Interesting note from the Harvard Law Review that argues that Courts should give Chevron style deference to post-enactment congressional resolutions when interpreting statutes. I can hear Justice Scalia cringing somewhere. Here is the meat:
[C]ourts should defer to a House or Senate resolution that adopts a reasonable interpretation of an ambiguous statute.11 For statutes not administered by any agency with interpretive authority, such deference to a congressional resolu- tion would improve lawmaking by bringing to bear the legislature’s policy expertise and democratic accountability. But even for statutes administered by agencies, this proposal would increase accountability. Further, this proposal would help to restore checks and balances and the Constitution’s original allocation of power by making the House and Senate coequal with executive agencies in interpreting ambiguous statutory provisions. Whenever these institutions disagree, courts should simply adopt their own best reading of the statute, de novo.
While the author suggests this approach vitiates the need to rely on a Calabresi or Eskridge-esque (dynamic statutory interpretation) form of jurisprudence, this approach, I think, mistakes what a law is. A law is enacted based on the intent of those who enact it. Subsequent congresses, who were not involved in enacting that law, likely have different intents. Why should the intent of the latter inform the meaning of the former? This is the argument against relying on post-enactment legislative history (I address that at some length in this article).
Now, I suppose this approach may be superior to courts imposing their own will on an ambiguous statute, but this makes it far too easy for legislators to get lazy, and permits them to simply update, with little political cost, what was once a controversial law. I do think it is strange that agencies get more deference than Congress in many respects via Chevron, but that is more of an indictment of Chevron than anything else; no sense extending it.