In Loper Bright v. Raimondo, the Supreme Court claimed for itself a vastly increased responsibility for statutory interpretation. Indeed, the Court claimed unique expertise. Thus, it is more important than ever to understand how the Court goes about interpreting statutes. This Article introduces the concept of congressional interpretation to aid in that endeavor.
Congressional interpretation describes a strategy on which the Supreme Court often relies but rarely acknowledges. In statutory interpretation, courts try to understand the meaning of specific statutory language. In congressional interpretation, on the other hand, courts try to understand what the law is by looking beyond the text of a specific statute, or even a specific statute’s legislative history. Instead, courts turn to ambiguous notions about general congressional behavior, guessing at how Congress might behave and often looking at an extended timeline of congressional behavior stretching years, even decades, in the wake of the statute the court is nominally trying to understand.
Courts use congressional interpretation for several purposes: to understand the relationship between a substantive statute and subsequent appropriations; evaluate statutes on the basis of post-enactment congressional behavior; and impose assumptions about congressional norms through clear statement rules. Take, for instance, a court considering whether Congress granted statutory authority when Congress failed to appropriate funding to exercise the supposed authority. A court holds an agency 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 waves away an admittedly plausible statutory interpretation because the court assumes Congress would probably write a statute in a different way.
Looking at the Court’s behavior through the lens of congressional interpretation helps make sense of recent statutory interpretation cases. Decisions, including Loper Bright Enterprises v. Raimondo, Garland v. Cargill, Sackett v. EPA, Biden v. Nebraska, and West Virginia v. EPA 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 democratic legitimacy because courts should be explicit 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 on federal noise law. With a lawsuit pending against EPA for failure to carry out nondiscretionary duties under various federal noise statutes, the noise law case study presents questions at the crossroads of statutory interpretation, appropriations, executive discretion, Take Care Clause duties, and the triggers and application of clear statement rules. Noise law consequently reveals much 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.
