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Against Interpreting Dead Bills

By: Daniel Himebaugh1Daniel A. Himebaugh serves as leadership counsel to the Washington State Senate Republican Caucus.  The views and opinions expressed in this essay belong solely to the author and do not necessarily represent the views or opinions of any member, officer, or employee of the Washington State Senate.  The author thanks James Crandall and Jan Himebaugh for their helpful review and comments.

February 10, 2020

The Supreme Court of Washington’s recent opinion in a landmark environmental case shows how interpretive problems arise when courts use dead bills to determine the meaning of statutes.

Introduction

The recent confirmation of two U.S. Supreme Court justices who have a reputation for being skeptical of administrative agencies has enlivened a national dialogue about the proper relationship between courts and agencies.  Indeed, the way courts respond to this issue could ultimately determine who gets to make the laws.  Will it be legislatures or agencies?

A peculiar problem in the judicial practice of interpreting statutes threatens to tip the scale for the agencies.  When an agency announces that a statute has a specific meaning, the agency’s interpretation carries great weight, both for members of the public who are subject to the agency’s enforcement of the statute, and for courts, which review the legality of agency actions undertaken pursuant to the statute.2Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (“We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations.”). But the dominance of agencies in our system of lawmaking, and the deference those agencies enjoy when challenged, might entice courts to assign unwarranted significance to failed attempts by legislators to clarify a statute’s meaning, when that clarification is contrary to the meaning given by the agency.

This essay calls attention to the plight of legislators who try unsuccessfully to pass laws in an attempt to constrain agencies.  Legislators who disagree with an agency’s interpretation of a statute will use the primary tool at their disposal—legislation—to attempt to change the law to bar the statutory interpretation they do not embrace.  But much proposed legislation does not pass, and it is a stubborn fact of life for legislators that many of their proposals will fail.

It is wrong to presume that a legislature’s failure to pass a bill that would alter an agency’s interpretation of a statute signifies that the legislature has ratified the agency’s interpretation.  A better rule recognizes that, when a legislature fails to enact legislation that would have the effect of overriding an agency’s interpretation of a statute, courts should not construe the legislature’s inaction as an endorsement of the agency’s interpretation.3See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 186 (1994) (“It is ‘impossible to assert with any degree of assurance that congressional failure to act represents’ affirmative congressional approval of the courts’ statutory interpretation.”) (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 175, n. 1 (1989)).  Failing to enact legislation is equivalent to legislative silence, and legislative silence is not acquiescence to an agency’s position.4See generally Symposium, Patterson v. McLean: Interpreting Legislative Inaction, 87 Mich. L. Rev. 67, 70-71 (1988) (dividing “legislative inaction” cases into three categories called “acquiescence,” “reenactment,” and “rejected proposal”). See Gamble v. United States, 139 S.Ct. 1960, 1988 (2019) (Thomas, J., concurring) (“[E]ven if congressional silence could be meaningfully understood as acquiescence, it still falls short of the bicameralism and presentment required . . . and therefore is not a ‘valid way for our elected representatives to express their collective judgment.’”) (quoting Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 76 (2001)).  It is only silence, and courts should take nothing from it.5Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc. 135 S.Ct. 2507, 2539, n. 5 (2015) (Alito, J., dissenting) (“[F]ailed amendments tell us ‘little’ about what a statute means.”). See Peter Tiersma, The Language of Silence, 48 Rutgers L. Rev. 1, 95 (1995) (“[L]egislative silence has no meaning.”).

The first Part of this essay offers support for a principle against interpreting dead bills—by which I mean unenacted legislation—as a preface to a discussion of the Supreme Court of Washington’s recent opinion in Spokane County v. Department of Fish and Wildlife, which held that the Department’s jurisdiction over in-water construction projects also extends to construction outside of the water.6Spokane Cty. v. Dep’t of Fish & Wildlife, 192 Wash.2d 453 (2018).  Part II criticizes the Spokane opinion in light of the points outlined in Part I, positing that the court’s opinion cobbled together a story about legislative intent that the legislature itself later debunked.  The essay concludes by cautioning courts against trying to derive meaning from dead bills in future cases.

I. The Argument for a Principle Against Interpreting Dead Bills

The idea that a legislature must not be presumed to have spoken unless it enacts legislation is grounded in the nature of legislatures.  As multimember bodies, legislatures are populated with individual legislators who hold diverse views about any given subject, including whether an agency’s interpretation of a statute is correct or flawed.7The author is personally familiar with the Washington State Legislature, which has ninety-eight representatives and forty-nine senators. Wash. Rev. Code § 44.05.090 (2018). See Va. Uranium, Inc. v. Warren, 139 S.Ct. 1894, 1906-07 (2019) (Gorsuch, J., plurality) (“State legislatures are composed of individuals who often pursue legislation for multiple and unexpressed purposes, so what legal rules should determine when and how to ascribe a particular intention to a particular legislator? . . . .  And if trying to peer inside legislators’ skulls is too fraught an enterprise, shouldn’t we limit ourselves to trying to glean legislative purposes from the statutory text . . .?”).  Individual legislators are free to opine as they wish, but the legislature’s position on a particular question of interpretation may be conclusively established only through the passage of legislation.8Supra note 5, at 2539 (“To change the meaning of language in an already enacted law, Congress must pass a new law amending that language.”) (citing W. Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 100, 1010, n. 7 (1991)). For several reasons, assigning significance to a bill’s failure to pass is an unreliable way to determine whether the legislature agrees with an agency’s position on a question of statutory interpretation.

A. Dead Bills Are Not the Law

One reason courts should avoid extracting meaning from dead bills is obvious: A bill that does not pass the legislature is not the law.9Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 326 (2012) (“The bar may well have relied on [extant lower-court, intermediate-court, or agency interpretations], but until they have been approved by the jurisdiction’s highest court or implicitly adopted in a subsequent statute, they are not the law.”). See Ethan J. Leib & James J. Brudney, Legislative Underwrites, 103 Va. L. Rev. 1487, 1545 (2017) (“Because pure silence . . . [does] not result in enacted law, [it is] of lesser significance in the pantheon of the tools of statutory interpretation.”) (citing Cleveland v. United States, 329 U.S. 14, 22 (1946) (Rutledge, J., concurring)). See also Azar v. Allina Health Servs., 139 S.Ct. 1804, 1814 (2019) (“[L]egislative history is not the law.”) (quoting Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1631 (2018)). Therefore, a dead bill should be of no use to a court that is seeking to “say what the law is.”10Marbury v. Madison, 5 U.S. 137, 177 (1803).

Additionally, when it comes to unenacted legislation, it is impossible for courts to isolate a signal in the noise.  A legislature may be presented with the introduction of thousands of bills during any legislative session.11Case in point: 2,211 bills were introduced in the Washington State Legislature during the 2019 regular session, and 469 passed. Washington State Legislature Legislative Information Center, Statistical Summary: 2019 Regular Session of the 66th Legislature (2019).  Some bills cover the same subject in different ways.  Some bills conflict with each other.  Sometimes two bills would be impossible to enforce at the same time.  Most bills do not pass.  Some bills pass one chamber but not the other.  Under these circumstances, a court cannot determine which unenacted bills authentically reflect the position of the legislature.  It is difficult to comprehend how a court would determine which bill should be afforded more weight in the case of two conflicting proposals, for instance.  More to the point, if one failed bill endorses an agency’s interpretation of a statute, but another failed bill seeks to override it, how would a court know which of the competing proposals genuinely represents the legislature’s view?  Because unenacted bills are not the law, they are of little value for determining what the law is.12Supra note 5.  “The only thing a court can be sure of is what can be found in the law itself.”13Va. Uranium, supra note 7, at 1899.

B. Courts Will Never Conclusively Know Why a Bill Died

Another reason courts should avoid assigning meaning to a dead bill is because a court will never really know why a bill died.  To assume that a legislature always considerately rejects bills because it favors an alternative policy and purposefully chooses to align itself with a certain interpretive position ignores the myriad other “non-substantive” reasons why bills fail.14Johnson v. Transp. Agency, 480 U.S. 616, 671-72 (1987) (Scalia, J., dissenting) (“[O]ne must ignore rudimentary principles of political science to draw any conclusion regarding . . . intent from the failure to enact legislation. The ‘complicated check on legislation,’ . . . erected by our Constitution creates an inertia that makes it impossible to assert with any degree of assurance that congressional failure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice.”) (emphasis in original).  Among many others, these reasons may be:

  • Procedural: Legislators could not determine which committee should work on the bill.
  • Practical: The session was short and other legislation took priority.
  • Personal: The committee chairman does not get along with the bill sponsor.
  • Political: The majority refused to work on a bill because it was promoted by the minority.
  • Technical: The concepts in the bill are embraced but specific drafting choices are not.

The list could go on, but the point is that any combination of these or other miscellaneous reasons can cause a bill’s downfall.  Such reasons will not be reflected in published legislative materials, fully known by all legislators, or made apparent to the public.  A court might think it has discovered meaning in a legislature’s failure to pass a bill, but the court must understand that it probably does not know the true tale because it lacks knowledge about the manifold considerations that motivated the legislature—and individual legislators—to reject or ignore a particular bill.

C. Drawing Meaning from Dead Bills Warps the Legislative Process

Courts must also acknowledge that giving heed to dead bills imprudently affects the legislative process.  If a legislator wants to introduce a bill to bar an agency’s statutory interpretation, but the legislator is unsure if the bill will pass, he might decide to forgo introducing the bill altogether, for fear that a court would interpret the failure of the bill as signifying that the legislature intended to support the agency’s position.  This is the chilling effect that courts create when they try to wring legislative intent from legislative silence.  Instead of doing the work of proposing policies on behalf of their constituents, legislators will be handcuffed by the potential that merely introducing legislation might be misconstrued in court.  In the balance between legislatures and agencies, the judicial temptation to divine meaning from dead bills creates a “heads I win, tails you lose” problem for the legislature; it gives agencies the double advantage of not having to respond to legislation that challenges the agency (because the legislation is never introduced), and enjoying an inference in favor of the agency if such a bill is introduced but dies.

Conversely, a clever legislator might try to use the judicially created chilling effect to influence the outcome of litigation to the benefit of the executive branch.  For example, if an agency’s interpretation of a statute is being litigated, a legislator who supports the agency’s interpretation might decide to introduce a bill that would bar the agency’s interpretation if he knows the bill will fail.  The legislator would count on the courts to construe the failure of the bill as supplying evidence that the legislature had endorsed the agency’s position—the position the bill sponsor actually agrees with—solely because the legislature failed to pass a bill that even the sponsor did not support.

These hypotheticals show how courts can easily distort the statute-writing process when they make decisions based on misplaced notions of legislative intent.

D. The Principle Against Interpreting Dead Bills Does Not Conflict with the Prior-Construction Canon

A final word about the principle against interpreting dead bills: It is important to note that the principle is not the same as the prior-construction canon of statutory interpretation.  The prior-construction canon states that statutory text that has already been construed in court or by an agency must be understood according to the construction placed upon it by the interpreting court or agency.15Lightfoot v. Cendant Mortg. Corp., 137 S.Ct. 553, 563 (2017) (“The [prior-construction] canon teaches that if courts have settled the meaning of an existing provision, the enactment of a new provision that mirrors the existing statutory text indicates, as a general matter, that the new provision has that same meaning.”).  Justice Scalia and Bryan Garner explain that,

“[t]he clearest application of the prior-construction canon occurs with reenactments: If a word or a phrase has been authoritatively interpreted by the highest court in a jurisdiction, or has been given a uniform interpretation by inferior courts or the responsible agency, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.”16Scalia & Garnersupra note 9, at 322.

But unlike the principle against interpreting dead bills, the prior-construction canon requires legislative repetition of an already-interpreted legal text.  By employing the same words later in time, the legislature is presumed to know how the operative words have been interpreted by other branches of government, and to perpetuate that interpretation absent an indication to the contrary.17Supra note 5, at 2539 (noting the prior-construction canon does not apply where lawyers cannot justifiably regard the point as settled or when other sound rules of interpretation are implicated).  In contrast, the principle against interpreting dead bills only applies when the legislature has not passed legislation.  A dead bill is, by definition, a bill that has not been enacted.  There is an important distinction between the effect of enacted versus unenacted legislation when determining whether the prior-construction canon applies.18Scalia & Garner, supra note 9, at 326 (“The mere failure of a legislature to correct . . . agency interpretations is not . . . a sound basis for believing that the legislature has ‘adopted’ them.”).  The prior-construction canon and the principle against interpreting dead bills can stand together because the former applies when a legislature has enacted a law, and the latter applies when the legislature has not enacted a law.

Keeping in mind these points about the principle against interpreting dead bills, the next Part scrutinizes the Supreme Court of Washington’s recent opinion in Spokane County v. Department of Fish and Wildlife, a decision that heavily relies on a narrative of legislative inaction to reach a conclusion about the meaning of a statute.

II. Conjuring Meaning from Dead Bills—Spokane County v. Department of Fish and Wildlife

The Supreme Court of Washington’s decision in Spokane County v. Department of Fish and Wildlife illustrates how interpretive problems arise when courts lean on dead bills to determine the meaning of statutes.19Supra note 6.   The Spokane case is about a disputed agency interpretation of a statute and unfruitful efforts by legislators to change the statute to bar the agency’s interpretation. The court ruled in favor of the agency in part because it concluded that the legislature had endorsed the agency’s interpretation by failing to change the law.

A. A Line in the Water

The Spokane case centers on Washington’s hydraulic projects approval program.  Washington state law provides that a person who engages in certain construction projects in state waters must comply with a hydraulic project approval permit issued by the state Department of Fish and Wildlife.20Wash. Rev. Code § 77.55.021 (2018).  Hydraulic project approval permits typically contain terms and conditions imposed for the protection of fish, potentially adding time and costs to projects.21Id.  In the Spokane case, plaintiff counties were concerned about the effect of the hydraulic projects law on county-led bridge construction and maintenance activities.22Supra note 6, at 456.  The counties contended that construction activity occurring outside of the water should not be subject to the hydraulic projects program. However, in 2015 the Department adopted a rule requiring a permit for all work on any structure that crosses a stream, river, or other water body, even when none of the work takes place in the water.23Id. “An HPA is required for all construction or repair/replacement of any structure that crosses a stream, river, or other water body regardless of the location of the proposed work relative to the OHWL of state waters.” Wash. Admin. Code § 220-660-190 (2019).

The dispute turned on the meaning of “hydraulic project,” which is defined in statute to mean “the construction or performance of work that will use, divert, obstruct, or change the natural flow or bed of any of the salt or freshwaters of the state.”24Wash. Rev. Code § 77.55.011(11) (2018).  The counties argued that the statute limited the Department’s regulatory jurisdiction to work performed in the water, delineated by the ordinary high-water line for a given body of water.25Supra note 6, at 460.  On the other hand, the Department read the statute as authorizing it to regulate work that would occur above the ordinary high-water line—literally anywhere outside of the water—so long as the Department determined that the work was reasonably certain to affect the water in some way.26Id.  The counties’ interpretation of the statute only encompassed in-water work—i.e., the kind of work that certainly “will” use, divert, obstruct, or change the water body and therefore potentially affect fish.27Id. at 459.  But the court looked past the statutory text for other clues that might support the agency’s broad assertion of authority, including abortive attempts by legislators to establish a water-line test for the Department’s hydraulic projects program.28Id. at 461-65.

B. Rummaging Through Dead Bills

The court upheld the Department’s statutory interpretation based on the court’s view that the definition of “hydraulic project” unambiguously includes out-of-water activities because such activities are capable of using, diverting, obstructing, or changing state waters.29Id. at 458-61.  The court anchored its opinion in the statutory text, but the court should have stopped there.30While basing an opinion on the meaning of the text is unremarkable as a matter of interpretation, the concurring opinion by Justice McCloud calls attention to the court’s questionable and “unnecessary” conclusion that, as used in the statute, the word “will”—as in “will use, divert, obstruct, or change”—is synonymous with the word “may.” Supra note 6, at 465-67 (McCloud, J., concurring). “In general, when used as a directive, ‘will’ is actually mandatory and implies a mandatory requirement.” Id.  However, the court attempted to shore up its opinion with “legislative history and context” to show that the legislature “plainly intended” for the Department to be able to regulate out-of-water activities.31The court used the term “upland” projects. Supra note 6, at 461.  This was a mistake.

Trying to build the case that the legislature had somehow endorsed the Department’s regulation of upland projects, the court seized on a number of old bills, including Senate Bill 5085 from 1993.32Id. at 462-63.  Senate Bill 5085 would have limited hydraulic projects program authority to construction or work that occurs at or below customary water lines, but the bill did not pass.33S.B. 5085, 53d Leg., Reg. Sess. (Wash. 1993).  The court also singled out Engrossed Second Substitute Senate Bill 5632, from 1995.34Engrossed Second Substitute S.B. 5632, 54th Leg., Reg. Sess. (Wash. 1995).  Another bill from 1995, House Bill 1597, contained similar operative provisions, but only passed one chamber of the legislature.  Substitute H.B. 1597, 54th Leg., Reg. Sess. (Wash. 1995).  This bill originally contained a section providing that hydraulic projects program jurisdiction shall be limited to construction or work occurring in the water, but the jurisdiction-limiting provision was amended out of the bill, and the whole amended section was later vetoed.35Compare Second Substitute S.B. 5632, 54th Leg., Reg. Sess. (Wash. 1995) with Engrossed Second Substitute S.B. 5632, 54th Leg., Reg. Sess. (Wash. 1995).  Readers may question whether a bill that passes the legislature in a form different than the form in which the original bill was introduced is a “dead bill”.  The answer is no, but a court that relies on an unenacted provision in a bill that was otherwise successful in getting through the legislative process commits the same error as a court that relies on a dead bill: Both courts seek to use proposed but unenacted changes to a statute as the basis for determining that the legislature must agree with the enforcement agency’s interpretation of the statute.  This is inadvisable for the reasons outlined in Part I.  

The death and modification of these bills stood out to the court as evidence that the legislature in 1993 and 1995 had deliberately endorsed regulation of upland projects by failing to pass legislation limiting the program to in-water work.36Supra note 6, at 463.  Yet the court did not mention that other hydraulic projects program bills failed in the years preceding the Spokane opinion.  For instance, the 1993 Legislature considered but did not enact Senate Bill 5281, a bill that would have authorized a specific application of the hydraulic projects program on forestland to enhance habitat, without reference to the location of projects in relation to the water.37S.B. 5281, 53d Leg., Reg. Sess. (Wash. 1993).  The court said nothing about the legislature’s rejection of Senate Bill 5281, or whether such rejection evinced a legislative intention not to allow the application of the hydraulic projects program for habitat enhancement on forestland going forward.  Moreover, the court did not weigh the rejection of Senate Bill 5085 in 1993, a bill limiting hydraulic projects jurisdiction to in-water work, against the rejection of Senate Bill 5281 in 1993, a bill that would have specifically authorized the hydraulic projects program for habitat enhancement on forestland.  Courts must address this problem of multiple competing unenacted bills when they follow the Spokane court’s interpretive framework, but the Spokane court itself did not grapple with this issue.

The Spokane court additionally offered the removal of jurisdiction-limiting language from a 2005 bill as proof that the legislature intended for upland projects to be regulated by the Department.38Supra note 6, at 462. See supra note 35.  But the court conceded that the deletion of the text was a slender reed because the stricken text only “might have suggested that the Department’s regulatory authority did not extend to landward projects,” an equivocal finding at best.39Supra note 6, at 462 (emphasis added). Cf. Gamble v. United States, 139 S.Ct. 1960, 1965 (2019) (“The private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text.”).  Furthermore, the only cited evidence of the legislature’s motive for removing the jurisdiction-limiting language was found in a summary of vague testimony recorded in a bill report. The testimony expressed “concerns” but was nevertheless recorded as testimony “for” the version of the bill that contained the concerning text that was eventually removed.40Id. (citing H.B. Rep. on H.B. 1346, at 3, 59th Leg., Reg. Sess. (Wash. 2005)).  The Washington State Legislature’s bill reports carry a disclaimer that they do not constitute a statement of legislative intent.  And the Spokane opinion ignored the fact that all of the substantive provisions of the 2005 bill were stricken when the original committee adopted a substitute bill, an act of legislative drafting that might suggest, under the Spokane court’s logic, that the legislature at one point intended to reject vast portions of the hydraulic projects program altogether.41H.B. 1346, 59th Leg., Reg. Sess. (Wash. 2005).

With each bill, the court strained to show that the legislature had tacitly approved regulating upland projects under the hydraulic projects program by failing to change the statute to expressly limit the Department’s jurisdiction.  The court stated that “the existence of these bills demonstrates that the legislature understood the Department’s permitting authority to include upland activities.”42Supra note 6, at 463.

But did the court properly draw conclusions from the dead bills it exhumed in the Spokane case?  Various legislatures over the years appear to have known that the Department asserted authority over upland activities based on the Department’s own interpretation of its authorizing statute, but the legislature’s failure to pass bills that would have changed the statute does not prove that the legislature adopted the agency’s interpretation, or that a court could confidently determine the agency’s interpretation was consistent with legislative intent.  In fact, the legislature itself disproved the court’s theory of the legislature’s position by passing Second Substitute House Bill 1579 in 2019, a bill that expressly requires hydraulic project permits for upland projects that meet the definition of “hydraulic project.”432019 Wash. Sess. Laws 1659.  Passage of this bill in 2019 demonstrates that the legislature had not previously embraced the position the court assigned to it in the Spokane case in 2018, because passing a bill of this nature would have been pointless if the legislature understood itself to have already resolved the question via the non-act of failing to pass a bill.

Perhaps the best way to expose the flaw in the Spokane court’s reasoning is to consider a hypothetical situation in which Second Substitute House Bill 1579 was introduced in 2019 but did not pass.  Second Substitute House Bill 1579 requires a person proposing construction or other work landward of the ordinary high water line that will use, divert, obstruct, or change the natural flow or bed of state waters to submit a permit application to the Department.44Id.  If the legislature had not enacted this bill, would courts be forced to conclude that the legislature had rejected regulation of upland projects?  The answer is probably yes under the Spokane court’s logic because failing to adopt the legislation would imply that the legislature had decided hydraulic projects jurisdiction should not be extended to upland projects as the bill proposed.  Additionally, an inference against upland jurisdiction drawn from legislative activity in 2019 would presumably trump other inferences drawn from older dead bills, including the inferences supporting the court’s 2018 decision in Spokane.

This cannot be.  All we can really know is that Second Substitute House Bill 1579 provides regulatory authority over upland projects because it enshrines that authority in law, to the extent that the project is “landward of the ordinary high water line” and “will use, divert, obstruct, or change the natural flow or bed of state waters.”45Id.  We cannot conclude that failing to enact the bill would have meant the legislature endorsed excluding upland projects from regulation.  In the same way, the Spokane court should not have concluded that failing to enact bills that would have exclusively regulated in-water projects meant the legislature endorsed extending hydraulic projects jurisdiction to include upland projects.

Conclusion

The temptation to assign meaning to failed legislation springs from courts’ desires to discover the legislature’s intent.  But this will rarely be possible.  “[In] the context of legislation . . . collective intent is pure fiction because dozens if not hundreds of legislators have their subjective views on the minutiae of bills they are voting on . . . .”46Scalia & Garnersupra note 9, at 392.  As Justice Scalia and Garner conclude, even “[t]he use of the term legislative intent encourages [a] search for the nonexistent.”47Id. at 394 (emphasis in original).  Legislatures only speak through their enactments, so what matters is the text.  And that means the text of the law, not the text of dead bills.

Furthermore, relying on dead bills to provide evidence that a legislature agrees with an agency’s interpretation of a statute presents a special danger to legislatures.  An agency has the ability to manufacture meaning by adopting its own interpretation of a statute.  If an agency can point to legislative silence as support for the agency’s interpretation, a court may infer that the legislature intended to take a position even when the legislature has never addressed the disputed legal question through the enactment of legislation.  In a climate where most bills fail, legislators are disincentivized from introducing legislation that contradicts the agency’s position. This stifles debate and gives the illusion that the legislature intends to endorse the agency through silence.

Courts should not take sides in the tug-of-war between the political branches by speculating about the meaning of dead bills.  It will rarely be useful for judicial decision-making.  The court’s dredging up dead bills was unnecessary for resolving the Spokane case, which could have been answered based on the statutory text alone.48Supra note 6, at 461.  More importantly, interpreting dead bills encroaches upon the legislative process, as legislators are left to wonder whether a court will determine that the legislature made law by not making law.


Daniel Himebaugh, Leadership Counsel for the Washington State Senate Republican Caucus.

Suggested Citation: Daniel Himebaugh, Against Interpreting Dead Bills, N.Y.U. J. Legis. & Pub. Pol’y (2020).