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Friday, May 18, 2007
Certifying Questions to Congress?
Do take a look at Amanda Frost's very interesting solution to the problems of statutory interpretation: certifying statutory questions to Congress. It's just out in the Northwestern Law Review. Here's the abstract:
As many academics and some judges have openly admitted, no technique of statutory interpretation can settle every question of statutory ambiguity. Sometimes Congress enacts legislation containing gaps or inconsistencies that cannot be resolved through the application of a canon of construction or other interpretive rule. This article proposes an alternative approach for these hard cases. When a federal court is faced with a statute that leaves important issues about its application unclear - particularly issues that implicate the statute's constitutionality - the court could stay the case and refer the question to Congress, much in the same way that courts now use abstention and certification to obtain answers about the meaning of state law from state courts. If Congress chooses to resolve the ambiguity by amending the law in accordance with Article I's bicameralism and presidential presentment requirements, then the court can apply the new law to the current case. If Congress chooses not to act, the court is no worse off than before. Indeed, congressional silence frees judges to be more creative in their responses to statutory ambiguity because they arguably have greater leeway to fill gaps or reconcile inconsistencies in an unclear statutory text that Congress has chosen not to fix. At the very least, judges insulate themselves from charges of judicial activism if they seek congressional input before attempting to interpret unclear statutes.
The article begins by considering whether certifying questions to Congress would be constitutional, and then examines whether adoption of such a practice would be wise. The discussion of both issues is informed by the fact that Congress regularly takes notice of judicial confusion and then acts to amend problem legislation, often explicitly stating an intention to affect the results in pending cases. Considering that Congress is already assisting courts by amending the statutory language at issue in pending cases - albeit in an informal and ad hoc way – this article concludes that it is worthwhile to formalize the process and encourage Congress to play an even greater role in resolving statutory ambiguity before an appellate court issues a definitive ruling.
I'm especially interested in the proposal now that I've completed teaching a Legislation & Statutory Interpretation course for the first time -- and asked a question on the final about the possibility for authentic courts-legislature dialogue and its implications for statutory interpretation. In law school, I actually made a similar proposal on my Legislation final -- but I concede that I thought it was a better idea then than I do now. The devil is all in the details, I think, since there would have to be some meaningful guidelines on the exercise of such a certification power. As the article shows, drawing these lines is hard work and it is hard to see why the certification system wouldn't be gamed. Although there is something to be said for the democracy and deliberation enhancing qualities of such a procedure, it is hard to guess whether the process itself would improve decision-making. One assumes that Congress often won't respond -- and that implicit "delegation" to the judiciary is about as fictional -- given the realities of the legislative process -- as the one the judiciary assumes when it tries to fill gaps without such contemporaneous silence. Also, it seems that there is no clear reason to privilege today's potentially unstable majority operating without a veil of ignorance to yesteryear's majority that did operate behind such a veil. Finally, Frost desire to keep Chevron alive as is is puzzling: step 1 looks at statutory ambiguity and defers to agencies if it exists. One imagines that under a system with a process to clarify all substantial ambiguities, however, that process should be used before assuming fictional delegations. But provocative stuff, all the same.
Let us know what you think.
Posted by Ethan Leib on May 18, 2007 at 01:41 PM in Article Spotlight | Permalink
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Comments
I enjoyed Professor Frost's worthy piece. One perspective that I wish she had analyzed in more detail (to be fair, she does acknowledge it at p.37 in her SSRN draft, but she does not tackle some of the interesting points below) is the Supreme Court practice of seeking "certification" from the political branches by inviting the SG to weigh in on the scope or constitutionality of a congressional statute under review. True, the SG's interpretation is an executive (not a legislative) interpretation, but I wonder if that isn't more appropriate, since the scope of the law as enforced is the critical point. Adding in a legislative certification procedure raises the possibility of an interesting conflict between the SG and a legislature that (as Just Me points out) may have a different sense of the proper scope of the law. Perhaps "Certifying Statutory Questions: Part II" is in the works.
Posted by: Scott Dodson | May 21, 2007 11:42:55 AM
First of all, I don’t think the issues is at all that novel. The Supreme Court, has in the past, effectively “certified” questions to Congress. E.g. Northern Pipeline Co. V. Marathon Pipe Line Co., 458 U.S. 50, 89 (1982) (“The judgment of the District Court is affirmed. However, we stay our judgment until October 4, 1982. This limited stay will afford Congress an opportunity to reconstitute the bankruptcy courts or to adopt other valid means of adjudication, without impairing the interim administration of the bankruptcy laws.”).
Secondly, a practice of lower courts waiting for Congress to speak essentially means that they will stay their judgment while Congress (perhaps) acts. This would allow courts to essentially evade any constitutional issues by saying “Congress, tell us what this means.” There are so many opinions I have read where courts appear to simply be deferring to the government, by saying that a matter is for “Congress” to decide. Congress, of course, rarely provides a remedy to the most oppressed people in society, but if they did, they could (most of the time) provide some relief to people even after a judgment.
Posted by: S.cotus | May 21, 2007 7:30:00 AM
Professor Frost has indeed produced a very interesting essay. But a provocative read doesn't of necessity make for good policy. I have a few points to make on a skim of Frost's essay, and in a roundabout way an argument against the idea that judges simply interpret - not make - law, as stated in a previous comment to the entry,
1. My first reaction is, Assuming arguendo that Frost is correct, why shouldn't we go to the source - the People - of sovereignty? I don't mean to be flippant, but so long as we're altering the very structure of lawmaking, why don't we simply convene a plebiscite?
For example, Frost discusses the indefinite detention seemingly authorized by Congress that was at issue Zadvydas v. Davis, concluding that the best course would be to 'certify' the question to Congress as to what time period, if any, it had in mind. In Jackson v. Birmingham Bd. of Educ., the Title IX case discussed by Frost, why not ask the public if they think their law should proscribe retaliation in that circumstance? Therefore, my counter-proposal asks why go to Congress - why not ask the citizenry 'represented' by Congress?
So *if* questions are to be certified of that sort, then they should be certified to the People, no? If we're going to take an opinion poll, then we might as well put the question directly.
2. While Frost is clear that not every case calling for statutory interpretation need be certified to Congress under her proposal, it seems that the case against "parsing meaning from indeterminate statutory language" has been rather overstated. H.L.A. Hart was right about the "open texture" of law, and while Frost doesn't dispute that, I feel that her argument goes simultaneously too far in some ways but not far enough in others.
Where Frost seems to go too far is in the case for radical legal indeterminacy. True, textualism and intentionalism duel it out in a neverending contest. But showing that no one method allows an intellectually honest life with legal indeterminacy is not equivalent to showing that a motley of methods for coping with language's open texture are intellectually dishonest.
At all events, legal indeterminacy, whatever its scope, is here to stay. The congressional certification proposal would provide just as much legal determinacy as would a conventional judgment by a court; the difference is that the congressional resolution would have a certain pedigree. (The hope must be that the pedigree would be a good one, though as the answer to the old joke goes, If pro opposes con, then what's the opposite of progress?). So in that respect, the proposal does not go so far it says, because it can't. Interpreting language will continue for a very long time - the proposal merely asks Congress to occasionally clarify it's previous statements; the clarified statements themselves will likely eventually suffer the fate of the very statements they were themselves aiming to clarify. A very long time, indeed.
One of the ways in which the proposal goes too far seems to me how such a radical dualism is set up between legislatures making the law and judges interpreting it. Hart's postscript to The Concept of Law and Benjamin Cardozo's The Nature of the Judicial Process - to name just two widely read texts - seemed to dispatch the dualism that Frost now seeks to deploy (pp. 55-56 SSRN copy). So in a curious sort of way, this essay revives the debate between Hart and Dworkin over right answers in the law and judges making law (Hart) or Dworkin (not) in the strange way that if judges making law is so bad as we've been led to believe by some (an unholy alliance of liberal law professors and cryptofascist politicians and radio hosts?), then how is it that not every lawmaking in the course of adjudication is left for Congress, including when Congress declines for whatever reasons to make law.
Deus ex machina on the part of Congress might well be as bad an adjudicatory device as it is a plot mechanism in film or literature.
3. My related and final point is that separation of powers would strongly counsel against legislative appropriation of a judicial function. The old case of Calder v. Bull (cited recently on both sides of Kelo v. City of New London) seems to counsel that legislatures can't upset 'natural rights', where Federalist Extraordinaire Samuel Chase held that a state legislature couldn't destroy vested rights in property. But another way to look at that case is to say that legislatures haven't any business handling a lawsuit, something more recently suggested by Lewis Powell's opinion in INS v. Chadha.
Since as already expressed I'm persuaded by Cardozo and Hart that judicial legislation happens all of the time, I believe the stronger case to be made is that what oughtn't to ever happen is legislative adjudication. (Already in our system, legislative supremacy of varying degrees is granted; except in the case of constitutional review, and even that exception isn't one that can last forever without cooperation of the executive and/or legislative branches - 'switch in time that saved the nine')).
But a fascinating essay, though!
Posted by: cosim | May 19, 2007 3:54:28 PM
I started to read the article, and intend to complete it. However, I wanted to post a comment. Based on what I have read thus far, it seems as though Prof. Frost assumes that judicial statutory interpretation is a mechanical procedure. Indeed, it is a fool's paradise to assume that courts never, rarely, or even infrequently engage in statutory interpretation as a mechanical procedure. However, there are many problems with post-enactment statements of legislative intent. See New York State Dept. of Soc. Serv. v. Dublino, 413 U.S. 405, 431 n.11 (1973) (Marshall, J., dissenting) (blasting Powell for the post-enactment statements included in footnote 19 of the majority opinion). With post-enactment statements of intent, all of the institutional pressures are absent. Therefore, Congress could certify an answer that is totally disconnected from the statutory intent at the time the bill was pending. Doesn't this smack of untrustworthiness?
Faced with this significant problem, it seems to me that courts can come closer to achieving the goals of effecting legislative intent by exercising prudence in the jurisprudence. See, e.g., In re Commitment of Edward S., 570 A.2d 917 (N.J. 1990) (considering practical implications of how a holding will play out on the ground based on policy considerations). Admittedly, the judicial model set forth in this case will not yield perfect results either.
Additionally, Prof. Frost advocates granting legislative authority to judges when Congress is silent to a certified question. With all due respect, this suggestion is uniquely bizarre. Even though Frost limits the exercise of question certification to the U.S. Supreme Court and U.S. Courts of Appeal acting en banc, the judges and justices of these courts are not elected officials. Therefore, they should not have legislative authority, at least not in the way that Prof. Frost describes. In addition, legislative silence is equivocal. See generally William N. Eskridge, Jr., Overruling Statutory Precedents, 76 Geo. L.J. 1361 (1988) (enumerating and explaining the various possible reasons for legislative silence); see also William N. Eskridge, Jr. Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331 (1991) (arguing that Congress does have its finger on the pulse of judicial statutory interpretation).
Lawmaking is a robust process. Statutory interpretation is simply not a perfect science. There are many reasons for legislative silence. There are even more reasons for statutory ambiguity. Wooden application of statutory tools by judges will generally produce outcomes that fail to achieve legislative intent. But certifying questions to Congress does not strike me as a trustworthy solution. And granting legislative power to the courts strikes me as a bit overboard.
Posted by: Michael | May 18, 2007 6:56:38 PM
There are some obvious problems with this proposal, so I'll just pick two of them.
First, doesn't this risk seriously undermining the rule of law? One hates to be overly cynical, but isn't there a real danger that this would result in statutory ambiguities being construed in favor of more politically connected, or the bigger donor?
Second, if the certification process was used much, wouldn't it bog litigation down tremendously? Congress is hardly in a position to guarantee when, or even if, it would get around to resolving a certified question. There would probably be many questions Congress won't answer, e.g. because they are too controversial politically, or because they aren't important enough. How many years do you wait for an answer after certifying a question?
Posted by: Nathan | May 18, 2007 6:08:38 PM
Haven't yet read the piece, but it seems that an immediate problem would be that the Congress that receives the question might be very different from the Congress that passed the statute. "Oh, yeah, when 'WE' said that, what we meant was . . ." If it were just a resolution sent back to the Court from Congress, then the gaming problem is strongest, as it undercuts presentment. But even if you require presentment and a new statute, as the excerpt above says, you still have the problem that a new Congress and new Prez would then be able to rewrite the old law and apply it to an existing case. If criminal, then ex post facto is a barrier, but even if civil, then the retroactivity component of due process could kick in.
Posted by: just me | May 18, 2007 5:37:07 PM
I fear politicization of the court. The influence of the wording of the certified question would tempt Congressmen to lobby justices for certficiation with a particular phrasing.
Just as problematic would be the politics of the certification process. It would have to fit into Congress's internal structure: committees, amendments, floor time, cloture, etc. Congress won't necessarily answer the question the Court wants answered.
Also, I imagine there is much to learn on this topic by looking at judicial review in other countries, like the UK.
Posted by: Archit | May 18, 2007 2:24:39 PM
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