Congressional silence and the statutory interpretation game.

• Author: Stancil, Paul
• Position: II. Expanding the Model to Two Dimensions C. A Special Feature of Two Dimensions through Conclusion: Ambition, Modesty, and Ambition, with footnotes, p. 1290-1337

3. A Special Feature of Two Dimensions

   1. Introduction

      The preference distributions and response costs depicted in Figure 9 demonstrate a unique feature of multidimensional analysis: a self-interested Supreme Court can sometimes play the political branches off one another. (83) Specifically, the Court can pick among multiple judicial interpretations of equivalent value. (84) Put another way, a Court interested in testing whether it can obtain a particular level of net utility can select any point of equal distance from the Court's own ideal point. This in turn means that the Court can trade off one dimension for another, thereby obtaining "protection" from a nearby political player in the form of an interpretation more attractive to that player than other combinations that are utility equivalent from the Court's perspective.

      In the following examples, I present three possible judicial interpretations of the charter schools statute. In some ways, the analysis parallels that presented in the unidimensional analysis, in that I identify an "untenable" interpretation, a "safe" interpretation, and an "indeterminate" interpretation. (85) In the unidimensional context, however, each of the three interpretations considered was of substantially different value to the Court. (86) Moreover, the unidimensional political players' cost functions were different in each diagram. (87)

      In the two-dimensional context, by contrast, the three interpretations I present are of equal value to the Court, and these three different interpretations are untenable, safe, or indeterminate despite the fact that the underlying preference and cost dynamics are also the same in each case. The only thing that changes is the interpretations considered by the Court from among a set of what it considers functionally identical alternatives. The following two-dimensional examples thus demonstrate a self-interested Court's enhanced ability to privilege its own preferences in a multidimensional context. (88)

      In a world with transaction costs, the Court will consider only interpretations that improve its outcome over its transaction-cost-free optimum point, Jo, in Figure 8. Thus, the universe of interpretations the Supreme Court will consider is the shaded disc in Figure 10 below, representing all points closer to SC than [J.sub.0]:

      Whether the Court could sustain an interpretation outside the shaded

      circle is irrelevant because any such interpretation would by definition be inferior to its best safe interpretation, [J.sub.0]. Thus, if the Court tries to take advantage of congressional or presidential response costs, it will do so only if it can set policy within the shaded disc. All else equal, it will select the point closest to SC within the circle that is also durable.

      Two factors complicate any attempt to depict graphically the actual outcome of a particular statutory interpretation scenario. First, recall that the specific outcome of any response negotiation is often a function of the relative bargaining power of the House, Senate, and President. Thus, we can sometimes identify only a range of possible outcomes within [DELTA]HSP that are on the table in that negotiation, rather than a final, specific result. (89)

      Second, more aggressive and less realistic informational assumptions do not solve that informational problem. Each possible Court interpretation in the policy space establishes a new and potentially different status quo backdrop in whose shadow the House, Senate, and President must negotiate the terms of their response. Even if the Court could identify the precise mix of bargaining power among the political players for the issue under consideration, it would still have to cycle through all possible interpretations to identify its utility-maximizing safe interpretation.

      Thus, even if we assume that the Court is capable of identifying the balance of power between the House, Senate, and President such that it can predict with precision the outcome of any statutory renegotiation given a particular interpretation, (90) a spatial model can predict only whether a response to that particular interpretation will provide net benefits to any player if it incurs response costs. Given a robust and reliable understanding of the bargaining power issue, we could identify the best possible statutory interpretation(s) from the Court's perspective by trial and error; but there is no easy way to identify such point(s) graphically. (91)

      Nonetheless, the inability to predict a final equilibrium spatially does not render the spatial approach useless. By assessing the political players' response calculus for specific points in the policy space, the spatial model can demonstrate the potential for increased judicial discretion in the multidimensional context.

   2. Three Differently Identical Interpretations

      In the two-dimensional context, a self-interested Supreme Court can sometimes use the interplay of those dimensions to its benefit. In the examples that follow, the Court is considering three possible interpretations of the hypothetical federal charter schools statute. (92) Importantly, each of these interpretations is equivalent from the Court's perspective; though they represent different mixes of funding levels and generalized numerical preferences, each is the same distance away from SC, and accordingly the Court would be equally satisfied with any of the three.

      The first interpretation under consideration, [J.sub.1], would significantly increase federal incentives to establish charter schools relative to the inherited policy but would decrease federal funding levels substantially for those schools relative to the status quo. To flesh out the hypothetical a bit, imagine interpretation [J.sub.1] holding that the Department of Education retains substantial discretion to determine whether to disburse "authorized" funds to charter schools (thus decreasing federal funding levels relative to the status quo) while simultaneously defining as presumptively "excessive" any amount of funding for a single facility greater than $3000.00 per authorized student (thus tending to increase the absolute number of charter schools/charter school students).

      By contrast, the second interpretation, [J.sub.2], would significantly increase federal funding levels for charter schools, perhaps by holding that the Department of Education must justify any failure to expend "authorized" funds in some fashion. It would also tend to increase the number of charter schools, but not by so much as the first interpretation. This interpretation might hold that funding of more than $4000.00 per authorized student is presumptively "excessive" under the statute.

      Finally, the third possible interpretation, J3, falls somewhere in between the first two interpretations. It would encourage a small increase in federal funding by nudging, but not requiring, the Department of Education to expend "authorized" funds, (93) while deciding that more than $3500.00 per authorized student in federal funding is presumptively "excessive." A graphical depiction of these alternatives appears in Figure 11 below:

      Note that all three interpretations are better from the Court's perspective than the definitionally safe interpretation [J.sub.0]. (94) Moreover, all three points are equivalent from the Court's perspective: the Court would derive the same utility from each interpretation because each is the same distance away from the Court's ideal point. (95)

      The Court's perspective, however, is not the only one that matters. Once we take the other players' preferences and incentives into account, we find that each interpretation yields a different result. Application of the model demonstrates that the Court would be unable to sustain interpretation [J.sub.1] regardless of House/Senate/President bargaining power dynamics. The first interpretation would necessarily lead to a statutory override spearheaded by the House, whose worst-case response outcome would still justify incurring response costs.

      The Court would, however, be able to sustain interpretation [J.sub.2], again regardless of political player bargaining power. The political players cannot override the second potential interpretation because no political player's best-case scenario justifies expenditure of response costs.

      Finally, the third interpretation offers an indeterminate outcome; the Court's ability to select that policy would depend upon the precise distribution of bargaining power among political players and the intrinsic dynamics of the political players' negotiations. Under some possible distributions and assumptions, interpretation [J.sub.3] would draw no legislative response, whereas under others it would. Under still others, it would be impossible to predict the outcome in the context of a single-iteration interaction.

      a. An Unworkable Interpretation

      Point [J.sub.1] represents a policy within the overlap region that is from the Court's perspective somewhat better (closer to SC) than policy [J.sub.0], though it represents a rather significant shift in dimensional priorities compared to the Court's zero-response-cost safe-haven interpretation. Interpretation [J.sub.1] would significantly reduce federal funding for charter schools relative to [J.sub.0], but it would simultaneously increase the number of charter schools somewhat.

      To determine whether this interpretation is sustainable, we must first identify the range of possible political response outcomes. This range is in part defined by the now-familiar Pareto triangle connecting H, S, and P; but it is also influenced by the location of [J.sub.1] itself. Because no political player will be willing to accept any statutory response that worsens its lot relative to [J.sub.1], the actual range over which the House, Senate, and President will be able to agree is somewhat smaller than [DELTA]HSP:

      The crosshatched region in Figure 12 represents the range of possible outcomes of a response...