CONGRESSIONAL RULES OF INTERPRETATION.

• Author: Shobe, Jarrod

TABLE OF CONTENTS INTRODUCTION 2000 I. J UDICIAL CANONS AND PROPOSALS FOR CODIFICATION 2004 A. Canons 2005 B. Codifying Rules of Interpretation 2010 II. ENACTED RULES OF INTERPRETATION 2015 A. Substantive Canons 2019 1. Federalism Canon s 2020 2. International Law Canons 2022 3. Indian Law Canons 2025 B. Continuity Canons 2026 1. Whole Act, Whole Code, and Presumption of Consistent Usage 2026 2. Presumption Against Implied Repeal 2029 3. Common Law Canons 2030 C. Other Interpretive Rules 2032 1. Seve rability 2032 2. Private Right of Action Canon 2035 3. Sove reign Immunity 2036 III. INTERPRETING STATUTES INLIGHT OF ENACTED RULES OF INTERPRETATION 2037 A. The Unlilwly Federal Rules of Statutory Interpretation 2037 B. Issues of Codification 2039 C. Interpreting S tatutes Containing Enacted Rules of Interpretation 2042 D. Judicial Use of Canons in Light of Enacted Rules of Interpretation 2044 CONCLUSION 2050 APPENDIX 2052 A. Description of Searches for Rules of Interpretation in the US Code 2052 B. Other Searches of the US Code 2055 INTRODUCTION

Scholars have engaged in an extensive and lively debate over whether Congress should enact rules of statutory interpretation that would guide judicial interpretation and the constitutionality of doing so. (1) This debate focuses on the creation of a set of interpretive rules that would apply to the U.S. Code generally and proceeds under the assumption that Congress has yet to enact rules of interpretation in any meaningful way, with many scholars and judges claiming that enacted rules of interpretation do not yet exist. (2) As a result, the debate is treated as purely academic. (3) This Article refutes the conventional wisdom about enacted rules of interpretation by demonstrating that Congress has long enacted rules of interpretation throughout the U.S. Code that apply to individual statutory schemes, and that Congress has enacted these rules more commonly in recent decades. (4) The debate surrounding enacted rules of statutory interpretation fails to account for this important fact about how Congress writes statutes.

This Article is the first empirical study of Congress's use of rules of interpretation in enacted statutes, or what this Article calls "Congressional Rules of Interpretation." (5) Although a few scholars have mentioned the existence of enacted interpretive rules in individual statutory schemes, no one has studied the scope and content of these rules across the U.S. Code and across time. Relatedly, no one has examined what the existence of these rules should mean for how courts approach statutory interpretation. (6) To fill this gap in understanding of how Congress creates law, the Author created a dataset of these rules of interpretation. The Author used computer code to search various volumes of the U.S. Code over the last seventy-five years for specific phrases indicating a rule of interpretation, then manually checked and classified each of them. (7) This process uncovered thousands of rules of interpretation across nearly every title of the U.S. Code. (8) This Article provides an in-depth study of these legislated rules of interpretation and discusses what the rules and their uses could mean for interpreters. (9)

First, this Article argues that when a statute contains enacted rules of interpretation, those rules should receive the full weight of law in interpretation. While a set of broadly applicable interpretive rules that apply to all statutes equally might be viewed as nonbinding on later Congresses, or even an unconstitutional infringement on the powers of courts, statute-specific rules are less susceptible to these criticisms. (10) Statute-specific enacted interpretive rules are Congress's attempt to provide a clear indication of its intended meaning and scope in enacting the statutory scheme, much like definition or exception sections that courts apply without question. (11) Yet, despite the status of these rules as enacted law, there is a risk that courts treat enacted rules of interpretation as "precatory," and may dismiss them as nonoperative language that is merely advisory rather than binding, as courts have with other similar provisions. (12) This may be especially true given the fact that these provisions are often hidden away in small text in notes at the back of the U.S. Code, or separated from other provisions of an enacted bill when that bill is codified in various places throughout the U.S. Code. (13) Decisions about how rules of interpretation will appear in the Code are often not made by Congress, but instead are made by the Office of the Law Revision Counsel, an unelected body within Congress responsible for the codification process. (14) This Article argues that judges should give these enacted rules of interpretation, wherever they end up in the Code, the full weight of law. Therefore, a judge's analysis of the entire legislative enactment should include enacted rules, as part of the regularly applied "whole act rule," (15) to determine an interpretation supported by the entire enacted text. This approach is more likely to generate an interpretation in line with congressional intent than an approach to interpretation that focuses on other, unenacted, interpretive tools. (16)

This Article's findings are also relevant to the substantial and ongoing debate over the use of judge-made rules of interpretation, known as canons. (17) The scholarly literature has generated many justifications for the use of canons, has challenged the use of canons--both in the aggregate and with respect to specific canons (18) -and has empirically investigated their use by judges. (19) This Article provides a new perspective on this debate over judicial canons by showing that Congress often enacts interpretive rules that function similarly to existing judicial canons. For example, Congress often enacts provisions stating that a law should not be interpreted to preempt state law, yet courts apply a similar rule even when a statute is silent on the issue. (20) Congress also often enacts provisions stating that a statute should not be interpreted to repeal an earlier statute, which is similar to the commonly used judge-made presumption against implied repeals. (21) And Congress often defines terms in relation to words in other parts of the statute or even other parts of the Code, yet courts often apply a presumption of consistent usage of language within a statute and across the Code even when a statute is silent on Congress's intent. (22)

This Article raises novel questions about the use of canons by asking the following question: How should judges apply judicial canons in light of the fact that Congress regularly writes similar interpretive rules directly into statutes and has increasingly done so in recent decades? This Article's findings should cause judges of all interpretive leanings to recalibrate the weight they give to canons, or at least encourage them to be more forthright about what they are doing when they use canons. If courts still choose to use an unenacted canon to resolve ambiguous or vague statutory language, they should at least acknowledge that the canon is serving as a judicial tool reflecting judicial preferences that are not necessarily tethered to congressional preferences and practices. (23) This Article's findings should cause courts and scholars to rethink and make explicit their justifications for the use of canons, subjecting them to the criticisms that such us might entail.

This Article proceeds in three Parts. Part I introduces the debates surrounding enacted rules of statutory interpretation and canons. Part II provides the results of the Author's study, showing the types of interpretive rules Congress regularly uses and compares them to their judicial equivalents. Part III explores what enacted rules of statutory interpretation should mean for statutory interpretation, discussing both when a statute contains enacted rules and when it does not.

1. JUDICIAL CANONS AND PROPOSALS FOR CODIFICATION

   Judicial canons are a set of judicially created rules and norms that judges use as tools to interpret statutes, generally when they find the text otherwise ambiguous or unclear. (24) These tools allow judges to use grammar rules, context, and normative values to extract meaning from statutory language. (25) Many of these rules have a long pedigree. (26) This Part does not make extensive efforts to categorize canons under any specific heading. (27) Instead, this Part gives a simple introduction to some of the most important types of canons and summarizes the debate over whether Congress should enact a set of rules of interpretation akin to canons.

   1. Canons

      Judicial use of judge-made rules of interpretation is ubiquitous yet contested among scholars and judges. (28) Courts have adopted hundreds of judge-made interpretive rules, often referred to as "canons," to attempt to resolve statutory ambiguities. (29) These canons are deployed by both textualists and purposivists in nearly every statutory interpretation decision, often in majority and dissenting opinions that use a variety of canons to argue in favor of each side's preferred interpretation. (30) Canons have grown in importance in recent years, (31) likely due to the rise of textualism in statutory interpretation, which gives canons a privileged place in interpretation. (32)

      Canons can be divided into textual or linguistic canons, which serve to help uncover the linguistic meaning of the text, and substantive canons, which provide a judicial presumption in favor of a particular outcome based on values that a court decides should be protected or emphasized. (33) Textual canons generally reflect common usage of the English language, thereby allowing a judge to uncover what Congress likely intended in the words it used. (34) For example, the rule against surplusage states that every word or phrase of a statute should be given effect, (35) the ejusdem generis canon states...