Democracy and Statutory Interpretation: New Empirical Work and Positive Theory ABA Administrative Law, Fall Conference 2013

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1 Democracy and Statutory Interpretation: New Empirical Work and Positive Theory ABA Administrative Law, Fall Conference 2013 Introductions (Prof. Victoria Nourse) (5 minutes) Prof. William Eskridge, Jr. Presentation of new empirical findings on when Congress overrules Supreme Court statutory interpretation decisions (20 minutes) Based on article forthcoming in Texas Law Review Prof. Abbe Gluck Presentation of empirical findings on how Congress drafts statutes and implications for administrative agencies (20 minutes) Based on article in Stanford Law Review Prof. Victoria Nourse Presentation showing how to make legislative history more than an exercise in finding your friends at cocktail parties (20 minutes) Based on article in Yale Law Journal Questions (25 minutes)

3 Congressional Overrides of SCOTUS Statutory Decisions, Mathew R. Christiansen William N Eskridge Jr. (Forthcoming in Texas Law Review, 2014)

4 Number of Overrides, Per Congress Congress 91 Congress 92 Congress 93 Congress 94 Congress 95 Congress 96 Congress 97 Congress 98 Congress 99 Congress 100 Congress 101 Congress 102 Congress 103 Congress 104 Congress 105 Congress 106 Congress 107 Congress 108 Congress 109 Congress 110 Congress 111 Congress 112 Congress

5 Why Did Overrides Soar, ? (1) Post-Watergate Congresses were aggressively regulatory, which put them at odds with a relatively libertarian Supreme Court in a wide array of subject areas, from civil rights to criminal law and procedure (including habeas) to environmental law to federal jurisdiction and procedure (2) Ambitious recodification efforts in Congress, many of which override a wide array of SCOTUS decisions, such as the Copyrights Act 1976, Tax Reform Act of 1976, Bankruptcy Reform Act 1978, Civil Rights Act 1991 (3) Divided Government, where Presidents (Reagan, Bush 41, Clinton) were eager to make deals with Congresses controlled by opposing party

6 Why Did Overrides Decline, 1999-???? (1) Decline in Congressional Statute Production? NO: Some decline in federal statute production, 1980s compared with new millennium (and certainly with the 113th Congress), but no correlation between overall statute production and overrides (2) Lack of leadership in the House and Senate Judiciary Committees > 1998? NO: Judiciary Committees continue to churn out successful legislation (3) Shifting congressional agenda, especially > 2001? YES: Major statutes > 2001 (Mayhew) tend to be budgetary, war on terror, new entitlements, rather than the subject areas where SCOTUS is prominent

7 Time Line for Overrides Total Median Yrs betw. Decision & Override All Overrides Overrides 2000s Overrides 1990s Overrides 1980s Overrides 1970s

8 Frequency with which subject matter is focus override

9 20% 18% 16% 14% 12% 10% 8% 6% 4% 2% Percentage of Overrides, by U.S. Code Title 0% Title 28 Title 42 Title 26 Title 18 Title 11 Title 15 Title 33 Title 8 Title 17

10 Reasons for Overrides 90% 80% Percentage of All Overrides 70% 60% 50% 40% 30% 20% 10% 0% Bad Interpretation Confusion in the law Response to SCOTUS Concerns Bad Policy Main Reason A Reason

11 Institutions Involved as Winners and Losers in Override Politics t Main Winner Main Loser

12 Political Valence of Overrides Number of Overrides Liberal Conservative Mixed

13 Politics of Overrides, by Subject Area (1) Civil Rights: Inversion of Carolene Products Congress, not the Court, protects minorities and women (2) Federal Jurisdiction: Congress gives what the Court will not take (3) Criminal Law, Procedure & Habeas: Criminal defendants and prisoners always lose (4) Tax: Diverse array of winners, especially IRS and Rich People (5) Bankruptcy: Split decision between debtors and creditors (6) Environmental, Telecommunications, Energy, Transportation: Agencies win legislatively what they lose judicially

14 Factors Significantly Increasing the Odds that a SCOTUS Decision Will Be Overridden United States Loses. Decisions rejecting the statutory interpretation offered by a federal agency are significantly more likely to be overridden than decisions accepting agency interpretations. Court Division. Closely divided (5-4 or 6-3) decisions are much more likely to be overridden than unanimous or lopsided ones. Libertarian. Anti-regulatory decisions are more likely to be overridden than non-libertarian decisions, in almost all subject areas Invitations to Override. Decisions where majority, concurring, or dissenting Justices invite Congress to override the Court are significantly more likely to be overridden than decisions without such an invitation. Methodology. Decisions relying primarily on textualist canons (especially the whole act rule) are significantly more likely to be overridden than the average SCOTUS decision.

15 50% 45% 40% 35% 30% 25% 20% 15% 10% 5% 0% Reliance on Statutory Plain Meaning in Overridden Decisions vs. All SCOTUS Decisions No Reference Some Reference Christiansen & Eskridge Genuine Positive Reaction Raso & Eskridge "a" or the "the" determining factor

16 Reliance on Whole Act Rule in Overridden Decisions vs. All SCOTUS Decisions 80% 70% 60% 50% 40% 30% 20% 10% 0% No Reference Some Reference Genuine Positive Reaction "a" or the "the" determining factor Christiansen & Eskridge Raso & Eskridge

17 Democratic Legitimacy for Overrides: How Open, Pluralistic, and Deliberative Was the Process? Number of Overrides Open, deliberative, pluralist Open, somewhat deliberative and pluralist Open, not deliberative and pluralist Not open, but deliberative and pluralist Not open, but somewhat deliberative and pluralist Not open, not deliberative and pluralist

18 Rule Change from SCOTUS Decision to Override 120 Number of Overrides Unclear Category 1: Clear to Clear Category 2: Muddy to Clear Category 3: Clear to Muddy Category 4: Muddy to Muddy

19 Implications: Supreme Court (1) Role of SCOTUS: Decidedly not a faithful agent of Congress. Triadic model: Congress delegates to an administrative agency, with SCOTUS as a libertarian monitor. (2) Representation-Reinforcing Canons: defer to agency views but force more deliberation when ambiguous statutes are applied to harm the politically powerless (e.g., prisoners) (3) Soften the Plain Meaning Rule: especially critical of the holistic canons unrealistic approach to plain meaning, inconsistent with congressional assumptions

20 Implications: Congress (1) Normative Importance of Congressional Overrides: Congress does overrides in a surprisingly responsible manner the process is open and relatively transparent, a variety of groups participate, and statutory policy is updated or clarified productively. (2) Lilly Ledbetter Problem (libertarian Court interprets restorative overrides restrictively): Congressional drafters need to draft overrides in the shadow of the Court s holistic canons (3) Further Shift of Statutory Implementation Away from Courts toward Agencies

21 Implications: Departments & Agencies (1) Cardozo s Ministry of Justice? Should there be an agency within the executive branch charged with generating override ideas? Probably not. (2) Departmental Offices of Legislative Affairs? Most departments and agencies have offices of legislative affairs. Focus more of their efforts/energies on securing overrides. (3) Solicitor General for Override Proposals? Model of the Solicitor General, create a bureau within the DOJ Office of Legislative Affairs to centralize the executive branch push for overrides? Probably not, as decentralization may be preferred here

22 If the Decline of Overrides Is Permanent, What Are the Implications for Each Institution? (1) Big Loser = Congress, as well as the American People (2) Obvious Winner = SCOTUS, with more unrevewied discretion to set statutory policy (3) Nonobvious Winner = President and agencies, which will fill the policymaking gap with executive-generated rules and standards

24 Abbe R. Gluck & Lisa Schultz Bressman, 65 Stan. L. Rev. 901 (2013) Abbe R. Gluck & Lisa Schultz Bressman, 66 Stan. L. Rev. (2014)

27 Legislative Counsel: 77% volunteered that Legislative Counsel plays the central role in textual drafting. Other staff and members focus on the policy and the legislative history. Leadership: Gets involved in big deals, leads to statutory conglomerations of lots of committees work; legislative history not written by experts when leadership involved; getting the deal done is the focus Personal staff (work directly for members, not on committees): Often younger, non-lawyers, less experienced. Drafts toward members own views, not toward consensus as in committee. Focused on boss s reelection when drafting more than committee staff. Rely on legislative counsel more

29 Omnibus bills: Little or incoherent legislative history and textual consistency assumptions don t apply, because conglomeration of multiple committees work Appropriations bills: legislative history more important than usual contains all of the actual directives for agencies, due to House and Senate rules prohibiting legislative language in Approps. Text Process: whether statute goes through textbook committee process or instead takes an unorthodox path through congress (avoiding committee, summit etc., often shepherded by leadership) affects who writes it, who vets it, whether mistakes get corrected, etc.

31 Perceptions of Courts v. Agencies Does Ambiguity Signal Decision to Leave Gaps for Courts or Agencies to Fill? When do Drafters Intend for Agencies to Fill Gaps? Details of Implementation Agency's Area of Expertise Desire For Courts to Fill Gaps Omissions in the Statute Allocating Power Between State & Fed Agencies Qs of Major Economic Significance Desire For Agencies to Fill Gaps Preemption of State Law Qs of Major Political Significance Major Policy Questions Fraction of Respondents Fraction of Respondents

33 ABA Presentation November 7, 2013

34 Legislative Decision Theory A Decision Theory of Statutory Interpretation, 122 Yale L. J. 70 (2012) Simplicity, Parsimony, and Specificity in Legislative History

35 Principle #1: No Driving While Blind Never Read the Congressional Record without Knowing The Rules of the Road

36 Principle #2: Distinguish Winners from Losers Do not cite those who OPPOSED the bill, or filibustered the bill, for the MEANING of the bill. Would you cite a dissent for a majority?

37 Principle #3: Target the Text Focus, Focus, Focus: If you focus on the key text at issue, you may save yourself a lot of time and effort!

38 Principle #4: Read Backwards The key compromises, the most difficult ones are likely to be litigated at the END, not the BEGINNING of the legislative process!

39 Public Citizen v. ABA Sunshine law: Any committee established or utilized by the President must open it records, set public meetings etc. Was the ABA covered when ABA gave its advice on judicial nominees to the President?

40 Reverse-Engineering Are you going to start with the 10 year process of trying to build a sunshine law controlling advisory committees? NO

41 Winners and Losers? Are you going to write a history which sets for the debate pro and con about the bill? NO

42 Targetting the Text Are you going to look for the key problematic text YES!

43 Driving While Blind? Are you going to find out where the key text came into the legislative process? YES Lo and behold it came in at the Conference Committee stage.established was passed by both houses, they went to conference and someone added in utilize

44 What does this mean? The only relevant legislative history is CONFERENCE COMMITTEE REPORT That trumps all other efforts All you need is the conference report plus the texts of the bills to know that utilize was added in conference KEY MOVE: An average member of congress would interpret the addition of utilize as not substantially changing the bill

45 What about administrative law? Should administrative law practitioners use this method? Yes, because at least in part, and without further theorization, courts have adopted these principles in part Yes, when they are litigating; query about rulemaking etc.

46 Differences for Admin Law When administrators are trying to fill in blanks, they are likely to look anywhere for an answer if this is not the best most targeted legislative history There is nothing wrong with this, and it is better than canons as an indicia of context However, these rules will prevent you from making a MISTAKE from having those who would challenge the rule against your use of legislative history as -----

47 Principle #1: No Driving While Blind Never Read the Congressional Record without Knowing The Rules of the Road

48 Principle #2: Distinguish Winners from Losers Do not cite those who OPPOSED the bill, or filibustered the bill, for the MEANING of the bill. Would you cite a dissent for a majority?

49 Principle #3: Target the Text Focus, Focus, Focus: If you focus on the key text at issue, you may save yourself a lot of time and effort!

50 Principle #4: Read Backwards The key compromises, the most difficult ones are likely to be litigated at the END, not the BEGINNING of the legislative process!

The Regulatory State: Introduction to Legislation, Statutory Interpretation, and Administration Spring 2013 Professor Jodi Short

The Regulatory State: Introduction to Legislation, Statutory Interpretation, and Administration Spring 2013 Professor Jodi Short Office: McAllister 200, Room 310 Phone: 415.703.8205 E-mail: shortj@uchastings.edu