A process failure theory of statutory interpretation.

• Author: Seidenfeld, Mark
• Position: II. A theory of Legislative Process Failure D. Reconciling Judicial and Legislative Methods of Determining Statutory Meaning through Conclusion, with footnotes, p. 499-530

4. Reconciling Judicial and Legislative Methods of Determining Statutory Meaning

   If one adopts legislative supremacy with respect to defining the meaning of statutes--or in other words, that the role of courts is to interpret statutes in accord with the legislative understanding of how meaning is assigned to the enacted text--then it is imperative that courts and legislatures agree on the meaning of statutes. For only then will courts give statutes operational meaning that agrees with what the legislature thought it was enacting. (116) This does not mean that courts must acquiesce in the legislative method of determining such meaning. It may be more appropriate for the legislature to modify how it attaches meaning to the words it enacts to comport with judicial interpretative methodology. Were the legislature to alter its "interpretive" methodology, then it would understand statutes to mean what courts would determine that they mean, at least to the extent that the judicial approach to interpretation results in a unique meaning. (117) But, it is possible as well that the judiciary is the appropriate institution to accommodate the legislative method of determining meaning.

   When interpreting statutes, courts presume that Congress "legislates with knowledge of our basic rules of statutory [interpretation]." (118) Implicit in this presumption is the expectation that Congress will draft statutes so that judicial interpretation will implement legislators' understanding of the language that is enacted. (119) But if Congress uses legislative history to communicate to its members its shared understanding of the meaning of statutory language, (120) the textualist refusal to credit legislative history imposes on Congress the burden of evaluating statutory language as textualists do. In short, the textualist search for the best public meaning assumes that this is the one true way to determine statutory meaning regardless of institutional constraints. (121) If the problem is, as I contend, created by the existence of two different communities that use different techniques for ascribing meaning to statutory language, then the assumptions that the textualist mechanism for interpretation is correct, and that legislative reliance on legislative history is incorrect, cannot be maintained. Because language depends on shared conventions of meaning, neither of the approaches of these two communities can be deemed right or wrong. The meaningful question is when, if ever, it is best to force one community to accommodate the other's understanding of text, and if so, which community should have to make that accommodation.

   The issue is similar to that raised by the following story, derived from an old joke that pokes fun at Americans visiting Paris without learning French. An American in Paris is seeking directions to the train station, and asks, "Ou est la guerre?" (122) instead of "Ou est la gare?" (123) The textualist response would be "The war is over," perhaps with a barb that the American should learn French before traveling to France. The intentionalist response would be to follow up with the question, "Why do you ask?" Most likely the two would then realize that the American is looking for the train station, not the war. The question is which is the more reasonable--or cost minimizing--response.

   Textualists claim that there would be advantages to consistent use of their "rules" for interpretation. They claim that such rules constrain judicial discretion in reading statutes, and thereby reduce judges' ability to read statutes to further their personal policy preferences. (124) This, in turn, increases consistency of interpretation, which would coordinate statutory interpretation by various federal courts, reducing the likelihood of differing judicial interpretations of the same statutory provisions. (125) Further, it would align legislative meaning with judicial meaning, decreasing the likelihood that courts will interpret statutes inconsistently with the understanding of most legislators. But it is not at all clear that a set of rules accommodating the legislative approach to finding meaning, which in large part would describe when and how to use legislative history, (126) would constrain courts any less than would imposition of the textual interpretive process. (127) And if such a set of rules constrains courts equally well as the textual approach to interpretation, it would also coordinate interpretation both within the judicial system and between the legislative and judicial branches equally well as the textual approach. Even if the textualist approach provides a more consistent means of deriving statutory meaning, and therefore decreases judicial interpretive discretion, if the legislature cannot or will not comply with that approach, those coordination benefits come at the expense of undermining legislative supremacy about the policy choices that are incorporated into the United States Code. That would still leave on the table the question of whether the benefits of interbranch interpretive coordination outweigh the institutional costs imposed on Congress.

   I believe that this point is damning for the textualists' belief that their approach is the better one in all cases because there are strong reasons to suspect that Congress will never adhere to the judicial process for determining meaning. That process would impose procedures on statutory enactment beyond those required by the Constitution and thereby greatly interfere with the legislature's law-making function. In determining statutory meaning in a particular case, a court focuses the power of some of the brightest legal thinkers for significant amounts of time to determine the best reading of a statute. Moreover, the interpreting court does so only in response to a legal complaint. That complaint essentially signals that the legislative and judicial interpretive approaches might lead to different meanings for a particular statutory provision. But without this signal from those subject to the statute after it has had a time to operate, the legislature would have to perform such an analysis with respect to any term of the statute that potentially might lead to a difference between legislative and judicial understandings. (128) Essentially, because Congress must attach meaning at the time it enacts a statute, it cannot take advantage of the experience from application of the statute to signal potential process failures. Moreover, textualists like to remind interpreters that individual legislators may have an incentive to engage in strategic behavior to get their preferred interpretation into the statute. (129) But this further complicates the legislative task of determining meaning because it implies that each legislator could only trust a member of his own staff to perform the interpretive analysis. Otherwise, the legislator would risk missing meaning hidden in the structure of the statute, just as the textualists claim the legislator might be unaware of definitions inserted into legislative history. (130) Thus textualists call on the legislature to apply an interpretive process that would require an army of lawyers on the staff of each member of Congress, and would increase costs of enacting statutes to such an extent as to threaten the very ability of the legislature to fulfill its role of making laws that it determines--via constitutionally prescribed processes--are appropriate. (131)

   The contention that legislatures generally can cure misinterpretations by courts (132) would also impose huge unnecessary costs on the legislature because enacting statutes is time consuming, resource intensive, and is unlikely to occur even if the court imposes an interpretation with which a majority of legislators disagree. (133) Legislators have only limited time that they devote to passing statutes even when they are reacting to misinterpretations of the meaning that they ascribed to language they originally adopted. (134) The very lack of coherence of the legislative process contributes to the likelihood that Congress will not override such misinterpretations. To override an interpretation, the majority will have to overcome legislative vetogates. (135) One might argue that if a textualist court's interpretation is incorrect, Congress should easily be able to reinstate the intended meaning. By recognizing the legislative bargaining process, textualist misinterpretation will tend to err in the direction of overly crediting special interests and vetogates. To the extent that these groups already have been assuaged or otherwise could not stop the legislative bargain, they should not present a barrier to enactment of corrective legislation. And there probably is some truth to the conjecture that textualist interpretations that deviate from the legislature's understanding of statutory bargains can be corrected more easily than intentionalist misinterpretation, as evidenced by the fact that Congress seems more apt to overrule textualist interpretations than purposivist ones. (136) But one cannot conclude from this differential in ease of correction that the cost of textualist misinterpretations is insignificant. In particular, those who control vetogates, having once obtained their due from the legislative process in exchange for allowing the statute to pass, are not above extracting more concessions now that the court has destroyed that deal and Congress has to enact clarifying legislation to reinstate the original bargain.

   Of course, just as the legislature cannot feasibly use a judicial process for ascribing meaning to statutes they enact, courts cannot establish some vetting process similar to that used by the legislature to determine statutory meaning. Such a process would be antithetical to the judicial sine qua non of reasoned decision making. (137) Nor can one expect courts to determine a "factually verifiable assessment[] of the legislative process" for every...