top of page
  • Ashley Baker

To Divine What Congress Would Have Wanted Is to Legislate from the Bench

In United States v. Microsoft, while the government argues that the courts should have the authority to compel Microsoft to produce to the government customer content stored outside of the United States, the Second Circuit correctly ruled that no such authority exists. Pet. App. 5a. Even if such a power would, as the government contends, make good policy, it is not the job of the court to make policy. Congress makes policy. Judges interpret the law.

Therefore, the Court’s decision in Microsoft hinges in part on a proper understanding of the judiciary’s role in our constitutional scheme. The Constitution explicitly grants “[a]ll” legislative powers to Congress, not to the courts. U.S. Const. art. I, § 1. As Chief Justice John Marshall famously said of the courts, it is “emphatically” their “province and duty” to “say what the law is,” not what they think Congress may have intended. Marbury v. Madison (1803) (emphasis added).

Various canons of interpretation have evolved to keep courts within their proper ambit. One particular canon states that, “unless contrary intent appears,” congressional statutes are “meant to apply only within the territorial jurisdiction of the United States.” Id. (internal quotation marks omitted). In other words, when a statute lacks clear indication of extraterritorial application, there is none.

In Morrison, the Supreme Court chastised the Second Circuit for disregarding this “long and often recited” presumption and instead interpreting a statute’s silence – in that case, the Exchange Act – on extraterritorial application as a license to discern whether Congress intended the statute to apply to conduct abroad. Morrison v. National Australia Bank Ltd. (2010). To “divin[e] what Congress would have wanted” is to legislate from the bench. Morrison, 561 U. S. at 261.

Prior to Morrison, the Second Circuit and other courts of appeals often attempted to conjecture extraterritorial application from statutory silence. Their foray into the legislative realm resulted in a convoluted “collection of tests for divining what Congress would have wanted.” Id. That these tests had become so “complex in formulation and unpredictable in application” convinced the Supreme Court of the presumption’s underlying wisdom. Id.

On its face, the Stored Communications Act (SCA) contains nothing to suggest it applies abroad. 18 U.S.C. § 2701. In Microsoft, the Second Circuit understood that it was not its duty to speculate whether Congress, decades ago, would have wanted this particular statute to apply to data stored overseas. Therefore, the government’s claim that a law establishing privacy protections for electronic communications also functions as an exception to the very protections it provides is not so much an interpretation of plain text as it is a complete revision of it.


bottom of page