Academic journal article William and Mary Law Review

Congressional Silence and the Statutory Interpretation Game

Academic journal article William and Mary Law Review

Congressional Silence and the Statutory Interpretation Game

Article excerpt

TABLE OF CONTENTS  INTRODUCTION  I. A UNIDIMENSIONAL MODEL OF STATUTORY INTERPRETATION    A. Introduction    B. The Single-Dimension Model       1 The Set-Up         a. No Transaction Costs         b. With Transaction Costs         c. The Shape of the Override       2. Federalizing the Problem         a. The Players         b. A World Without Transaction Costs         c. A World with Transaction Costs            i. An Untenable Interpretation            ii. A Safe Interpretation            iii. An Indeterminate Interpretation?            iv. The Problem of Political Promise Keeping         d. On the Importance of Backward Induction  II. EXPANDING THE MODEL TO TWO DIMENSIONS     A. Introduction by Way of a Charter School's Backstory     B. Transaction Costs in Two Dimensions        1. The Circular Inaction Zone        2. Measuring Costs and Benefits in a Two-Dimensional World     C. A Special Feature of Two Dimensions        1. Introduction        2. Three Differently Identical Interpretations           a. An Unworkable Interpretation           b. A Safe Interpretation           c. An Indeterminate Interpretation?              i. On Bargaining Power Alone              ii. The Problem of Political Promise Keeping Revisited  III. AMPLIFICATIOINS AND APPLICATIONS    A. Categorizing Response Costs       1. Process Costs       2. Search and Specificity Costs       3. Opportunity Costs    B. The Influence of Interest Groups    C. Applying the Model to Three Real-World Contexts       1. Federal Civil Pleading Standards After Ashcroft v. Iqbal          a. Case Background          b. Applying the Model       2. Bailing Out of the Voting Rights Act After NAMUDNO v. Holder          a. Case Background          b. Applying the Model       3. A Low-Cost Counterexample: The Lilly Ledbetter Override          a. Case Background          b. Applying the Model CONCLUSION: AMBITION, MODESTY, AND AMBITION 

"Congress has not amended the statute to reject our construction, nor have any such amendments even been proposed, and we therefore may assume that our interpretation was correct." (1)

"[Transactions] are often extremely costly, sufficiently costly at any rate to prevent many transactions that would be carried out in a world in which the pricing system worked without cost." (2)


In January 2009, the Democratic Party controlled both chambers of Congress decisively; it also held the White House. (3) And at least twice during that two-year period, a conservative Supreme Court issued statutory interpretation opinions deeply unpopular with rank-and-file congressional Democrats and the President. In Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), the Court ruled that a Texas municipal utility district could "bail out" of the preclearance requirements of the Voting Rights Act despite the state's history of discrimination against minority voters. (4) In Ashcroft v. Iqbal, the Court expanded and cemented the holding of a revolutionary 2007 case, (5) finding that the "short and plain statement" pleading standard of Rule 8(a)(2) of the Federal Rules of Civil Procedure requires all civil plaintiffs to demonstrate that their factual contentions are "plausible" in order to survive a motion to dismiss. (6)

Both NAMUDNO and Iqbal represent conservative interpretations very likely at odds with the preferences of the 111th Congress; both opinions are also arguably deeply inconsistent with congressional preferences at the times the relevant statutory provisions were enacted or reauthorized. (7) Moreover, NAMUDNO and Iqbal were both publicly salient cases; the New York Times published editorials on both decisions, and members of Congress were obviously aware of the opinions. (8) But by the time the Democrat-dominated 111th Congress gave way to the politically divided 112th Congress in January 2011, the only political response to these decisions was silence.

This silence raises a larger question: when the Supreme Court interprets a statute, to what extent does subsequent congressional inaction really represent political agreement with, or acquiescence to, that interpretation? …

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