55 Pages Posted: 19 Mar 2007
In July 1995, the House of Representatives established a "Corrections Day" procedure for fixing statutory mistakes. This article traces the history of the corrections day idea, beginning with suggestions offered by Justices Cardozo and Ginsburg many years apart. The article also recounts the early applications of Correction Day by the House.
This article describes the problem of statutory mistakes: what they are, and who makes them. It explains that statutory mistakes do exist, regardless of how one defines "mistake." Congress, agencies, and the courts all make mistakes, though the responsibility for them ultimately resides with Congress, the author of the statute. The article examines how Congress has tried to correct statutory mistakes through the periodic reauthorization of statutes, appropriations riders, using subsequent legislative history to signal approval or disapproval of an interpretation of a statute, informal pressure exerted through agency oversight hearings, and such statutory amendments as Congress is able to enact. The inadequacy of these existing congressional procedures operates as a central premise supporting the theories of statutory interpretation that rely on the courts and agencies to correct statutory mistakes.
More generally, this article examines the idea of a statutory "mistake" and what it says about statutory interpretation. Corrections Day supports one of the fundamental premises of textualist theories of statutory interpretation: Courts and agencies need not (and indeed should not) attempt to correct statutory mistakes under the guise of statutory interpretation because Congress can fix its own mistakes. Conversely, theories of statutory interpretation that look beyond the statutory text and legislative intent object that Congress lacks the institutional competence to track how all of the statutes it has enacted are being implemented and that it is unrealistic to expect Congress to update federal statutes to account for new developments or to correct prior mistakes. Agencies and courts, the argument continues, must fix statutory mistakes lest they go uncorrected. If, however, Congress can readily amend statutes when a mistake is identified, then Corrections Day will undermine the case for theories of statutory interpretation that look beyond the statutory text or legislative intent. Corrections Day could also raise questions about the way in which courts address legislative history, arguments that Congress has acquiesced in a prior interpretation of a statute, and stare decisis. Even the limitations of the new procedure fail to undermine the case that Corrections Day makes for theories of statutory interpretation that rely on Congress to correct statutory mistakes.
Keywords: interpretation, correction, Congress, mistake, legislative, Gingrich
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