Deference and Legislative Intent

By: Dan Domenico

Colorado courts and others (including the Office of the Attorney General, in which I practice) often declare that the goal of statutory interpretation is to divine and implement the intent of the legislature.[1] As an outgrowth of the earliest common law it has a peerless pedigree.[2] But despite its origins and historical rationale, today it has become something of an incantation that, whatever kernel of truth it holds at its center, can be more troublesome than helpful in interpreting and applying modern statutes. There are a number of reasons for this.

First, the very concept of a collective legislative intent is problematic. The individuals involved in the drafting, amending, passing, and signing of legislation surely do so with a number of different purposes, none of which likely address directly the specific, detailed questions of the sort presented in typical litigation.[3] “Because legislatures comprise many members, they do not have ‘intents’ or ‘designs,’ hidden yet discoverable.”[4] In other words, “[i]ntent is elusive for a natural person, fictive for a collective body.”[5]

Second, even if one posits that a collective intent can exist, the types of “evidence” typically used in litigation to establish it – particularly legislative history such as committee hearings and reports – are always expensive and time consuming to obtain and digest,[6] and often unreliable and subject to manipulation.[7] Even when used properly they are unlikely to serve their stated purpose well, even if one shares the intentionalist perspective.[8] 

The fact that “legislative intent” can carry at least two different meanings exacerbates these problems. It could mean trying to decide whether the legislature that enacted the laws in question had an actual intention regarding the particular question at hand.[9] Another, probably more common method of intentionalist interpretation recognizes that the enacting legislature likely did not have a specific intention to deal with the particular situation at hand, but asks instead what the legislature would have wanted to do if only they had thought of the question. This sort of interpretation is more troubling because in addition to the problems outlined above, it creates an opportunity, if not a requirement, for the interpreter (whether court or attorney general) to inject its own policy views of what the law should be, rather than simply deciding what the law is.[10] 

Ultimately, however, the fundamental problem with intent-focused interpretation is that we are a nation of laws, not of intentions. Interpreting a law is not an academic exercise, but something we expect citizens, on pain of government sanction including imprisonment, to do every day. This is difficult enough to do using only statutory and regulatory text, given the extent of our statutes and regulations.[11] But adding the uncertainty of what intent might mean, whose intent might count, the difficulty of resolving how to determine what that intent is, and the opportunity such a malleable concept presents for the interpreter to inject – willfully or entirely in good faith – his or her own intentions under the guise of the legislature’s into the equation convinces me that it is unjust and unwise to continue to rely heavily on legislative intent in our efforts at statutory construction.[12]  

The law is not an exercise in legislative self-expression. The role of the law is to govern people's lives and affairs. The point of interpreting the law, therefore, should be focused less on the legislature and more on the people the law governs.[13] Focus on legislative intent runs counter to this fundamental aspect of democratic government. As Justice Jackson explained, the “weird endeavor” of “putting ourselves in the place of a majority of congressmen . . . seems to me not the interpretation of a statute but the creation of a statute.”[14] 

Courts and others should therefore reconsider their intentionalist language and approach. But what should replace it? Scholars have recognized that many, if not most, difficult questions of statutory interpretation can best be answered by executive branch agencies.[15] 

Executive agencies have a number of institutional advantages that make them the proper entity to resolve most questions of interpretation. Agencies have highly-specific subject-matter expertise that in most cases will exceed that of the Office of the Attorney General (and in nearly all cases will exceed that of the courts). Agencies can quickly and relatively easily update their interpretations of general or ambiguous statutes to meet changing circumstances.[16] Agency rulemakings also can provide opportunities for the public and even interested members of the legislature to testify and influence the agency’s interpretation.[17]

Even from the intentionalist perspective, agencies’ role gives them an advantage over other institutions such as the courts or this Office in accurately ascertaining and implementing the intent of the policy-making branches that create and control them (and appoint their personnel). Often, among the legislature’s intentions is in fact to give some measure of discretion for implementing and interpreting statutes in novel situations to executive agencies.[18] Moreover, agencies often will have been involved in the drafting of the statutes in question, and perhaps somewhat ironically, are in a better position to actually reflect the legislature’s intent.[19] 

For all these reasons, the courts should replace their intention-based method of interpretation and instead defer to executive interpretations in most cases.  This will not only mitigate the problems inherent in the intentionalist method of interpretation noted above, but will also provide the governed with more notice of relevant interpretations, more stability in those interpretations, and more opportunity to influence or change them when they do not serve the public interest. Whatever respect we owe to enacting legislatures, we surely owe more to the people themselves.


[1] See, e.g., Colorado Dep’t of Revenue v. Woodmen of the World, 919 P.2d 806, 809 (Colo. 1996); Attorney General’s Opinion No. 05-06 at *3.  

[2] See 1 William Blackstone, Commentaries on the Laws of England at *59.

[3] See Antonin Scalia, A Matter of Interpretation 32 (Princeton, 1998) (“[W]ith respect to 99.99% of the issues of construction reaching the courts, there is no intention.”).

[4] Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983); see also Frank H. Easterbrook, Some Tasks in Understanding Law Through the Lens of Public Choice, 12 Int’l Rev. L. & Econ. 284, 284 (1992) (“[T]he concept of ‘an’ intent for a person is fictive and for an institution hilarious. A hunt for this snipe liberates the interpreter, who can attribute to the drafters whatever ‘intent’ serves purposes derived by other means.”).

[5] Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 61, 68 (1994).

[6] See Milavetz, Gallop & Milavetz, P.A. v. United States, 599 U.S. ___, *2-3  (2010) (Scalia, J., concurring in part and concurring in the judgment) (decrying that conscientious attorneys “must spend time and their clients’ treasure combing the annals of legislative history.”).

[7] See Hamdan v. Rumsfeld, 548 U.S. 557, 580 n.10 (2009) (noting certain statements that “appear to have been inserted into the Congressional Record after the Senate debate[,]” presumably to affect the courts’ analysis); Scalia, supra note 3, at 33-34 (“Now­adays, however, when it is universally known and expected that judges will resort to floor debates and (especially) committee reports as authoritative expressions of ‘legislative intent,’ affecting the courts rather than informing Congress has become the primary purpose of that exercise.”).

[8] See Scalia, supra note 3, at 32 (“[A]ny clues provided by the legislative history are bound to be false.”); Adrian Vermeule, Judging Under Uncertainty 102-117 (Harvard, 2006) (“[D]istinctive features of legislative history . . . may interact with [constraints on the adjudicative process] in ways that produce distinctively severe risks of judicial error in the determination of legislative intent. Accordingly, even on intentionalist premises judicial resort to legislative history may prove counterproductive.”).

[9] This is what the Supreme Court says it was doing in the paradigmatic case Holy Trinity v. United States, 143 U.S. 457 (1892). There, the Court held that a statute that forbade assisting immigration of aliens under contract to perform “labor or service of any kind” did not apply to a church’s contracting with an Englishman to become its rector by declaring that although the conduct was “within the letter of” the statute, the legislative history showed that Congress did not actually intend to reach “brain toilers” of the sort embodied by the rector. Interestingly enough, Professor Vermeule has shown that as a matter of fact, the Court got the legislative history wrong; Congress had in fact considered a version of the law that would have differentiated between manual and other laborers, but rejected it. See Vermeule, supra note 8, at 86-107. This highlights the point made above that even if one agrees that the executive’s and judiciary’s goal should be to implement the intent of the legislature, attempts to do so often are counterproductive.   

[10] Cf. Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803).

[11] See, e.g., Colo. Rev. Stat. §§ 1-1-1, et seq; United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 562 (1971) (“[I]gnorance of the law is no excuse.”); see generally Harvey A. Silvergate, Three Felonies a Day: How the Feds Target the Innocent (Encounter, 2009) (discussing the massive expansion of criminal laws, an expansion that is also reflected in civil law).

[12] See Burnet v. Coronodo Oil & Gas Co., (Brandeis, J., dissenting) (“It is more important that the applicable rule of law be settled than that it be settled right.”) (quoted in Ruth Bader Ginsburg, The Role of Dissenting Opinions, 95 Minn. L. Rev. 1, 7 (2010)).  

[13] See Scalia, supra note 3, at 17 (the proper inquiry is not into the legislature’s subjective intent, but into “the meaning which the subject is authorized to understand the legislature intended") (quoting Joel Prentiss Bishop, Commentaries on the Written Laws and their Interpretation (Little Brown & Co., 1882)) (emphasis supplied by Justice Scalia).

[14] United States v. Public Utils. Comm’n of Cal., 345 U.S. 295, 319 (1953) (Jackson, J., concurring); see also Scalia, supra note 3, at 17 (“This seems to me a step worse than what the emperor Nero was said to engage in: posting edicts high up on pillars, so that they could not easily be read. Government by unexpressed intent is similarly tyrannical. It is the law that governs, not the intent of the lawgiver.”).

[15] See generally Vermeule, supra note 7; Cass R. Sunstein, Beyond Marbury: The Executive’s Authority to Say What the Law Is, 115 Yale L.J. 2580 (2006).

[16]  Id. at 2583 (“For the resolution of ambiguities in statutory law, technical expertise and political accountability are highly relevant, and on these counts the executive has significant advantages over courts.”).

[17] See State Administrative Procedure Act, Colo. Rev. Stat. § 24-4-101, 103 (2010); Sunstein, supra note 15, at 2596.

[18]  See, e.g., Colo. Rev. Stat. § 39-21-112(1) (authorizing the Director of the Department of Revenue to adopt “any rules not inconsistent with Title 39”).

[19] See Sunstein, supra note 15, at 2587 (noting four advantages the executive has in interpreting laws: technical expertise, political accountability, dealing with the laws in question “over extended periods and across heterogeneous contexts,” and the ability to “act promptly and decisively”).