Interest-Based Incorporation: A Statutory Story of Federalism, Delegation, and Democratic Design

Abstract

Interpreting statutes is a rare legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This scholarly conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into federal statutes. Statutory incorporation is one of the most common legislative tools employed by Congress and has been used to enact hundreds of federal statutes that affect liberty and property rights across multiple areas of law. Scholars have argued that statutory incorporation should be interpreted according to Congress’s intent to forward goals of federalism that seek to diffuse federal power to the states or as a tool to delegate federal law-making authority to state legislatures. This Article offers an alternative explanation of interest-based incorporation, which displaces the federalism and delegation theories that fall short when held up to the scrutiny of realism. Interest-based incorporation argues that federalism and delegation theories are fictions of congressional intent. By understanding that statutory incorporation is a tool to promote congressional self-interests, interest-based incorporation makes an important contribution at the theoretical and practical crossroads necessary to understand statutory incorporation. As a realist intervention, interest-based incorporation carries important implications for the future of statutory incorporation as well as scrutinizing the fictions that dominate theories of interpretation.