from the Constitution, federal statutes, and the common law to play an important role in statutory interpretation.”¹⁷

It is not my intention here to provide a general defense of substantive canons. Instead, I argue that the if any substantive canons are going to be used by the courts—and Anglo-American courts have accepted some substantive canons as legitimate for at least 400 years—the Democracy Canon should be.

The Canon serves two important purposes. First, as with some other substantive canons, the Democracy Canon can help protect an underenforced constitutional norm. In this case, the Canon protects constitutional equal protection rights in voting, rights which courts for various reasons have declined to protect directly through constitutional litigation. Second, the Democracy Canon is a preference-eliciting mechanism. A clear statement rule requires the Legislature to take affirmative steps to express its intent to limit voter enfranchisement only when justified by other important interests.

 
III.
Dangers of Actual or Perceived Politicization

Despite its pedigree, controversy has surrounded the Democracy Canon, or at least surrounded the results of the Canon’s application in some recent high-profile election law cases, such as New Jersey Democratic Party v. Samson.¹⁸ In Samson, a unanimous New Jersey Supreme Court relied on the Democracy Canon to allow Democrats to replace the name of U.S. Senator Robert Torricelli on the general election ballot shortly before he was up for reelection to the Senate. The relevant New Jersey statute contained rules for the party to replace withdrawn candidates on the ballot when the withdrawal occurred at least fifty-one days before the election, but Torricelli, facing an ethics scandal, withdrew in fewer than fifty-one days.

Though Samson was controversial as an election law case, it is less controversial when viewed as a legislation case applying a substantive canon. Substantive canons are employed regularly as a tool of statutory interpretation, but the public does not generally pay attention to, much less understand, the prevalence of their use. In the context of a hot-button election law case, a court’s use of a substantive canon may appear illegitimate and result-oriented. Moreover, because of the political stakes, judges may subconsciously rely on the Canon in ways consistent with their political preferences. State legislatures, through the passing of clear rules, are best positioned ex ante to avoid judicial overreaching. Importantly, despite the controversy over the Samson case, the New Jersey legislature has not amended its law to impose a stricter reading of statutory election deadlines.

 
IV.
Federal Courts, State Courts, and the Canon

In Palm Beach County Canvassing Board v. Harris,¹⁹ the Florida Supreme Court relied on the Democracy Canon to, among other things, extend the time for a manual recount of votes during the election protest brought by Al Gore against George W. Bush in the Florida 2000 presidential election. Bush appealed the decision to extend the time for the protest to the United States Supreme Court, which remanded the case for further proceedings to determine whether the Florida court’s reliance on the Canon, embodied in the Florida Constitution, violated Article II of the United States Constitution. The issue reemerged in Bush v. Gore,²⁰ when three concurring Justices determined that the Florida Supreme Court’s interpretation of Florida election statutes in light of the Democracy Canon “impermissibly distorted [the statutes] beyond what a fair reading required, in violation of Article II.”²¹

When a state court construes a state statute to a question in a federal election (as in Samson or Palm Beach County Canvassing Board) it runs the risk of violating either Article II of the U.S. Constitution (vesting in each state legislature the power to set the rules for choosing presidential electors) or Article I, section 4 (vesting in each state legislature the power to set the rules for choosing members of Congress, at least to the extent Congress has not set such rules). In Palm Beach County Canvassing Board, the court left open the issue whether broad interpretations of state statutes involving presidential elections could violate Article II, a point embraced by three concurring Justices in Bush v. Gore. The concurring Justices relied upon their own narrow views of proper interpretation to see a constitutional problem.

Contrary to the position of the Bush v. Gore concurring Justices, use of the Democracy Canon to construe state statutes dealing with presidential or congressional elections does not violate Article II or Article I, section 4. Instead, the long-standing nature of the Democracy Canon and the values it supports give state courts ample authority to construe state election statutes covering federal elections in light of the Canon. Only when a state court relies upon the Canon in a way that counters longstanding practice should a federal court consider intervening in a state court election case on constitutional (likely due process) grounds. For the most part, concerns about overreaching should be addressed ex ante by the legislature: a state legislature concerned about state court application of the Democracy Canon in the context of federal elections can use clear statements to negate its application, as the Samson court illustrated in its opinion.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles.

This Legal Workshop Editorial is based on the following Article: Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69 (2009).

In this Article, I attempt a step forward on that important project. I begin by offering a novel explanation for why Chevron falls short of offering the proper method of statutory interpretation. I argue that Chevron was never well calibrated to determine whether a statute is clear or ambiguous in relevant respects. The reason is that the decision fails to give courts adequate tools for determining whether Congress has delegated interpretive authority to the agency involved. How big is the problem? It is hard to measure, but there is a sense among professors who study this area that, Chevron notwithstanding, courts are too often in the business of invalidating agency interpretations.⁴ In addition, there is another part of the problem: courts too often uphold agency interpretations when they should instead invalidate them.

Where exactly does Chevron take a wrong turn? The decision pursues the correct goal—namely, to account for how Congress designs regulatory statutes. It recognizes that Congress may delegate authority to agencies to capitalize on agency expertise on complex issues or to obtain legislative consensus on contentious issues. And it recognizes that Congress may delegate expressly by granting regulatory authority in statutes or implicitly by leaving interpretive room in statutes. So, sensibly, Chevron asks courts to determine whether Congress has delegated such interpretive power to the agency involved.

Yet, despite its grasp of legislative realities, Chevron then reverts to a standard judicial conception of statutory interpretation. That (mis)conception has judges examining statutory text as if Congress meant to resolve rather than delegate an interpretive question. According to Chevron, courts should look for a “clear” meaning using the “traditional tools of statutory construction.”⁵ This process is not one-size-fits-all. That is, courts approach statutory text using different interpretive theories, including textualism, intentionalism, and purposivism. At the bottom of all those theories, however, lies a vision of legislative behavior that sees Congress as resolving concrete questions. For example, textualism sees statutory text as embodying a legislative deal, often peculiar when viewed in context but no less precise in its meaning. Intentionalism views statutory text as reflecting a collective legislative intent, albeit imperfectly expressing that intent. Purposivism regards statutory text as the manifestation of a general legislative goal, again as imperfectly expressing that goal. Despite their differences, all of these theories view Congress as striving for a relatively specific meaning. (In addition, textualism views statutory text and only statutory text as law.) When courts apply any of these theories, they are approaching regulatory statutes in much the same way as they approach any other statute: trying to recover the specific meaning of the words at issue.

To be sure, some courts apply Chevron mindful of a more agency-liberating spirit. They look for a “zone of indeterminacy” that permits them to uphold the agency interpretation if that interpretation is reasonable.⁶ The difficulty is that the doctrine does not ordain this type of judicial generosity. I claim that the doctrine itself should do better. As it stands, Chevron effectively primes courts to find a relatively specific meaning. Once courts find a “best” meaning, they must possess more than an average amount of judicial resistance to set aside that meaning in favor of the agency’s merely “reasonable” meaning, as Chevron optimistically counsels.⁷ Ardent textualists probably have a more difficult time abandoning their preferred meaning than others because they are especially committed to the pursuit of linguistic clarity.⁸ But no judge, textualist or otherwise, who takes seriously the search for linguistic clarity is immune.

In some sense, the Court has already recognized the deficiencies of Chevron. It has been fiddling with Chevron in a way consistent with my criticisms. In United States v. Mead Corp.,⁹ for example, the Court returned to the question of whether Congress has delegated interpretive authority to the agency involved, this time by focusing specifically on the relationship between congressional delegation and administrative procedures. The Court reasoned that Congress would not intend for an agency to possess binding interpretive authority unless it authorized (and the agency utilized) procedures that are appropriate for issuing binding interpretations.¹⁰

In my view, Mead does not remedy the problem because, like Chevron, it is right in theory but not in practice. Specifically, it does not give courts an adequate metric for evaluating questionable administrative procedures. Mead instructs courts to consider whether the procedures at issue promote fairness and deliberation, which is a standard judicial conception of the values that procedures serve—and a fuzzy one at best. I do not deny that procedures, if sufficiently formal, serve these rule-of-law values. My point is that courts, if interested in tracking congressional delegation, should be equally interested in how procedures fit into the strategic legislative picture. Why are procedures important to Congress when delegating interpretive authority to an agency? If courts focused on answering this question, then Mead might truly focus on the connection between delegation and procedures. Furthermore, courts might have more guidance in applying the decision. As Mead stands, courts are seriously confused about what it means and how it applies.¹¹

Rather than fiddling, I argue that the time has come to replace the standard judicial theories and conceptions with the factors that matter to Congress when designing regulatory statutes. I admit that identifying those factors is no easy task. Yet the decisions themselves suggest a compass. Both Chevron and Mead reflect impulses that can be traced to political science literature, and in particular, positive political theory (PPT). This literature does not reveal how Congress designs particular statutes. Rather, it contains hypotheses about legislative behavior that might furnish assumptions about legislative behavior in the statutory interpretation context. Courts already rely on assumptions about legislative behavior when they apply Chevron and Mead.  In my view, PPT suggests more accurate ones and therefore can produce better interpretation of statutes.

PPT scholars offer two hypotheses that are of particular interest in fashioning a new approach to statutory interpretation. First, PPT scholars assert that Congress is more likely to delegate if the issue is complex or an obstacle to a law’s passage.¹² Congress lacks the time and competence to handle many issues and will be blamed for any burdens imposed specifically by statute. Congress also faces obstacles to consensus that are alleviated by choosing ambiguous language. Of note, legal scholars have also underscored the potential for Congress to use “deliberate ambiguity” when writing statutes.¹³ Second, PPT scholars assert that Congress is more likely to delegate if it can monitor subsequent agency interpretations through administrative procedures or has reasonable assurances that agency preferences are likely to roughly track legislative preferences.¹⁴ Notwithstanding its appeal, delegation comes with a price. Congress must monitor subsequent agency action to ensure that it roughly tracks legislative preferences. Administrative procedures are an ingenious form of legislative monitoring because they shift the costs of monitoring to constituents. Rather than having to discover information about agency action itself, Congress gives constituents a right to participate in the process so that those constituents may learn about agency action as it unfolds and alert Congress to intervene on their behalf.

I suggest that courts should examine the sorts of considerations that PPT theorists and legal scholars have identified as indications of congressional delegation. Assuming Congress delegates to agencies for reasons related to the complexity or contentiousness of the issue addressed by a statute, courts should consider the complexity or contentiousness of the issue. Assuming Congress delegates to agencies under conditions that minimize principle-agent concerns, courts should consider the adequacy of administrative procedures for this purpose or should consider other evidence of likely legislative-administrative preference alignment. To isolate these factors, courts should examine the face of the statute as well as its legal or social context. The stronger the case for interpretive delegation, the more courts should hesitate to read the statutory text as “clear” on the theory that Congress intended such clarity.

I acknowledge that a focus on “delegating” factors has limitations. First, it might not constitute much of a test because courts might find a delegation more often than not. Many issues in regulatory statutes are complex, and many agencies have relatively formal procedures for resolving interpretive questions. Accordingly, it is fair to describe my approach as a presumption of judicial deference to agency interpretations. My claim is that such a presumption is the right one. By the same token, I am not advocating judicial abdication. Courts should not defer to agency interpretations when circumstances suggest that Congress did not mean to delegate.

Second, courts might find evidence of a delegation but not necessarily to the agency. When Congress seeks to avoid contentious issues, for example, it could delegate to courts rather than an agency. In such circumstances, a finding of delegation is still significant. Even if courts retain interpretive authority for themselves, they might exercise that authority differently knowing that Congress did not specify a meaning. They would be justified in eschewing the traditional theories of statutory interpretation and considering other factors, including the agency’s views of wise policy. This approach offers a modern understanding for a famous old administrative law case, Skidmore v. Swift & Co.¹⁵

I am not alone in seeing real advantages in attempting to build delegating factors into statutory interpretation. Looking at two recent Supreme Court decisions, I see certain Justices as moving toward this approach. In Zuni Public School Dist. No. 89 v. Department of Education,¹⁶ Justice Breyer set aside Chevron’s question of meaning to focus on the sort of factors that I identify here. He returned to the statutory text but only as confirmation of a delegation, whereas Justice Scalia invalidated it on plain meaning grounds. In Gonzales v. Oregon,¹⁷ Justice Kennedy purported to apply a standard interpretive principle, but he did so in consideration of the sorts of factors that I emphasize here. Interestingly, he found no delegation based on the factors. He rejected the agency’s interpretation, whereas Justice Scalia offered a plain meaning argument to uphold it. These cases demonstrate not only that my approach can work, but that it can work both ways—to uphold or invalidate an agency interpretation.

Why should courts adopt the approach that I advocate? First, I believe that the law should seek to minimize fictions. Chevron does not track congressional delegation, although it purports to do so. My approach minimizes the fiction about congressional delegation by basing the doctrine on better assumptions about the legislative design of regulatory statutes. Second, I argue that the law should incorporate these assumptions for normative reasons. The problem with decisions like Chevron and Mead is not their focus on congressional delegation, but their overly judicial approach to ascertaining the existence of delegation. The focus on delegation is sensible. It continues an old tradition of promoting fidelity to congressional will, not as to specific statutory meanings but as to the involvement of agencies in choosing such meanings. In addition, it promotes other critical values. The reasons for which Congress delegates generally correlate to the reasons for which deference is normatively desirable: agency expertise and political accountability. On the flip side, Congress is not always inclined to delegate, and agencies are not always inclined to use formalized procedures. Precluding agency interpretive authority under these circumstances respects congressional will and promotes rule-of-law values.

In the Article, I address institutional and normative objections to my approach. The institutional objection concerns the difficulty of applying this test. As I previously mentioned, lower courts are already struggling with the doctrine in this area. It might be that they cannot handle one more complexity. I argue that my approach is not necessarily worse and may be better than current law, though I leave open the possibility of a truly streamlined rule: a presumption of judicial deference to agency interpretations stronger than Chevron has ever required.

The normative objection concerns the role of courts in policing broad delegations through statutory interpretation. Courts have enlisted canons of construction and even theories of interpretation to ensure that Congress delegates no more broadly than is normatively desirable.¹⁸ This well-established approach is seemingly precluded by my own. In fact, I show that it can coexist with my approach, applying in select cases when courts determine that nondelegation values are paramount. But before asking courts to determine which approach—the prodelegation or antidelegation approach—is appropriate in particular cases, I highlight a different alternative. In my prior work, I have argued that it is possible and promising for courts to police broad delegations under the arbitrary and capricious test of administrative law rather than as a matter of statutory interpretation. The idea is something of a compromise between prodelegation and antidelegation values or, more specifically, an insistence that policymaking exhibit a modicum of restraint and rationality at some point in the process. If Congress chooses to delegate broadly, courts should ensure that agencies exercise their delegated authority in a disciplined manner.

In sum, Chevron’s mistake is in thinking about statutory ambiguity too much as a problem of words rather than as a manifestation of politics. Congress certainly uses words in statutes to make policy. But Congress also uses words in statutes to avoid setting specific details, often delegating that responsibility to the agency involved. Chevron comes into play precisely at that moment—when Congress transfers authority to an agency not in so many words. Yet Chevron directs reviewing courts to consider what words Congress provided as the best indication of implicit delegation. Moreover, it allows courts to use interpretive theories that are designed to find a relatively specific meaning. Instead courts should examine other signals of congressional delegation before they draw conclusions about the significance of words. Like any other approach to statutory interpretation, mine is not without its own difficulties. In the end, I maintain that it offers a better method of interpretation in this context. Courts protect important normative values—indeed, the values for which Chevron and Mead themselves purport to stand—when they attempt to regard regulatory statutes in their realistic legislative context.

Acknowledgments:

Copyright © 2009 Duke Law Journal.

Lisa Schultz Bressman is Professor of Law at Vanderbilt University Law School.

This Legal Workshop Editorial is based on the following Article:   Lisa Schultz Bressman, Chevron’s Mistake, 58 DUKE L.J. 548 (2009).

The Tax Reform Act of 1986 (the “Act”), for example, contained “transition rules” that selected one or a very few number of taxpayers for reprieve from new tax increases.  One such transition rule exempted Merrill Lynch from the Act’s repeal of the investment tax credit.  This  meant that the company could take the credit, in spite of its repeal as applied to other taxpayers, for a lease on a future building that would serve as its new global head office.  Instead of naming the investment bank outright, the exception applied to the following:

[T]he lessee or an affiliate is the original lessee of each building in which such property is to be used, such lessee is obligated to lease the building under an agreement to lease entered into before September 26, 1985, and such property is provided for such building, and such buildings are to serve as world headquarters of the lessee and its affiliates.¹

One cannot ascertain the true beneficiary of this provision from its face.  In what has been a remarkable response to unearthing hidden special interest provisions like this, the Senate and the House each recently enacted internal “earmark rules” requiring their members to disclose such provisions, including their special interest beneficiaries, in both the tax and spending contexts.  In my article Listening To Congress: Earmark Rules and Statutory Interpretation, I discuss these earmark rules and detail why their problems stem largely from Congress’s constitutional power to interpret and enforce its own rules.  I then examine the possible use of extra-congressional forces to strengthen the rules.  Given the constitutional limitations upon such means, I arrive at a method of statutory interpretation—that judges should interpret ambiguous legislation that falls within the ambit of the earmark rules as if Congress had followed the rules.  In so doing, judges should assume Congress has disclosed any special interest provisions and identified all nominally intended beneficiaries.  Thus, any ambiguous special interest legislation that has not been adequately disclosed by legislators should be narrowly construed, against the beneficiaries, imposing costs on lawmakers, as well as the special interests they support, if they defect. 

 
I.
Earmark Rules

Simplifying a bit, earmark rules require disclosure of any special interest provisions, defined as earmarks or limited tax benefits.  Both the House and Senate define “earmarks” as providing a specific amount of spending for an entity, or targeted to a specific locale, other than through a competitive process.  “Limited tax benefits” are like “tax earmarks” and are defined to provide tax benefits to fewer than a small number of beneficiaries, among other requirements.  In the Senate, this means that benefits are provided “to a particular beneficiary or limited group of beneficiaries” and in the house, to “ten or fewer beneficiaries.”

Earmark rules are examples of legislative rules or internal rules that govern congressional lawmaking.  Why do legislators agree to be bound at all to such rules that curtail their future lawmaking options?  Legislative rules are akin to what Jon Elster has labeled precommitment devices.  That is, actions a person takes in order to ensure that she will perform a certain act, by making it either impossible or costly to defect from the committed path.  To illustrate the concept of precommitment, Elster uses the example of Ulysses ordering his crew to tie himself to the mast, sealing all of their ears with wax, to avoid the temptation of the sirens’ song.  Earmark rules, like many precommitment devices, also help to overcome classic collective action problems.  Although each member of Congress may value transparency for the collective whole as a means to deliberation and accountability, any given member may be incentivized to defect from the rules because she will reap all of the benefits of defection and only her disproportionate share of the harm.  Collective action problems may worsen as other members detect their colleagues’ defection.  By agreeing as a whole to disclose hidden interest group deals, earmark rules serve to bind congressional members to the common goal of transparent legislation. 

Predictably, however, individual members may later find the constraints imposed by the earmark rules undesirable, and hence may develop methods to evade them.  Circumvention from legislative rules is easy; each house adopts its own set of rules and has enormous flexibility over them—few constitutional limitations exist upon their content, and each house can unilaterally change or waive the rules.  Generally, legislative rules are enforced only within Congress.  The Ulysses metaphor thus fails in the legislative rule context because legislators, lacking external checks, can afterward defect from the rules without much cost.  It is as if Ulysses had discovered tools to later untie himself. 

 
II.
The Endogeneity of Earmark Rules

The largest threat to the proper functioning of the earmark rules is simply that lawmakers will not follow them.  The Senate majority leader and the House Appropriations Chair have taken the position that they can falsely certify as to the contents of legislation—for example, by simply stating that there are no earmarks or limited tax benefits—and Senators can only object if the majority leader failed to provide certification altogether, not if they believe the certification is false or incomplete.  Senator McCain bemoans this state of affairs, stating that although “earmarks should be disclosed in theory,” the disclosure can only be “policed” by the committee chair or the majority leader.²  If these members “say all the earmarks are identified,” McCain argues, “[Congress] take[s] it as gospel.”³

The House Appropriations Chairman David Obey has also aggressively interpreted the rules in other ways by arguing that the earmark rules do not apply to provisions inserted by himself.  When a representative sought clarification about the omission of a NASA earmark from a disclosure list in a bill, the Chairman responded, “The fact is, that an earmark is something that is requested by an individual member.  This item was not requested by any individual member.  It was put in the bill by me!”⁴

Congress needs assistance to stay the course in their precommitment to transparent special interest legislation.  Under our constitutional scheme, however, opportunities for extra-congressional involvement in the lawmaking process are quite limited.  The Rulemaking Clause states that “each House may determine the Rules of its Proceedings.”  Courts generally interpret this clause to mean that legislative rules are beyond scrutiny from the other branches unless the legislative rules ignore constitutional restraints or violate fundamental rights of non-congressional members.  Thus, direct challenges against deficiencies in the earmark rules or defections from the rules are not available to plaintiffs.

 
III.
My Proposal

As an alternative to direct review of the earmark rules, I propose another form of extra-congressional involvement—namely, that courts should reinforce Congress’s rulemaking authority by interpreting ambiguous legislation that falls within the ambit of the earmark rules as if Congress had followed the rules.  In other words, courts should construe narrowly, against special interests, ambiguous statutory benefits that were not disclosed in accordance with the earmark disclosure rules.  Courts should do this even though we have every reason to believe that legislators will seek to avoid the application of the rules when they confer targeted benefits on special interests. 

The proposal will apply primarily in certain tax and spending litigation scenarios.  A special interest defendant in a tax enforcement proceeding may claim offsetting tax benefits or relief from a provision enforced by the IRS.  For instance, suppose that a corporation, Corp. X, sues the government for entitlement to investment tax credits, either by claiming a tax refund or a reduction in taxes owed.  Suppose Corp. X relied upon the transition relief provision mentioned above to argue that the lease on one of its buildings, entered into in the 1960s, was exempted from the Act’s repeal of such credits.  In response, the government argues that the provision is only applicable to newly constructed world headquarters, citing the provision’s prospective language, including “is to be used,” “agreement to lease,” and “are to serve.”⁵

Assuming the court concludes that the statutory language is ambiguous, then the next step under the proposal would be for the court to determine whether or not the provision—as interpreted by the taxpayer seeking relief—would fall within the ambit of the earmark rules.  If so, then the court would look to see whether Corp. X actually was disclosed as required under the rules.  If not so disclosed, the proposal prescribes an interpretive presumption against a construction of the statute in which Corp. X receives a limited tax benefit, in this case the investment tax credit, covered by the rules.⁶

Note that this result should follow even if Corp. X had lobbied its representative to include language ambiguously drafted in its favor.  In this manner, the proposal strengthens congressional adherence to the rules by imposing costs upon lawmakers, as well as the special interests they support, when the lawmakers do not adhere to their own rules.  It does this by providing that judges should refuse to interpret ambiguous statutes in ways that would create undisclosed special interest deals. 

 
IV.
Doctrinal and Theoretical Support for the Proposal

My approach to statutory interpretation in this context is consistent with the caselaw regarding the Rulemaking Clause of the Constitution.  First, the D.C. Circuit has stated that it “must assume that [a house of Congress] acted in the belief that its conduct was permitted by its rules, and deference rather than disrespect is due that judgment.”  Thus, like in my proposal, many courts assume that Congress had followed its rules.  Second, courts generally do not second-guess Congress’s determination of the validity of its documents.  In Marshall Field v. Clark, the Court refused to question the truthfulness of the presiding officer’s certification that a bill presented to the President was the same as the one enacted by the House.  Similar to the Court’s conclusion in Marshall Field, my proposal requires simply that judges accept as true the Majority leader’s or committee member’s certification of a bill’s composition and its compliance with the earmark rules. 

Direct judicial review of the rules poses separation of powers concerns.  Many argue that judicial incompetence concerning the legislative process justifies the conclusion that each house has authority over its own rules, or that Congress’s lawmaking power relies on such authority.  My proposal recognizes that courts are not necessarily better suited to inject their own view of the ideal legislative process by judging the content of the earmark rules or to strike down legislation not passed in accordance with the rules.  Instead, the proposal avoids separation of powers concerns by simply using the legislature’s own internal rules to cure the problems Congress perceives within itself.  One might even argue that a court’s interpretation of a statute to confer special interest benefits when Congress had not by its own rules disclosed it as such, would be a greater intrusion upon the legislative function.

In addition to having doctrinal support, my proposal fits within several academic views of statutory interpretation.  Textualists would presumably object to the use of non-statutory materials in interpreting statutes.  However, one of their primary objections for using such materials—that consulting legislative history encourages members to insert hidden or vague provisions at the benefit of special interests—falls away because the purpose of the earmark rules is to highlight the insertion of such provisions.  Additionally, unlike committee reports or other examples of legislative history, the rules were adopted by the entire house and are not undemocratic—use of the earmark rules in the proposal actually prevents a defecting minority from co-opting the statute.  Finally, although textualists argue that society is governed by law rather than legislative history, procedures that govern lawmaking, like the earmark rules, exert profound influence over the laws that ultimately determine the rights and obligations of the citizenry and should not be ignored when Congress does not so wish.

Intentionalists will also likely see the virtues of this proposal.  By consulting materials that are central to Congress’s chosen lawmaking process, judges, under the proposal, defer to the accuracy of Congress’s own statement regarding the content of legislation thereby illuminating congressional intent.  Through the earmark rules, Congress has attempted to settle upon a collectively shared, explicit meaning of enacted statutes.  My proposal simply counsels judges to defer to that intent, as expressed in the disclosure lists mandated by earmark rules. 

Other scholars divide the statutory interpretation literature into two strains, influenced by pluralism or republicanism.  Pluralists suggest that interest group competition for scarce resources results in a political equilibrium; hence courts must enforce statutes as if they were contracts between private parties and lawmakers.  At first glance, my proposal offends such thinkers by refusing to uphold certain interest group deals—that critique falls away, however, when the deals are invisible to all of the participants and if the lawmakers have put in place rules that mandate disclosure of such deals.  In such an instance, there simply is no legislative bargain, according to Congress’s own rules of bargaining. 

By contrast, republican theorists generally embrace the notion that laws be supported by reason and do not accept out of hand the products of the political process.  Republicanism strives towards deliberation and the suppression of hidden deals between lawmakers and special interests.  Accordingly, republicans argue for the adoption of canons of statutory interpretation that promote such modes of lawmaking.  By supporting a congressional precommitment to shine light upon such special interest deals, my proposal is one such canon.   

 
V.
Conclusion

In summary, I propose that courts should defer to the certifications of Congressional members, as required by earmark rules, when interpreting ambiguous legislation.  At the risk of over-playing Ulysses metaphors, my proposal navigates, like Ulysses in the Odyssey, between a rock and a hard place.  On the one hand, Congress has enacted legislative rules that have little staying power due to the lack of external governing forces.  On the other hand, Congress’s status as a lawmaking body and its derivative power over its legislative rules provide few avenues to assist it in reinforcing those rules.  My proposal attempts to strengthen Congress’s precommitment to transparent special interest tax and spending legislation, without intruding upon its lawmaking function.  The proposal thus challenges the commonly held notion that Congress cannot truly precommit itself due to the endogeneity of its legislative rules.  In future work, I intend to further question the constitutional inevitability, as well as the wisdom, of a wholly internal set of legislative rules.  In so doing, this larger project will explore the threat of such instable, non-binding rules upon the rule of law, citing various examples of this encroachment in the tax legislative process.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Rebecca Kysar is Assistant Professor of Law, Brooklyn Law School.

For helpful comments, I am grateful to Lily Batchelder, Meredith Conway, Steven Dean, Peter Devine, Kelly Dunbar, Miranda Fleischer, Vic Fleischer, Bob Green, Kristin Hickman, Anthony Infanti, Carlos Gonzalez, Heidi Kitrosser, Anita Krishnakumar, Doug Kysar, Sarah Lawsky, Richard Lazarus, Michael Livingston, Trevor Morrison, Eduardo Peñalver, Jeff Rachlinski, Kirk Stark, Larry Solan, Sarah Varet.

This Editorial is based on the following full-length Article:   Rebecca Kysar, Listening To Congress: Earmark Rules And Statutory Interpretation, 94 CORNELL L. REV. 519 (2009). Click Here for the Full Version.