Unorthodox Lawmaking and Legislative Complexity in American Statutory Interpretation

Abstract

The traditional legislative process is dead in the U.S. Statutes are increasingly long and complex omnibus efforts rushed through at the end of congressional sessions. Yet American statutory interpretation remains largely unchanged, with judges generally uninterested in the realities of the legislative process, despite claiming our dominant interpretive approach reflects Congress or is in conversation with it. Omnibus statutes pose challenges for judges who read statutes with assumptions of linguistic perfection and consistency—as American judges do—and the truncated legislative process results in more gaps and mistakes, problems that lack coherent doctrinal approaches in our courts. And American judges have never been willing to strike down federal statutes for lack of deliberation or process, preferring instead indirect nudges toward more “due process in lawmaking.” This chapter documents the rise of unorthodox modern lawmaking in the U.S., including omnibus lawmaking, and details its causes, costs and benefits. These developments are not unmitigated negatives; they are adaptations to the changing complexities of the American political system. It has been 50 years since the last congressional reorganization and another revolution may be coming. There is a burgeoning legal movement among scholars and some American jurists, including several Supreme Court justices, to bring understanding of the legislative process, and how it has changed, into our theories and doctrines of statutory interpretation.