Interpreting Legislative Inaction

Abstract

There is a longstanding debate in the theory of statutory interpretation over what meaning, if any, can be attributed to the legislature's failure to do something. Issues of often arise in cases where the Supreme Court considers the validity of an administrative or judicial interpretation of a statute and the argument is made that the interpretation must be accepted because Congress has acquiesced in it by not overruling it, has ratified it by reenacting the statute, or at some point was presented with a formal bill or amendment embodying an alternative interpretation and rejected it.1 The Court has grappled with such arguments since the nineteenth century,2 oftentimes finding inaction arguments persuasive but other times finding them unappealing. The debate within the Court over the significance of legislative inaction has intensified in the last two Terms,3 in large