Submarine Statutes

On the podcast, in reference to the Religious Freedom Restoration Act and the Hobby Lobby case, I've described what I see as a troubling kind of congressional action: the enactment of statutes that would affect the interpretation and implementation of all future statutes. The RFRA requires, roughly, individual exemptions from federal laws that interfere with religious practice unless the interference is strictly aligned with a compelling governmental interest. What a new statute will mean in a future case depends not only the interpretation of the law itself but also on the interpretation of its interaction with a prior law, the RFRA, in a specific factual setting. So too lies hidden and potent the debt ceiling statute that restrains the government from borrowing in excess of a specific amount, even when Congress has mandated spending that would require such borrowing. These submarine statutes lurk beneath the layer of newly enacted statutes, potentially dramatically changing the meanings of enactments from what a plain reading of them in isolation would have suggested.

Of course, the venerable Dictionary Act is an example of such a statute, and I don't see it as particularly problematic. The trouble arises when there get to be too many such statutes and when their combined or even singular effects come to be too unpredictable. To create intentional products, legislators need to understand what the words they write will mean, at least in a large sense. Yes, the central dispute among the proponents of the various methods of interpretation is what it means for a text to "mean" something. But a unifying principle among all schools is that a legislator who wants to accomplish some task ought to be able to do it, within the bounds of the Constitution, if he or she speaks plainly enough about that thing. The meaning of any law in a regime thickly patrolled by submarine statutes would be a most uncertain thing. It would begin with one zone of meanings in the mind of a legislator, more or less connected to those in other legislators' minds, but then diverge in meaning and application through a cascade of interactions with all the submarine statutes, like a grand old game of Plinko, a puck bouncing from place to place in a random walk.

That's what caused me to raise an eyebrow at a portion of a speech by Marco Rubio that I otherwise found agreeable for its focus on reigning in federal criminal laws.

It is for this reason that I have proposed that Congress establish a national regulatory budget, which would require that new, costly regulations be offset by the repeal of other existing regulations.

It's an odd proposal to be set amidst other sentences arguing for greater rather than lesser congressional control over agency rule-making. This “regulatory budget" would appear potentially to restrain an agency even from enacting regulations clearly contemplated in later-enacted statutes and therefore clearly intended by the enacting Congress. Of course, a new statute that Congress desires be given effect without regard to other statutes can include a general or specific waiver. But that’s the very problem with submarine statutes. They require Congress when doing anything new to contemplate and keep track of their existence, to anticipate whether they might present a problem, and to enact specific waivers. A court could come to the rescue by observing a fundamental incompatibility and giving effect to the later-passed statute. But when the alteration caused is something less than outright conflict, the meaning of a statute can deviate in all its interactions from anything rational, intended, or plainly inscribed in its text. That’s no good.

I’ll stop here for now. I’m aware of a great many arguments concerning provisions and canons that operate very much like submarine statutes that we have come to accept. And so some further account of the complexity argument against submarine statutes would have to consider them.