Project on Statutory Construction Promotes Inter-Branch Communications

The federal courts of appeal can help Congress make legislative intent as clear as possible through a project designed by the non-partisan Governance Institute and adopted by the Judicial Conference in 1995, on the recommendation of its Judicial Branch Committee.

During a typical Congress, thousands of bills are introduced—nearly 10,000 bills and resolutions in the 113th Congress (2013-14). Each bill in this avalanche of legislation is repeatedly and often substantially amended until, finally, a much smaller number is enacted. In time, some of these enacted statutes may be cited in federal court.

It’s there, in parsing the language of the law, that courts may identify possible statutory drafting problems—such as missing or misleading punctuation, grammatical problems affecting meaning, ambiguous language, or gaps in time periods. Several years ago, for example, two courts of appeals noted an ambiguity as to whether chapter 13 debtors who own rather than lease a vehicle may deduct ownership costs from repayment plans. The Supreme Court eventually resolved the ambiguity.

“Legislation remains an attempt at communication,” explains Senior Counsel Douglass Bellis, House of Representatives Legislative Counsel Office. “But while the courts seek to accurately judge what Congress wills, based on a text, Congress starts without any text then tries to find a text that can find enough support to pass into law. The political moment often quickly passes, so the time for reflection and refining the text may be short.”

According to Bellis a court’s opinion may provide “at least a plausible solution to the ambiguity. The courts, in doing their best to resolve ambiguities, at least temporarily fill gaps in a plausible way until Congress has the opportunity to consider them.”

Through the Governance Institute/Judicial Conference project, courts of appeal send Congress opinions that note possible technical problems in statutes. Opinions go, as a matter of protocol worked out with the legislative branch, to the Speaker and President Pro Tem and the respective Judiciary Committees’ leadership, as well as to their primary users, both houses’ Office of Legislative Counsel. Legislative counsels flag the relevant language, send the opinion to the committees of jurisdiction and use them as teaching tools for their own staff.

Since 2007, when the project was revitalized at Congress’ request, nine courts of appeals have submitted 52 opinions, including three in 2015.  The project transmits only court of appeals opinions.

Chief Judge Robert A. Katzmann (2nd Cir.) has been involved with the project since its inception in the mid-1990s, when he was president of the Governance Institute. “For the Judiciary, this mechanism for transmitting opinions has a number of virtues,” he said. “It is a neutral mechanism of communication, simply a transmission belt; Congress has encouraged it; and it promotes interbranch understanding and good government.”

The project is based on the assumption that the courts should assist Congress when they can, not on any expectation that Congress will amend a statute in response to a submitted opinion. For one thing, legislators and their staffs may regard the courts’ resolution of a problem as correct.

“The value of these submissions is even greater for their educational impact on future drafting than it is when they result in a contemporary change in the statutory text that gave rise to the submission,” said Bellis. “Since the attorneys in the legislative counsel’s offices for each house of Congress normally have lifetime careers drafting legislation, we can benefit from the feedback the courts give us about verbal formulae. We try not to repeat the ambiguities in future legislative drafts.” 

Adds Bellis, “While this program is not perfect, it is almost our only formal channel of communication at present. For that reason alone, I think it is valuable.”