Congressional commentary on judicial interpretations of statutes: idle chatter or telling response?

• Author: Brudney, James J.

TABLE OF CONTENTS

INTRODUCTION 2 I. THE COST TO CONGRESS OF IGNORING OR DEVALUING LEGISLATIVE SIGNALS

9 A. The Often-Inconclusive Quality of Text

9 B. The Meaning of Subterfuge Under the ADEA 11 1. The 1967 Statute 11 2. The McMann Decision

11 3. The 1978 Statute

12 4. The Betts Decision

14 5. The 1990 Statute

15 6. The Institutional Costs to Congress

16 II. THE ISSUE OF OPPORTUNITY COSTS 20 A. Finite Resources and Limited Windows of Opportunity

21 B. Legislative History and Limited Windows of Opportunity 26 C. Congressional Self-Governance 32 D. Valuing Legislative Efficiency 37 III. THE PROBLEMS OF RELYING ON LEGISLATIVE SIGNALS 40 A. Constitutional Arguments for Disregarding or Devaluing Legislative History

41 1. Separation of Powers

42 2. Legislative Supremacy

45 B. Practical Arguments for Disregarding or Devaluing Legislative History 47 1. The Corruption Argument 49 2. The Unrepresentative Character Argument 52 3. Other Factors 56 4. Anecdotal Unreliability 58 C. Refusals to Credit Postenactment Legislative History

61 D. Refusals to Credit Legislative Inaction 66 IV. A PROPOSAL FOR INTERPRETING LEGISLATIVE SIGNALS 69 A. Examining the Issue of Reliability 70 B. Three Central Considerations in Determining Reliability 75 C. Corollaries to the Three Considerations 82 1. Approvals and Disapprovals 82 2. Lack of Foresight and Lack of Will

86 D. Specific Applications of the Considerations and Corollaries 89 1. Approvals: Comparing Reports from Two Statutes

90 2. Disapprovals: Three Distinct Settings 94 CONCLUSION

104

Introduction

Recent debate about the propriety of relying on legislative history(1) in interpreting statutes has tended to focus on the landscape as a whole. Federal judges, writing both in opinions(2) and in scholarly journals,(3) have expressed spirited disagreement over whether to consult legislative history at all. Legal academics, in espousing divergent theories of statutory interpretation, have frequently illustrated and supported their theories by drawing on or referring to the broad corpus of legislative history.(4)

An alternative approach is to begin by examining a particular context in an effort to arrive at more general insights or conclusions. This article focuses on a certain type of legislative history, examining both when it should be relied on and how refusals to rely on it may entail substantial costs to the legislative process. At the same time, analysis of this particular type of history offers insights about the broader issue of whether - and when - it is appropriate for courts to credit legislative history. The article addresses that broader issue as well.

This article also departs from more traditional analysis by examining legislative history from a Congress-centered viewpoint. Much of the scholarly literature considers statutory interpretation from a judge-centered perspective, regarding statutes as one among the various sources of law to be interpreted and applied to particular controversies.(5) While such consideration is surely important, it does not reflect an adequate appreciation for the structure and operation of Congress's lawmaking enterprise. This article regards the legislative process as a distinctively complex participatory regime that requires, and rewards, an interpretive method different from that applied to judge-made law.

The category of legislative history I will examine involves a rather extended dialogue between Congress and the federal courts, particularly the Supreme Court.(6) Federal legislation often includes language that is inconclusive on some important matter of public policy. The Supreme Court may resolve the uncertainty through an interpretation of the statutory language in the circumstance of a specific case. Congress, in turn, may emit either of two kinds of signals regarding its view of the Court's interpretation. On the one hand, Congress may, if it approves, incorporate the Court's conclusion into statutory text.(7) Or Congress may, if it disapproves, expressly override the Court's decision and modify the statutory language in question.(8)

On the other hand, Congress often sends signals that, while clearly set forth in the legislative history accompanying a subsequent enactment,(9) do not find their way into the statutory text. Thus, Congress regularly reauthorizes, updates, or modifies statutory schemes and - as part of its process - endorses through legislative history judicial interpretations of inconclusive provisions in those schemes without altering the language of the actual provisions.(10) Similarly, there are numerous instances, though doubtless fewer in number, in which Congress - while reenacting or modifying a statute - has in legislative history expressed disapproval for a court's holding or reasoning without a complete textual analogue for that disapproval.(11) These expressions of approval or disapproval in the legislative history, referred to herein as congressional reviews of, or commentaries on, judicial decisions, provide the focus for my analysis.

There is a conventional wisdom regarding the import of subsequent enactments - without regard to the presence or absence of legislative history - for intervening judicial decisions that have construed the now-reenacted text. Traditionally, courts consider the reenactment to constitute a ratification of any settled judicial interpretation;(12) it assuredly does not constitute a disapproval of prevailing case law.(13) Indeed, given ample evidence that Congress today is more than willing to override Supreme Court decisions by enacting new or modified statutory language,(14) one might question how much weight, if any, should be given to an expression of disapproval from Congress other than an override contained in precise statutory text.

Although the traditional doctrine of ratification has much to recommend it, the issue of subsequent legislative signals requires further analysis. In particular, legislative history endorsing specific judicial decisions should be independently evaluated and not automatically credited. By the same token, recognition of Congress's increasing willingness in recent years to override judicial interpretations by changing statutory language also does not present an adequate picture. The override text itself may leave certain interpretive matters unresolved - matters that are referred to in the legislative history.(15) Moreover, at least when lower court decisions are involved, Congress could not possibly modify or reject in text each statutory interpretation decision with which it has serious concerns and still have time to transact any other legislative business.(16)

There are two principal aspects of my thesis. First, it is desirable to consider seriously these legislative signals of approval and disapproval, because a blanket rejection, or even systematic hostility, imposes significant opportunity costs on Congress. If the judiciary refuses to consider these signals, Congress will have to expend extra resources to achieve the same ends. That expense will diminish the institution's ability to enact other laws and in some cases will alter the character of the other laws that it is able to enact. The consequent diminution or depletion of Congress's legislative authority is unhealthy from a democratic perspective and reflects an unwarranted disrespect for Congress's chosen means of conducting its legislative business.

Second, it is possible to credit these signals in a manner that is limited to appropriate circumstances. Legislative history expressing approval or disapproval of judicial decisions is susceptible to manipulation and abuse. Accordingly, its interpreters need specific criteria that can separate the wheat - expression that can be fairly imputed to Congress - from the chaff - expression that reflects, at most, the commitment of individual members or their staff.

Part I sets forth an example of the extended dialogue between Congress and the Supreme Court. It illuminates the problem of assessing legislative signals in a given context and introduces the issue of opportunity costs for Congress. The example chosen involves signals of disapproval rather than approval, because crediting such signals is more difficult to defend under the traditional analysis.

Part II expands the discussion of opportunity costs by considering the legislative process from Congress's perspective. It describes Congress as a complex bureaucratic institution, seeking to manage limited resources while meeting public expectations for an expanded legislative presence. In this setting, it examines why - and how - Congress has chosen to rely on legislative history as an integral part of the lawmaking enterprise, as well as why judicial failure to recognize or credit legislative history can impede the operations of Congress.

Part III clears away obstacles presented by three interrelated arguments that are current in the field of statutory interpretation: (i) the argument by textualists that courts should give legislative history virtually no weight at all;(17) (ii) the argument that even if legislative history may be credited in some instances, subsequent legislative history, commenting on earlier-enacted textual provisions, should never be given any weight;(18) and (iii) the argument that legislative inaction - Congress's failure to alter or modify a particular statutory provision - should carry no weight notwithstanding later signals in the legislative history.(19) Part III concludes that while each of these arguments counsels in favor of a careful approach, the legislative signals with which this article is concerned remain appropriate matters for judicial consideration.

Part IV seeks to develop a taxonomy that can assist courts in evaluating congressional commentary on judicial decisions. It contends that in reviewing the expression of approval or disapproval in legislative history, a court should ask whether this expression would have been (i) understood, (ii)...