Statutory Interpretation as Contestatory Democracy

By Staszewski, Glen | William and Mary Law Review, October 2013 | Go to article overview

Statutory Interpretation as Contestatory Democracy


Staszewski, Glen, William and Mary Law Review


C. The Editorial Role of the Judiciary

The preceding Sections explained that there are structural safeguards in the legislative and administrative processes that facilitate reasoned deliberation and encourage lawmakers to consider the interests and perspectives of minorities. Nonetheless, statutes and administrative action are both products of the electoral dimension of democracy and could therefore easily result in majority tyranny or minority faction. In either case, individuals or groups would potentially be subject to arbitrary domination. It is therefore important to provide other mechanisms of contestatory democracy that could minimize this possibility by helping to ensure that relevant interests are taken equally into account. As Philip Pettit has explained, the most promising solution is a procedure that would enable individuals or groups to call governmental decisions into question, and to trigger a review in an impartial court of appeal. (200) The availability of such a procedure improves the democratic legitimacy of decisions that are not challenged, because the possibility of subsequent review encourages public officials to engage in reasoned decision making in the first place. (201) When public decisions are formally challenged, however, the contestatory mode of democracy gives "the people, considered individually, a limited and, of course, indirect power of editorship over those laws." (202) In considering how the judiciary should perform this editorial role on behalf of the people, it is useful to distinguish between cases or controversies in which the judiciary is (1) reviewing the legality of agency law making, (2) interpreting a statute without a responsible agency, and (3) interpreting a statute with guidance from a regulatory agency. In each of these contexts, the judiciary is typically resolving a contest over the permissible scope of governmental authority, and thereby promoting freedom as nondomination.

1. Judicial Review of Agency Law Making

As explained above, administrative agencies are "the primary official interpreters of federal statutes" in the modern regulatory state. (203) Moreover, when agencies are delegated lawmaking authority, and they interpret statutes pursuant to deliberative lawmaking procedures, they are performing a commissioned authorial role and are therefore the authoritative decision makers. Nonetheless, federal courts are typically authorized to review the validity of such agency decisions, and it is in this context that my claim--that statutory interpretation by the judiciary is best understood as a mechanism of contestatory democracy--is most obvious.

I have also explained that Congress's explicit resolution of a policy question should ordinarily be respected by agencies and courts when a statute is implemented because the legislature is charged with the primary authorial role in the lawmaking process. (204) Challenges to the legality of agency action on statutory grounds will therefore potentially turn on a judicial determination that Congress has unambiguously resolved the precise question at issue. Such judicial challenges will almost invariably be unsuccessful if the agency's decision comports with Congress's resolution of the question. Conversely, an agency's decision will be invalidated as contrary to law if it is incompatible with Congress's resolution of the matter. Although the foregoing propositions are true under any conventional standard of judicial review, substantial disagreement exists regarding the methods of statutory interpretation that courts should use when they assess whether Congress has unambiguously resolved a particular policy question. (205) When statutory interpretation is understood as a mechanism of contestatory democracy, the legislative history of a statute should play a prominent role in this analysis because one should expect legislators to engage in reasoned deliberation during the lawmaking process. (206) I have also pointed out that agencies have significant institutional advantages over courts that could help them better assess whether Congress has explicitly resolved a policy question during the legislative process. …

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