Statutory Interpretation & the Presidency: The Hierarchy of “Executive History”

Faye E. Jones, Florida State University
Alvan Balent, Florida State University

Abstract

It is common knowledge that the New Deal fundamentally remade America because after the New Deal, Americans began looking to the federal government to solve their problems. This increased public interest in the national government prompted major changes in each branch of the government. The Executive branch, for instance, became the most prominent branch of the federal government, and the President consequently began exerting himself in all aspects of the government including lawmaking. Congress began to pass more legislation, and thus the federal judiciary’s docket became filled with statutory interpretation cases. However, when interpreting statutes, the judiciary has largely disregarded the President’s increased role in the lawmaking process. For instance, when confronted with ambiguity in statutory text, the courts often look to extrinsic interpretative aids like legislative history in order to ascertain the congressional intent behind the statute. Presidential interpretative aids such as signing statements are only occasionally consulted.

The notion of consulting presidential materials, i.e. “executive history,” for statutory interpretation purposes has recently become a controversial topic; some have even argued that the practice raises constitutional concerns. This Article first examines the constitutional concerns surrounding judicial use of executive history and shows that the practice is constitutional for statutory interpretation purposes. However, like any judicial interpretative aid, presidential materials having varying degrees of reliability and authoritative value. This Article accordingly proposes a new organizational scheme for executive history in general—a hierarchical model similar to the one that exists for legislative history—and thus shows what types of executive history the courts should be more inclined to reference.