The Yale Law Journal

VOLUME
127
2017-2018
Forum

May Congress Abrogate Stare Decisis by Statute?

01 May 2017
James Durling

Introduction

On January 3, 2017, Congressman Steve King introduced a bill that would bar federal courts, including the Supreme Court, from citing a number of the Court’s decisions on the Patient Protection and Affordable Care Act1 (ACA) “for the purpose of precedence [sic].”2 The bill cites Article 3, Section 2 of the Constitution, which allows Congress to restrict the Court’s appellate jurisdiction,3 as legal justification for Congress’s power to regulate rules of precedent.4 Not surprisingly, media commentators quickly questioned the bill’s constitutionality.5 What these early news stories overlooked, however, is that King’s proposal does not raise a novel legal question. On the contrary, over a decade ago, Michael Paulsen published an article in the Yale Law Journal arguing that Congress could do exactly what the bill proposes.6 Over the ensuing years, scholars have debated Paulsen’s argument, without resolving the core question posed by his article.7

King’s bill gives us an opportunity to reconsider this debate. Previous studies have taken one of two different approaches to congressional power in this area: either Congress has the power to change rules of precedent or it does not. But in focusing on constitutional precedents, like Roe v. Wade8 and Planned Parenthood v. Casey,9 these past discussions have generally assumed that Congress has the same authority over constitutional and statutory precedent. King’s bill, however, pushes us to move beyond this false equivalence. By referencing both constitutional cases, like National Federation of Independent Businesses v. Sebelius,10and statutory cases, like King v. Burwell11 and Burwell v. Hobby Lobby Stores, Inc.,12 the bill illustrates a gap in the literature. In short, Congress’s authority over stare decisis in statutory cases may differ from its authority in constitutional ones.13

Thinking about Congress’s power over the rules of precedent—and specifically, distinguishing its power in statutory cases from its power in constitutional ones—also gives us insight into other attempts to regulate judicial interpretation. For example, in early 2016, Republicans in Congress introduced the “Separation of Powers Restoration Act” (SPRA), a bill that would eliminate Chevron14 and Auer15 deference to agency interpretations of statutes and regulations.16 The SPRA passed the House in July 2016,17 and House Republicans quickly reintroduced and passed the bill in the most recent session of Congress.18 As Chevron and Auer deference do not implicate questions of constitutional interpretation, the SPRA, like some provisions of King’s bill, may prove more amenable to judicial review.19 And although the SPRA, as currently drafted, does not prohibit courts from citing Chevron and Auer for “purpose of precedent,” it is not difficult to imagine Congress taking that next step—especially if courts resist the clear purpose of the SPRA to eliminate judicial deference to administrative agencies.20 Past scholars have argued that the Supreme Court should overrule Chevron21 or have discussed Congress’s proposed legislation,22 but they have not considered whether Congress actually has the power to abrogate Chevron as a methodological precedent.

Despite the limited scholarly discussion, Congress’s power to abrogate substantive stare decisis—the narrow holding on the meaning of the statutory provision—and methodological stare decisis—the broader methodological approach to an interpretive question—could be quite important.23 Past studies have shown that courts often construe congressional overrides of judicial interpretations narrowly. As a result, courts frequently follow substantive or methodological stare decisis stemming from these “shadow precedents” in opposition to congressional intent.24 These articles have considered ways in which Congress might limit shadow precedents—by drafting override laws more precisely in order to abrogate a decision’s methodology25—and they have argued that courts should exercise restraint in following stare decisis in statutory cases when Congress has overridden the previous judicial decision.26 But none of these studies have asked the simple question of whether Congress can directly abrogate the precedential effect of statutory decisions.

Regardless of whether Paulsen is correct that Congress can abrogate constitutional precedent, this Essay argues that Congress has a strong claim of authority to abrogate precedent in statutory cases. The distinction parallels Congress’s substantive lawmaking power: Congress can overrule the Supreme Court’s interpretation of a statute by amending it, but it cannot overrule the Court’s interpretation of the Constitution without going through the additional steps required by Article V.27 Likewise, although some have proposed that Congress could legislate federal rules of statutory interpretation,28 no one has argued that Congress could do so for constitutional interpretation.29

Because Congress can overrule judicial interpretations of statutes and assuming that it can prescribe how courts should interpret statutes,30 why should Congress not be able to enact a law freeing courts from feeling bound by prior statutory decisions?31 Admittedly, distinguishing Congress’s power over stare decisis in statutory cases from its power in constitutional cases does not resolve the question entirely: we still do not know whether Congress can abrogate constitutional precedents. But by distinguishing these statutory and constitutional cases, we at least resolve the issue in the statutory context.

This Essay proceeds in two Parts. Part I describes the previous two scholarly theories of congressional power over the rules of precedent. Part II shows why we should distinguish Congress’s power over constitutional cases from its power over statutory cases and argues that Congress has a stronger claim to regulate stare decisis in the latter context. The Essay concludes by emphasizing the importance of congressional power over stare decisis in statutory cases matters.

I. two theories of congressional power over the rules of precedent

In essence, past scholarship has taken one of two views regarding whether Congress may alter judicial rules of precedent. Some have embraced the possibility; others have rejected it. This Essay will briefly consider each position in turn.

A. Congressional Authority

Michael Paulsen and John Harrison are the two leading proponents of Congress’s power to limit the effect of precedent.32 Although their views differ on the breadth of Congress’s power, they each embrace Congress’s prerogative to abrogate precedent in both statutory and constitutional cases. Paulsen and Harrison begin by arguing that the Constitution does not require stare decisis—or in Paulsen’s case, that stare decisis is affirmatively unconstitutional.33 Instead, they note that stare decisis is a federal common law rule based on judicial policy.34 Paulsen discusses the Supreme Court’s opinion in Casey at length to illustrate this point.35

Furthermore, both Paulsen and Harrison view Article I, Section 8 of the Constitution—the “Necessary and Proper Clause” or the “Sweeping Clause”—as authorizing Congress to regulate the rules and procedures of judicial decision making.36 For example, Paulsen finds additional “[p]recedents” for this power in such legislative enactments as the Rules of Decision Act, the Full Faith and Credit Act, the Anti-Injunction Act, the Federal Rules of Evidence, and the legislative abrogation of the Court’s judicial standing doctrine.37 Harrison and Paulsen also tie their conclusions to Congress’s apparently greater power to alter the Supreme Court’s appellate jurisdiction under the Necessary and Proper Clause and Article 3, Section 2—the provision cited in King’s bill.38 As a subsidiary claim to their Necessary and Proper Clause arguments, they argue that Article III does not grant the courts autonomy to develop rules of stare decisis.39 Accordingly, congressional action limiting stare decisis would not violate the separation of powers.

Both Paulsen and Harrison admit that Congress does not have unlimited power over judicial interpretation. Paulsen, for example, does not consider whether Congress could “[f]orbid citation to prior opinions” entirely.40 Instead, he limits his argument to whether Congress can abrogate the binding effect of stare decisis.41 Among other things, Paulsen’s hypothetical law would still allow judges to consider the persuasiveness of a prior opinion’s reasoning.42

As a final note, some might wonder whether the selective abrogation of stare decisis—as King’s bill would do with the ACA decisions—affects the constitutionality of his proposal. In Paulsen’s view, it would not.43 Abrogating stare decisis does not impede the ability of courts to decide cases on their merits. Indeed, one might argue that courts more faithfully follow their Article III duty “to say what the law is” when they are not bound by stare decisis.44 In addition, the Supreme Court already practices “selective stare decisis” as “[p]recedent is followed, except when it isn’t.”45 Selectively abrogating stare decisis by statute simply adopts this existing inconsistency in a more structured way.

B. Judicial Autonomy

Richard Fallon, Thomas Healy, and Gary Lawson have all published prominent critiques of Paulsen’s and Harrison’s theory of congressional power. Although they differ in their exact criticisms, they all share the core view that Congress may not abrogate judicial rules of stare decisis—and perhaps may not even regulate them.46 Healy and Lawson agree with Paulsen and Harrison that stare decisis is not constitutionally required.47 In fact, Lawson goes even further in saying that the Constitution prohibits stare decisis.48 Their disagreement with Paulsen and Harrison is therefore not based on the nature of stare decisis itself, but on the meaning of the Necessary and Proper Clause.49 Lawson approaches the issue as a question of the Clause’s original meaning,50 finding that it does not empower Congress to infringe upon the judiciary’s “decisional independence”51 or to dictate judicial methodology.52 In contrast, Healy approaches the question using a variety of legal arguments. In the end, however, he reaches a similar conclusion by focusing on the role of stare decisis in preserving the “legitimacy” of judicial decisions.53 Like Lawson, Healy believes that “control over methodology is essential” to judicial decision making.54

Fallon does not appear to disagree with Healy’s and Lawson’s critiques, but he is not willing to accept “the claim that stare decisis is a mere ‘policy’ that lacks...constitutional status.”55 Although he admits that stare decisis may not be constitutionally required, in his view, it still “adequately justifies” the Supreme Court in not applying “what otherwise would be the best interpretation of particular constitutional provisions.”56

II. distinguishing statutory and constitutional stare decisis

Although the scholars discussed above have more to say on the question of Congress’s power over stare decisis, what is perhaps more interesting is what they do not say. In particular, they do not meaningfully distinguish congressional power over stare decisis in statutory cases from its power over stare decisis in constitutional ones.57

The cases cited in Congressman King’s bill highlight the distinction between statutory and constitutional stare decisis. On one end of the statutory-constitutional spectrum is King v. Burwell, which considered the purely statutory question regarding the meaning of the phrase “an Exchange established by the State” in the ACA.58 Likewise, in Burwell v. Hobby Lobby, the Court, without reaching the First Amendment question, considered a purely statutory question regarding the meaning of the Religious Freedom Restoration Act of 1993.59 On the other end of the spectrum, National Federation of Independent Businesses v. Sebelius addressed in part whether the individual mandate was a constitutional exercise of Congress’s power to regulate commerce60 or to impose taxes.61

We should note, however, that some questions may create both statutory and constitutional precedent, such as the Court’s ruling in Sebelius that the ACA’s individual mandate was a lawful exercise of Congress’s taxing power.62 As a statutory matter, the case now stands as a substantive precedent construing the individual mandate as a tax rather than a penalty63 and as methodological precedent allowing courts to adopt saving constructions of constitutionally dubious statutes.64 But the case also stands as a constitutional precedent reaffirming Congress’s broad taxing powers.65

As suggested in the Introduction,66 there may be very good reasons to treat statutory stare decisis differently from constitutional stare decisis.67 For example, in the statutory context Congress already has the power to overrule Supreme Court decisions by amending the statute in question68—a power it does not have in the constitutional context. But perhaps more importantly, Congress may also have the power to prescribe rules of statutory interpretation for courts69—a power it probably does not have over constitutional interpretation.70 Congress has enacted interpretive rules in Chapter 1 of the U.S. Code, also known as the Dictionary Act, where it prescribes “Rules of Construction.”71 Although most of these rules of interpretation might be more accurately described as definitions,72 some involve more methodological rules of grammar.73 In addition, Congress has codified a few other interpretive rules in scattered sections of the U.S. Code.74 Perhaps these interpretive rules themselves violate separation of powers, but such a ruling would certainly conflict with current understandings of Congress’s power over statutory interpretation.75 This Essay does not provide an independent defense of interpretive rules; it merely notes that current practice views them as compatible with the judicial power.76

If Congress may overrule decisions interpreting statutes and if it may prescribe rules of statutory interpretation, Congress would also appear to have the power to prescribe a rule of interpretation requiring courts to ignore a past Supreme Court decision. Similar to Paulsen’s approach, this is not to say that courts could not look to the reasoning of prior Supreme Court cases as persuasive authority, but they could not follow the “super-strong presumption” of stare decisis famously invoked in past cases.77 Put another way, courts would interpret federal statutes as courts in civil law jurisdictions do.78

In addition, beyond limiting the Court from citing the narrow interpretive holding of a case, Congress might also prevent it from citing its opinions as precedent for the use of interpretive canons, a phenomenon some have called “methodological stare decisis.”79 The most famous example of methodological stare decisis is Chevron, which is both a statutory precedent about the meaning of “stationary source” in the Clean Air Act80 and a methodological precedent regarding judicial deference toward agency interpretations of statutes.81If Congress banned the Court from citing Chevron, then it would eliminate both the narrow holding and the broader canon—at least as binding precedent.

Finally, it is important to note that such a law would eliminate both the horizontal precedential effect of the decision—the Supreme Court would not have to follow its prior decision—and also the vertical precedential effect—lower courts would not have to follow the Supreme Court’s decision.82 In contrast to other scholars,83 this Essay does not view the abrogation of vertical stare decisis as controversial. At least currently, federal courts do not appear to view vertical stare decisis as constitutionally compelled, as federal appellate courts often produce “unpublished” opinions which have no binding precedential effect on district courts or future appellate courts.84 Some commentators have questioned the constitutionality of issuing unpublished opinions,85 but they are still a firmly established aspect of judicial practice.86 Moreover, it is telling that when the Supreme Court issued Federal Rule of Appellate Procedure 32.1 in 2006, it only prevented appellate courts from “prohibit[ing] or restrict[ing] the citation” of judicial opinions.87 The Rule does not prevent appellate courts from limiting the binding precedential effect of such opinions. In this way, Rule 32.1 tracks this Essay’s theory that the binding precedential effect of opinions can be limited, but their persuasive value cannot.

In contrast to its prominent role in statutory interpretation, Congress has less well-established power over constitutional interpretation.88 One potential issue is whether the Constitution requires a certain interpretive approach—in which case, Congress would not be able to alter it.89 For example, if one believes that the Constitution requires originalist methodology,90 Congress would not be able to require the Court to interpret the Constitution according to a living constitutionalist methodology.91

But even if the Constitution does not require a particular mode of constitutional interpretation—or if we cannot agree on whether or which methodology it requires—the question remains whether a congressionally-prescribed rule of constitutional interpretation would violate the separation of powers. It is difficult to predict how the Court might approach the constitutional issue,92 let alone to provide a normative theory for how the Court should resolve such a case. But the heated disagreement in the scholarly literature—drawing critiques from both liberals93 and conservatives94—suggests that Congress does not have a clear power over the judiciary’s interpretation of the Constitution.

At the very least, however, there is recent evidence to support this Essay’s view that Congress may permissibly interfere with the interpretation of statutes. Last term, in Bank Markazi v. Peterson,95 the Court upheld a statute that changed settled law in the midst of litigation by specific reference to the pending case.96 As the dissent noted, Congress was legislating a rule of decision for a particular case.97 Put another way, Congress was telling the Court how to interpret the statute by codifying its own interpretation of the law.

Nevertheless, the six-justice majority held that “Congress...may amend the law and make the change applicable to pending cases, even when the amendment is outcome determinative.”98 It “perceive[d] in [the statute] no violation of separation-of-powers principles, and no threat to the independence of the Judiciary.”99 Whether or not one agrees with this specific interference with judicial decision making,100 if the Court is willing to allow Congress to prescribe rules of decision mid-trial, then it seems plausible that they would accept more general congressional regulation of statutory interpretation,101 including the abrogation of stare decisis in statutory decisions.102 In doing so, Congress would only be “making legal rules” in general, rather than “authoritatively applying” them in specific cases.103

Conclusion

The Essay seeks to reframe a decade-old debate. We should revisit the question of whether Congress may abrogate stare decisis because Congress might attempt to do so in years to come. But more importantly, we need to reconsider Congress’s power by distinguishing its authority to regulate stare decisis in statutory cases from its power to regulate stare decisis in constitutional ones. There are reasons to think that King’s bill will never pass either chamber of Congress, let alone be signed into law.104 But other pending legislation, like the SPRA, may have better legislative prospects and may rest on constitutionally firmer ground because these bills only deal with statutory decisions. This Essay does not attempt to settle definitively whether abrogation of stare decisis for statutory decisions is constitutional. Rather, it merely offers strong reasons to believe that it is.

That Congress may regulate the interpretation of statutes of course does not mean that it should. Indeed, given the long-standing disagreements over statutory interpretation, it may be a very bad idea for Congress to force its way into the debate. Nevertheless, if we think that bills like the SPRA are misguided, then we should fight them politically in Congress rather than depend upon judges to rule them unconstitutional.

James Durling is a member of the Yale Law School J.D. Class of 2018. Thanks to Samir Doshi, Josh Revesz, Rich Medina and the editors of the Yale Law Journal Forum for their excellent suggestions. Special thanks to Megan McGlynn and Jenna Pavelec. All errors are my own.

Preferred Citation: James Durling, May Congress Abrogate Stare Decisis by Statute?, 127 Yale L.J. F. 27 (2017), http://www.yalelawjournal.org/forum/may-congress-abrogate-stare-decisis-by-statute.