By Timothy J. Droske[*]
In their recent article in the Northwestern University Law Review, Daniel B. Rodriguez and Barry R. Weingast show that expansionist statutory interpretations, like those promoted by dynamic theorists such as Cass Sunnstein, William Eskridge, and Jonathan Macey, have resulted in congressional polarization and an inability for Congress to pass landmark, progressive legislation. This essay explores whether Rodriguez and Weingast’s warning to dynamic theorists as to the unforeseen consequences of judicial expansionist statutory interpretation also applies to Professor Einer Elhauge’s theory of statutory interpretation, which is not directly addressed in Rodriguez and Weingast’s article. While dynamic theories generally urge courts to interpret statutes “in light of their present societal, political, and legal context,” Elhauge’s theory is unique in that its focus is on the political maximization of the enacting governmental polity. Counterintuitively, Elhauge argues that judges can maximize the political preferences of the enacting governmental polity by interpreting statutory ambiguity in accord with the “enactable preferences” of the current government. Elhauge also maintains that his theory is much more limited in scope than other dynamic theories and cabins undesirable judicial discretion, since the theory only applies in cases of statutory ambiguity and only where current enactable preferences are revealed through official action.
This Essay analyzes the distinctions that Elhauge draws between his theory and those of other dynamic theorists, as well as the limitations he places on his “current enactable preferences” default rules, to show that Elhauge’s theory fails to maximize the political satisfaction of moderate legislators. Given that failure, this Essay argues that the congressional deadlock and polarization described by Rodriguez and Weingast will persist under Elhauge’s default rules.