Unpublished Papers

Certifying Questions to Congress

Amanda Frost, American University Washington College of Law

Abstract

As many academics and some judges have openly admitted, no technique of statutory interpretation can settle every question of statutory ambiguity. Sometimes Congress enacts legislation containing gaps or inconsistencies that cannot be resolved through the application of a canon of construction or other interpretive rule. This article proposes an alternative approach for these hard cases. When a federal court is faced with a statute that leaves important issues about its application unclear – particularly issues that implicate the statute’s constitutionality – the court could stay the case and refer the question to Congress, much in the same way that courts now use abstention and certification to obtain answers about the meaning of state law from state courts. If Congress chooses to clarify the ambiguity by amending the law in accordance with Article I’s bicameralism and presidential presentment requirements, then the court can apply the new law to the current case. If Congress chooses not to act, the court is no worse off than before. Indeed, congressional silence frees judges to be more creative in their responses to statutory ambiguity because they arguably have greater leeway to fill gaps or reconcile inconsistencies in an unclear statutory text that Congress has chosen not to clarify. At the very least, judges insulate themselves from charges of judicial activism if they seek congressional input before attempting to interpret unclear statutes.

The article begins by considering whether “certifying” questions to Congress would be constitutional, and then examines whether adoption of such a practice would be wise. The discussion of both issues is informed by the fact that Congress regularly takes notice of judicial confusion and then acts to amend problem legislation, often explicitly stating an intention to affect the results in pending cases. Considering that Congress is already assisting courts by clarifying statutory language at issue in pending cases – albeit in an informal and ad hoc way – this article concludes that it is worthwhile to formalize the process and encourage Congress to play an even greater role in resolving statutory ambiguity before an appellate court issues a definitive ruling.

Suggested Citation

Amanda Frost, "Certifying Questions to Congress," 101 Northwestern Law Review __ (2007).

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