Academic journal article Harvard Law Review

A Chevron for the House and Senate: Deferring to Post-Enactment Congressional Resolutions That Interpret Ambiguous Statutes

Academic journal article Harvard Law Review

A Chevron for the House and Senate: Deferring to Post-Enactment Congressional Resolutions That Interpret Ambiguous Statutes

Article excerpt

If Congress wishes to resolve a statutory ambiguity, it always has the option of passing a law via bicameralism and presentment. In reality, however, passing laws is extremely difficult, and often the legislative enactment costs are simply greater than the benefits of resolving the ambiguity correctly. (1) Indeed, these high legislative enactment costs are among the reasons that so many of our statutes set forth broad principles rather than specify concrete requirements: gaining consensus on concrete textual mandates imposes even more costs on the already difficult process of legislation. A future Congress may want to clarify these vague statutory mandates as societal, legal, or technological circumstances change, as the consequences of certain policy choices become more apparent, or as legislators simply resolve their differences of opinion. But the costs of legislating a fix are usually too high. (2)

Some leading commentators argue that this problem of statutory ossification due to high legislative enactment costs requires judges to interpret statutes as living documents. Professor William Eskridge claims that a statute's meaning changes over time, and thus judges should "dynamically" interpret statutes. (3) ludge Calabresi argues that judges should "update" obsolete statutes by striking down or ignoring any statute that is "sufficiently out of phase with the whole [contemporary] legal framework so that, whatever its age, it can only stand if a current majoritarian or representative body reaffirms it." (4) However, most commentators have criticized such approaches as putting too much power in the hands of unelected and unaccountable judges. (5)

Instead, Congress has largely relied on administrative agencies to continually update the policies that implement various statutes. When charged with administering statutes, such agencies often have the authority to interpret the legislation's vague commands by translating them into more precise and concrete rules. (6) Moreover, courts have given great deference to agency interpretations of ambiguous statutes under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (7) These agency interpretations, although the products of a more politically accountable process than judicial interpretations, nonetheless are not as publicly deliberative or as nationally representative as a congressional decision. Worse, many other statutes that are similarly indefinite are not administered by any particular agency, thus leaving courts with the primary responsibility to develop the law--and thus the policy--under these statutes, despite judges' lack of expertise and accountability. (8) But by prohibiting one house of Congress from vetoing agency actions, the Supreme Court, in INS v. Chadha, (9) limited Congress's role in administering statutes, despite its institutional advantages over courts--and, in some respects, over agencies--in developing policy.

In a recent article, Professors Jacob Gersen and Eric Posner suggest that courts should pay greater attention to post-enactment congressional resolutions when interpreting statutes. (10) This Note develops their idea by proposing more modest congressional involvement than the legislative veto invalidated in Chadha: courts should defer to a House or Senate resolution that adopts a reasonable interpretation of an ambiguous statute. (11) For statutes not administered by any agency with interpretive authority, such deference to a congressional resolution would improve lawmaking by bringing to bear the legislature's policy expertise and democratic accountability. But even for statutes administered by agencies, this proposal would increase accountability. Further, this proposal would help to restore checks and balances and the Constitution's original allocation of power by making the House and Senate coequal with executive agencies in interpreting ambiguous statutory provisions. Whenever these institutions disagree, courts should simply adopt their own best reading of the statute, de novo. …

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