When Courts Should Ignore Statutory Text

62 Pages Posted: 4 Nov 2019

See all articles by Jesse Cross

Jesse Cross

University of South Carolina School of Law

Date Written: 2018

Abstract

Statutory interpreters often rely upon a fundamental assumption: namely, that every word of a statute is meant to be read — and given legal force — by the courts. This assumption unites both textualists and intentionalists, and it has been invoked by Justices as diverse as Chief Justice Marshall, Justice Stevens, and Justice Scalia — the last of whom called it a “cardinal rule of statutory interpretation.” It underpins at least nine separate canons of statutory interpretation, and it even shapes how courts interpret legislative documents beyond statutes. It is difficult to imagine a more central assumption in statutory interpretation.

As this Article shows, however, this assumption is incorrect. Congress routinely inserts language into statutes that it hopes courts will ignore. Rather than addressing courts, this language targets one of three nonjudicial audiences: interest groups, executive agencies, or nonpartisan congressional offices.

This Article — written by a former drafter of congressional statutes — documents this legislative practice. Moreover, it argues that, to the extent that courts want to act as faithful agents of Congress, they should refrain from interpreting and applying this text that Congress intends solely for a nonjudicial audience. The Article outlines a methodology that courts can use to this end — a methodology that can accurately identify statutory text Congress wants courts to ignore.

In addition to showing that courts are reaching incorrect results in important cases — and providing a methodological solution to this problem — the Article’s analysis also holds theoretical lessons for the major schools of thought in statutory interpretation. For intentionalists, it provides a new theory about how courts should weigh legislative materials (including statutory text, appropriations committee reports, and CBO cost estimates). For textualists, it shows that many canons of construction must be modified or discarded, and it also rebuts the foundational notion that statutory text can be divorced from intent or audience. And, for public-choice theorists, it challenges the central idea that legislators are mere agents for interest groups — an idea rebutted by the discovery of a drafting practice that purposefully carves out spaces for principled governance in statutes.

Keywords: Legislation, Statutory Interpretation

Suggested Citation

Cross, Jesse, When Courts Should Ignore Statutory Text (2018). George Mason Law Review, Vol. 26, 2018. Available at SSRN: https://ssrn.com/abstract=3475155

Jesse Cross (Contact Author)

University of South Carolina School of Law ( email )

701 Main Street
Columbia, SC 29208
United States

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