Between the Lines: Interpreting Welfare Rights.

• Author: Katzmann, Robert A.

In the last decade, the study of statutory interpretation has taken on new life. In part, the statutory work of the Supreme Court has assumed growing importance because the legislation under review touches vital issues affecting the nation. A court that pronounces what Congress meant in such areas as civil rights,(1) voting rights,(2) and gender discrimination(3) will almost certainly be the object of heightened attention. Justice Antonin Scalia has fueled discussion about statutory interpretation with his persistent criticism of the way courts use legislative history, materials beyond the words of statutes.(4) He has since been joined by other Justices with interests in courts and legislation, including David Souter, Ruth Bader Ginsburg, and Stephen Breyer.(5) Concern with how the judiciary makes sense of legislation has reached Congress itself Both the House Judiciary Committee's Subcommittee on Courts, Intellectual Property, and the Administration of Justice(6) and the Joint Committee on the Organization of Congress(7) have conducted hearings on legislative-judicial relations. Statutory interpretation has sparked attention not only in scholarly books(8) and journals,(9) but even in the popular media.(10)

At issue is the integrity of the legislative and judicial processes. When courts interpret legislation, as former Judge Abner Mikva has observed, they become an integral component of the legislative process.(11) If courts have difficulty understanding the legislative process that they interpret or Congress does not provide the courts with direction as to its meaning, then both branches have a problem deserving consideration. Beyond that, how the First and Third branches interact has implications beyond those branches; the nature of that relationship affects the shape and development of policy. In that sense, the concern is with how the judiciary and the legislature work, either independently, together, or at cross-purposes, as they influence policymaking.

The interplay of Congress and the courts has vital ramifications for the administrative state itself." When the judiciary interprets a statute or mandates or restrains executive action, it perforce affects the administrative process. A court's decisions can influence not only the balance of forces within Congress, but also the relationships among agencies or competing factions within the bureaucracy, and the capacity of the President to control the executive branch. "Policymaking is dynamic and complex; it can be conceived as a continuum of institutional processes [judicial, legislative, and administrative], sometimes acting independently, but often interacting in subtle and perhaps not always conscious ways to influence the behavior of other processes."(13)

In his major book, Between the Lines: Interpreting Welfare Rights,(14) R. Shep Melnick deepens our understanding of the intricate relationship between the judiciary and the Congress in policymaking. Through three rich case studies - Aid to Families with Dependent Children (AFDC), food stamps, and education for the handicapped - he examines how the federal judiciary, by interpreting statutes, has expanded eligibility, enlarged benefits, and moved control from the states to the federal government. If much of the previous literature on statutory interpretation has focused on how judges might better interpret statutes, Melnick approaches the matter from the perspective of policy outcomes - asking "[w]hat difference did it make that the courts adopted this interpretation rather than competing ones?"(15) His intention is to study both issues of process and of policy. With regard to the former, his objective is to examine how the courts affected the balance of power between the states and the federal government, between the Congress and the President, and between Congress as a whole and its committees; to explain why different institutional patterns occur in different policy areas; and to assess Justice Scalia's claim that heavy reliance on legislative history threatens to "convert[] a system of judicial construction into a system of committee-staff prescription."(16)

With respect to matters of policy, Melnick explores basic beliefs about the welfare state, the responsibilities of the government to its poor, and the obligations of citizens to provide for themselves as these beliefs are reflected in court decisions interpreting the AFDC title of the Social Security Act, the Food Stamp Act, and the Education for All Handicapped Children Act (EAHCA). He endeavors to determine the extent to which members of Congress shared these views, and the degree to which the assumptions of members of Congress and the judiciary changed over time.

Part I of this Review describes the political, institutional, and legal contexts that shape Melnick's analysis and summarizes his conclusions with regard to the effect of the courts in shaping policy within the three areas he examines. In Part II, I discuss the impact of Melnick's findings on two current academic debates, the first over whether courts are capable of effecting social change, and the second on the viability of competing theories of statutory interpretation. If Between the Lines effectively illustrates that legislative history and, all too frequently, statutory language provide little guidance to courts trying to discern legislative meaning, Part III argues that this state of affairs can be ameliorated. I describe a series of ongoing projects designed to overcome some of the problems that Melnick identifies.

1. Context

   1. Politics, Institutional Process, and Law

      One of the many strengths of this book is that it grounds specific case studies of statutory interpretation in the larger context of the political arena in which legislation is conceived. Melnick rightly describes two important developments that affected the judicial interpretation of statutes in his case studies: the ever-expanding responsibilities of the federal government and the fragmentation of power at the national level - between Congress and the executive, and within the legislature itself as congressional authority became increasingly decentralized and the integrative power of political parties diminished.(17)

      These changes have affected the design of statutes in a variety of ways. Legislation in recent decades has tended to combine both specificity and ambiguity. Some statutes leave key terms undefined and in effect give to others - federal, state, and local officials as well as judges - the responsibility of adding flesh to the statutory skeleton. The EAHCA, for instance, mandates that states provide every handicapped child with a "free appropriate public education,"(18) but does not spell out what that means. Section 504 of the Rehabilitation Act of 1973 declares that "no otherwise qualified handicapped individual ... shall, solely by reason of his handicap.... be subjected to discrimination under any program or activity receiving Federal financial assistance."(19) In the absence of clear definition as to the meaning of "otherwise qualified handicapped individual," judges and officials charged with implementing the law have for two decades borne most of the responsibility for fashioning its scope.(20)

      At the same time, legislation and accompanying committee reports have often become more detailed; with each reauthorization, the entitlement laws, which are the subject of Melnick's book, have become more specific. The House report on the 1977 amendments to the Food Stamp Act occupied 869 pages and "contained advice on such matters as how late intake offices should be open and which court decisions had identified the proper method for counting the income of migrant workers."(21) Congressional "micromanagement" reflected legislative distrust of the executive branch, extending to deadlines, procedures, and performance standards." In addition, demands placed on states increased, with a variety of regulatory controls - direct orders, crosscutting requirements, crossover sanctions, and funding cutoffs.(21) Still another feature of the political context was congressional facilitation of litigation. Many acts directly authorized suits by private parties to enforce regulatory requirements. Still others contained liberal standing requirements for those contesting agency rules.(24)

      Melnick also writes that federal courts developed devices that enlarged their role in interpreting the law of entitlement. One such method was the decline of judicial deference to administrators' interpretation of statutes, an approach that had special force until the Court's enunciation of the Chevron(25) doctrine in 1984. Federal courts in the 1960's and 1970's, as Richard Stewart has written, focused on fidelity to procedures to assure fair representation for all affected parties, and then made use of the "hard look" doctrine to delve into agencies' substantive determinations.(26) Second, courts augmented their powers by interpreting statutes in ways that allowed them to curb the discretion of state officials. Federal judges, Melnick claims, helped alter federal-state relations by, in effect, turning "conditions attached to federal grants - previously enforced only through the termination of federal aid - into individual rights enforceable through court injunctions."(27) A third mechanism involved an increased reliance on legislative history and broad statements of statutory purpose to expand benefits and ease eligibility restrictions. Judges, according to Melnick, combed the legislative history to find support for their interpretations so that their decisions were perceived to reflect congressional purposes.(28)

      Melnick argues that reliance on broad statements of statutory purpose subtly shifts the burden of proof in favor of those who seek to expand federal programs because such statements generally are grandiloquently worded, emphasizing goals rather than costs.29 A most significant development with regard to...