Category Archives: statutory interpretation

Ballot access rules for disqualified presidential candidates

Ned’s post on Section 3 of the Fourteenth Amendment walks through challenges pertaining to former president Donald Trump’s eligibility. It’s a sound legal analysis (although I’m sure there are disputes among some as to the facts, and there’s much uncertain about the politics), but I wanted to build on one point he raises: “That way, if Trump is judicially ruled ineligible—becoming constitutionally equivalent to Obama—his name can be kept off the ballots in 2024, and no voter will waste a vote by casting a ballot for a constitutionally ineligible candidate.”

The ballot access rules are a separate and major complication for presidential candidates. Consider the following hurdles.

Let’s start with the presidential primaries, formally the selection of delegates to the national nominating convention. The Democratic Party has rules requiring that candidacy including “requirements set forth by the United States Constitution.” (Rule 13.K.) The Republican Party does not (although no state may bar voting for someone who is constitutionally eligible).

For caucuses, the rules are largely left to state parties to determine candidate eligibility. For primaries, states often defer to party determinations or have no express rules as to candidate qualifications. So it’s entirely possible that an otherwise-ineligible candidate secure a majority of the delegates heading into a nominating convention.

On the other side of the nominating convention are ballot access rules for presidential candidates. Some states will exclude ineligible candidates. Others will not–for instance, I chronicle ballot access for ineligible candidates in recent history, like 27-year-old Peta Lindsay or Nicaraguan national Roger Calero, each of whom appeared on the ballot in some states in recent years. And some states only test presidential candidate eligibility for age, citizenship, and residency–nothing else. I took a look at some such challenges in the 2016 election.

Add to that the complexity of presidential electors (some of whom are statutorily required to vote for the candidate they were pledged to support or who received a plurality of the statewide popular vote, or else they vacate their office). And add to that the challenges of Congress’s power to refuse to count electoral votes, which Ned alludes to (and which no one is excited to re-engage in 2025).

All that is to say, the issues Ned identifies are important qualifiers for disqualifying a presidential candidate. But there 51 separate ballot access rules that need to be navigated to see how it would play out.

There are two important caveats. The first is that the GOP might truncate the process by cutting out a nominee from its primary process. That seems unlikely no matter the circumstances–as a matter of the complexity of how states run their primaries and as a matter of the party apparatus making changes to its internal governance ahead of 2024. The second is that Ned’s proposal certainly could expedite litigation. In the absence of a statute to enforce Section 3, I imagine some will litigate on a state-by-state basis, during the primaries and again during the general election, to exclude Trump from the ballot. A statute would certainly simplify resolution of the matter (and might alter how the party behaves–the same, for instance, as if Barack Obama attempted to seek a third term, to Ned’s analogous disqualification rule).

But litigation, it seems, is inevitable whatever happens, and it’s only a question of how messy it looks.

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“Electoral Votes Regularly Given”

I’ve posted a couple of brief items already, but I want to take a moment to join the other new contributors in thanking Rick for his kind invitation to join the Election Law Blog. This site has been an extremely valuable resource for me since I was a law student (!), and it’s a tremendous privilege to join so many thoughtful scholars in the field here.

I have a late-stage draft of an essay forthcoming in the Georgia Law Review entitled “Electoral Votes Regularly Given.” Here’s the abstract:

Every four years, Congress convenes to count presidential electoral votes. In recent years, members of Congress have objected or attempted to object to the counting of electoral votes on the ground that those votes were not “regularly given.” That language comes from the Electoral Count Act of 1887. But the phrase “regularly given” is a term of art, best understood as “cast pursuant to law.” It refers to controversies that arise after the appointment of presidential electors, when electors cast their votes and send them to Congress. Yet members of Congress have incorrectly used the objection to challenge an assortment of pre-appointment controversies that concern the underlying election itself. This Essay identifies the proper meaning of the phrase “regularly given,” articulates the narrow universe of appropriate objections within that phrase, and highlights why the failure to object with precision ignores constraints on congressional power.

I anticipate a great deal of academic and legislative interest in the Electoral Count Act ahead of the 2024 election, and I hope this essay offers a small but meaningful contribution toward those efforts.

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“Op-Ed: Why Judge Barrett’s legal philosophy is deeply antidemocratic”

Victoria Nourse LAT oped hits the nail on the head about textualism:

Many think that the appointment of Judge Amy Coney Barrett to the Supreme Court will jeopardize the Affordable Care Act and abortion rights. But the reach of her antidemocratic judicial philosophy will go beyond those issues to put every federal law that conservatives oppose in danger.

Barrett, who has been on the federal bench for less than three years, is a conservative star because of her writings supporting the theory advocated by the late Justice Antonin Scalia known as “textualism.” This judicial philosophy is fundamentally at war with democracy. It would allow the court to rip apart laws that voters need and want.

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“State Courts, the Right to Vote, and the Democracy Canon”

Rebecca Guthrie has posted this student note for the Fordham Law Review. I’m obviously interested in this topic, and its new database of cases alone will make this article very useful—but I expect if offers far more. I can’t wait to dive in. Here is the abstract:

Entire elections can be determined by the way a state judge chooses to interpret an election statute. And yet, there has been little scholarly attention on how judges construe statutes regulating elections at the state level. This Note begins to redress that lack of attention by undertaking an in-depth analysis of one interpretive tool historically invoked by state courts. The “Democracy Canon” is a substantive canon urging courts to liberally construe election statutes in favor of voter enfranchisement. By conducting a review of both historical and modern references to the Democracy Canon by state courts, this Note argues that courts have become less willing to rely on the Democracy Canon in recent decades. At the same time, codification of the Democracy Canon, and perhaps other substantive canons, by state legislatures may alleviate most concerns of courts about using substantive canons and may be the solution to revitalize the Democracy Canon.

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Coming in Late Fall: Legislation, Statutory Interpretation, and Election Law: Examples and Explanations (2d Edition)

I am pleased to announce that the fully revamped version of my Examples and Explanations book in Legislation, Statutory Interpretation, and Election Law will be available from Wolters Kluwer in the late fall. The first edition was from 2014, and so much has happened in both the field of Election Law and Legislation since then which is covered by the new edition.

The book is appropriate as a supplement or study aid (with mini-essay questions and answers) for courses in in Legislation, Leg/Reg, Statutory Interpretation, Election Law, Voting Rights, and Campaign Finance. It is also intended as a treatise for practitioners in the field and a resource for lawyers, professors and judges, summing up my basic approach to these subjects that I have been studying for many years.

More information on the publication date when things get closer.

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“Textualism for Realists:” Michigan Law Review Issue Includes Review of My Justice Scalia Book by Ian Samuel

You can find the 23-page review of my book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, at this link. Although Samuel has much to disagree with, the former Scalia clerk says this: “Hasen’s book ought to be read by everyone with a strong opinion about Justice Scalia, in either direction. Skeptics of Scalia, of course, will find much to nod at. But actually, my recommendation is especially true for the justice’s admirers—who will find much to disagree with in the book, but who nonetheless ought to read it to understand what is likely to be the party line of sophisticated Scalia skeptics in the years to come. And although neither virtue counts for much in the academic press, for what it is worth, the book is very readable and (a virtue Scalia himself would have appreciated) admirably free of filler—Hasen gets to the point.”

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Blackman: What happens if the Virginia Lieutenant Governor resigns?

The following is a guest post from Josh Blackman:

In Virginia, the Governor, Lieutenant Governor, and Attorney General are all being called upon to resign. If the Governor resigns, Article V, Section 16 of the Virginia Constitution provides a fairly clear order of succession: 

In the case of the removal of the Governor from office or in the case of his disqualification, death, or resignation, the Lieutenant Governor shall become Governor. If a vacancy exists in the office of Lieutenant Governor when the Lieutenant Governor is to succeed to the office of Governor or to serve as Acting Governor, the Attorney General, if he is eligible to serve as Governor, shall succeed to the office of Governor for the unexpired term or serve as Acting Governor. If the Attorney General is ineligible to serve as Governor, the Speaker of the House of Delegates, if he is eligible to serve as Governor, shall succeed to the office of Governor for the unexpired term or serve as Acting Governor. If a vacancy exists in the office of the Speaker of the House of Delegates or if the Speaker of the House of Delegates is ineligible to serve as Governor, the House of Delegates shall convene and fill the vacancy.

However, the Virginia Constitution does not explain what happens if the Lieutenant Governor resigns. The Virginia Attorney General recognized this gap in a 1982 opinion:

There is no provision in the Constitution of Virginia (1971) which expressly deals with filling a vacancy solely in the office of Lieutenant Governor. Article V, § 16 acknowledges the possibility of such a vacancy by providing that the Attorney General shall succeed to the office of Governor if a vacancy exists in the office of Lieutenant Governor when the Lieutenant Governor is to succeed to the office of Governor. Neither is there a statute which expressly deals with filling vacancies in the office of Lieutenant Governor.

What, then, happens if the Lieutenant Governor resigns? In the immediate aftermath of the vacancy, Section 24.2-212 would kick in. It provides:

“When a vacancy occurs in the office of Lieutenant Governor, the duties of that office shall be discharged by the President pro tempore of the Senate, but he shall not by reason thereof be deprived of his right to act and vote as a member of the Senate.”

However, the Attorney General concluded that the President pro tempore would only serve until the Governor made a unilateral appointment pursuant to Article V, Section 7. It provides:

“The Governor shall have power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision.”

The Attorney General concluded that:

“neither the Constitution nor § 24.1-84 [currently codified at 24.2-212] provides a method for filling a vacancy in the office of Lieutenant Governor. Consequently, I conclude that the Governor is empowered to fill such a vacancy under Art. V, § 7 and § 2.1-18.”

In other words, the Governor has the unilateral power to appoint the Lieutenant Governor—that is his successor.  And that person would serve until the next election.

There is another reading. The Virginia appointments clause gives the Governor plenary appointment powers  “for which the Constitution and laws make no other provision.” Would Section 24.2-212 be such a law that “makes other provisions”? In other words, Section 24.2-212 would create a special carve-out to the Governor’s general unilateral power.

As a structural matter, this alternate reading makes sense. Consider the 25th Amendment as an analogy. It provides:  “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.” After the resignation of Vice President Spiro Agnew, President Nixon was only able to select then-House Minority Leader Gerald Ford as his VP with the consent of Congress. It would have been untenable for Nixon to select a crony who would replace him following resignation. This situation somewhat resembles the crisis in Virginia, where the Governor is also under calls to resign.

If the Lieutenant Governor resigns, and the Governor makes an appointment, the President Pro Tempore would have standing to challenge his displacement from office.

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“Don’t forget about Kavanaugh’s troubling legal philosophy”

George Thomas WaPo oped:

As the FBI conducts its investigations into the sexual assault allegations against Supreme Court nominee Brett M. Kavanaugh, just about everyone has been distracted from questions about his legal philosophy. But let’s not forget, as Justice Neil M. Gorsuch put it in somewhat different circumstances, to talk about the arcane matter of the Constitution. There are unanswered questions here, too.

Kavanaugh insists that one factor “matters above all in constitutional interpretation”: understanding the “precise wording of the constitutional text.” During his confirmation hearings, he frequently turned to his well-thumbed pocket Constitution to highlight this point.

Yet text does not always speak for itself. How we interpret constitutional text depends on our larger understanding of what kind of government the Constitution brought into being, as well as our understanding of more specific concepts such as “the executive power” or “equal protection of the laws.” Here text is helpful, but only suggestive.

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Kavanaugh, Foreign Agents, and American Elections

Justin here, with my own take on Kavanaugh and the election process, also cross-posted over at the Take Care blog:

In the 2016 elections, we were hacked.  I don’t mean the breach of the DNC systems, serious as that was.  And I don’t mean intrusion into the mechanics of casting and counting ballots: media frenzy aside, that structure mostly held up.  Someone broke into two states’ voter registration databases, poked around, and left – but there’s no indication that any registration or vote was changed, anywhere in the country.

What I mean is that we, the people, were hacked.  Entities of a foreign nation-state figured out what we cared about, and what we fought about, and turned the volume up to 11.  We were hit by true “crisis actors”: agents pretending to be who they were not, not in the aftermath of crisis but in an attempt to foment it.  They invaded our social spaces, with a specific eye to disrupting the election conversation.  And because of a 2011 case called Bluman v. FEC, written by Judge Brett Kavanaugh, much of it may have been legally authorized.

If there’s a voting case that Senators should be focusing on this week, it’s Bluman.  It’s not really the case’s substantive connection to a Russian threat that should catch the Senate’s eye.  Instead, it’s Judge Kavanaugh’s judicial process.  The opinion, written for a three-judge trial court, shows little respect for the Supreme Court.  It shows little respect for Congress.  And it shows little respect for deep analysis.  Instead, it offers a simplistic answer — what amounts to little more than a policy preference — to a series of what should have been hard questions.

Continue reading Kavanaugh, Foreign Agents, and American Elections

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“An Empirical Examination of Agency Statutory Interpretation”

Amy Semet has posted this draft on SSRN.  Here is the abstract:

ow do administrative agencies interpret statutes? Despite the theoretical treatment scholars offer on how agencies construe statutes, far less is known empirically about administrative statutory interpretation even though agencies play a critical role in interpreting statutes. This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons and other tools of statutory interpretation to decide cases. Surveying over 7,000 cases heard by the National Labor Relations Board (“NLRB”) from 1993-2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns of how the Board interprets statutes over time. Overall, I find no ideological coherence to statutory methodology. Board members switch between textualist or purposive methods depending upon the partisan outcome sought. Indeed, Board members often use statutory methodologies to dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on vague pronouncements of policy and less on precedent or legislative history. Moreover, despite scholars arguing that agencies should interpret statutes differently than courts, in practice, this study indicates that the NLRB interprets its governing statute in similar fashion to how courts do. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes. The balance required—between policy coherence, stability and democratic accountability—is fundamentally different in the context of agency statutory interpretation than for interpretation by a judicial body. Rather than acting like a court, adjudicative agencies like the NLRB should leverage their expertise to arrive at an interpretation that best effectuates the purpose of the statute. For an agency like the NLRB that makes decisions almost exclusively through adjudication this may necessitate that the agency reveal its statutory interpretation in a more transparent fashion through rulemaking.

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“Commentary: In Pair of Opinions, Fight Over Textualism Lives On; When Justice Kagan declared at a 2015 “Scalia Lecture” at Harvard Law School that ‘we are all textualists now,’ she may have been a bit premature.”

I have written this oped for the National Law Journal. It begins:

The battle over Justice Antonin Scalia’s approach to interpreting federal statutes shows no signs of abating even two years after his death, as a pair of opinions issued Wednesday by Justice Sonia Sotomayor, a concurring opinion by Justice Clarence Thomas and a surprising concurring vote of Justice Samuel Alito show.

Scalia’s most lasting influence on the Supreme Court is likely to be “textualism,” an approach to deciding the meaning of statutes by relying upon the words of the statutory text as a reader at the time of the statute’s enactment would have understood them. Scalia would frequently turn to dictionary or “canons” of construction (rules of thumb for deciding cases, such as interpreting criminal law statutes leniently to help defendants) as an aid to construction. What he would almost never do is consult legislative history (such as the statement of a senator on the floor of the Senate or a House of Representatives committee report accompanying legislation) to understand the statute’s meaning. He thought such legislative history was unreliable, manipulable and not the law passed by Congress….

Sotomayor took up the cause of anti-textualism Wednesday in a concurring opinion in Digital Realty Trust v. Somers, a case concerning a technical provision of the 2010 Dodd-Frank anti-corporate fraud statute protecting whistleblowers. All nine justices on the high court agreed with the result reached by Justice Ruth Bader Ginsburg’s majority opinion on the meaning of the whistleblower provision. Ginsburg’s majority opinion relied not only on the words in the statute but also a Senate report explaining its meaning.

Justice Clarence Thomas, joined by Justices Alito and Neil Gorsuch, issued a separate opinion agreeing with the parts of Ginsburg’s opinion using the textualist approach, but rejected any reliance on the Senate report or legislative history. Thomas wrote, quoting in part Scalia, that “Even assuming a majority of Congress read the Senate Report, agreed with it, and voted for Dodd-Frank with the same intent, ‘we are a government of laws, not of men, and are governed by what Congress enacted rather than by what it intended.’”

Especially interesting was Alito’s agreement to sign on to the Thomas concurrence. While Gorsuch is a professed textualist, Alito has been willing to look at legislative history, which dismayed Scalia. Perhaps the passage of time has turned Alito into more of a textualist.

The short Thomas concurrence prompted a response from Sotomayor, who argued for the relevance of legislative history in understanding the meaning of a statute in context. She relied upon Second Circuit Chief Judge Robert Katzmann’s excellent rejoinder to Scalia, his 2014 book, “Judging Statutes,” as well as the work of professors Abbe Gluck and Lisa Schultz Bressman, showing that congressional staffers viewed committee reports as the most reliable type of legislative history. Sotomayor wrote that “legislative history can be particularly helpful when a statute is ambiguous or deals with especially complex matters. But even when, as here, a statute’s meaning can clearly be discerned from its text, consulting reliable legislative history can still be useful, as it enables us to corroborate and fortify our understanding of the text.”

Despite Sotomayor’s valiant defense of more holistic statutory interpretation, she did not mention a bit of legislative history in her unanimous opinion for the court Wednesday in Rubin v. Islamic Republic of IranRubin concerned whether the Foreign Sovereign Immunities Act of 1976 prevented a plaintiff, who held a judgment against Iran for assisting in terrorist act, from obtaining Iranian artifacts held at the University of Chicago to satisfy the judgment. The unanimous court held that the FSIA gave Iran immunity from this attempt to satisfy the judgment….

Despite the fact that all of the Supreme Court merits briefs in Rubin, as well as an amicus brief of the United States, cited the legislative history of the FSIA—including a floor statement of Sen. Frank Lautenberg, D-NJ—Sotomayor’s opinion did not mention legislative history at all.


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“The Disparate Impact Canon”

Michael Morley has posted this draft on SSRN (forthcoming, U Pa L. Rev. Online).  Here is the abstract:

During a recent oral argument, Justice Sonia Sotomayor raised the possibility of rejecting a proposed interpretation of a federal statute, the National Voting Rights Act, on the grounds it would have a disproportionate adverse impact on racial minorities. This Essay expands upon Justice Sotomayor’s comment, considering the possibility of recognizing a new substantive canon of statutory construction: a “disparate impact canon” that would require courts to construe ambiguous federal statutes in a manner that avoids, combats, or prevents racially disparate impacts. The Essay considers how well a disparate impact canon fits with the standard justifications for substantive canons, as well as its constitutional implications. It concludes by pointing out that debate over a disparate impact canon is a proxy for larger disputes over the proper role of judges and empathy in the adjudicative process — issues that arose during Justice Sotomayor’s confirmation hearings. Recognizing a disparate impact canon would be a natural, albeit substantial, extension of her jurisprudence.

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Should Alabama Republican Party Get to Replace Roy Moore on Senate Ballot If He Withdraws?

With allegations that Republican candidate for Senate in Alabama Roy Moore initiated sexual contact with a 14-year-old when he was 32, there is already talk about him withdrawing from the race. Derek Muller reports that Alabama law would not allow a replacement this late. But should courts allow it anyway?

I wrote in a Stanford Law Review article, The Democracy Canon, about a similar situation which occurred when a candidate (Torricelli) withdrew from Senate in New Jersey after the deadline, and the New Jersey Supreme Court allowed a replacement (Lautenberg) to appear on the ballot anyway. Lautenberg went on to win. The opinion was controversial, and in my article I defend it as giving voters a real choice in an election when the statute did not absolutely forbid the replacement (applying what I call “The Democracy Canon”).  I’d say the same principle should apply here, if there is a permissible construction of the statute.  Here’s what I wrote defending the NJ Supreme Court:

The New Jersey Supreme Court held that even though the vacancy occurred fewer than fifty-one days before the election, and the Democratic Party’s selection of a replacement was to be made fewer than forty-eight days before the election, the Democrats could still name a replacement. The decision was unanimous among the seven justices, which included four Democrats, two Republicans, and an independent.

The Samson court relied heavily on the Democracy Canon in reaching its ruling, and especially on a string of earlier New Jersey cases which had extended filing and other election law deadlines under the authority of the Canon. Especially important was the court’s earlier decision in Catania v. Haberle, in which the court extended a statutory deadline for filling a vacancy on the ballot in a special election:

Concerns have been expressed that by giving this deadline provision a directory, rather than mandatory, construction we will create doubts about many other sections of the election law, a law that is driven by deadlines. Our only response is that this Court has traditionally given a liberal interpretation to that law, “liberal” in the sense of construing it to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on Election Day. Obviously, there will be cases in which provisions must be interpreted strictly, mandatorily, for in some cases it will be apparent that that interpretation serves important state interests, including orderly electoral processes. But those cases must be decided on their own facts, under the law involved. This Court has never announced that time limitations in election statutes should be construed to bar candidates from the ballot when that makes no sense and when it is obviously not the Legislature’s intent. There are states that have such rules, but New Jersey is not one of them….

The main criticism of the New Jersey Supreme Court was that its decision went against the apparently clear words of the statute. New Jersey Republican Party Chairman Joseph M. Kyrillos called the ruling that a change could be made fewer than forty-eight days before the election “absurd.” U.S. Senator Bill Frist, then chairman of the Senate G.O.P. campaign committee, called the argument to extend the time “a desperate grasp at getting around the law.”

But did the New Jersey Supreme Court in Samson really “bend the rules” to achieve the “desirable goal” to “permit candidates from each of the major parties to appear on the ballot in a Senate election”? Did it employ a “legal fiction” in stating that the statute was silent on the question of filling vacancies in fewer than forty-eight days?

No. The court was surely right that the statute did not expressly bar a party from choosing a replacement candidate fewer than forty-eight days before the election. Indeed, Bill Baroni, one of Forrester’s lawyers, conceded in a law journal article written after the case ended that “[t]he statute is silent as to what would happen after the forty-eighth day.” To reach the conclusion that the statute barred a party from filling a vacancy in a time shorter than forty-eight days before the election, one had to (at least implicitly) apply the expressio unius linguistic canon of construction: the inclusion of one thing (the right to fill vacancies at least forty-eight days before the election) indicated the exclusion of the other (no right to fill vacancies in forty-eight days or fewer). As Justice Scalia put it in talking about the expressio unius canon generally: “What [the expressio unius canon] means is this: If you see a sign that says children under twelve may enter free, you should have no need to ask whether your thirteen-year-old must pay. The inclusion of the one class is an implicit exclusion of the other.

I concede that reading the New Jersey statute in light of the expressio unius canon alone leads to the conclusion that replacements are not allowed fewer than forty-eight days before the election. Indeed, this is the most natural reading of the statute purely as a linguistic matter. But as Professor Mullins has remarked, the reality of language in context is often more complex than “a simple matter of twelve-year-olds.” I

in the context of New Jersey statutory interpretation of election laws, the Samson interpretation followed the rules rather than bent them. The New Jersey Supreme Court, which had consistently used the Democracy Canon to extend deadlines for the benefit of voters, had long ago created a de facto clear statement rule when it came to statutory deadlines. The court essentially said that if the New Jersey legislature wanted a stricter statute, it needed to use unmistakably clear language like Colorado. As the Samson court observed: Our cases repeatedly have construed the election laws liberally, consonant with their purpose and with practical considerations related to process. We are aware of only one instance in which the Legislature amended an election provision to prevent the filling of a vacancy, effectively overriding the decision of this Court . . . .Indeed, despite criticism of the Samson opinion, the New Jersey Legislature has not amended its vacancy statute to impose clearer language.

I’d have to look more closely at the words of the statute in Alabama to see if it is possible to bend them to allow this. But why shouldn’t voters have a choice between two actual candidates if Moore withdraws?

UPDATE: The other issue are the overseas and military voters, who have already received ballots under UOCAVA.  I would think that if these voters cannot get replacement ballots it may be too late to allow a Moore replacement.

SECOND UPDATE: Much more from Derek on write-ins and other complications.

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“Congress, Statutory Interpretation, and the Failure of Formalism”

Can’t wait to read this new one from Abbe Gluck in U Chicago L. Rev:

The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project—typified by but not limited to Justice Antonin Scalia’s brand of textualism—has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as blackletter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically linked to Congress.

What we actually have instead is an approach whose legitimacy depends, in large part, on understanding how Congress works. Establishing the incomplete execution of formalism is a crucial first step in this argument, because the fiction that textualism has been successful in achieving its goals has prevented us from seeing what judges actually want and, in fact, are actually doing.

With that understanding, it becomes clear that better judicial understanding of the realities of congressional drafting practice will not only make statutory interpretation practice more legitimate, but also advance the enterprise of what most judges—even formalists—already see their job to be. If formalism originally began as a second-best alternative to understanding Congress, understanding Congress has emerged as a second-best alternative to carrying out the formalist project.

After laying this groundwork, this Essay offers ten new rules of statutory interpretation— objective, formalism-compatible rules, but rules grounded in congressional practice. It especially highlights one new rule—the CBO Canon—and then offers nine more, including an anticonsistency presumption and presumptions about different legislative vehicles, multiple agency delegations, dictionaries, and special legislative history. Judges of all interpretive stripes have shown new interest in applying this kind of real-world understanding of the legislative process to statutory interpretation doctrine. The goals here are to explore why that might be the case; to meet some of the objections that have been raised about the use of such evidence; and to offer examples to illustrate the very possibility of what might be, and in some cases
already is.

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