The one-Congress fiction in statutory interpretation.

AuthorBuzbee, William W.

Reliance on fictions and simplifying assumptions in the interpretation of statutes may be inevitable, but should courts look across statutes or regulatory fields and draw inferences from linguistic choices in different statutes? In justifying such statutory comparisons and their interpretive conclusions, judges often state or imply that these linguistic comparisons reveal that Congress knows how to express itself in a more authoritative way, even where statutes were enacted by different sessions of Congress, arose out of different contexts, and concerned different subjects. This interpretive move is referred to in this Article as "the one-Congress fiction." Examination of this technique in Supreme Court jurisprudence reveals significant problems with its application, logic, and theoretical underpinnings. Furthermore, this Article's critique raises larger questions about the normative claims underpinning this and other textualist modes of statutory interpretation, particularly claims that textualism enhances the quality of legislation, reduces opportunities for ends-oriented judicial decisionmaking, and deters undemocratic manipulation of the legislative process. Central to the error of the one-Congress fiction is its implicit assumption that Congress, in legislating, is in a conversation only with itself. In reality, and as well developed in empirical and theoretical critiques of political process, the process of law enactment, implementation, and interpretation inevitably changes the implications of particular language in unpredictable ways. Far from being the product of a closed system memorialized only in the United States Code, legislation arises out of a dynamic process involving many actors. The Article concludes that a more context-sensitive method of interpretation that focuses on each statute and its particular structure, genesis, and implementation history would far better serve the normative goals of textualism and conceptions of legislative supremacy than does the one-Congress fiction technique.


While the Constitution speaks of "a Congress"(1) consisting of a Senate and House of Representatives, the concept of a single Congress producing legislation is undoubtedly a fiction. As reflected in the numbering of a new Congress every two years, different members, coalitions, parties, moods, and leadership change the nature of each Congress. Furthermore, changes in the White House and administrative agency leadership modify the political direction a particular Congress will pursue. Even if there were no changes in executive and legislative officeholders, shifting coalitions and the ever-changing legal and political context would create different alliances of interest groups and politicians supporting and opposing both existing laws and legislative proposals, especially where laws target diverse substantive fields.

Despite the reality of different Congresses and an inevitably shifting legal and political terrain, it is a commonplace occurrence for judges, particularly several members of the current Supreme Court, to justify a particular interpretation of a disputed statutory provision by making reference to other statutes' identical, similar, or different provisions. This cross-referencing of similarly phrased or directed provisions in different statutes is often justified with the use of the fiction that there is one Congress that knows how to achieve a certain goal or capture a certain meaning when "Congress wants" to do so, as evidenced by the referenced provisions in other statutes. This Article refers to this interpretive move as "the one-Congress fiction." Comparing provisions within a single statute to draw inferences about meaning is a well-established interpretive ploy that makes considerable sense. The interpretive methodology analyzed in this Article, in contrast, always involves comparisons of isolated provisions in at least two different statutes. These other provisions, however, are virtually always the product of a different Congress, and arise out of a different legal and social context.

That methods of statutory interpretation to varying degrees rely on fictions about politics, the legislative process, and statutory intent or meaning has been noted by many others.(2) Justice Antonin Scalia, the Justice who most often makes use of the one-Congress fiction in his statutory interpretation opinions,(3) concedes that such an interpretive methodology relies on a fiction. In his recently published essay, A Matter of Interpretation: Federal Courts and the Law, Justice Scalia acknowledges that he follows the interpretive canon that statutes should be construed to be internally consistent, as well as "compatible with previously enacted laws."(4) He concedes that this is just an "assum[ption]," and states that "[w]ell of course that is a fiction."(5) Professor Popkin notes in his incisive critique of Justice Scalia's theory of statutory interpretation that Justice Scalia treats "multiple statutes as a single document written by an ideal drafter who integrates them into a super-text."(6) This assumption of an ideal unitary drafter is, as observed by Popkin, often rooted in disregard for the realities of the context, history, and intent behind particular disputed statutory provisions.(7) Professor Schacter has also noted the Court's use of interstatutory cross-referencing, leading her to comment that "it is frequently ... tenuous to enlist entirely different statutes, passed by other Congresses, in an originalist search for the intended or reasonable meaning of a statute."(8) Several other scholars have noted this interpretive methodology or offered critiques of related interpretive techniques, although generally in more nuanced examinations of other issues.(9) Justices Frankfurter and Stevens have explicitly disagreed with the practice of looking at laws as though all were enacted by a "single draftsman."(10) Former Judge Wald of the D.C. Circuit similarly has stated that the belief of courts that Congress "know[s] the state of the law when it legislates" rests on "tenuous" assumptions.(11) Justice Scalia appears to be the member of the current Supreme Court most inclined to make use of the one-Congress fiction interpretive approach, but other current justices have also authored opinions making use of the one-Congress fiction in comparing different statutes' provisions.

Judges and justices are not alone in using the one-Congress fiction to derive statutory meaning from a difficult statutory text. Several prominent academics, chief among them Professor William Eskridge and former Yale Law Dean and current judge Guido Calabresi, have advocated modes of statutory interpretation that, if followed by courts, would allow a more continuous judicial updating of statutory meaning based on changing political mores without requiring actual textual change.(12) While Eskridge, in particular, is among the more pointed critics of both Justice Scalia and textualists generally, his call for "dynamic" interpretation at times seems to rely on the idea that Congress, or perhaps society, is a unitary principal whose changing views should be heeded by its agents, generally courts and administrative agencies.(13)

This Article examines the one-Congress fiction in statutory interpretation, both critiquing the practice itself and using this critique to explore more deeply the empirical underpinnings and normative claims used to justify this and other textualist analytical approaches. In particular, this Article builds on recent empirical and theoretical explorations of the legislative process to illustrate problems with the one-Congress fiction and related textualist modes of interpretation. This interpretive practice gives judges a Herculean interpretive task of making sense of the law as a whole, and may free them to engage in just the kind of unpredictable and unprincipled ends-oriented interpretation so vehemently criticized by advocates of textualist methods of interpretation. Furthermore, due to inherent difficulties in predicting when and how the one-Congress fiction will be used, the one-Congress fiction threatens to be used as a sort of random and roving "clear statement" doctrine. The courts may engage in interstatutory comparisons, but unlike "clear statement" approaches, which courts tend to apply when central constitutional values are implicated, the one-Congress fiction may be random and roving because neither legislative actors nor litigators can predict what statutory comparisons will be made or what inferences are likely to be drawn from vague or omitted language.

Part I begins by reviewing decisions of the Supreme Court from the last decade in which opinions relied on the one-Congress fiction by comparing language usage in the "primary" (or disputed) statutory provision with language in other statutes (the "referents"). At times the Court views similar language as revealing a common congressional practice, view, or understanding, while in other cases slight variations in similar language are given great weight in justifying divergent interpretations of seemingly similar language. However, the Court has seldom engaged in more than a cursory examination of the comparable texts' context, structure, and history. Even if the comparison of statutes is inevitable, rarely have such comparisons been made through the scrutiny of more than isolated text alone.

Part II examines the dynamics of the legislative process, drawing on the growing and increasingly sophisticated empirical and theoretical analyses of politics and the legislative process. The Article establishes that not only is the one-Congress fiction not rooted in American political reality, but its implicit assumptions are also contradicted by most scholarly examinations of legislation and the legislative process, including central tenets of public choice theory that have driven much of the resurgence of textualist modes of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT