Interpreting Entitlements: The Politics of Statutory Construction
Melnick, R. Shep, Brookings Review
Once confined to the dusty corners of law libraries, statutory interpretation by the federal courts hit the headlines in the 1980s, embroiling the courts in several highly publicized controversies. For example, when the Supreme Court issued a number of decisions narrowing previous interpretations of the Civil Rights Act, Congress responded by passing the "Grove City" bill of 1988 and the Civil Rights Act of 1991, both of which overturned court rulings and expanded the scope of civil rights laws. In the early 1980s the federal courts relied on statutory arguments to halt the Reagan administration's effort to trim the disability insurance rolls. The Supreme Court also went head-to-head with the Reagan administration by interpreting the internal revenue code to prohibit the IRS from granting tax-exempt status to private schools that discriminate on the basis of race.
Much of the current debate over statutory interpretation has focused on Justice Antonin Scalia's spirited and persistent attack on the courts' use of legislative history. For years federal judges have consulted key elements of the legislative record, especially committee reports and floor statements, to help them determine the meaning of ambiguous statutory language and the intent of Congress. Justice Scalia has objected to this practice, arguing that the job of the judiciary is to discover the meaning of the laws passed by Congress and signed by the president, not to reconstruct the intentions of members of Congress. Scalia has warned that "routine deference to the details of committee reports" threatens to "convert a system of judicial construction into a system of committee-staff prescription." Other jurists, including Justices John Paul Stevens, William Brennan, and David Souter, have argued that it is irresponsible for judges to ignore such obvious indications of what Congress had in mind when it passed a law. Judge Patricia Wald of the D.C. Circuit has described Scalia's approach as "inherently executive enhancing." Her colleague Judge Abner Mikva, himself a former member of Congress, has warned that Scalia's approach threatens the "primacy of Congress." Some members of Congress, too, have worried that their influence will decline if Scalia's approach to statutory interpretation prevails.
The significance of statutory interpretation thus lies not just in the courts' ability to shape public policies, but also in the way judicial doctrines affect the distribution of political power among the three branches of government, within Congress, and between the states and the federal government. Just how significant the long-term institutional and programmatic consequences of court action can be is evident in three programs I have studied over the past several years--Aid to Families with Dependent Children (AFDC), food stamps, and education for the handicapped. In all three of these programs statutory interpretation by the federal courts expanded eligibility, increased benefits, and shifted control from the states to the federal government.
AFDC: Toward Greater Federal Control
The most dramatic change came in AFDC. From 1935 to 1968 state governments ran this welfare program subject to only a handful of federal rules listed in Title IV of the Social Security Act. Efforts to make eligibility requirements and benefit levels more nationally uniform repeatedly met with defeat in Congress. In a series of decisions issued between 1968 and 1972 the Supreme Court offered a novel reading of Title IV. Rather than presume that the states were free to establish eligibility requirements not prohibited by the federal statute, the Court held that states cannot "vary eligibility requirements from the federal standard without express or clearly implied authorization." Since the federal statute said very little about eligibility standards, this interpretation threw into question virtually all the AFDC rules established by the 50 states. In the words of a Senate Finance Committee report, the federal courts "used the very broadness of the Federal statute (intended to allow States more latitude) against the States by saying sometimes that anything the Congress did not expressly prohibit it must have intended to require--and sometimes that what the Congress did not expressly permit it must have intended not to permit. …