What Would Congress Want? If We Want to Know, Why Not Ask?

Abstract

This is the first proposed procedure that would enable the Court to take account of congressional preferences in a pending statutory interpretation decision, without requiring Congress to go through the resource and time consuming process of amending the ambiguous law. In “hard cases” the Court could certify, through a fast-track procedure, a question presenting Congress with two multiple choices that the Court predetermines to be viable readings of the statute. This procedure avoids constitutional problems because congressional input is voluntary and non-binding for both branches, and judicial constraint enforces rule of law and constitutional values.

Keywords: legislation, statutory interpretation, congress, judicial administration