Legislation and Regulation

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Legislation and Regulation
Relevant texts Image of Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy (American Casebook Series)
Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy (American Casebook Series)


Related course(s)

CRAC – answer the call of the question make a roadmap


Generally, courts should apply plain language unless the language is ambiguous (Locke, Hill, Famiglio). The court’s primary function is to give effect to the overall purpose of the Act. (Speluncean), thus the text should be read in light of the statute’s overall purpose.


Explain why the facts affect your conclusion. Compare and contrast with the content from class. “While a textualist might argue that it is inappropriate to consider the statutory decision because it allows for arbitrary decision making.


Pick a side and address counter-arguments.


It is not appropriate to look at the congressional report because… Even if we did look at if it would be irrelevant because…


Don’t forget about subsequent congressional action!! “Before this case was decided, Congress amended the act to include… This means it always meant this…” (TVA)




No Vehicles in the Park

  1. Explain the statutory meaning
  • Ordinary Meaning: look at the plain language and its definitions
  • Applying ordinary rules of grammar and word usage
  • Vehicle- any mechanism for conveying a person from one place to another.
  • Specialized Meaning Within the Legal System
  • Specific definition of vehicle in statute: might be read to create a special legal meaning for the purposes of the Parks Safety Act and it does not have to be the same as “ordinary meaning”
  • Section 3’s definition includes motorcycles, automobiles, trucks, and motor scooters. Provided that, bicycles shall be allowed in the park, so long as they are being pushed or carried and not ridden.
  • Example: most states require vehicle registration and licensing to operate various vehicles.
  • Prototypical (The Best Example) v. Extensive Meaning (All Examples)
  • Prototypical: Core example of the term.
  • Vehicle= Car
  • Extensive meaning: all examples, not just best or most typical
  • Vehicle= any means of transport, such as bicycle or airport, thus extending the meaning.

How legislators think about statutes?

  • Set the Agenda: What problem are they trying to solve
  • Legislatures must obtain the consent of many members so they openly seek compromise. Therefore, their strategy is predictable - seek to attract wavering votes without alienating core supporters
  • Act on behalf of the people
  • The more veto points there are, the more compromises are necessary.

Policy:

  • Statutes and regulations are written to be broadly applicable; therefore, they do not always anticipate particular situations that could arise.
  • Agencies have lots of power and play a primary role in lawmaking



Elements of Statutes

  • All elements must be satisfied
    1. Conjunctive structure, often using “and”
  • Only one of the elements must be satisfied
    1. Disjunctive structure, often using “or”
  • Some, not all, of the elements needed
    1. Factors test: “the court shall consider”/“the following are relevant”
  • Some, not all, of the elements are considered (Balancing Test)
  • Totality of the circumstances test
  • Combination—some rules combines elements using multiple structures, e.g., conjunctive, disjunctive, and factors

  • THE LEGISLATIVE PROCESS AND THE CREATION OF AGENCIES
  • The Classic Legislative Process
  • How a bill becomes a law?
  • Story of the Civil Rights Act of 1964 and Sex Discrimination
  • (1) Passage in the House
  • Introduction
  • Committee
  • Rules Committee
  • House Resolution (“the rule”)
  • Floor debate on the rule
  • Vote on the rule
  • Floor debate
  • Vote
  • (2) Passage in the Senate
  • Introduction
  • Committee
  • Filibuster
  • Substitute Bill
  • Cloture – need 60 votes – typically before the cloture vote occurs, a new bill (substitute) will be offered which has obtained the consent of a coalition of Senators sufficient to reach the 60 vote mark
  • Vote on Substitute Bill
  • Post-Cloture amendments
  • Floor Debate
  • Vote
    • on many bills, the Senate and the House reach agreement through a conference committee procedure, which is a central place for making final textual decisions.
  • (3) The Bill Becomes a Law
  • Title VII of the Civil Rights Act of 1964
  • Vetogate effects on Civil Rights Act
  • House Judiciary Committee passes weaker Administration bill rather than stronger subcommittee bill
  • Opponents of bill add sex discrimination amendment
  • Filibustering senators weaken bill – reduced authority for the EEOC
  • The Rules of the House and the Senate
  • House:
  • Speaker of the House/Majority Leader – decides which committee gest the bill and who manages floor debate
  • to introduce a bill, the legislator simply drops it into the “hopper” – a wooden box in front of the chamber – only members can introduce bills (if the Pres wants a bill passed, he has to find a member to introduce it)
  • Committee chair can refuse to hold hearing
  • Committee referral – there is no requirement that a bill be considered by a committee
  • Also no requirement that a bill be referred to subcommittee – but the practice is still customary
  • May include important testimony related to amendments or be staged events producing testimony supporting the bill’s proponents
  • Multiple referrals can kill a bill because too many committees become involved
  • Mark-ups are more useful as far as language is concerned, but generally are not a matter of public record.
  • House Rules Committee (chosen by the speaker which influences the nature of the rule) – a rule from the Rules Committee must be approved by the House prior to consideration of the bill. “open rule” allows all germane amendments to be offered – “closed rule” one which limits amendments in particular ways.
  • No requirement that a rule be passed, house may vote to “suspend” the rules
  • Senate:
  • Any Senator may introduce a bill by offering the bill to the appropriate clerk – the bill will be printed in the record and typically, for important bills, the Senator will introduce the bill with a speech on the floor
  • Structural Limits on Congressional Authority
  • The lawmaking era of gridlock and polarization
  • Vetogates
  • https://i0.wp.com/globalgenes.org/wp-content/uploads/2012/02/how-a-bill-becomes-law.jpg?fit=1024%2C850&ssl=1
  • Concessions, compromises, poison pill amendments
  • Examples:
  • Committee chair may never have hearing
  • Bill may get amended or marked up and lose support
  • House Rules Committee may never schedule floor debate
  • Amendments at floor stage
  • Senate may filibuster if less than 60 votes
  • Bicameralism (bill passes one chamber but dies in the other)
  • Conference committee
  • Significances of vetogates:
  • Many bills do not pass
  • Certain lawmakers have a lot of power
  • Amendment can be poison pills or attempted poison pills
  • Logrolling (vote-trading)
  • Structural Limits on Congressional Authority
  • Congress has broad, but enumerated, powers to pass laws. Article I § 8 allows the Congress to pass laws to regulate commerce, to coin money, to provide for uniform laws on bankruptcy and immigration, and to declare war, among other powers.
  • Every exercise of congressional authority must be tied to a specific grant of authority in the Constitution
  • Congress is a body created to move slowly and deliberately
  • Vesting clause: in the beginning of the three main articles of the Constitution; states what powers “shall be vested” in each branch of the government.

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Examples of Unorthodox Lawmaking

  • Omnibus bills
  • Leadership driven bills
  • Emergency Actions
  • Automatic Lawmaking
  • Certain situations where Congress will give authority to an agency or board to create a rule; if Congress doesn’t do anything within a certain amount of time, it automatically goes into effect. It’s a way for them to avoid accountability and push difficult legislation through and puts responsibility on the agency.
  • Ex. Military base closing act
  • Legislative Waivers
  • Presidential Signing Statements
  • Executive Orders
  • Consequences:
  • No legislative history (or less)
  • Fragmented legislative history
  • Congressional action that defies judicial norms
  • Avoiding accountability by putting decision in other people’s hands or hiding those decisions in omnibus bills
  • Presidential legislative history – is it legitimate?
  • Reconciliation: purpose – budget procedure reconcile budget with existing law.

Gluck Article: Due to polarization of parties and gridlock, both the President and Congress are moving away from the conventional process/model of passing a bill (Civil Rights Act) and utilizing more unorthodox methods (being increasingly common).

  • What the Gluck article posits is that in an age of polarization and gridlock, both Congress and the President are moving away from this conventional model and are trying to make policy through more “unorthodox” means.

(1) Omnibus Policymaking: No single definition, but consensus that legislation that “packages together several measures into one or combines diverse subjects into a single bill.”

  • Often comprises “mini-bills”- separate pieces of legislation or separate topics.
  • Statutory interpretation can be difficult because “often long and messy,” “may have errors or linguistic inconsistencies,” and legislative history is “often outdated because parts of the bills often are drafted years before- as part of earlier, failed bills that later are bundled into an omnibus package bigger deal.”
  • Challenges: overlapping jurisdictions/inconsistency and errors.
  • (2) Emergency Policymaking: “statutes passed under unusual time pressure and regulations enacted without prior notice and comment…often in reaction to a system shock.”
  • Challenges surrounding brevity and generality (sloppy and contains mistakes) because enacted under harried circumstances compared to legislation that was deliberating for months by committees and seeks comments before finalization.
  • Little detail, no notice-and-comment, often no legislative history.
  • Often bypasses committee deliberation and report writing.
  • Example: Congress passed Authorization for Use of Military Force (AUMF) 3 days after September 11th.

(3) President as both Legislator and Regulator

  • Courts do not generally view “the President as a statutory interpreter, or as an agency.”
  • Signing statements: written pronouncement issued by President upon enacting legislation.
  • Can effectively change legislation after it has been enacted.

(4) President as Initiator of Legislation

  • Often first step in process: White House initiates and drafts legislation.
  • Example: Dodd-Frank financial reform legislation
  • President issues directive to spur Congress to take action.
  • President Obama directive on cybersecurity
  • Challenges: Unreviewability/lack of record
  • Unorthodox Drafters: the People (Direct Democracy), Lobbyists, CBO (Congressional Budget Office)
  • Direct Democracy: Only in the state legislation, but issues come before federal courts for interpretation.
  • Lack legislative history, not drafted with an eye toward consistency (use statutory terms in different ways).
  • Lack of accountability/less expertise/less interest in consistency
  • Lobbyists and CBO: more formal role because they participate in notice and comment process
  • CBO: “comments on draft bills, and drafters frequently change legislation… to bring in within a specific budget target.”


  • THE ADMINISTRATIVE AGENCIES AND THE ADMINISTRATIVE STATE
  • Administrative Agencies: What are they and their legal form?
  • Administrative Law is usually conceptualized as rules governing agency action that are enforced by judges.
  • Administrative Law consists of those legal principles that define the authority and structure of administrative agencies, specify the procedural formalities that agencies use, and determine the validity of administrative decisions, enable and limit judicial review of agencies.
  • Agencies “execute law by creating rule and regulation to flesh out the details of statutory interpretation.” – largest set of lawmakers and judges in the country – unless inconsistent with a statute or the Constitutions, these rules fill the gaps in law that Congress cannot by reason of its smaller staff, attention-span, political hamstrings, or lack of expertise or foresight.
  • Benefits:
  • Ensures agencies consider relevant information and adequately deliberates
  • Protects against agency capture
  • (fox guarding the henhouse)
  • Fox's eat hens, so they're bad at protecting the henhouse
  • Agencies are often created for regulation
  • Often, the people most affected by the agency are the parties it is meant to protect
  • Agency is overrepresented by one small part of the population that is heavily affected
  • If you have agency capture, the agency is not acting in broader public interest as it is designed to do
  • Promotes democratic accountability
  • More deliberation/ agency officials can’t do whatever they want/ enables congressional and public oversight
  • Costs:
  • Slows down agency action and decision-making process
  • Two ways:
  • Notice-and-comment takes a lot of time
  • Judicial review possessions (APA) allows you to challenge any
  • Judges tend to like procedural formality
  • Makes agency action more expensive
  • Agencies become more cumbersome
  • A key distinction between agency rules and agency orders
  • Rules are like statutes for they are designed to implement, interpret, or prescribe law or policy
  • Means the whole part or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency
  • Orders are like judicial decisions, for they constitute the "final disposition" of a controversy involving the statutory or agency rules
  • Means the whole part or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of a n agency in a matter other than rule making.
  • Both orders and rules have the force of law - meaning they function like statutes - unless Congress overrules them, or the agency changes them

'Rule is forward looking and an order is resolving something that has already happened! **'Anything that's not a rule is an order



  • An agency's freedom of action is also constrained by other agencies
  • Ex. If an agency promulgates a controversial legislative rule that regulated companies sue to overturn, the agency usually cooperates with the Department of Justice in the course of the lawsuit.
  • If the companies are successful at the trial level, the agency cannot appeal its loss without the agreement of the Solicitor General (the SG)
  • If the agency wants to file an amicus brief with a court of appeals or with the Supreme Court, in most cases the agency must persuade the SG to file it.
  • Thus, the agency needs the cooperation of the Office of the Solicitor General: if the lawyers in that office disagree with the agency's interpretation of the law, then the agency will not be able to defend its rule, order, or interpretation in court.
  • Agency ossification: just as Congress is paralyzed by too many vetogates, so critics maintain that agencies can be paralyzed by too many procedural restrictions that "ossify" agency capacities to solve public problems.


  • What do agencies do?
  • 1. Make Substantive Rules
  • Congress must delegate lawmaking authority to agency. (ex. FCC, SEC, EPA)
  • Rules carry the full force of law
  • Notice-and-comment process
  • Agency must publish notice of proposed rule in the Federal Register and allow public to submit comments.
  • Not all agency have rulemaking authority (ex. EEOC)
  • 2. Conduct adjudications
  • An agency may charge a person or company with a statutory violation; if the administrative law judge finds culpability, she may direct sanctions.
  • Usually the agency can build a case against an apparent lawbreaker and exact an agreement between them to some kind of restitution and commitment to not violate the statute again.
  • Congress can delegate the capacity to issue adjudicative orders to agencies.
  • Exercise of judicial powers by an administrative agency (Administrative Law Judges)
  • You can appeal their decisions to an administrative law judge
  • If you do have to go to court, you only can if Congress says you can go to court, it’s not a constitutional right
  • 3. Bring enforcement actions
  • You can get hauled into court by them
  • Congress can give agencies the power to bring their own lawsuit in court.
  • Allows for powerful judicial remedies
  • Advantage: preliminary injunctions; injunctive relief; civil and criminal monetary sanctions.
  • Disadvantage: expensive
  • 4. Informal policy statements
  • 5. Guidance to covered entities
  • They have a default authority to offer their opinion about what the law requires
  • Examples of guidance: policy statements; agency website announcements; bulletins; speeches by agency heads or commissioners; question-and-answer portions on agency’s websites (often called FAQs)
  • Guidance does not carry any penalties for violation, but indicate issues that agencies are focused on and may bring a lawsuit to enforce
  • Put companies on notice of what they cannot do (companies want guidance)
  • Helps create consistencies within the agency
  • No notice and comment process
  • 6. Advice-giving:
  • Agencies spend a lot of time giving advice, which helps enforce statutes
  • Ex. IRS dispenses advice through instruction books mailed to taxpayers, its website, its telephone operators, and local offices
  • Agents are available to answer tax-related questions
  • More informal than guidance*
  • Potentially a useful way to induce compliance.
  • 7. Investigation/fact-gathering
  • Administrative agencies have power to conduct investigations
  • Congress may empower administrative agencies to obtain information on activities which can be regulated by federal legislation
  • Information can have regulatory value and may publish information to create a “normal” standard
  • Ex. EEOC investigates race and sex compositions of workforces by state and region
  • Information can be used to “target” companies that may be secretly discriminating because that company’s numbers are not aligned.
  • Publishing this information places employers on notice of “normal” numbers.
  • Normalization: where an institution simply promulgates a standard as normal and people follow that standard because they do not want to deviate from the norm. Created by collecting data and publicizing trends.
  • 8. Outreach/public interface
  • Agencies are created by Congress and headed by Executive appointees – how does each branch exert structural or political control over agencies?
  • How agencies are situated within the three branches of government
  • Congress:
  • Creates agency (had to come from a statute – they are the lawmaking body)
  • Defines powers
  • Often political decisions about what an agency’s powers are in relation to enacting legislation
  • Agencies can only bring charges in certain circumstances
  • Establishes structure
  • Sets funding
  • Executive branch:
  • Appoints leadership and hires staff – who ends up working in the agency
  • Can set policy priorities
  • Judicial:
  • Provides some oversight, but don’t affect the structure.
  • Agencies make or implement law in the shadow of judicial review. Agencies know that their discretion to make law is limited by the ability and willingness of judges not to veto their decisions.
  • But federal, state, and local judges usually defer to statutory interpretations by the agency charged with enforcing the statute.
  • Bc if the statute is ambiguous, any answer is going to have to rest upon a policy or even a political judgment. – agencies or commissions are in a better position to make such policy judgments, for reasons of either legitimacy or expertise.
  • Administrative Agencies and the American Constitution
  • Non-Delegation Doctrine (Manning)
  • Separation of Powers
  • Congress makes the laws; President enforces the laws; Judiciary adjudicates disputes arising under them.
  • Congress creates agencies through statute- names the agency, sets the agency’s organization, delegates certain powers to the agency, and appropriates funds to the agency (may be done in a separate statute).
  • Executive branch appoints leadership and hires staff and can set policy priorities
  • Non delegation doctrine is a principle of administrative law that Congress cannot delegate its legislative powers to agencies.
  • U.S. Const. art. I, § I, vests all legislative powers in the Congress
  • Permitted in most circumstances (JW Hampton: Delegation is permitted if Congress prescribes clear and adequate standards to guide an executive agency in making the policy. There should be an “intelligible principle” for the agencies to base their regulations on.)
  • Intelligible Principle Test (Manning)
  • “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”
  • Non-Delegation Rule: Under the vesting clause the U.S. Const. art. I, §1 is the nondelegation doctrine, or a principle of administrative law that states that Congress cannot delegate its legislative power to agencies. However, delegation is permitted if Congress gives clear and adequate standards to guide effective agency action, known as the intelligible principle doctrine. (JW Hampton). The reason for this doctrine is that agencies have better efficiency, flexibility, and expertise to deal with specific regulatory issues in an exceedingly regulatory state. However, the degree of agency discretion is limited depending on the scope of power conferred by Congress. (American Trucking). If the agency is making laws with no guidance whatsoever, then there is no intelligible principle and the agency is essentially acting like Congress. If Congress gives some guidance, then the agency is implementing the law that Congress passed rather than performing a legislative function.
  • JW Hampton, Jr. v. United States (Manning)
  • Facts: The Tariff Act of 1922 delegated the authority to set and impose customs duties on articles of imported merchandise to the President. J.W. Hampton and Company was assessed a higher customs duty than was fixed by statute.
  • Issue: Is the Tariff Act’s delegation of commerce power to the Executive Branch an unconstitutional delegation of legislative power?
  • Supreme Court held that “if Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.”
  • Provided the President with clear instructions on when and how to adjust the tariff rates established by the law.
  • Congress, within “defined limits,” could vest discretion in Executive officers to make public regulations and direct the details of statutory execution.
  • The same principle that allowed Congress to fix rates in interstate commerce also enabled it to delegate to the Executive branch the ability to modify rates.
  • This standard is viewed as quite lenient and has rarely (only two instances) been used to strike down legislation.
  • Whitman v. American Trucking Associations, Inc. (Manning)
  • Facts: Environmental Protection Agency’s National Ambient Air Quality Standard (NAAQS) for regulating ozone and particulate matter was challenged by the American trucking Association.
  • Issue: Does §109(b)(1) of the Clean Air Act unconstitutionally delegate legislative power to the Administrator of the EPA?
  • Reaffirmed Intelligible Principle Test: Supreme Court clarified that when Congress does given an agency the decision-making power, Congress must give the agencies an “intelligible principle” on which to base their regulations.
  • The degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.
  • Court held that 109(b)(1) as “requiring the EPA to set air quality standards at the level that is “requisite” – that is, not lower or higher than is necessary to protect public health with an adequate margin of safety,” was well “within the outer limits of our nondelegation precedents.”
  • Manning: Majority opinion (Scalia) “intimated that the power that the EPA exercises pursuant to its authority under the CAA is not really legislative power, but rather a form of policymaking discretion that is inherent in the executive power.”
  • If the agency is making laws with no guidance whatsoever, then there is no intelligible principle and the agency is essentially acting like Congress, but if Congress gives some principle (Guidance), e.g. setting standards at “requisite” levels, then the agency is implementing the law that Congress passed rather than performing a legislative function.
  • Thomas (concurrence): Under Art. 1, §1 of the Const, all legislative power is reserved to Congress. The text in the Constitution may prohibit the delegation of any legislative power from Congress to the executive, regardless of the presence of “intelligible principles.”
  • Stevens (concurrence): Agency rulemaking authoritative is “legislative power.” There is nothing inherently unconstitutional about a valid delegation of rulemaking authority as long as the delegation provides a sufficiently intelligible principle.
  • Public Utility Holding Company Act of 1935: SEC authorized to “modify structure of holding company systems so as to ensure that they are not ‘unduly or unnecessarily complicated’ and do not ‘unfairly or inequitably distribute voting power among security holder.”’
  • Other examples on pg. 493 of Manning
  • Concurrence: Justice Thomas expressed his concern that the intelligible principle doctrine does not serve “to prevent all cessions of legislative power,” and “that there are cases in which the “principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than ‘legislative.’”
  • Concurrence: Justice Stevens: the power to delegate is legislative but is constitutional when the delegation is adequately limited by the terms of the statute.
  • Why delegate to agencies and the constitutional constraints on delegations
  • If Congress cannot delegate lawmaking authority to agencies, then the federal government may not be able to function in complex modern society.
  • Agencies may have specialized expertise that make them effective policymakers (EPA; SEC).
  • If you’re requiring Congress to constantly check in and give constant oversight what’s the point of delegating?
  • Crowded legislative agenda may not lend itself to Congress to have enough time to become knowledgeable about all of the issues surrounding a complex area.
  • Legislative process is slow and cumbersome, making it difficult to enact laws quickly.
  • Political pressure and partisan politics may inhibit Congress from effectively and efficiently enacting a statute.
  • The Structure of the Executive Branch
  • Limit the President’s Removal Authority
  • No for-cause for executive and have to have cause for independent
  • So what do we know about what the president or Congress can do under these precedents? (CB)




Executive Independent
* Filing suit in court
  • Principal units of the Executive branch, i.e 15 executive departments (Dep’t of Homeland Security; Dep’t of Transportation) and Executive Office of the President (Office of Management and Budget; White House Office)
  • Perform more executive functions (they don’t adjudicate)
  • no fixed terms
  • single-head departments
  • no for cause removal requirement


* Designed to be more independent from the President and even Congress
  • Rules and regulations (quasi-legislative) powers
  • Adjudicate (quasi-judicial) powers
  • Multi-member commissions
  • Political parity
  • Staggered terms that are not tied to presidential elections
  • Different strategies to make agencies more independent: head of agency can only be removed by President for cause; members serve for a term of years no linked to presidential elections; balanced politically (X number from each political party); agency rulemaking and adjudicative abilities) - agencies can have a mixture of these strategies
  • ** Advantages: lack of political interference/pressure; independent decision-making/unrestrained power; agencies can have different opinions than the president
  • ** Disadvantages: interference; unrestrained power; agencies can have different opinions than the president


  • Limit the President’s Removal Authority Rule: Under the “Vesting Clause” of Article II of the Constitution that states that executive power shall be vested in the President, it is presumable that power includes hiring and firing executive officers. (CB 136). The Supreme Court in Myers ruled that the Constitution grants the president sole power to remove executive officers. Humphreys applied that rule differently to an independent agency, holding that Congress may limit the president’s removal powers by requiring good cause for removing members of executive branch agencies that exercise quasi-judicial or quasi-legislative functions. In Free Enterprise, the court found that the FTC commission members could only be removed for cause by the SEC and the SEC members could only be removed for cause by the President, leaving the commission members of the FTC completely unaccountable. Justice Roberts held that limiting removal of board members except for good cause, when coupled with the existing limitation on the president’s removal of commission members, prevents the President from fulfilling his Article II duty to ensure that the laws are faithfully executed.
  • (Executive) Myers v. United States: Congress can’t eject itself in the postmaster’s case because it’s an intrinsically executive agency. Taft: The U.S. Constitution grants the president the sole power to remove executive officers.
  • Brandeis dissent: Textualist perspective: “If the Vesting Clause gives all control to the President and precludes Congress from limiting the authority to remove, why does Art. II §2, clause 2 allows Congress to vest appointments and (one assumes) removal authority for minor officials with heads of departments? Indeed, no court has held that the president's removal power is beyond Congressional control.
  • (Independent) Humphreys (before Free Enterprise Fund): the president’s power to remove an executive branch official is not applicable to officials with legislative or judicial functions. The Supreme Court has upheld limits on the president’s removal power – saying that Congress may limit the removal powers by requiring good cause for removing members of executive branch agencies that exercise quasi-judicial or quasi-legislative functions.
  • Presidential removal of the FTC is allowed by the statute bc it’s an intrinsically independent agency. -> 5 commissioners on the board of the FTC w/ no more than 3 years from one party. 5 years terms. (diffused authority)

Amicus Brief: not a party to the case but providing more info.

  • (Executive) Free Enterprise Fund, Inc. v. Public Company Accounting Oversight Board:
  • SEC commissioners determine whether there is good cause to remove a board member. SEC Commissioners cannot be removed by the president except for “inefficiency, neglect of duty, or malfeasance in office.”
  • The FTC commission members could only be removed for cause by the SEC. FTC is completely unaccountable.
  • Roberts: A President may not be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, because such multi-level protection from removal prevents the President from fulfilling his Article II duty to ensure that the laws are faithfully executed. Requiring congressional consent to remove postmasters of the first class is unconstitutional.
  • Breyer dissent: Sometimes it is necessary to disable oneself to achieve a broader objective. If the President seeks to regulate through impartial adjudication, insulation of the adjudicator from removal except for good cause helps him achieve that objective.
  • CFPB v. ITT Educational Services
  • Rule: A school that offers financial advisory services to its students is an entity covered by the Consumer Financial Protection Act. Courts have long and consistently upheld the endowment of enforcement powers to agencies. Enforcement powers are limited by statute and constrained to specific subject-matter.
  • Facts: Students relied on ITT’s guidance and claimed they did not fully understand the ramifications of taking out private loans.
  • CFPB has quasi-legislative and quasi-judicial powers; director can only be removed for cause. ITT challenged the constitutionality of the CFPB.
  • CFPB tied its budget to the federal reserve bank – nobody’s going to defund the federal reserve.
  • Court held CFPB to be constitutional:
  • Enforcement powers are limited by statute, i.e. constrained to specific subject-matter. CFPB only has jurisdiction over “covered entities”
  • Congress can modify the amount of agency funding
  • Courts have long and consistently upheld the endowment of enforcement powers to agencies (SEC has broad powers and commissions can only be removed for cause)
  • Is the EEOC an “Independent” Agency? Can the President remove EEOC commissioners without good cause? – the EEOC is the example of a mixture of independent agency strategies.
  • The EEOC was an agency created by the Civil Rights Act of 1964.
  • The statute establishes that the Commission and directs that it “Shall be composed of five members, not more than three of whom shall be members of the same political party. Members of the commission shall be appointed by the President by and with the advice and consent of the Senate for a term of five years”.
  • Executive agencies perform executive functions, not adjudicative functions. No for-cause removal requirement. The president doesn’t need good cause or any cause.
  • There is not provision in Title VII assuring commissions that they can only be discharged for good cause (the standard upheld in Humphreys)
  • EEOC does not have rulemaking authority, unlike the FTC. Also has no adjudicative authority. Instead, it is charged with educating the public about the requirements of Title VII, investigation complaints about discrimination, seeking conciliation and remedy for those it finds meritorious, and filing lawsuits against alleged violators.
  • The EEOC has five commissioners – no more than three from a single party (the EEOC can only have informal rules)
  • No for-cause removal requirement even though it’s independent.
  • “EEOC Interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation” – EEOC
  • Features of agency independence:
  • 1. For cause removal protection
  • 2. Set term tenure
  • 3. Multimember structure
  • 4. Partisan balance requirements
  • 5. Budget and congressional communication authority
  • 6. Litigation authority
  • 7. Adjudication authority
  • CB 151 says that the EEOC is an executive agency.
  • The EEOC has five members appointed by the president with the advice and consent of the Senate to staggered 5-year terms; no provision is made for the removal of the members from office.
  • The lack of any quasi-adjudicatory or quasi-legislative functions vested in EEOC leads, in our view, to a conclusion that it is part of the executive branch.
  • The lack of such functions in EEOC and the consequent absence of any need to be independent of the Executive suggests that Congress meant for EEOC to be subject to Executive control.
  • The Constitutional Requirement of Due Process – Adjudications
  • Process:
  • When you bring a claim against an agency, it first goes to an administrative law judge.
  • You can appeal that decision to an administrative appeals board.
  • You can appeal that to an actual court. (federal)
  • Due Process clauses of 5th and 14th Amendment: persons cannot be “deprived of life, liberty, or property, without due process of law.”
  • The essence of the due process clause:
  • Notice and an opportunity to be heard
  • Heard at a meaningful manner
  • There must be a cognizable interest that triggers the due process clause (e.g. property, liberty)
  • APA establishes uniform standards for formal adjudications. Does not set out rules for informal adjudications, leaving it to each agency to determine its own procedures, but “any time the government takes away our liberty or property, it must provide at least minimal procedures.”
  • APA is statutory equivalent of due process for agencies.
  • APA was created (codified as amended at 5 U.S.C. §§551-59; 701-706) due to the fear that important fifth amendment rights were being stripped away without proper procedural safeguards.
  • Goldberg v. Kelly: Supreme Court interpreted the Due Process Clause to require: notice; right to be heard in person and to cross-examine witness; right to be represented by counsel; and a reasoned decision by an impartial decisionmaker. (precursor to Mathews)
  • (a) If you are currently receiving welfare, and the welfare agency decides you are not eligible, then (b) you have a right to an in-person hearing before your benefits may be cut. In other words, benefits must continue until the hearing judge decides whether you are ineligible.
  • How does due process come into play: welfare benefits are “property” that cannot be deprived without due process of law (in-person hearing).
  • He has the right to an in-person hearing, the issue is whether the hearing should occur before or after benefits are cut.
  • Supreme Court interpreted the Due Process Clause to require: notice; right to be heard in person and to cross-examine witnesses; right to be represented by counsel; and a reasoned decision by an impartial decisionmaker.
  • Due process clause requirements
  • Due Process Rule: Under the 5th Amendment, persons cannot be “deprived of life liberty, or property, without the due process of law.” The essence of the due process clause is that the petitioner had notice and an opportunity to be heard, was heard in a meaningful manner, and there was a cognizable interest that triggered the due process clause (property, liberty). The APA establishes uniform standards for formal adjudications, but for informal adjudications, each agency must determine its own minimal procedures. [If the agency actions were rulemaking, then the general rule is that due process has been satisfied because the public is represented by the democratic legislation (Bimetallic). When the rule affects a large class of people, not every individual in the class has the opportunity to be heard. However, when a small group of people have been exceptionally afflicted, then a due process analysis applies (Londoner).] The due process analysis: The Mathews v. Eldridge court held that due process is “flexible and calls for procedural protections as the situation demands” and created a three-part balancing test for any circumstance of adjudication: (1) the strength of the private interest affect by official action (2) the risk of “erroneous deprivation” through current procedures and the added value of any extra procedures in ensuring a proper result (3) the burden to the government of additional procedures and the government interest involved more generally. Extra process is valuable because there will be a reduction in error costs, each individual’s issue deserves respect, and will give the public more trust in the agency. The ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness. The APA came after Bimetallic and it created rules that requires agencies to provide notice to the rules that affect the general public.
  • Mathews v. Eldridge (Balancing test)
  • Facts: Eldridge was informed by letter that his SSD benefits would be terminated. Social Security Administration provided an evidentiary hearing before final determination, but the SSD benefits were cut until the hearing would take place.
  • Issue: Did the lack of an evidentiary hearing prior to the termination of the disability benefits violate the Due Process Clause?
  • No, termination of benefits before hearing did not violate Due Process Clause.
  • The Court noted that due process “is not a technical conception with a fixed content unrelated to time, place, and circumstances” … instead it is “flexible and calls for such procedural protections as the particular situation demands.”
  • Three-part test:
  • 1. Strength of the private interest affected by official action.
  • The possible length of wrongful deprivation of benefits is an important factor in assessing the impact of official action on the private interests.
  • 2. The risk of “erroneous deprivation” through current procedures and the added value of any extra procedures in ensuring a proper result (what’s the value added of the new procedures?)
  • Fairness and reliability of the existing pre-termination procedures and the probable value, if any, of additional procedural safeguards.
  • 3. The burden to the government of additional procedures and the government interest involved more generally.
  • Public interest - administrative burden and other societal costs that would be associated with requiring, as a matter of constitutional right, an evidentiary hearing upon demand in all cases prior to the termination of disability benefits.
  • Government' interest, and hence that of the public, in conserving scarce fiscal and administrative resources is a factor that must be weighed.
  • The ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness.
  • Additional factors considered by the Court:
  • The “degree of potential deprivation that may be created by a particular decision,” distinguishing this case from Goldberg (welfare recipients in dire need) saying that eligibility for SSD is not based on financial need.
  • The “fairness and reliability of existing pretermination procedures, and the probable value of additional procedural safeguards.”
  • Medical assessment of the worker’s physical or mental condition is required. (Easier to document and “prove” than welfare entitlement in Goldberg). Additionally, the detailed SSD questionnaires were sufficient to show need.
  • The test is very fact-specific
  • The facts are malleable (look at debate over the reversal rate)
  • Additional factors considered by the Court:
  • The “degree of potential deprivation that may be created by a particular decision,” distinguishing this case from Goldberg (welfare recipients in dire need) saying that eligibility for SSD is not based on financial need.
  • The “fairness and reliability of existing pretermination procedures, and the probable value of additional procedural safeguards.”
  • Medical assessment of the worker’s physical or mental condition is required. (Easier to document and “prove” than welfare entitlement in Goldberg). Additionally, the detailed SSD questionnaires were sufficient to show need.
  • Administrative costs and benefits are evaluated at a general level, not at the individual level
  • Issue in the case was not about whether the claimant gets a hearing, but when.
  • This test applies to any kind of procedural protection, not just the right to a hearing (e.g. could be right to counsel, etc.).
  • Elevates cost/benefit concerns over dignitary interests.
  • Balancing Process (Notes in book): “what is the value of extra process?”
  • Reduction in error costs: extra process could reduce the cost of error. Claimants who are unjustly denied benefits will be saved from having their safety nets cut, which can be devastating to their lives.
  • Dignitary interest: every human is entitled to respectful treatment, regardless of economic cost-benefit analysis.
  • Legitimacy and Social Stability: Defective process generates skepticism that the result should be obeyed. People are more likely to obey the law if they believe they are being treated fairly.
  • Londoner (small group/old case) – notice and opportunity because a smaller group has more individualized adjudication and it affects you as an individual, not the general public.
  • Facts: Plaintiffs challenged a tax which was assessed against their property by the city council after they submitted written complaints without an opportunity to be heard. Notice was published in the newspaper and stated that written complaints filed within thirty days would be heard by the city council before passing any ordinance assessing the tax.
  • Issue: was the tax assessment proper? No.
  • Holding: Due Process Clause required that, before an assessment was fixed, the taxpayers must have had notice and opportunity to be heard. The publication of the proposed assessment in a newspaper of general delivery satisfied the notice requirement. However, the Court found that the taxpayers were not given an opportunity to be heard because the assessment was fixed at a special city council meeting of which the time and date were not published and at which the taxpayers were not present to give argument.
  • Bi-Metallic (large group) – there is an opportunity to be heard, but when there’s a lot of people, not every person in that class of people have an opportunity to be heard. Due process is satisfied by the very fact that taxpayers have the ability to vote and remove people in power that assess those taxes. It is a generally applicable rule that affects everybody – you can’t give every taxpayer the right to a hearing every time you change a law.
  • Facts: Plaintiff challenged a uniform forth percent tax increases on the ground that it was not afforded an opportunity to be heard
  • Do all individuals have a constitutional right to be heard before a matter can be decided where all land owners are equally concerned and stand alike?
  • No. “Where a rule of conduct applies to more than a few people it is impracticable that everyone should have a direct voice in its adoption. The Constitution does not require all public acts to be done in a town meeting or an assembly of the whole.”
  • Contrast with Mathews.
  • Mathews: individual’s SSD benefits were terminated without a hearing prior to termination.
  • The APA is created to impose some procedural regularity by statute.
  • Agency Adjudication can be either formal or informal
  • Formal adjudication: trial-like hearing with witness testimony, a written record, and a final decision
  • Therefore, these administrative law judges will not be beholden to the agency whose interests may ultimately be at stake.
  • Informal adjudication: decisions are made using inspections, conferences, and negotiations
  • Agency has a great deal of discretion in constructing procedures, but minimal process in mandatory.
  • Agency orders, like agency rules, are subject to judicial review under APA§702(2)(A)
  • Still require some judicial like procedures, i.e. Due Process (Mathews v. Eldridge)
  • Hallmarks of Agency adjudication:
  • Opportunity to present evidence
  • Opportunity to challenge or address evidence presented against you
  • May often involve an in-person hearing, but not necessarily required
  • Usually have a right to have an attorney present (but not always).
  • Broad concept: any individualized determination by an agency.
  • Congress can give agencies the power to bring their own lawsuit in court
  • Allows for powerful judicial remedies
  • Advantage: preliminary injunctions; injunctive relief; civil and criminal monetary sanctions
  • Disadvantage: very expensive
  • The Constitutional Requirement of Due Process – Rule Making
  • Agencies have to follow procedural requirements for Legislative Rulemaking
  • Congress must delegate lawmaking authority to agency
  • Examples: FCC, SEC, EPA
  • Rules carry the full force of law
  • Notice and Comment Process
  • CFR is where notice-and-comment rules are codified.
  • Agency must publish notice of proposed rule in the Federal Register and allow public to submit comments
  • Not all agencies have rulemaking authority
  • Ex. EEOC
  • Agency rules are designed to implement, interpret, or prescribe law or policy.
  • Today the most important form of agency action is legislative rules, namely, those rules having the force of law upon their final promulgation by the agency. (Interpretive rules, called guidances, do not have the force of law)
  • Agencies can promulgate legislative rules only if authorized by an explicit delegation of lawmaking authority from Congress.
  • Most legislative rules are promulgated through the APA's process of informal (notice and comment) rulemaking
  • The agency must publish a notice of proposed rules in the Federal Register, followed by the opportunity for interested persons to submit comments, usually written, on these proposed rules.
  • When the agency promulgates its final rule, it must respond to the major comments and explain why it did or did not make material changes to the proposed rule
  • Informal v. Formal Rulemaking
  • §553 lays out detailed procedures, including requirements for public notice and right to comment on proposed rules, for "informal" rulemaking.
  • Where the statute requires rulemaking decisions "on the record," §§556-557 set forth more detailed trial-like procedures for "formal" rulemaking
  • Both types can support "rules" that have the force of law.
  • "informal" more commonly used
  • Formal rulemaking, on the other hand, requires agency rulemaking "on the record"
  • Agencies rarely use formal rulemaking unless directed by a statute.
  • The APA: the statutory constraints on Agency Lawmaking
  • Statute that establishes default rules for federal agencies to follow when making, interpreting, and applying regulations.
  • The APA defines and regulates the process by which executive and independent agencies generate "Rules" and "orders," which are the kind of "quasi-legislative" and "quasi-judicial" powers that the Court referred to in Humphrey's Executor.
  • Two major types of agency action: rule and order
  • Rule: like statutes and designed to implement and interpret law or policy.
  • Order: like judicial decisions, “final disposition” of a controversy involving the statutory or agency rule.
  • Both have the force of law, unless Congress overrules them or agency changes them.
  • The APA protection still leave agencies with a lot of power – expertise/democracy.
  • APA divides possible agency action into four main categories:
  • 1) formal rulemaking (notice; hearing & on-the-record decision)- not used often anymore;
  • 2) informal rulemaking (notice & comment)-legislative rulemaking;
  • 3) formal adjudication (notice; hearing & on-the-record decision);
  • 4) informal adjudication (nothing specific, more agency discretion).

Do not stress about knowing the differences between informal/formal adjudication.

  • Administrative Law: consists of those legal principles that define the authority and structure of administrative agencies, specify the procedural formalities that agencies use, and determine the validity of administrative decisions, enable and set limits on judicial review of agencies.
  • How agencies exercise power while still being subject to political constraints to protect against abuse.
    • If you can't use the due process clause, maybe use APA.


There is a right to go to court for agency decision making if it violates the APA.


Notice and comment process:


Notice of proposed rulemaking

  • State of time, place, and nature of rulemaking proceedings
  • Reference to the legal authority under which the rule is proposed
  • Either the terms or substance of the rule or a description of the subject and issues involved

-> Opportunity for comment


-> Issuance of final rule

  • Must provide "a concise and general statement of their basis and purpose"
  • Should address the comments that it received.

§702 Right of Review

  • A person suffering legal wrong bc of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
  • This right is not absolute and is subject to limitations.

§704 whether or not an action satisfies 704 doesn’t mean it’s automatically justiciable – have to satisfy those elements. (“agency action made reviewable by statute and final agency action for which there is no adequate remedy in a court are subject to judicial review…” If there is any other way for you to get a remedy, then you can’t take the agency to court.) “Notice and proposed rule-making” – not a final agency action, just proposed.




§706 Scope of Review: to the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall -


§706(2)(A) arbitrary and capricious: hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Used in rulemaking.


§706(2)(E) substantial evidence: unsupported by substantial evidence in a case subject to §§556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute. Used in adjudications.




§701: application of APA (Webster v. Doe) does have ground for judicial review, but with limitations.

  • Statute precludes judicial review; or (2) agency action is committed to agency discretion by law.



APA statutes build in some amount of leeway to the agency.




Advantages:

  • Improving the quality of agency decision-making: appropriately designed procedures improve quality by ensuring agencies consider all relevant information, affected parties have a sufficient opportunity to be heard and make reasoned arguments.
  • Procedures ensure that agency decision-making invokes the virtues of delegation (expertise, deliberation, fairness).
  • Protects against agency capture (fox guarding the henhouse)
  • Foxes eat hens, so they’re bad at protecting the henhouse
  • Agencies are often created for regulation
  • Often, the people most affected by the agency are the parties it is meant to protect
  • Agency is overrepresented by one small part of the population that is heavily affected.
  • If you have agency capture, the agency is not acting in broader public interest as it is designed to do.
  • Enhancing democratic legitimacy: appropriately designed administrative procedures can facilitate public participation in agency decision-making as a way to compensate for the absence of direct democratic accountability (non-elected officials).
  • Certain procedures that require disclosure, slow down the process, or present an opportunity for outside input allow for “fire alarm” oversight by Congress (allow for monitoring (red flags) and intervening when necessary).
  • More deliberation
  • Agency officials can’t do whatever they want
  • Enables congressional and public oversight
  • If agencies have to do things in this public manner, Congress or the public has greater awareness on what they’re doing

Disadvantages:

  • Procedures can impose significant costs and slow down the process. (see auto safety pg. 718-19)

Two ways:

  • Notice-and-comment takes a lot of time
  • Judicial review possessions (APA) allow you to challenge any

Judges tend to like procedural formality

  • Certain procedures further insulate agencies from control of Congress and the President.

Example: procedures that require decisions be based on public record and formal findings, judicial review, and place limits on ex parte contacts with agency officials- make it hard for elected officials to influence agencies.

  • Central tension: creating procedures that strike the right balance between political accountability and political independence.
  • Makes agency action more expensive
  • Agencies become more cumbersome: “red tape”


  • CONGRESS AND THE COURTS: STATUTORY INTERPRETATION
  • Statutory Interpretation
  • Legislative Supremacy
  • At its most basic level, the emphasis on "legislative intent" derives from the idea that the object of interpretation is to enforce a decision that is attributable to the legislature - to ascertain the legislature's instructions or will or meaning or preferences or desires. Effectuate congress’ will.
  • Holy Trinity - purpose
  • The Alien Contract Labor Act of 1885
  • Purpose: prohibits the importation and migration of foreigners under contract of employment into the US
  • § 1- it shall be unlawful for anyone to pay for transportation or assist in the transportation, migration or importation of foreigners/aliens into the U.S. under contract or agreement to perform labor or service of any kind in the U.S.
  • § 4- the master of any vessel who shall knowingly bring any alien, laborer, mechanic or artisan who had entered into contract or agreement to perform labor or service in the U.S. shall be guilty of a misdemeanor
  • § 5- none of the provisions of this act apply to professional actors, artists, lecturers, or singers nor ppl employed as personal or domestic servants
  • Statutes should not be construed to yield absurd results.
  • Different sections of the same text may use the term in different ways, the text itself may not be coherent or cohesive. Look at the context:
  • “Labor, service, and lecturer” can all have multiple meanings. When you are choosing a meaning, you are more likely doing it in light of the background principles of some sort.
  • Holding (Brewer): the purpose was to stop companies looking for cheap unskilled labor from importing foreign workers because this was destroyed the labor market and reducing citizen laborers to the level of the “Assisted immigrant”
  • In order to narrow the law’s apparent plain meaning, Brewer relied on the mischief against which the Act was aimed and the inapplicability to a “brain toiler” of a statute seeking to exclude laborers”
  • Legislative history:
  • Senate Committee on Education and Labor report- the bill in present form will be construed as only including those whose labor or service is manual in character, but it was too late in the legislative process to replace “labor” and “service” with more precise language such as “manual labor” and “manual service”
  • Committee of the House: Act seeks to restrain the importation of laborers for companies who just want cheap labor despite the “evil” consequences of that importation. Immigrants don’t care about American institutions and are ignorant of them, and the social conditions here. They are from the lowest social class, are isolated from Americans and do not become citizens.
    • The subsequent legislative history – while the case was ongoing, Congress wrote in a specific exclusion for ministers. How should this be applied:
  • Congress did not originally intend to exclude ministers and so now is adding them to the list
  • Congress always intended to exclude ministers and so now is making it explicit
  • Because America values the Christian religion, there’s no way Congress would enact a statute that prohibits a pastor from abroad from coming to preach in America.
  • The problem of “legislative intent”: “it is a familiar rule, that thing may be within the letter of the statute and yet not within the statute, bc not within its spirit, nor within the intention of its makers.”
  • Scalia- “this is the prototypical case involving the triumph of legislative intent,” and “the decision was wrong bc it failed to follow the text.”
  • F. Drew Caminetti v. United States (literalism – plain meaning rule)
  • Facts: man brought a woman from Sacramento to Reno to be his mistress and concubine.
  • Statute: criminalized the transportation or the inducement to travel, of any “woman or girl from one place to another on interstate or foreign commerce, or in any territory for the purpose of prostitution or debauchery or for any immoral purpose.
  • Holding (Justice Day): the conduct in question was for an immoral purpose and Caminetti broke the statute. The sole function of the court is to look at the language of the act and if the meaning is plain, enforce it according to its terms.
  • Dissent (McKenna): relied on Holy Trinity because “the words of the statute should be construed to execute the statutory purpose and they may be so construed even if their literal meaning be otherwise”; the statutory text wasn’t plain because “other immoral purpose” should not be read literally and in isolation, but in light of the limiting words preceding them.
  • Max Radin, Statutory Interpretation
  • Legislative intent should not be used to interpret statutes because specific intent is completely impossible – collective intent doesn’t exist and using legislative history gives the judges too much leeway to justify their own policy instead of interpreting the statute.
  • Speluncean Explorers
  • “Whoever shall willfully take the life of another shall be punished by death”
  • Truepenny, J.
  • The statute permits no exception applicable to this case.
  • The principle of executive clemency – justice will be accomplished without impairing either the letter or spirit of our statutes.
  • Foster, J.
  • As a matter of political morality, the ∆s' conduct was justified by the agreement they entered into that ensured the survival of five at the expense of one.
  • The statute should be interpreted reasonably, in light of its evidence purpose.
  • Tatting, J.
  • Only one of the purposes of criminal legislation is deterrence.
  • Self-defense isn't covered by statute bc it's not really a willful act.
  • Commonwealth v. Parry: hunger cannot justify the theft of wholesome and natural food so it can't justify the killing and eating of a man.
  • Withdraw from decision
  • Keen, J.
  • This is a "confusion of government functions," and judges should not intrude in this realm of existence.
  • "Respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth"
  • Handy, J.
  • Government is a human affair, men are ruled not by words on paper or abstract theories but by other men.
  • Ruled badly when understanding is lacking
  • Purposivism:
  • View specific legislative intent as illusory or too difficult to reconstruct
  • Maintains that Congress adopts legislation for a reason and that courts should read specific statutory provisions to advance the legislation’s purpose or general aims
  • Pays close attention to the semantic meaning of the text, following it as long as it doesn’t contradict with the statute’s apparent overall purpose.
  • Textualism:
  • Holds that interpreters should strive to discern how reasonable people would understand the semantic import or usage of the precise statutory language that Congress adopted.
  • Argue that going beyond the text to further some notion of congressional intent or purpose is both illegitimate in principle and unworkable in practice
  • Will credit certain kinds of evidence as purpose if the statutory text is ambiguous.
  • Look to objective intent – American Trucking: endorsing purposivism but observing that “there is no more persuasive evidence of the statue than the words by which the legislature undertook to give expression to its wishes.”
  • Intentionalism:
  • Holds that when a judge confronts a difficult issue of statutory interpretation (ambiguous or seems to dictate a troublesome result) the judge should try to reconstruct, as best he or she can, the likely intent of the legislature respecting to the problem at hand
  • The intentionalist judge tries to figure out what the legislature would have specifically intended if it had confronted the particular interpretive question before the court.
  • Collective intent (or no such thing as collective intent)
  • Max Radin says Congress has no collective intent because the members are not likely to have the same idea in mind as they pass statute.
  • Intent in Context: would Congress want its language to be taken literally and applied devoid of context. It may recognize that no language can capture every situation (Handy)
  • Sources of legislative meaning: committee reports, history of amendments, floor statements, failure to not something, acquiescence or past enactment history, dictionaries, logical and analogical reasoning. (Manning 191-203)
  • *The main divide isn’t over the goal of interpretation but the method.
  • Plain Meaning Rule
  • Bob Jones University v. United States - Textualist'
  • Purpose-based theories of statutory interpretation have not gone unchallenged.
  • The plain-meaning rule is arguably more consistent with the structure of the U.S. Constitution, which vests the courts only with judicial power, while reserving lawmaking and political power to the legislative and executive branches.
  • This constitutional separation of powers constitutes formal barriers to lawmaking that are disregarded when courts make new law.
  • It can be argued that applying statutory plain meanings is more within the "judicial competence" than making policy or even scanning through legislative history to find out what the legislature "Really meant."
  • The ordinary meaning of statutory language is the common understanding of what the "Rule of law" is.
  • The objectivity of legal reasoning which provides us with some assurance that our problems are susceptible of the same rules as those of our neighbor.
        • "Tough love" theory of statutory interpretation: a way to put the onus on Congress to do its own job and do it better.
  • United States v. Locke – Revival of Plain Meaning'
  • Federal Land Policy and Management Act provided that holders of certain mining claims to federal law must file documents with state offices and the Federal Bureau of Land Management or lose their claims.'
  • This requirement seemed like a trap for the unwary because it seems illogical to require someone to file something under severe penalty the day before the last day of the year.'
  • Locke filed on 12/31, but the BLM rejected the papers-said too late.'
  • Justice Marshall: agreed with the BLM that the Locke’s were out of luck. “While we will not allow a literal reading of the statute produce a results ‘demonstrably at odds with the intentions of its drafters,’ with respect to filing deadlines a literal reading of Congress’ words is generally the only proper reading of those words. '
  • Justice Stevens, dissent: Substantial compliance with FLPMA is justified, given the unique facts of the case. FLPMA is ambiguous and the BLM did not sufficiently alert the claimholders.'
  • TVA v. Hill – soft plain meaning. (predates Locke)'
  • Hill and other Tennessee residents (πs) filed suit against the TVA (∆) a wholly-owned public corporations of the US, seeking to enjoin construction of a nearly completed dam and reservoir on the Little Tennessee River. Πs alleged the project failed to conform to the requirements of the National Environmental Policy Act.'
  • Several months later, a University of Tennessee scientist discovered a previously-unknown species of perch, called the snail darter, living in the waters affected by the project. Pursuant to the ESA (endangered species act), the Secretary of the Interior found that once the dam and reservoir were operational, it would result in the “total destruction of the snail darter’s habitat.”'
  • The ESA requires federal agencies to ensure actions authorized, funded, or carried out by them do not jeopardize the continued existence of an endangered species or result in destruction or modification of the species’ habitat. There is no exception.'
  • TVA argued that millions of hours and work went into the completion of the dam that halting the project due to the new statute would be unjust. '
  • Plain meaning might be different from an ordinary meaning when (a) Congress has defined the term in the statute; or (b) the term has been authoritatively construed by the Court, or perhaps even just by the specialized community to which the statute applies (or experts testifying about that); or (c) the ordinary meaning is inconsistent with the whole act or with the way that Congress has used the term in other statutes.'
  • Soft plain meaning is starting with the text, but using legislative history to reinforce that reading. Gradually falls into the modern plain meaning rule.'
  • Modern version of the plain meaning rule: start with the text, if it is clear apply it; if the language is ambiguous, or permits more than one reasonable interpretation, we can consult legislative history and other extrinsic sources to determine meaning.'
  • New Textualism – Scalia
  • Presents his textualist philosophy of legal interpretation.
  • Judges that follow a legislative-intent approach usually end up finding their own preferences in the statute.
  • Find that in Holy Trinity, the court's interpretation was inconsistent with intent and purpose.
  • The apparent plain meaning is what the ordinary speaker of the English language - twin sibling to the common law's reasonable person - would draw from the statutory text.
  • The Judge should never consult and never rely on the legislative history. The law is objective and impersonal not subjective and intentional.
  • Green v. Bock Laundry - Absurdity'
  • If a statute is going to lead to clearly absurd results – demonstrate that no one would have intended for this outcome so it’s an exception to the plain language.'
  • Absurdity doctrine: the text is clear, but it’s out of bounds.'
  • Π was a county prisoner who worked at a car was on a work-release program, his arm was torn off when he reached into a large dryer in order to stop the dryer. Green sued the laundry company for product liability.'
  • Stevens, J: Federal Rules of Evidence permits a balancing of the prejudicial effect and probative value of a prior felony conviction only when evidence of the conviction is used to impeach a defendant. The rule cannot mean what it means to say because it doesn’t apply to civil plaintiffs.'
  • The rule went through several versions in the judiciary committees and on the House and Senate floors. This process ultimately resulted in a conference committee that adopted the current text of FRE 609(a). The conference committee’s report clearly disregarded prejudice to witnesses other than defendants and focused on the danger of conviction based on prior criminal record. Additionally, the presumption is that Congress would not have intended to change existing law without indicting that it was doing so. It would have been easy for Congress to state in the rule that all parties or all witnesses would be covered by the requirement for balancing. However, Congress did not do so and instead focused on criminal defendants. For these reasons, FRE 609(a) only permits the balancing of prejudicial effect and probative value with regard to criminal defendants. Accordingly, the judgment of the court of appeals is affirmed.'
  • Scalia, concurrence'
  • FRE 609(a) as written produces an absurd and perhaps unconstitutional result. The intended meaning of a defendant in the rule must be determined without reliance on the rule’s legislative history. The meaning must be determined based on context and ordinary usage.'
  • West Virginia v. Casey – rule against surplusage/avoid redundancy'
  • Issue: Does the award of “reasonable attorney’s fee” to losing party apply to experts in civil rights?'
  • Rule: The meaning of a term used by congress may be determined by looking to other statutes that use the same term.'
  • West Virginia Hospital sued Casey (the governor of PA) under 42 U.S.C. §1983 for making changes to the reimbursement schedule for Medicaid patients. WVUH was awarded attorney’s fees that included over $100k for expert-witness services.'
  • Holding (Scalia)'
  • Here, 42 USC §1988 does not define attorney’s fees. However, many other statutes permit awards of attorney’s fees or expert services. The fact that Congress has separately provided an award of costs for expert services in some statutes shows that attorney’s fees do not include expert services.'
  • The USC contains at least 34 statutes with over 10 different titles that explicitly shift both attorney’s fees and expert-witness fees to the losing party. If the meaning of attorney’s fees included expert-witness fees, then all of those provisions would be redundant.'
  • (Manning) Isolating particular texts reduces the information economy and invites interpreters to add meaning to the text. This method predetermines winners and losers and excludes language in the statutory text.'
  • Dissent (Stevens)'
  • Attorney’s fees in the statute should be interpreted in light of previous judicial interpretations of that term.'
  • Nix v. Hedden (1893) – Ordinary Meaning'
  • When interpreting a statute, courts should use the ordinary rather than specialized meaning. Although words may have different meaning in different communities, a court should assume that statutes are written in the language of ordinary people.'
  • Nix imported tomatoes from the West Indies to NYC. Hedden collected import duties on the tomatoes in accordance with the Tariff Act of 1883 which imposed a duty on vegetables but exempted fruits.'
  • Nix brought suit to recover the duties he paid on tomatoes claiming tomatoes are fruits.'
  • Moskal v. United States (1990) – ordinary meaning for legislative purpose.'
  • If a statute uses words that have both ordinary and legal meanings, a court should look to the words’ ordinary meaning if doing so better gives effect to the legislature’s purpose.'
  • ∆ Moskal was involved in a fraudulent car selling scheme. He was convicted for violating the National Stolen Property Act.'
  • Marshall: when interpreting a statute that uses words with both ordinary and legal meanings, a court should look to the words’ ordinary meaning if doing so best gives effect to the legislature’s intent.'
  • Smith v. United States – ordinary meaning with dictionary'
  • When interpreting a statute, a court may determine the text’s ordinary meaning by reference to dictionary definitions.'
  • Smith traveled from Tennessee to Florida where they planned to purchase cocaine. Smith was convicted for violating 18 USC §924(c)(1), which prohibited knowingly using a firearm during and in relation to a drug-trafficking crime.'
  • Holding (O’Connor): a word’s ordinary meaning includes not only the word’s colloquial or most common meanings, but also less common meanings.'
  • Rule of Lenity provides that any ambiguities in the text of a criminal statute must be construed in favor a criminal defendant. (doesn’t apply here bc the possibility of reading a word more narrowly does not render the word ambiguous.)'
  • Scalia (dissent): Ordinary meaning governs. A term’s range of possible meanings should not be confused for its ordinary meaning.'
  • Hively v. Ivy Tech Community College of Indiana
  • Facts: Hively was a lesbian who worked as a part-time professor at Ivy Tech and when her contract was not renewed, she brought suit under Title VII of the Civil Rights Act of 1964, claiming that Ivy Tech was discriminating against her on the basis of her sexual orientation.'
  • Judge Wood: applied a pragmatic approach: considers statutory text, purpose, and precedents, as well as constitutional norms and directives. Discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.'
  • Flaum (concurrence): applied a structural approach: what does that language mean in light of the whole statute?'
  • The majority and dissent treat sexual orientation as a concept independent from sex. To the contrary, sexual orientation is part and parcel of sex.'
  • A person’s sexual orientation cannot be determined without reference to his or her sex.'
  • Posner (concurrence): applied a judicial dynamic interpretation: of Title VII, whose original meaning, in his view, has been rendered obsolescent by changed social and workplace norms.'
  • When a long time has passed between a statute’s enactment and a court’s opportunity interpret the statute, courts have the discretion to give statutory terms meanings based on modern society.'
  • The term “sex” in 1964 referred to man and woman but now sex has come to connote both gender and sexual orientation.'
  • Sykes (dissent): applied Title VII’s original meaning: the original, objective meaning to a reasonable speaker entailed by the statutory text.'
  • Sexual orientation is not included as a protected characteristic in Title VII, and a reasonable person at the time of Title VII’s enactment would not read sexual orientation into prohibition on discrimination on the basis of sex.'
  • Statutory interpretation is inevitably dynamic – Supplement'
  • “sex discrimination” has been synonymous with “sexual harassment”'
  • The EEOC promulgated sexual harassment guidelines for Title VII. The guidelines interpreted the statute to bar employer tolerance of quid pro quo harassment. Although typically reluctant to defer to the EEOC in statutory cases, a unanimous Supreme Court wrote the agency’s sexual harassment guidelines into law in Meritor Savings Bank v. Vinson, a decision that revolutionized workplace antidiscrimination law. The EEOC’s sexual harassment guidelines are a class example of successful administrative policy entrepreneurship.'
  • Eskridge: Dynamic Statutory Interpretation:'
  • Interpretation can be viewed as an honest effort by a “faithful agent” to apply the principal’s directive to unforeseen circumstances.'
  • The dynamic nature of interpretation arises, in large part, out of the agent’s need for practical accommodation of the directive to new circumstances.'
  • The relational agent has to interpret the statute dynamically.'
  • The Avoidance Canon: avoid interpretations that would render a statute unconstitutional or that would raise serious constitutional difficulties. Inapplicable if statute would clearly survive constitutional attack, or if statutory text is clear.'
  • Melissa Zarda, Executrix of the Estate of Donald Zarda v. Altitude Express, Inc. (2018)
  • Holding Katzmann: follows Flaum’s concurrence. Zarda was a victim of “association discrimination”: he was discriminated against because of the sex of his romantic partner of choice.'
  • The second circuit has held that discrimination because of race of a partner is race discrimination, and the C.J. extended this reasoning to sex.'
  • The post 1964 statutory history of Title VII supported the π’s claim.'
  • Cabaranes (Concurrence): Zarda’s sexual orientation is a function of his sex. Discrimination against Zarda because of his sexual orientation therefore is discrimination because of sex.'
  • Lynch (Dissent): relied on the public meaning of “Discrimination because of sex” when Title VII was adopted in 1964. Being gay was a crime and it was classified as a mental disorder. Homosexuals were not a part of what they were fighting for back then'
  • Lohier (concurrence): these rationales merely reflect nonexclusive ‘evidentiary techniques’ frameworks, or ways to determine whether sex is a motivating factor in a given case, rather than interpretive tools that apply necessarily across all title VII cases. The cart of legislative history is pulled by the plain text, not the other way around.'
  • Legislative History: '
  • Textualists’ main arguments against legislative history emphasize the illegitimacy and incoherence of any concept of a “legislative intent” other than the objectified intent manifest in the statutory text, read in context.'
  • In addition to these in-principle objections, textualists also argue that even if there were such a thing as collective intent, courts should still not look to legislative history because legislative history is unreliable and possibly misleading.'
  • Scalia argues that committee reports are an unreliable guide to congressional intent for two closely related reasons'
  • 1. The views of committee members are not representative of the chamber as a whole, and'
  • 2. Rank-and-file members of Congress do not constructively embrace the committee’s views as their own when they vote for legislation – indeed, the committee’s views are unlikely to inform how rank-and-file members interpret legislation before they vote on it.'
  • Textualists argue that legislatures also unlikely read committee reports.'
  • Posner argues that when a bill is complex and technical, legislators are more likely to base their votes on the legislative history.'
  • Katzmann argues that by virtue of longstanding legislative practice, rank-and-file legislators have come to trust their colleagues statements.'
  • Textualists also argue that legislative history is connected to the concern about judicial activism where judges go beyond the legitimate exercise of judicial discretion.'
  • Ambiguity v. Vagueness'
  • "ambiguity" refers to situations in which a word or phrase can plausibly convey more than one specific meaning.
  • Ex. A statute regulating "banks" could refer to riverbanks or financial institutions
  • "vagueness" refers to language that is open-ended, and requires judgment calls about borderline cases whose inclusion or exclusion cannot be determined by reference to semantic meaning.
  • Resolving an ambiguity is a semantic exercise, while deciding how to apply a vague, open-textured statutory standard may involve more prudential judgment
  • Scalia and Garner suggest that vagueness is often intentional, adopting general terms to cover a multitude of situations that cannot be spelled out in detail or even foreseen. -- gives the judiciary the discretion to work out the proper application of a standard to particular circumstances.

  • Canons of Construction
  • Textual Canons
  • Ordinary v. Technical Meaning of Words
  • Noscitur a Sociis and Esjudem Generis
  • Noscitur a sociis: under the canon of construction, noscitur a sociis, the meaning of an unclear word or text may be known from the accompanying words
  • “it is known from its associates”
  • When two or more words are grouped together and ordinarily have a similar meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word.
  • Esjudem generis: “of the same kind, class, or nature
  • Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.
  • The purpose of this rule is to give effect to all the words – the particular words indicate the class and the general words extend the provisions of the statute to everything else in the class.
  • Scalia and Garner reject the statement that ejusdem generis applies to a text where specific terms follow a general one and insist that the rule only applies when the text has this structure: [specific term], [specific term], and all other [general term]
  • Another important limitation is that the interpreter needs to figure out what is the common feature shared by the specific terms that should be imputed as a limitation on the general term.
  • Exclusio unius: a list that includes specific terms is generally construed to exclude terms not specifically listed.
  • Expressio (Inclusio) Unius: words omitted may be just as significant as words set forth.
  • the maxim “expression [or inclusion] unius est exclusio alterius” means “expression [or inclusion] of one thing indicates exclusion of the other”
  • the notion is of one negative implication: the enumeration of certain things in a statute suggests that the legislature had no intent to include things not listed or embraced.
  • Grammar Canons
  • Punctuation Rules
  • The punctuation canon in America has assumed at least three forms:
  • 1. Adhering to the strict English rule that punctuation forms no part of the statute;
  • 2. Allowing punctuation as an aid in statutory construction;
  • 3. Looking on punctuation as a less-than-desirable, last-ditch alternative aid in statutory construction
  • Prevails as the majority rule.
  • An act should be read as punctuated unless there is some reason to do otherwise
  • In no case shall the punctuation of a statute control or affect the intention of the General Assembly in the enactment thereof punctuation may be used in aid in the construction thereof.
  • Referential and Qualifying Words
  • Series Qualifier Rule
  • A basic rule of grammar is that referential and qualifying words or phrases refer only to the last antecedent, unless such a reading is contrary to the apparent legislative intent deprived from the sense of the entire enactment
  • Rule of the Last Antecedent
  • A proviso, applies only to the provision, clause, or word immediately preceding it.
  • The last antecedent rule can be trumped by the punctuation rule
  • Lockhart v. United States (2016)
  • ∆ convicted of possessing child pornography in violation 18 USC §2242(a)(4) are subject to a 10-year mandatory minimum and an increased max sentence if they have “a prior conviction under the laws of any State related to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”
  • Like any canon, the rule of last antecedent is not absolute and can assuredly be overcome by other indicia of meaning.
  • Rule of last antecedent: a limiting clause or phrase should ordinarily be read as modifying the noun or phrase that it immediately follows.
  • Holding (Sotomayor): The chapters of the Federal Criminal Code uses nearly identical language to enumerate the three categories of state sexual-abuse. This similarity appears to be more than a coincidence. We cannot state with certainty that Congress used Chapter 109A as a template for the list of state predicates set out in §2252(b)(2) but we cannot ignore the parallel.
  • It is clear that applying the limiting phrase to all three items would risk running headlong into the rule against superfluity by transforming a list of separate predicates into a set of synonyms describing the same predicate. We assume that Congress used two terms because it intended each term to have a particular, non-superfluous meaning.
  • Lockhart also asked to apply the rule of lenity - the court has only used this principle to resolve ambiguity in favor of the ∆ only "at the end of the process of construing what Congress has expressed" when the ordinary canons of statutory construction have revealed no satisfactory construction.
  • This is not the case here. The availability of multiple, divergent principles of statutory interpretation cannot automatically trigger the rule of lenity.
  • The rule of last antecedent is well supported by context so we will not apply the rule of lenity to override a sensible grammatical principle buttressed by the statute's text and structure.
  • Dissent (Kagan): the ordinary understanding of how English works, in speech and writing alike, should decide this case. That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that three predicate crimes all involve abuse of children.
  • **When dealing with equally applicable dueling canons, the rule of lenity is a tiebreaker = Scalia.
  • And/Or and May/Shall Rules
  • In the courts, terms connected by the disjunctive “or” are often read to have separate meanings and significance.
  • When a statute uses mandatory language (Shall rather than may) courts typically interpret the statute to exclude discretion to take account of equitable or policy factors.
  • The word “may” can be construed as “Shall” or “must” when such was the legislative intention.
  • Singular and Plural Numbers; Male and Female Pronouns
  • One grammar rule that is not often followed by statutory interpreters is the difference between singular and plural nouns.
  • "in determining the meaning of any Act of Congress, unless the context indicates otherwise, words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular."
  • Words in the singular number include the plural, and in the plural number include the singular.
  • De Dicto/De re Distinction
  • An underappreciated rule of grammar is the distinction between opaque and transparent sentences
  • A transparent sentence is one in which the object of the activity is a particular, identifiable object
  • An opaque sentence is one in which the object of the activity may be either a particular, identifiable object or a more generic category of objects.
  • Bill loves his vehicle.
  • Transparent sentence: the reference is to a particular, identifiable vehicle
  • Bill wants to buy a vehicle.
  • Opaque sentence: the reference might be to a particular vehicle or might be to a generic category.
  • Opaque sentences are linguistically "ambiguous" - additional context may clear up the ambiguity
  • De re: pretending to be some particular individual, who is in fact entitled to vote
  • This reading is satisfied only if "there is some X, such that X is a person entitled to vote, and the ∆ impersonated X"
  • In this case, there was no X because X was dead and therefore not entitled to vote.
  • De dicto: pretending to belong in the category, 'entitled to vote
  • This reading, on the other hand, is satisfied where the ∆ has pretended to belong in the category of eligible voters.
  • That is what the ∆ did. The statute on its de dicto reading would therefore have easily supported the conviction that the court sought.
  • The Golden Rule (Rule Against Absurdity)
  • The golden rule is that interpreters should "adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.
  • The golden rule is, in short, an absurd results exception to the plain meaning rule.
  • The Whole Act Rule
  • Any attempt to segregate any portion or exclude any other portion from consideration is almost certain to distort the legislative intent.
  • A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme – bc the same terminology is used elsewhere in a context that makes its meaning clear, or because only on of the permissible meanings produces a substantive effect that is compatible with the rest of the law.
  • A critical assumption of the whole act approach is coherence: the interpreter presumes that the legislature drafted the statute as a document that is internally consistent in its use of language and in the way its provision work together.
  • The presumption of coherence is an unrealistic one.
  • Presumption of consistent usage: under the holistic assumptions of the whole act rule, courts presume that the same meaning is implied by the use of the same expression or statutory term in every part of the statute.
  • Similarly, were a statutory word has been used in other statutes dealing with the same subject matter and has a settled meaning.
  • Rule to Avoid Redundancy
  • Under the whole act rule, the presumption is that every word and phrase adds something to the statutory command. Accordingly, "it is a cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant"
  • The rule against surplusage, however, is more at odds with the legislative drafting process than most of the other whole act rules, as words and phrases are added to important legislation right up to the last minute.
  • Substantive Canons
  • Rule of Lenity
  • There are two opposing canons on almost any point (CB 552-68)
  • Posner: Most of the canons are just plain wrong in that (1) they do not reflect a code by which legislatures draft statutes, (2) they are not even common-sense guides to interpretation, (3) they do not operate to constrain the discretion of judges, and (4) they do not force legislatures to draft statutes with care.
  • Form an economic point of view, it may be better to view the canons ex ante rather than ex post.
  • Under an ex ante perspective, it may not better to view the canon reflects legislative realities. Instead the question is: does the legal process, including the lawmaking process, work better with this set of rules than with another set or with no rules at all?
  • That canons might also be defended from an economic point of view as an interpretive regime that affords greater predictability from statutory interpreters.
  • Anthony Scalia and Bryan Garner: The Interpretation of Legal Texts
  • Scalia depicts current statutory interpretation practice as turning judges loose to read anything they want into statutes.
  • In contrast, the proper approach, they say, will "curb or even reverse the tendency of judges to imbue authoritative texts with their own policy preferences and will provide greater certainty in the law."
  • Thrust and Parry are not contradictions, but merely indications that different noncontradictory canons may sometimes provide differing indications of meaning.
  • Circuit City Stores v. Saint Clair Adams (2001)'
  • Π worked as a salesman for Circuit City. Two years later, Adams for employment discrimination in CA state court. Does the §1 exemption of the Federal Arbitration Act apply to an employment contract of an employee at Circuit City Stores? No, exemption from the FAA is limited to employment contracts of transportation workers.'
  • Applied esjudem generis: “where general words follow specific words in a statutory enumeration, the general words are construed to embrace only object similar in nature to those objects enumerated by the preceding specific words.”'
  • Kennedy: “under this rule of construction the residual clause should be read to give effect to the terms ‘seamen’ and ‘railroad employees,’ and should itself be controlled and defined by reference to the enumerated categories of workers which are recited just before it; the interpretation of the clause pressed by respondent fails to produce these results.”'
  • Dissent (Souter): did not find esjusdem generis as persuasive as legislative history.'
  • Rule: if a statute contains a list of specific things followed by a general term, a court should restrict its interpretation of the general term to things of the same kind as those enumerated.'
  • Jams J. Brudney, Canons of Construction
  • The majority opinion in Circuit City relied on the canon ejusdem generis to hold that Congress meant to limit the exclusion from arbitration to contracts like those involving seamen and railroad workers - namely, transportation contracts.
  • This canon enabled the majority to ignore legislative history that supported the worker's argument that the executive branch proponents and congressional sponsors wanted the exception to cover all employment contracts within Congress's Commerce Clause power.
  • Brudney and Ditslear were troubled by the Court's refusal even to consider congressional materials based upon an abstract canon that probably no one in Congress was familiar with in 1926.
  • Brudney and Ditslear applied their empirical findings to the theoretical debate overt the utility of the canons.
  • 1. The authors were skeptical that the canons form an interpretive regime that can provide an order mechanism for legislators and lawyers to make statutory interpretation more predictable.
  • 2. The study lends empirical support to relatively cynical accounts of the canons. The malleability not only undermines canonical predictability, but also allows the canons to be manipulated by result-oriented jurists.
  • 3. They found some support for the hypotheses that the canons are substitutes for judicial expertise and can reduce error costs in areas where judicial knowledge and preferences are low
  • They add that such cases may be more strongly influenced by legislative purpose analysis, and, most important, agency views than by canon reliance.
  • There is a correlation between canon invocation and technical issues but not necessarily any causal link.
  • ** These conclusions suggest that in the most technical areas of law, canon usage would be more important and less ideologically slanted than in labor law. In less technical, and more normatively charged areas - such as civil rights and criminal law, canon usage would be less frequent and more ideologically slanted.
  • Rule Against Implied Repeals and Other Continuity Based and Coherence Canons
  • Canons promote legal stability, as they presume “that close questions of statutory interpretation should be resolved in favor of continuity and against change”
  • The rule of lenity assures all of us that our conduct is not criminal unless the legislature has given us clear notice.
  • The most important continuity canon is stare decisis – assures all of us that old interpretations will persist and that new issues will be evaluated predictably from established precedents, at least insofar as courts are involved.
  • The reenactment rule is a principle of statutory construction that when reenacting law, the legislature implicitly adopts well-settled judicial or administrative interpretations of the law.
  • Borrowed Statute Rule: when Congress borrows language from an existing statute to use in a new statute, it is safe to assume that Congress intended to incorporate judicial constructions of the old statutes in the new statute’s meaning.
  • Rejected Proposal rule: courts will not construe ambiguous statutes in ways that Congress already has rejected. This presumption usually applies when Congress has voted down an amendment that would reach the same result as the interpretation in question, but sometimes courts apply it simply when Congress lets proposals die in Committee or elsewhere in the vetogates.
  • ** these presumptions apply only when the previous interpretation comes from the Supreme Court or the state’s highest court.
  • Note on Legislated Canons of Statutory Interpretation
  • Sometimes the legislature attempts to direct the court in how to interpret a particular statute.
  • Plain Meaning
  • Whole Act
  • Consistency Across Statutes: the presumption that the same term should be interpreted consistently across statutes.
  • Constitutional Canons
  • Purposive Canons
  • Extrinsic Evidence
  • The Standard Hierarchy
  • Ranks legislative materials according to their purported reliability, namely, the likelihood that statements in those materials reflect the views of the legislative coalition that enacts the statute.
  • By the conventional wisdom, the most reliable sources of legislative history are (1) committee reports, including conference committee reports, followed by (2) on the record speeches by the measure’s sponsors and floor managers, and then (3) statements by other supporters and even drafters.
  • Least reliable are post-enactment statements, whether they be in committee reports or speeches made on the floor of the House or Senate.
  • ADMINSTRATIVE AGENCIES AND THE ADMINISTRATIVE STATE
  • Availability of judicial review (standing)

Rule: Article III §2 extends judicial power to “all cases and controversies” that arise under the Constitution. A party has standing in federal court if a party meets three constitutional requirements: (1) Injury-in-fact, (2) causation, (3) Redressability. Injury exists where the plaintiff has suffered an injury that is “concrete and particularized” as well as “actual or imminent.” (Lujan). Causation exists where there is a fairly traceable link between the injury and the defendant’s action. (Mass. v. EPA). Redressability is found where it is likely that a favorable decision will redress the plaintiff’s injury, so because the decision will bring about some change or have some effect, the court is not administering an advisory opinion (Laidlaw). Only one plaintiff needs to have standing for the case to proceed. (Mass v. EPA). Causation and redressability are often merged together.

  • If you ever want judicial review, you have to have standing.
  • The court is sensitive to charges of usurpation of democratically accountable legislative and executive authority.
  • Courts use doctrines about judicial power to effectuate those concerns about separation of powers.
  • Most importantly, the Court has inferred from Article III various doctrines of justiciability that the court insists limits its power to adjudicate lawsuits in the first place.
  • From the Supreme Court perspective, these doctrines keep the justices from venturing too far into arenas where they have nothing useful (or strictly legal) to add and from interfering with political interactions where they can do harm.

Justiciability Doctrines

  • Timing: Ripeness and Mootness
  • Federal courts will not hear lawsuits that do not involve actual and present controversies between the parties.
  • Although riddled with exceptions and uneven application, the doctrines of ripeness and mootness regulate the timing of lawsuits.
  • Ripeness: filed the case too soon – nothing happened yet.
  • Mootness: the case is now too late – the court cannot give you any meaningful review at this point. The suit may not be moot as to any damages for past harm.
  • Possible exceptions to doctrine:
  • There only has to be one π whose case has not been mooted for a class action to present a valid case or controversy
  • 2. Voluntary cessation of illegal conduct.
  • Companies can voluntary stop what they're doing to get rid of the lawsuits, but then as soon as the suit gets dismissed they start doing it again.
  • 3. Capable of repetition but evading review in any court.
  • The court will sometimes hear a case notwithstanding its mootness where an issue is capable of repetiion, yet evading review, because the lawsuit’s duration systematically tends to moot individual grievances. Roe v. Wade
  • The π had bad timing, but the situation will come up over and over again.
  • Personal Stake: Standing – the plaintiff is not an affected party.
  • Federal judges have interpreted Article III to require that a π have personal stake in the outcome of a case or controversy, so as to assure concrete adverseness that sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional and statutory questions.
  • Doctrinally, the key concept is injury in fact:
  • A π must allege personal injury fairly traceable to the ∆'s allegedly unlawful conduct and likely to be redressed by the requested relief."
  • Three inquiries:
  • Whether π has suffered a legally cognizable injury distinct to that π and not universally shared
  • Whether π's injury is the result of ∆'s conduct, and
  • Whether π's injury can be redressed by the judicial relief she requests.
  • Subject Matter: Political Question Doctrine – the issue is reserved for other branches of government.
  • What makes an issue a "political question" rather than just a case with political implications?
  • Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department;
  • or a lack of judicially discoverable and manageable standards for resolving it;
  • or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
  • Or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
  • Or an unusual need for unquestioning adherence to a political decision already made;
  • Or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
  • Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question's presence. Baker v. Carr
  • The Baker court ruled that one person-one vote claims grounded upon the Equal Protection Clause were not political questions and were justiciable under Article III.
  • Potential ramifications for the Article II requirements for justiciability in the modern regulatory state:
  • Agencies may be pressed toward underenforcing statutory mandates.
  • The President's power may increase vis-a-vis Congress's authority.
  • Agency favoritism, mismanagement or incapacity may be facilitated.
  • Webster v. Doe: π files suit under the APA. What is the nature of his challenge (i.e. what is the violation of the APA that he is claiming?) What does the court decide? Why doesn’t he sue under Title VII of the Civil Rights Act? Other examples of non-renewable agency action.
  • Discrimination is not a ground under the APA – to win under the APA you have to fit in one of the boxes under §706 scope of review.
  • Had he brought suit under Title VII, he would have been more like to succeed.
  • Judicial review of agency action under the APA

Challenging Agency Action

  • Arbitrary and Capricious [§706(2)(A)] – about a challenge of the rulemaking itself not agency interpretation. Used when reviewing agency rulemaking. This is the primary way to challenge a notice and comment rule with the force of law – have to fit in one of these options.
  • Arbitrary and Capricious Rule: Agency actions can be reviewed by the courts unless judicial review is expressly excluded by the statute or the action was committed to agency discretion. (APA § 701). However, these exceptions are construed very narrowly and must be expressly provided by the Statute. To make a finding that the Agency action was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under §706(2)(A) the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error or judgment. The agency must “articulate a satisfactory explanation for its decision including a rational connection between the facts found and the choice made.” An agency rule would be arbitrary and capricious if: (a) The agency has relied on factors which Congress has not intended for it to rely on, (b) entirely failed to consider an important aspect of the problem, (c) offered an explanation per its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise (State Farm), (d) whether the agency failed to respond to substantial problems raised by the commenters. (Manning 433-38) (Kraft) Substantial evidence applies to adjudications v. Arbitrary and Capricious applies to rulemaking.
  • State Farm:
  • The scope of review under the “arbitrary and capricious” standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made. In reviewing that explanation, the court must consider whether the decision is based on a consideration of the relevant factors and whether there has been a clear error of judgment.
  • The court failed to provide a clear and convincing reason for rescinding the requirement for the passive restraint system.
  • The reason we have the agency is because the automobile agency can’t be trusted to include all the safety standards. Increasing costs to the public isn’t a proper reason to undo the rule because there are studies that show it is much safer. Further consideration of the issue by the agency is therefore required.
  • The first and most obvious reason for finding the rescission arbitrary and capricious is that NHTSA apparently gave no consideration whatever to modifying the standard to require that airbag technology be utilized.
  • Mostly process-based rationales:
  • The court is hesitant in going further than these process-based tests. Because:
  • In the federal system, courts are not elected – agencies get their powers from Congress which is elected – gets overlooked by the President which is also elected – agency is more democratic than the courts.
  • Agencies are experts in the field to make the best decisions.
  • Kraft v. FTC (Substantial Evidence – applies to adjudication)
  • If the ALJ says something against the law, that’s invalid – they don’t have license to commit legal error.
  • The administrative law judge issued the first decision (like district court).
  • Appealed to commissioners (multijudge like appellate court)
  • They treat it like an appeal – they said we disagree with the ALJ on one ground, but it is deceptive on another ground.
  • Final agency action (remember if you want to go to court you need final agency action).
  • Gives agency to make policy that functionally have the force of law. They are deeming a violation of one of their rules.
  • To determine whether an advertisement violates these provisions, the FTC employs a three-part inquiry.
  • First, the FTC determines what claims were made in the advertisement.
  • Second, the FTC determines whether the claims were false or misleading.
  • Third, the FTC determines whether the claims were material to consumers.
  • Here, the FTC properly determined that Kraft’s advertisements violated the Act.
  • As to the first inquiry, the FTC correctly determined that in Kraft’s advertisements, Kraft claimed that Singles contained the same amount of calcium as five ounces of milk and that Singles contained more calcium than imitation-cheese slices.
  • As to the second inquiry, the FTC properly concluded that both of Kraft’s claims were false.
  • As to the final inquiry, the FTC correctly determined that Kraft’s claims were materially misleading because the claims made by Kraft affected which cheese consumers bought.
  • Constitutional Constraints on Appointment and Removal
  • Delegation, Deference, and Judicial Treatment of Agency Statutory Interpretations.
  • Chevron v. Natural Resources Defense Council
  • Step 0: is agency acting pursuant to delegated authority? Agencies only act in their certain spheres.
  • They don’t get deference beyond what Congress told them to do.
  • When reviewing an agency’s construction of a statute that it administers, courts consider two questions:
  • (1) whether Congress has directly spoken to the precise question at issue; and
  • If the statute has a clear meaning apply it.
  • (2) if not, whether the agency’s answer is based on a permissible construction of the statute.
  • If the statute is ambiguous, use a range of tools and information to decide on what you think is the best meaning.
  • ** all Chevron means is that at the second step, now the agency performs the second step rather than the court, and the court just reviews whether the agency’s interpretation is reasonable.
  • ONLY certain types of agency interpretations under the Chevron framework – codified in the code of federal regulations (went through the notice-and-comment process) OR adjudicated rules.
  • If it is an interpretive rule/policy statement, then it goes through Skidmore – Skidmore gives less deference.
  • Notice-and-comment process gives it democratic legitimacy.
  • Agency as a “gap-filler”: if the statutory language is clear, there is no gap for the agency to fill. If Congress left a gap, agency gets the first crack at filling the gap.
  • Importance of Chevron:
  • Another reason to understand whether a statute has a "plain meaning" or is ambiguous.
  • How you answer this question determines the amount of power an agency has.
  • If you dislike the agency's interpretation, your best bet is to argue that the statute is clear and unambiguous.
  • But see CB p. 871 (legislative intent is sometimes used to determine if the statute is clear under Chevron step one)
  • We focus on how courts review an agency's interpretation of the statute the agency is charged with administering.
  • This issue is important because many crucial agency policy decisions rest on contestable interpretations of the governing legislation.
  • On the other hand, many issues of statutory interpretation are linked, perhaps inextricably, with questions of fact and policy - questions that may be best resolved by expert agencies under the supervision of the elected branches of government, rather than by unelected generalist judges.
  • NLRB v. Hearst: (1944)
  • When reviewing an agency decision involving a mixed question of law and fact, courts review (1) the facts found by the agency to determine whether the agency’s conclusion has “warrant in the record” and (2) the agency’s explanation of its decision to determine whether the decision has a reasonable basis in law.
  • It is necessary to assume "in the absence of a plain indication to the contrary, Congress is not making the application of the federal act dependent on state law."
  • Consequently, so far as the meaning of "employee" in this statute is concerned, "the federal law must prevail no matter what name is given to the interest or right by state law."
  • Look at the history, terms, and purpose of the legislation to find what the term includes.
  • The word "is not treated by Congress as a word of art having a definite meaning" rather, "it takes color from its surrounding in the statute where it appears." United States v. American Trucking
  • The broad language of the Act's definitions, which in terms reject conventional limitations on such conceptions as "employee," "employer," and "labor dispute," leaves no doubt that its applicability is to be determined broadly, in doubtful situations, by underlying economic facts rather than technically and exclusively by previously established legal classifications.
  • Rutledge, J: A review of the record and the NLRB’s findings demonstrates that specified persons were “employees” under the Act has warrant in the record and a reasonable basis in law.
  • Roberts: Newsboys are not “employees” of the respondents within the meaning and intent of the National Labor Relations Act.
  • This case attempted to distinguish those questions of statutory interpretation that courts ought to resolve de novo (without deference to the agency’s views) from those interpretive questions that courts ought to answer by deferring to the reasonable interpretation of the responsible administrative agency.
  • Mayo Foundation for Medical Education and Research
  • Where Congress has expressly authorized an agency to promulgate administrative regulations, a regulation promulgated pursuant to that authority is entitled to deference by the courts.
  • Consequently, the Treasury’s interpretation is entitled to Chevron deference.
  • In applying Chevron deference, the first consideration is whether Congress has directly addressed the issue at hand.
  • Here, Congress did not directly address the issue, as it failed to specify whether residents are “students” for the purposes of Section 3121(b)(10).
  • Consequently, the statute is ambiguous as to the meaning of “student.”
  • Where a statute is ambiguous, the next consideration under Chevron is whether the regulation is a reasonable interpretation of the statute.
  • Mayo argues that the Treasury was arbitrary in categorically excluding all residents working 40 hours or more.
  • However, it is reasonable to consider the number of hours worked to determine whether the educational aspect of employment predominates over the service aspect.
  • Moreover, the Treasury is permitted to draw a line at a 40-hour work week for the sake of administrative convenience.