A Multiple Choice Legislative Certification Procedure: Considering Congressional Preferences in Statutory Interpretation

Abstract

This is the first proposed procedure that would enable the Court to take account of congressional preferences in a pending statutory interpretation decision, without requiring Congress to go through the resource and time consuming process of amending the ambiguous law. In “hard cases” the Court could certify, through a fast-track procedure, a question presenting Congress with two multiple choices that the Court predetermines to be viable readings of the statute. This procedure avoids constitutional problems because congressional input is voluntary and non-binding for both branches, and judicial constraint enforces rule of law and constitutional values.