The Judiciary and Federal Regulation: Line Drawing and Statutory Interpretation
"IT IS in the courts and not the legislature that our citizens primarily feel the keen, cutting edge of the law." 1 Reiterating that view of New Jersey State Supreme Court Chief Justice Arthur T. Vanderbilt, Justice Tom Clark observed: "In a democracy the national welfare should be the primary objective of the legislature whose statutes may quickly pattern effective measures to that end. The courts, on the other hand, have the duty of interpreting and enforcing such legislation. Theirs is the machinery through which law finds its teeth." 2
Judicial participation in regulatory politics at the federal level has greatly increased since the New Deal, and particularly during the 1960s and 1970s, because of congressional creation of new administrative agencies and legislation aimed at ensuring civil rights and liberties as well as promoting health, safety, and consumer and environmental protection. Appeals of administrative decisions, for instance, rose fivefold between 1960 and 1981 and continued to grow throughout the 1980s and early 1990s. 3 Pointing out that ambiguous legislation often invites litigation, Chief Justice Warren Burger accordingly called on Congress to require "judicial impact statements" prior to enactment of new legislation. 4 The federal judiciary has indeed become a forum for challenging federal regulation and congressional legislation by those who are either denied access to or disagree with the outcome of the administrative and legislative process.
The growing importance of statutory interpretation, along with constitutional interpretation, is evident as well in the changing character of the business of the Supreme Court. In historical perspective, the Court gradually became a tribunal of constitutional and statutory interpretation. During