Spills over to make Congress better at drafting legislation, even if Congress says no

As noted earlier, ambiguities can have a variety of causes, intentional and unintentional. To the extent that cases identify the latter, they reinforce the need for greater attention to the nuances of legislative drafting. The statutory housekeeping mechanism could thus be of use to those within Congress concerned with improving the drafting process.

C. GAPS

The D.C. Circuit has referred six cases to Congress involving statutory gaps that deal with deference to administrative agency action, jurisdictional questions, and the preemption doctrine. Most certainly, these cases implicate important issues, including separation of powers, federalism, and statutory construction. For example, Kelley v. EPA79 and Checkosky v. SEC80 involve statutory gaps that affect the degree of discretion exercised by a government agency and the extent of judicial deference accorded to agency action. In Kelley, the court held that when Congress does not give an agency authority to interpret a statute, but rather gives the agency authority only to bring a question to federal court as a “prosecutor,” deference to the agency's interpretation of the statute is inappropriate.81 On the other hand, in Checkosky, despite the absence of an express statutory provision authorizing the Securities and Exchange Commission to discipline professionals appearing before it, the court held that a commission is allowed to promulgate a rule pursuant to its statutory rulemaking authority if doing so represents an attempt to protect the integrity of the commission's own processes.82 If the ruling in either of these cases is inconsistent with Congress's expectations regarding agency authority, it could adopt supplementary provisions to fill the statutory gaps accordingly.

Railway Labor Executives Ass'n v. National Mediation Board83 and Callejo v. Resolution Trust Corp.84 address statutory gaps related to jurisdictional issues. In Railway Labor, the court held that if the absence of federal court jurisdiction *2204 would result in sacrificing or obliterating a right Congress created under the Railway Labor Act,85 there is a compelling inference that the general jurisdiction of federal courts provides a basis for review. In other words, federal courts have jurisdiction to review “action[s] taken in excess of delegated powers.”86 In Callejo, the court dealt with the issue of whether a federal district or appellate court should exercise judicial review in the first instance. The court held that in passing the Federal Depositors Insurance Act,87 Congress intended district court review of the Resolution Trust Corporation's determinations not to pay a depositor's claims in the absence of adjudicatory procedure regulations adopted by the agency.88 As with those cases involving the scope of agency authority, these jurisdictional decisions may or may not be compatible with Congress's purposes. Therefore, Congress could choose either to let the judicial rulings stand or to adopt additional statutory provisions that explicitly grant or reject federal jurisdiction or that more clearly indicate the proper judicial forum for particular disputes.

Finally, in Washington Service Contractors Coalition v. District of Columbia,89 the court addressed the scope of federal preemption under the National *2205 Labor Relations Act (NLRA).90 In 1994, the D.C. City Council enacted the Displaced Workers Protection Act (DWPA).91 The Act required certain contractors to retain their predecessor's employees for ninety days if certain conditions were met.92 The court held that the challenged provisions of the Act were not preempted by the NLRA: the employee retention requirement did not disrupt the labor dispute resolution process established by the NLRA, but instead provided substantive employee-protective legislation unrelated to employees' freedom to organize or to bargain collectively.93 Judge Sentelle disagreed with the majority on the grounds that the DWPA conflicted with federal labor law policy by “infring[ing] upon contractors' abilities to ensure the loyalty of their supervisors.”94 He also thought that the successorship doctrine should apply.95 In light of this division of the court, Congress might want to determine whether it is necessary to reconsider or clarify the scope of the NLRA's preemption of state law with regard to this and similar employee retention measures, as well as the application of the Act's successorship doctrine.

This categorization and brief description of cases the D.C. Circuit has referred to Congress is intended to illustrate more concretely how the project has been implemented and to suggest a variety of legislative responses to the problems the court has identified. The specific facts and holdings of the cases are secondary to the principal objective of offering a glimpse of the kinds of cases that the court has referred to the legislative branch.

*2206 IV. THE FUTURE OF THE STATUTORY HOUSEKEEPING PROJECT

Both branches benefit from the statutory housekeeping project, which, as the subsequent commentaries reveal, has not intruded upon the workload of either branch. Rather, Congress is free to use the opinions in any way it deems appropriate, including not responding at all. In addition, Congress will have an enhanced appreciation for the judiciary's work, and the courts' workload may be reduced if Congress continues to improve the drafting of statutory language.

The measure of the project's effectiveness cannot be judged in terms of formal legislative reaction. As Deputy Legislative Counsel Douglass Bellis observes, Congress may do nothing because it determines that the “D.C. Circuit is making good decisions in hard cases,”96 and thus leaves certain judicial opinions undisturbed. He explains that the purpose of the project “is not to find ‘mistakes' that Congress made and should correct.... [but] to open communication so that Congress can learn how the courts are reacting to and interpreting statutes.”97 The focus is on improvements, often intangible and hence difficult to measure, through better communication. In the process, statutory drafting may benefit as Congress gains a better sense of how courts are likely to interpret its laws. Furthermore, as the Governance Institute monitors congressional reaction to court decisions, it will have a better sense of congressional views about judicial interpretation of statutes. This feedback can contribute significantly to seminars and other meetings involving those who work with statutes.

With experience, we will learn what improvements might be made in the design and implementation of the project. It may be that certain criteria should be modified or expanded, or that other criteria for identifying and referring cases should be added. If the process of judicial-legislative communications proves useful, it might be supplemented with a parallel transmission between the executive branch agencies and Congress.98

Whether a congressional committee responds and how it responds is likely to depend on a variety of circumstances. If the judicial decision resolves the matter in ways that are agreeable to the committee, then no action may be necessary. In other situations, if the opinion raises an issue not perceived to need immediate attention, then the committee may address the problem at a later time, perhaps as part of a technical amendment. When the issue identified is, in the committee's view, wrongly decided, then quicker action may result. Or the opinion may highlight a problem that the committee agrees is of such salience that it requires a prompt response. Another variable that may affect the nature of the response is whether the problem identified is likely to recur unless Congress deals with it. Still another consideration is the ease with which the clarification can be *2207 accomplished, that is, whether it is noncontroversial. For example, grammatical problems are probably the easiest to correct because they usually result from carelessness. Politically thorny issues, on the other hand, may prove resistant to expeditious legislative action.

As the Governance Institute project proceeds, the challenge will be to integrate the task of reading and analyzing opinions with the activities of congressional committees. The bipartisan leadership of Congress might direct the legislative counsel to keep track of the opinions and file a periodic informational report as to what responses to the opinions, if any, were forthcoming.

Although the number of opinions is quite manageable, the burdens of digesting the opinions could be further eased; for example, in conjunction with the Governance Institute, a law review might create a project to read opinions, summarize the pertinent issues, and send them to the legislative counsel offices for their review. Together with the Governance Institute, the law review might issue an annual report as to the disposition of opinions.

Another suggestion, to sensitize new legislators, would be for a junior member of a congressional committee to be assigned the task of reading the opinions in conjunction with the legislative counsel and alerting the committee as to the issues raised.99 Still another means to facilitate the project would be to expose committee staff to the process of reviewing opinions as part of their orientation and training.100 Furthermore, if all circuit courts participate, it would make sense to examine whether the expertise of the Administrative Office of the U.S. Courts, the Federal Judicial Center, or the Judicial Conference might be utilized to undertake some coordinating function within the judiciary for the transmittal of opinions to Congress. These are all small steps that could further this modest effort to improve communication and understanding between the legislative and judicial branches.

Ultimately, whether a mechanism succeeds depends upon the people within institutions, who are charged with identifying and addressing problems. Writing in 1921 about the gulf between the legislative and judicial branches, Benjamin Cardozo asserted that “[w]e must have a courier.”101 Most appropriately, what follows are the commentaries of some of those within the courts and the Congress, who have been vitally involved in the attempt to create such a courier to facilitate statutory housekeeping.