INTEREST-BASED INCORPORATION: STATUTORY REALISM EXPLORING FEDERALISM, DELEGATION, AND DEMOCRATIC DESIGN.

• Author: Evans, Sheldon A.

INTRODUCTION 342 I. INCORPORATIVE INCLUSIONS 350 A. Criminal & Immigration Low 352 B. Property Low 355 C. Federal Benefits 358 D. Federal Liability 360 E. Sacrificing Uniformity Legitimacy, and Efficiency 362 II. INCOMPLETE THEORIES OF INCORPORATION 365 A. Embargoes and Economic Sanctions 366 1. Traditional Federalism 367 2. Contemporary Nationalism 372 3. The Fiction of Federalism 374 B. Delegation-Based Incorporation 376 1. Expertise 376 2. Democratic Accountability 379 3. The Fiction of Delegation 383 III. INTEREST-BASED INCORPORATION 384 A. Shifting Accountability 385 B. Interest Group Realities 387 C. Negotiating Ambiguity 390 IV. INCORPORATING THE IMPLICATIONS 392 A. Judicial Interventions 392 1. Ambiguity Canons 394 2. Highest-Denominator Canon 396 3. Federal-State Interest Canon 399 B. Congressional Interventions 401 CONCLISION 404 INTRODUCTION

We live in a Republic of Statutes that is maintained by fictions. (1) If the Constitution is our foundation, statutes are the beams, walls, and roof that shape our democracy. They define modern notions of Our Federalism and our growing bureaucracy, all while bestowing thousands of federal rights to citizens and noncitizens alike. Yet the ways that statutes are interpreted have been acknowledged by many scholars as exercises of fiction. (2) Courts have had to contended with the complexities, confusions, and inconsistencies that embody statutory design, resulting in canons of interpretation to make sense of Congress's befuddlements. Formalists use these canons (3) to divine congressional intent, but these legal fictions are divorced from how Congress actually thinks about and drafts statutes. This has given rise to a new movement of legal realism within the statutory interpretation community that seeks to bridge the growing divide between how judges and scholars think about interpreting statutes and how Congress thinks about drafting statutes. (4) Through surveys, interviews, and careful research within the Capitol itself, Professors Victoria Nourse and Jane Schacter, Abbe Gluck and Lisa Schultz Bressman, and others have developed this new realist approach to statutory interpretation--referred to below as statutory realism--that challenges formalists and the canons they champion. (5)

This Article seeks to expand and contribute to statutory realism by applying it to a unique congressional drafting tool known as statutory incorporation. Congress has used statutory incorporation to incorporate state law into hundreds of federal statutes that result in a host of federal rights and liabilities being dependent on the myriad variations of state law. Scholars have contemplated that such diffusion of federal power to the states can be characterized as a form of federalism; others have studied this through the lens of it being a unique congressional delegation of power to state legislatures. This Article contributes to this conversation by developing further statutory realism theory and applying it to explain this odd statutory design. By drawing from the drafting realities that govern the legislative process, this Article argues that the federalism-and delegation-based justifications for statutory incorporation are mere legal fictions. While these legal fictions have their uses, (6) they are nevertheless divorced from the real justifications of why Congress chooses to incorporate state law into federal statutes.

In light of these practical realities, this Article presents a new justification that holds more explanatory power over this "why" question. While it does not benefit from the same qualitative research in the Capitol that gave rise to the statutory realism paradigm, this Article gains insight from law and economics and positive political theory to present a new theory of interest-based incorporation. Interest-based incorporation recognizes that congressmembers use statutory incorporation to maximize their individual political self-interests while minimizing political risk. Congressmembers are less concerned with ivory-tower theories of federalism and delegation and more concerned with pragmatic goals of promoting their self-interest of reelection.

This new realization is one of the primary contributions of applying statutory realism to statutory incorporation; it relieves judges from interpreting these statutes according to the fictitious congressional intent of promoting federalism or delegation. Instead, courts and scholars alike have a new tool at their disposal to interpret these statutes in ways that accurately track congressional design, which in turn is rooted in self-interest.

Statutory realism as a theoretical and practical school of interpretation has much to contend with from the vast literature and prominent advocacy of others in the field. Textualists, intentionalists, and purposivists (7) (to name a few) will likely have their own views that might explain statutory incorporation. Justifying statutory realism among its sister theories of interpretation is outside the scope of this Article. This scholarly conversation may indeed proceed with critique from other schools, and responses will follow in due course. Instead, this Article only seeks to bolster the qualitative research that has come before in the context of federal statutes that incorporate state law.

Part I gives an overview of the impactful frequency of statutory incorporation. Congress has used statutory incorporation in hundreds of statutes across criminal, immigration, bankruptcy, social security, tort, and other areas of federal law. (8) So when a federal criminal statute provides that both federal and state versions of "burglary" can carry a federal consequence, (9) or that state and local property regimes affect a debtor's assets in federal bankruptcy court, (10) Congress intentionally incorporates the law of all fifty states into these federal statutes in outcome determinative ways. In other words, a person's life, liberty, and property under hundreds of federal statutes depends on the application of state law.

Courts and scholars have long struggled with the moral and practical implications that arise from statutory incorporation, namely that it necessarily produces enormous disparities in federal rights based on the many variances of state law. Under the same federal statute, similar defendants, debtors, and even those struggling to apply for social security benefits enjoy different federal rights depending on the state of their domicile. (11) When the difference between a noncitizen being deported or a child getting survivorship benefits is largely dependent on the state in which they live, this creates a conundrum. How can the presumption of nationwide uniformity in federal law be reliable when such federal law seeks to prioritize state preferences? (12) Let's consider Person A who lives in State A and Person B who lives in State B. Under federalism and the state's sovereign police powers, we recognize that even if Person A and Person B commit the same crime, have the same property, or have other similarities between them, State A can treat Person A much differently than State B chooses to treat Person B. But when the situation changes to instead include the federal government, should this unitary sovereign treat Person A differently than Person B under federal law because they live in different states? Statutory incorporation triggers these difficult theoretical, moral, and economic questions because one incorporative federal statute is effectively fifty statutes that apply differently in each state. These questions have been difficult to answer among the judiciary who usually find themselves split between two ends of a spectrum. At one end, judges have tried to apply these paradoxical laws as faithful agents of congressional intent. At the other end, judges have complained about the moral problems, legal loopholes, and confusing interpretations they have had to create to make sense of statutory incorporation. (13)

Part II transitions from these judicial complaints by filtering them through the theoretical justifications of statutory incorporation. Federalism scholars have commented on how it offers insight into the modern era of federal and state relations that yield the benefits of diffusing power, experimentation, competition, and political engagement. This naturally dovetails with delegation and administrative law scholars that highlight statutory incorporation's contribution to delegation theory. These scholars argue that statutory incorporation is Congress's attempt to benefit from the expertise of the states while also ensuring superior political accountability, since state legislators may be more attuned and accountable to local constituents.

But these alleged benefits underappreciate the most important aspect of statutory incorporation: it is a one-way, unilateral transfer of power. Statutory incorporation cannot be likened to modern cooperative federalism regimes when states act as powerful agents to implement federal policy goals. (14) It is not a two-way partnership, negotiation, or exchange of power between the federal and state governments. Instead, Congress simply incorporates state law without any input from or notice to the states. If this is federalism, it could only be characterized as such in its weakest form. Consequently, statutory incorporation carries little of the traditional benefits associated with federalism. Further, the statutory realism literature has documented that congressional staffers, negotiators, and drafters consider federalism as a tangential theory that does not drive the legislative process for many statutes. (15)

Delegation theory also proves incomplete when explaining statutory incorporation. Congressional delegations are the subject of a vast literature that acknowledges the principal-agent relationship when Congress seeks to delegate lawmaking authority to executive agencies. (16) In such relationships, Congress...