Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation
85 Pages Posted: 5 Apr 2012 Last revised: 26 Aug 2016
Date Written: 2012
Statutory overrides — that is, amendments to supersede a judicial interpretation of a statute — are the primary mechanism by which Congress signals disagreement with court interpretations. They are essential to protect the separation of powers and the promise of legislative supremacy. But overrides raise unique, and little considered, questions of statutory interpretation. This article explores in detail the particular interpretative complexities that arise when Congress overrides a judicial interpretation of language in a statute that is typically interpreted consistently with other statutes. It demonstrates that enactment of an override can have the counterintuitive effect of aggrandizing the judicial role while also unmooring the Supreme Court from the rules of precedent that typically constrain judicial interpretation.
This Article uses the causation standard in employment discrimination law as a case study to illustrate a phenomenon that I call the “hydra problem.” In Gross v. FBL Financial Services, the Supreme Court held that Congress’s prior override of a judicial interpretation of Title VII did not control the interpretation of identical language in the Age Discrimination in Employment Act, and further that Congress’s “neglecting” to amend the ADEA when it amended Title VII was a clear signal that Congress intended the language in the ADEA to be interpreted differently. The Court instead embraced an interpretation that had been rejected by both Congress and a prior majority of the Supreme Court. Some lower courts, following typical rules of statutory interpretation, have quickly applied Gross to reinterpret the causation standard under numerous other employment laws, while others have continued to apply the prior Supreme Court precedent or the standard endorsed by Congress. The one consistent theme is widespread confusion.
In Gross, the Court suggested that Congress bears the burden of avoiding the hydra problem by separately amending all statutes to which a disfavored interpretation might be applied. This is an unreasonable expectation. Courts should instead adopt a rebuttable presumption that enactment of an override calls for the (re)interpretation of the preexisting language in the statute amended, and analogous provisions in related statutes, consistent with the meaning endorsed by Congress, so long as the preexisting text can reasonably bear that meaning. This approach would better permit overrides to play their intended role as a check on judicial lawmaking. It would also further independent values of fairness, predictability, and efficiency in the development of statutory law.
Keywords: Gross v. FBL Financial Services, employment discrimination, mixed-motive, override, statutory interpretation, separation of powers
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