by Robert A. Katzmann.
Oxford University Press, 2014.
Hardcover, 184 pages, $25.
It is safe to say that, with some notable exceptions (for example, Chief Justice Roberts’s 2012 opinion saving Obamacare from itself by substituting the word “tax” for the statutory term “penalty” in National Federation of Independent Business v. Sebelius), judicial decisions in the United States have become significantly less bad, which is to say less damaging to the rule of law and constitutional government, over the last few decades. The source of the improvement is easily recognized and named: the return of the text. Statutory text cannot suddenly produce miracles, of course. Laws continue to be produced through a corrupted legislative process, judges continue to make mistakes (many understandable, some egregious and even mendacious), and in any event judges can stop damaging our legal and constitutional system only by doing their own duty, which means exercising restraint and allowing executive and legislative officials to do a great deal of damage on their own. But attention to the actual words of statutory texts has come to limit somewhat judges’ ability to rewrite laws to suit their own preferences, and this aids the rule of law by increasing the people’s rational confidence that they will be subject to rules laid down beforehand and enforced as written.
Applying laws as written should be a matter of common sense as well as respect for the rule of law. Sadly, common sense and judicial virtue often are hard to come by. For decades, American courts have all but ignored the language of the statutes and regulations they are duty-bound to interpret. They focused instead on abstract and even imaginary “purposes” those statutes may or may not have been designed to serve or digging through contradictory, irrelevant, and sometimes fraudulent bits of legislative materials to construct the “intent” of Congress. During this era many judges failed even to acknowledge that Congress consists of two only marginally corporate bodies (houses of Congress) engaged in continual bargaining and relatively little detailed oversight of legislative record keeping.
Today courts at least gesticulate toward the language of statutes themselves and quite often interpret them as they should, which is to say as written. This slim volume, written by a sitting federal appellate court judge with longstanding legislative ties and interests, is an attempt to roll back the movement toward textual fidelity. Judge Katzmann seeks to convince judges to return with renewed vigor to habits of redrafting legislation by arguing, in effect, that this is what Congress wants and needs. To make such an argument one must show how and why Congress’ desire, if it be so, is relevant, as well as how courts are to find that mythical beast, legislative intent. Katzmann’s argument rests on a false vision of our constitutional order as one rooted in inter-branch cooperation and a rather weak defense of the accuracy of so-called “legislative history.”
To address practical matters first, Katzmann spills a fair amount of ink defending the legitimacy and accuracy of the speeches, reports, and other statements entered into the official records of Congress and treated as evidence of legislative intent. He ignores voluminous evidence, dealt with perhaps most spectacularly by Judge Easterbrook of the federal Seventh Circuit Court of Appeals in the 1990 Continental Can v. Chicago Truck Drivers case, of attempts by Members of Congress and their staff to manipulate the legislative record so as to mislead judges as to the intended meaning of key terms. Katzmann’s failure to address such evidence is all the more egregious given the nature of his defense of legislative history. According to Katzmann, we can trust congressional staffers to provide accurate reports of evidentiary hearings, discussions, and negotiations because they want to keep their bosses happy and can only do so by maintaining a reputation for accuracy. Such breezy claims lack seriousness given that the generators of dishonest legislative history, as shown in Continental Can, often are Members of Congress themselves. Staffers certainly want to keep their jobs, and that often means lying for the boss.
Legislative history is unreliable because it is a political tool manipulated by Members of Congress in an attempt to “win” in court by planting favorable readings of key statutory terms where judges, but not Members who might object, are likely to find them. Nevertheless, legislative history’s defenders continue to claim that it is both reliable and relevant. Let us leave aside for the moment the question of accuracy and ask why judges would feel the need to look outside the text of a statute in the first place. Why is it necessary to interpret a law by looking at things that are not, after all, the law?
For generations, Anglo-American judges understood their need and even duty to read statutory language against the background of the common law—that collection of customs and deeply rooted understandings that provided context and rules of thumb for interpreting words, phrases, and legal terms. Today, sadly, even textualists like Justice Scalia tend to dismiss our common-law tradition, in part because it has been so misused at least since the New Deal. But in referring to these customs (as supplements to statutory and dictionary definitions) judges understood their job as one of finding and applying what can accurately be called the public meaning of the text. Such tools helped judges understand what statutory terms meant when taken as signals to their audience as to what actions would be met with what consequences. Judges looked to these sources in order to clarify what the people—the audience of the statute—reasonably would understand a statute to mean.
Contemporary notions of legislative intent rest on a different presumption concerning the job of the judge. “Finding” law in history and common usage is dismissed as illusory even as “finding” intent in legislative history is presumed to be a science judges can master. The putative goal is to establish what the legislature meant the statute to mean. The legislature is the sovereign, on this reading. It wrote the statute as an expression of its will, and as sovereign its will should be done.
On its surface this view appears commendably humble, moving judges to seek only the will of Congress, that legislative body seen as embodying the sovereign power to make law. Unfortunately, in Katzmann’s view it is not really possible, or at any rate convenient, for Congress to actually do its job of making law in the sense of clear rules the people can know and follow. As he repeatedly argues, Congress is too busy to do anything other than pass vague, even contradictory statutes which the courts must redraft in the interests of efficiency and good government.
Excuses for congressional inattention to detail and intentional obfuscation are many. There is, for example, the committee system. Katzmann avers that “[c]ongressional organization—with its many decision points—can frustrate coherent decisionmaking, producing muddy statutory language.” Moreover, the institutional drive for logrolling—a form of bargaining in which votes for one provision are bought with other, often unrelated provisions and packaged together into one incoherent (“omnibus”) bill touching on a wide variety of subjects—precludes clarity. “Because it is generally subject to an up-and-down vote, the massive omnibus bill masks differences over contentious measures included in the legislation that might not have passed if considered individually as stand-alone bills.”
And the sheer number of bills, meetings, and other responsibilities under which Members operate for Katzmann renders Members too busy to pay much attention to the language of the statutes they draft. In sum, according to Katzmann, we should dispense with the myth of congressional decision-making as coherent and principled. So much for the Senate as the world’s greatest deliberative body.
One might be excused for asking why the courts should respect such a lazy, self-interested, and cavalier body, let alone seek to impose its mythical corporate will on an unsuspecting public. The answer lies in the Progressive vision of government as the rule of experts. We do not need Congress to do its job of legislating, in this view, because its members can hire other, better trained experts to do it for them. All that is required is that we anchor experts’ work in some set of materials we can ascribe to the will of Congress, then get on with the job of governing.
Katzmann is eager to show that his favored methodology is less dangerous than its critics (Scalia comes in for special mention here) allege. He provides brief, not terribly helpful summaries of opinions in three cases—one uncontroversial, one upheld by those sharing his attachment to legislative history, and one where his attempt to take dicta presented in a footnote from a previous case to build an intricate theory of interpretation was rightfully swatted down. These specific examples are unhelpful because they do not address the institutional context within which judges practice today. In particular, Katzmann fails to question or defend the legitimacy of the current “system” of legislation, in which Congress sets broad priorities, then leaves it to administrative agencies and courts to craft actual rules people are expected to follow.
Today courts (often rubber-stamping administrative agencies) take the gap-filled products of congressional bargaining and render them coherent in a manner consistent with some overall purpose they find or create for the law, thus finishing the job of legislating. That the legislation is thus “finished” only after numerous people have acted in reliance on customary interpretations of statutory terms seems of no concern to Katzmann. But this fact shows his method’s hostility to the rule of law and to justice itself. A fundamental practical aspect of justice in court is the vindication of the reasonable expectations of the parties; laws are not laws if they repeatedly surprise those who conscientiously try to know what they demand. The amorphous legislative process encouraged by the form of judging Katzmann espouses violates the duty to treat parties justly, instead promoting the convenience of the state as represented by its administrative functionaries.
At heart, Katzmann’s project is that of rebuilding commitment to a Progressive-era system of shared governance among experts. His “will of a sovereign legislature” actually means the craft of unelected “experts” acting above and beyond law. His program would further entrench already lawless practices whereby congressional staff, courts, and administrators draft and re-draft laws, regulations, and other rules on the basis of shared assumptions and mutual deference, producing nothing so much as administrative discretion. It rests on rejection of our constitutional system, which is not, in fact, intended to promote efficient, but rather limited government, not to share, but to cabin and limit power.
For the Progressives and their New Deal progeny, the point of government was to centralize power in administrative agencies run by experts who would turn the general demands of Congress into specific policies and programs. The three branches of government would work together, on this view, to provide “good government” through transformative regulatory schemes. The people would be “sovereign” in that they would be able to vote out of office those who violated the public trust. But the business of society would be the business of government, now responsible for the public welfare and the regulation of daily activities. The real sovereign, here, would be the state, formally the legislature but in practice a law-and-rule-making apparatus that would include administrative agencies and cooperative courts willing to maintain or establish coherence among complicated and contradictory rules.
This is far from the system constructed by the drafters of American constitutions, who sought a federal government of limited, enumerated powers leaving the vast bulk of self-government to states, localities, and the people in their various associations. Sovereignty, on this view, meant something less powerful and dangerous than it does today. The early modern view of sovereignty, subscribed to by so many current judges and academics, was one of absolute dominion; it was simple, but prone to promote tyranny. And it is rendered no less dangerous by being “shared” across constitutional lines. American federalism rests on a more limited understanding, though one with deep historical roots, in which the “sovereign” is merely the party with the greatest authority in a given circumstance. In the United States it is said that the people are sovereign, but ours is a system wherein the people are represented within the states and only somewhat indirectly in the national government. Then again, sovereignty itself is a problematic notion, one that the framers of our Constitution sought to domesticate through enumeration and separation of powers.
The people do, in fact, have the final say on all matters in our system through the amendment process. In theory this process places no limits on what the people can do; thus, for example, the intrusive and ill-considered prohibition amendment—the only one to later be repealed. In normal times, however, the closest our system comes to a “sovereign” in the sense of an all-powerful political force is Congress, which has the power (sadly never used) to remove recalcitrant members of the other branches of government from office. But there is no ultimate lawmaker save the people—at least not in accordance with the Constitution. Each branch must, if it is to abide by the Constitution, recognize severe restrictions on its freedom of action as well as the right of the other branches to exercise their own judgment and powers within their own sphere.
There is a myth, resting on a highly overbroad reading of Justice Marshall’s dicta in the over-emphasized Marbury vs. Madison case, that the courts decide what laws are and whether they can stand, given the requirements of the Constitution. This is self-evidently false for reasons Katzmann himself recognizes. He uses the example of the congressional veto, which congressional committees continue to enforce long after the mechanism was “struck down” by the Supreme Courtas an example of continuing legislative power. But this power is effective for the simple reason that the congressional veto, like most legal measures, generally does not require court participation for its enforcement. Courts do not say what the law “is”; in deciding concrete cases they also decide which laws are within their constitutional power to enforce, and which not, then seek to nail down what the laws require in particular circumstances.
This is the way it must be in a constitutional republic; a free people cannot simply wait for some court to tell them what they can and cannot do and how. That would constitute a regime of judicial discretion, not law. A free people must be able to determine for themselves what the law requires and act accordingly, looking to the courts only in the breach, where the legislature clearly has failed in its duty to draft clearly, or where circumstances are frankly odd and unexpected. Otherwise, the courts would be making law, something they arenot constitutionally empowered to do.
These rather fundamental facts of any free society under law render Katzmann’s task in defending judges as re-drafters rather difficult. He gamely makes his case, but it rests on confidence in a class of administrators operating in defiance of constitutional structures and limitations. For example, he claims that Congress’ various “non-statutory controls,” like the power to cut off funding for executive agencies, show that administrative interpretation of statutes, to which he would have courts give extremely broad deference, is rooted in “law.” Apparently, administrators’ fear of current legislators will cause them to abide by Congress’ supposed intent embodied in sometimes decades-old legislation. This is not a credible argument for administrative or judicial deference as law. All Katzmann’s argument shows is that succeeding Congresses themselves may change the meaning of previously enacted statutes as they will, provided they can bully administrators into going along. Congressional will itself is not law for the very reason that it changes, failing to provide the people with clear, predictable rules.
But, Katzmann argues, Congress wants courts to find and act on legislative history’s indications of its intent, and there is no other way to find coherence in legislative enactments. Here Katzmann cites congressional ignorance of basic rules (or “canons”) of statutory construction. In essence he argues that, because Congress does not legislate with reference to the tools judges use to discern the meaning of statutory language, it would be undemocratic for judges to use them. Again, this simply is not a credible argument. When our former President lied to investigators on the grounds that the meaning of “is” is indeterminate, he committed perjury and his license to practice law was suspended. In the same way, Congress cannot make of the English language whatever it wills—certainly not unless it explicitly says it is doing so. The rules of our language are available and applicable to Members, staffers, and elementary school students because they are essential elements of the structure of shared meaning by which we maintain a society.
True, and despite disparaging comments from judges who consider themselves too philosophically sophisticated to bother with it, textual analysis can be difficult. This is especially true today, after several generations of Americans have gone from kindergarten through high school, college, and even law school without being taught the basic rules of grammar. But self-serving theories of linguistic indeterminacy have done sufficient damage to our ability to communicate with one another and rule ourselves that it is long past time to recover what we already know—that language is made up of terms with a limited range of discernible meanings.
There has perhaps been too much focus over recent decades on judges’ drive to twist laws to serve their own ends. At least as destructive has been the drive to “save” laws by filling in gaps and even rewriting them so as to impose coherence and legitimacy where it does not exist. Under a constitutional system such as ours, the people have a right to know what their laws require of them, and a right not to be subjected to laws that fail to provide clear rules. It is time for judges to reject the self-serving methodologies of “experts” committed to their collective status and power and return to the difficult but important task of discerning what statutory texts actually say to the reasonable people who must live under them.
Bruce Frohnen is a Professor of Law at Ohio Northern University School of Law.