Interpreting Congress

Abstract

This Article introduces the concept of congressional interpretation. Congressional interpretation describes a strategy on which the Supreme Court relies, but rarely acknowledges. It occurs when courts try to understand what the law is by looking beyond a specific statute, or even a specific statute’s legislative history, and instead turning to vague beliefs about congressional behavior. Courts use congressional interpretation to: understand the relationship between a substantive statute and subsequent appropriations; evaluate statutes on the basis of post-enactment congressional inaction; and impose assumptions about congressional norms through clear statement rules. For instance, a court considers whether Congress granted statutory authority when Congress does not appropriate funding to exercise the supposed authority. A court holds an agency’s internal interpretation of a statute invalid because, years after passage, a different Congress failed to enact a law similar to the agency’s interpretation. Or a court objects to an agency interpretation because the court assumes Congress would normally write a statute differently if it wanted to allow the agency’s interpretation.

Looking at the Court’s behavior through the lens of congressional interpretation helps make sense of recent statutory interpretation cases. Decisions, including Loper Bright, Cargill, Sackett, Biden v. Nebraska, and West Virginia all couple declared textualism with congressional interpretation. As a result, the Court is doing three important things. First, it is constitutionalizing statutory interpretation and subtly shifting separation of power principles like the Take Care Clause, executive discretion, and even the seemingly unyielding command of bicameralism and presentment. Second, the Court has not acknowledged that its various interpretive tools fit together as congressional interpretation, which undermines the cogency of the device even though the Court regularly uses it. Failure to acknowledge congressional interpretation also undermines the Court’s deliberative legitimacy. Courts should be express about their analytical approaches. Third, and finally, the key cases are all deregulatory or limit agency authority, usually both. This raises the specter that policy outcomes motivate the practice and, perhaps worse, that policy outcomes motivate the tacit constitutional changes that can come with congressional interpretation.

To explore these aspects of congressional interpretation in more detail, this Article presents a case study of noise law. With a lawsuit pending against EPA for failure to carry out non-discretionary duties under various federal noise statutes, the noise law case study presents questions at the crossroads of statutory interpretation, appropriations, executive discretion, Take Care duties, and the triggers and application of clear statement rules. Noise law consequently reveals a lot about the contours of congressional interpretation.

Ultimately, this Article describes congressional interpretation as a tool of contemporary judicial review and argues for greater transparency, consistency, and deliberation around how courts integrate diverse legislative behavior into their interpretation.