Legislation & Regulation

Plain Meaning Rule

we do not look to extrinsic sources if a reasonable person would understand the text’s meaning to be undeniable

common law

law built up by court decisions over time (skepticism over the new deal)

the rights revolution

more delegation of authority and more protection of rights by Congress

constitutional background to legislative process

taxing and spending power, commerce power, necessary and proper power

regular order for the constitutional process of lawmaking

hearings, markup, report, floor vote, reconciliation

new order for the constitutional process of lawmaking

• follow the leader lawmaking

• catching the omnibus budgeting

• much less deliberative, less ways to slow down the process

• low public approval

executive orders

congress vs the executive

• category I: president acts pursuant to express or implied authorization

• category II: president acts in absence of congressional grant or denial of authority

• category III: president takes measures incompatible with the express or implied will of congress

administrative state

created, empowered, and funded by legislation passed through Congress

most are within the executive branch

• White House agencies

• cabinet departments

• freestanding executive agencies

• independent agencies

• government-owned corporations

formalism

suppose the constitution sharply defines judicially enforceable lines among the three branches

functionalism

view the job is primarily to ensure that Congress has respected a broad background purpose to establish and maintain a rough balance or creative tension

rules

have the effects of statutes, have the same legal effect as statutes when promulgated

orders

have effect on a particular party, take some existing law and apply it to a particular party

formal rulemaking

notice

trial-like hearing and on-the-record decision

informal rulemaking

notice

opportunity for comment

statement of basis and purpose

formal adjudication

notice

trial-like hearing and on-the record decision

informal adjudication

no specific requirements, but all generic APA requirements applyn

notice and comment (informal rule making)

• publish notice of a proposed rulemaking

• allow a reasonable opportunity for the public to submit written comments

• issue final rule along with a “concise statement of basis and purpose”

• logical outgrowth requirement

• portland cement doctrine (whatever an agency will rely on to support its rule must be put in the record)

• Nova Scotia Doctrine (agency must respond to salient comments)

  • OIRA review (both at the notice stage and final rule making, can be thought to complicate rulemaking)

cost-benefit analysis

comparison of the costs of regulation to society to the benefits of the regulation

does not consider non-quantifiable benefits

breakeven analysis

attempts to quantify non-quantifiable benefits in cost-benefit analysis

intentionalism

interpretive approach

• the specific intent of Congress when enacting the law

• specific intent - congress had specific ideas about what should happen

• the goal of statutory interpretation should be to identify what Congress actually wanted to happen in the particular situation at hand

purposivism

interpretive approach

• the goal of statutory interpretation should be to identify Congress’s purpose in passing a statute and interpret the statute so that the court furthers that purpose

  • realistic about hoe Congress works as an institution - they may not have very specific intentions in many cases so we have to reason from a general purpose

textualism

interpretive approach

• the goal of statutory interpretation should be to identify the semantic meaning of the text and enforce the meaning

• are not literalists - they use context and pragmatics (background operating in text) to interpret meaning

common thread between interpretive approaches

legislative supremacy - act as Congress’s “faithful agents”

United States v. Marshall outcome

the majority believed that there was no way to construe the words of §841 to make the penalty turn on the weight of the drug rather than the gross weight of carrier and drug

United States v. Marshall intentionalist/purposivist approach

highly likely congress’s intent was to go after major distributors dealing with the drug in bulk, unadulterated form

• interpreting the CSA this way inverts the reasonable structure of penalties, subjecting small-time distributors and even consumers to potential liability

United States v. Marshall textualist approach

the text can and should be interpreted in context, and the word ‘mixture’ only has to include the blotter paper if we eliminate the context that says not all mixtures count

Posner’s alternative to the faithful agency approach

“natural lawyer’s” or legal pragmatist’s view

• the practice of interpretation authorizes judges to enrich positive law with the moral and practical concerns of civilized society

  • strong version rejects faithful agency

  • weak version is essentially purposivism

Rigs v. Palmer

What does the court use to understand the spirit of the law?

• title of the statute

• “the mischief rule”

• legislative history

• background knowledge about American society

midcentury developments reducing the primacy of text

inquiry into statute meaning

1. starts with whether the text is plain

2. the next step is determining the spirit of the law - what was the intended outcome

3. counter arguments: absurdity doctrine, scrivener’s error

New Textualism

• develops after Holy Trinity

• lawmaking is messy and language of statutes reflect compromise, this compromise should be respected as a faithful agent of Congress

• if meaning is not plain, other sources can be looked at to understand the meaning of

  • whole code rule

  • whole act rule

• associated by many with a rejection of legislative history as a tool of statutory interpretation

• West Virginia University Hospitals, Inc. v. Casey

• King v. Burwell

West Virginia University Hospitals, Inc. v. Casey

• textualist outcome: §1988 conveys no authority to shift expert fees with attorneys fees

• majority opinion by Scalia

• dissent: Justices Marshall and Stevens - the senate report suggests an intent to level the playing field so that private citizens could afford to take action

King v. Burwell

• text goes against the intended purpose

• decision: individuals who enroll in insurance plans through a federal exchange are still eligible for tax credits

• dissent: it is harder to come up with a clearer way to limit tax credits to state exchanges than to use the words “established by the state.” (the meaning of the text was plain)

limits on textualism

• absurdity

  • “where the plain language of the statute would lead to ‘patently absurd consequences . . . that Congress could not have possibly intended’”

• scrivener’s error

  • “properly applies only in cases ‘where on the very face of the statute it is clear to the reader that a mistake of expression has been made.’”

United States v. Kirby

Absurdity - punishment for the obstruction of mail does not apply to the case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder

United States v. Locke

scriveners error - appellees filed on December 31st when act required “prior to December 31.” claim that it was meant to cover the calendar year and this does not make sense

Bostock v. Clayton County, Georgia

• does title VII’s ban on discrimination due to sex extend to homosexual and transgender people

• Gorsuch writes for the majority - sex plays a necessary and undistinguishable role in the decision

• the limits of drafter’s imagination supply no reason to ignore the law’s demands - examination of the statute through the current context

• dissent: the concept of gender identity was essentially unknown at the time - textualism calls for an examination of the statute within the social context

  • “ordinary public meaning” at the time the statute was passed - Gorsuch

• textualists disagree about how to apply text-based interpretive principles and about what the relevant rules are

contextualism

textualists favor related texts “context”

• close to the term at issue . . .

  • statutory history; borrowed statute

  • neighboring words & provisions

  • whole act: findings; purpose; definitions; similar provisions; meaningful variation

  • whole code: pari material; meaningful variation; clashing statutes

  • constitution; foreign law

  • social context

• . . . outer reaches

What is the “whole text”?

debatable - “textualist judges have disagreed sharply over which relevant text is most on point or how admittedly relevant texts should be read together.”

old statute problems

textualists must choose a date through which to view statutory text

Ordinary and Plain Meaning: what are the three big groups of tools of interpretation?

• lexical semantics and pragmatics

• canons of construction

• legislative history

ordinary meaning default rule

we presumptively go with ordinary meaning when interpreting the words of a statute unless something about the context indicates that a technical meaning was intended

Nix v. Hedden

(Ordinary and Plain Meaning)

• are tomatoes classified as vegetables under the Tariff Act of March 3, 1833?

• technical vs ordinary meaning

• the court decided tomatoes should be classified as vegetables

• polysemy - many words have more than one ordinary meaning

• we can often disambiguate a word by looking at the surrounding context

Smith v. United States

• does exchanging a gun for narcotics constitute using a firearm under 18 U.S.C.?

  • the court says yes - using a firearm is a broad concept

    • dictionaries, whole act cannon, etc.

  • dissent - prior versions of the statute, “fair reading” - how a reasonable reader would read it

• Scalia - the judge’s responsibility when interpreting an ambiguity is to interpret the language fairly - how an average reader would understand it

  • “fair meaning” - gloss on ordinary meaning

• Justice Barrett - we should think about the ordinary lawyer

technical meaning

• “where Congress employs a term of art ‘obviously transplanted from another legal source,’ it ‘brings the old soil with it.’

• audience helps to determine whether to use common law meaning

• Moskal v. United States

Moskal v. United States

• does a person who knowingly procures genuine vehicle title that incorporate fraudulently tendered odometer readings receive those titles knowing them to have been “falsely made”?

• the court says yes (adopts an ordinary meaning) - there is not a single accepted common law meaning

• dissent references legal dictionaries, state and federal statutes to argue there is a common law menaing

Corning Glass Works v. Brennan

• are inspection work performed during the day and inspection work performed at night “equal work” under the Equal Pay Act

• the court uses house and senate committee hearings; the act’s history/legislative history; and industry definitions to support that congress intended to use the industry’s idea of “equal work”

• Corning Glass never treated night and day inspection work as differently in their job evaluation plans

distinguishing uses of legislative history

• as an authoritative source of legislative intent vs. as a source of evidence for facts about the world

• may be invaluable in revealing the setting of the enactment and the assumptions its authors entertained about how their words would be understood

what are the two kinds of canons?

semantic and substantive canons

semantic canons

a form of textual analysis

substantive canons

considerations of the legal or public policy consequences of various interpretations

Karl Llewellyn canon theory

thrust and parry - convinced a generation to disregard canons

may/shall canon

mandatory words impose a duty; permissive words grant discretion

conjunctive/disjunctive canon

and joins a conjunctive list, or joins a disjunctive list

grammar canon

words are to be given the meaning that proper grammar and usage would assign them, unless they contradict legislative intent or purpose

series qualifier

last antecedent

consisten usage (WC/WA/IPM)

meaningful variation

ejusdem generis

“of the same kind” – where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned

McBoyle v. United States

does the national motor vehicle theft act apply to aircrafts?

Majority applies Ejusdem Generis – “where general rules follow an enumeration of two or more things, they apply to the same general kind or class specifically mentioned”

Other items in the list are vehicles that run on land

People v. Smith

Does the statute proscribe the carrying of all dangerous weapons or just those prescribed?

“any person who shall carry a dagger, dirk, stiletto, or other dangerous weapon . . .”

“other dangerous weapons” would be limited to stabbing weapons (Kavanaugh)

ejusdem generis canon

Circuit City Stores, Inc. v. Adams

 § 1 of the Federal Arbitration Act excludes from the Act’s coverage “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

Does the exemption extend to employment contracts other than those of transportation workers? -the better interpretation is to confine the exemption to transportation workers

ejusdem generis canon

how is the ejusdem generis canon triggered

It generally requires at least two words to establish a genus (before the “other” phrase)

The canon does not apply if the residual clause comes first but you may be able to invoke noscitur a sociis to limit similarly

noscitur a sociis

“a word is known by the company it keeps” (avoid ascribing a word a meaning so broad that it is inconsistent with its accompanying words)

Gustafson v. Alloyd Company, Inc.

• “from the terms ‘prospectus, notice, circular, advertisement, or letter,’ it is apparent that the list refers to documents of wide dissemination.”

surplusage

“if possible, every word and every provision is to be given effect . . . none should be ignored. None should needlessly be given an interpretation that causes it to duplicate . . .”

Gustafson v. Alloyd Company, Inc.

• If a broad meaning of communication was intended, it would encompass every other thing in the list

• “The court will avoid a reading which renders some words altogether redundant”

expressio units (inclusio unius)

“The expression of one thing implies the exclusion of others”

Silvers v. Sony Pictures Entertainment, Inc.

• Since the right to sue under assignment was not explicitly included in the list, the majority concluded that it is implicitly excluded

constitutional avoidance - classical avoidance

Constitutional avoidance originally would only be invoked when there was an actual constitutional violation

requires judges to actually decide the constitutional issue

requires judge to engage a lot more with the constitutional issue

constitutional avoidance - modern avoidance

disfavors interpretations that would encroach on constitutional values even though Congress would in no sense violate the constitution by legislating in those disfavored ways

court often will not say anything particular about how the constitution would be interpreted or what the precise issue is (big criticism)

constitutional avoidance - presumption

Default policy should be favored so long as it is possible to construe the statute consistently with that policy

Tiebreaker conditional on there being ambiguity

constitutional avoidance - clear statement

default policy should be favored unless the statute clearly requires a departure from that policy (must specifically say something rebutting the default policy)

Congress must be explicit and anticipate the specific situation

NLRB v. Catholic Bishop of Chicago

Whether teachers and schools operated by a church teach both religious and secular subjects are within the jurisdiction granted by the National Labor Relations Act; and if the act authorizes such jurisdiction, does this exercise violate the guarantees of the religion clauses of the 1^st amendment

Clear statement rule of constitutional avoidance – requires Congress to expressly include religious schools to meet the threshold of clear statement

constitutional avoidance

federalism

Designed to protect the sovereignty and autonomy of state governments in our federal system – meant to insulate state government operations from federal regulation

Plain statement rule: can be invoked if there is an imbalance in power and a potential problem – requires a plain statement for federal power to be exercised over states

Gregory v. Ashcroft

The state of Missouri passed a policy requiring judges to retire after they turn 70. The ADEA makes in unlawful for an employer to discharge an individual who is at least 40 because of their age.

Does the mandatory retirement provision violate he federal Age Discrimination in Employment Act?

The statute does not cover appointed state judges; it must be plain to anyone reading the act that it covers judges.

Lenity

“Ambiguity in defining a crime or imposing a penalty should be resolved in the defendant’s favor”

Only allowed to work if no other answer can be reached after other methods of statutory interpretation (tiebreaker)

Scalia says the antiquity of lenity gives it authority

Very weak presumption in practice and almost never invoked – the best interpretation in most cases favors the defendant

United States v. Bass

Does the phrase “in commerce or affecting commerce” modify “possesses” and “receives” or just the verb “transports”

Since after using the normal toolkit for statutory interpretation there is still ambiguity, the rule of lenity is applied to construct the statute in the defendant’s favor

legislative history - committee reports

most reliable form of legislative history

The intention of the legislature is undiscoverable in any real sense and the chances that of several 100 legislators each will have exactly the same determinate situation in mind is low (but the lesser of two evils)

legislative history - statements of individual legislators

Floor statements

• Court’s position is usually that they are not to be used

• Sometimes corroborate other evidence

Sponsor statements

• Described as weighty or authoritative by the court

  • Sponsor or floor manager takes the lead in framing legislation

  • Sponsors are members of Congress most likely to know what the legislation is all about

• But might be more susceptible to opportunistic manipulation

Statements made during hearings

• Treated with deep suspicion by the Supreme Court

• But might disclose problems, factual information, legal assumptions, political dynamics, and expressed views of key legislators

legislative history - drawing inferences from absences 

 Most common when statutory provision would represent a major, likely controversial change, while competing interpretation would only represent a minor change

Can be hazardous

legislative history - successive versions of a statute

Record of changes to a proposal over the course of the drafting process

Court might find it significant how an earlier version of a bill differs from the final

legislative history - subsequent legislative action to inaction

Post enactment legislative history

If Congress has consistently refused to overturn the prior judicial or administrative decision, this implies that the prior interpretation was correct

But it is very difficult to enact new legislation

legislative history - the president

“signing statements” often include language that could be characterized as interpretive

Exxon Mobil Corp. v. Allapattah Services

• 28 U.S.C. § 1367: supplemental jurisdiction statute

• Statutes in existence at the time did not allow San Diego to be added as a defendant, in addition to the FAA

• Zahn - if you have an issue with the amount in controversy in diversity suits, then the party that does not meet the amount in controversy cannot be added

• Language of 1367 does not mention defendants like the ones in the present case

• Kennedy - if the language is not ambiguous, we do not look at legislative history

  • But if there is ambiguity, certain kinds of legislative history have more weight than others

• Inquiry into legislative history is triggered by ambiguity (similarly to the rule of lenity, is low on the list of what should be relied on)

Deference - Chevron Doctrine

•  in most cases reviewing courts should presume that statutory ambiguities are delegations of discretion to agencies and should therefore defer to an agency's reasonable resolution of such an ambiguity

• The Loper Bright case ended the Chevron era

deference - Judicial Review of Agency Action - three avenues

• General statutory review:

  • Review authorized by § 704 of the administrative procedure act

  • File a lawsuit in a federal district court - still must get jurisdiction but this give you a cause of action in federal court

• Special statutory review:

  • Review authorized by a statute other than the Administrative Procedure Act

  • Requires that most challenges be filed in the court of appeals (usually DC Circuit court of appeals)

  • Might specify different standards of review

• Nonstatutory review:

  • Review authorized by equitable limits on agencies' and presidents' actions

  • The president cannot be sued under general statutory review and usually not on special statutory review either

What Should Courts do When a Statute's Meaning Runs Out in Agency Cases?

Possible Answers:

• Marbury Answer: We have the court choose which interpretation is the answer based on what they think; it is the duty of the court to say what the law is, it doesn’t matter what the agency said/thinks - De Novo Review

  • "it is emphatically the province and duty of the court to say what the law is”

• Skidmore Answer - an agency's views can be persuasive and should be taken into account, even if the ultimate decision rests with the court

  • Maybe instead of the judge ignoring the agency, maybe it can take into account the agency's position and expertise and let it persuade the court

  • Not bound to the agency decision, it is just persuasive authority (Skidmore deference or weight)

• Chevron Answer - an agency's views should prevail as long as they are a reasonable construction of the statute

  • Judge's opinion does not matter, rule of deference - must follow the agency interpretation

• Possible fourth answer: work harder with the tools of interpretation and use other canons to disambiguate or tie break

  • There is no such thing as a true ambiguity, we will always end up with some best answer if we use all of the tools at our disposal

justifications for deference

• Expertise

• Accountability through the president

• Sense of uniformity

• Delegation theory

Chevron Two-Step Process

• Judicial review

  • Do the tools of interpretation and construction provide an answer?

  • Did Congress speak directly to the issue at hand?

• Deference

  • If courts determine congress was silent or ambiguous, the question for the court is whether the agency’s answer is based on a permissible construction of the statute

Loper Bright - overrules Chevron

• Why is it overruled?

  • APA § 706 - courts should have the full authority to answer questions of law

  • Statutes, no matter how impenetrable, do - in fact, must - have a single, best meaning

  • The idea of an ambiguity in statutes is kind of a fiction

• What is it replaced with?

  • “Independent Judgment Model” – courts make a determination but still use agency expertise and lower court opinions at their discretion

    • Not de novo review because courts still look at other sources

  • Kind of hybrid between de novo and Skidmore

• What decisions need to be revisited?

  • Just because a court relied on chevron, does not mean the decision needs to be overruled

    • Attempt to insulate the overturning

Will anything really change after loper bright?

• Gray and Hearst cases

  •  Court suggests that it is still okay to defer to agencies for mixed questions of law and fact

  • Is a newsboy an employee of a company?

    • This is a legal question to some extent but is also mixed in with questions of fact

  • Purely legal questions will remain with the court

    • Court seems to think this distinction exists but no one else really knows what it is

• Sometimes statutes explicitly defer to an agency

• Sometimes statutes impliedly delegate to an agency

• Some statutes give agency's delegation for open ended/broad terms ("reasonable")

• The court says when the best reading of a statute is that it delegates to agencies, the role of the reviewing court under the APA is to independently interpret the statute and ensure that the agency has engaged in 'reasoned decisionmaking'

non delegation doctrine

• Idea that congressional power cannot be delegated to agencies, courts, private actors, or any other entities

• Question when determining if the doctrine has been violated

  •  Is the power being exercised by the recipient legislative?

• How specific should a statute be authorizing a policy to say there is no nondelegation problem?

J.W. Hampton, Jr. & Co. v. United States (1928)

• Facts: Congress delegated authority to the President, after a finding that costs of production of domestic goods are not equal to production of imported goods, to adjust tariffs in order to "equalize the said differences in costs of production in the United States and principal competing country."

• Issue: Does this statutory delegation to the president flunk the nondelegation doctrine?

• Holding: no “it seems clear what Congress intended by § 315” – Congress provided the president with a clear directive

• The President's role was deemed executive, merely involving the finding of facts

Whitman v. ATA (2001)

• Clean air act of 1970 authorizes EPA administrator to establish national ambient air quality standards (NAAQS), which then drive air quality standards imposed by states

• Did the language of the CAA, which requires the EPA to set standards "requisite to protect the public health" with an "adequate margin of safety," give the EPA Administrator too much discretion, thus violating the nondelegation doctrine?

• No – Scalia affirmed the “intelligible principle” test from J.W. Hampton, Jr. & Co. v. United States (1928).

• The court held the statutory language provided a sufficiently clear intelligible principle

  • "Intelligible principle" ≠ "a determinate criterion”

Gundy v. United States

• Is it a violation of the nondelegation doctrine to allow the attorney general to determine if SORNA will be applied to pre-Act offenders?

• Majority:

  • Kagan applies a sort of substantive canon of construction to narrow the scope of the canon "we should interpret delegation statutes narrowly to avoid nondelegation issues"

  • The majority also says that once it is narrowed in this sense, it is not even remotely unconstitutional - "If SORNA's delegation is unconstitutional, then most of Government is unconstitutional

  • SORNA does not give the attorney general unlimited discretion, it provides an intelligible principle

non delegation standard today

intelligible principle standard

legislative veto

• A one or two chamber resolution disapproving of an exercise of the authority delegated in a statute to an executive agency

  • Basically, a situational retraction of delegation

• In theory, can happen without presidential approval

Chadha

• Immigration & Nationality Act, § 244(a)-(c)

  • Allows the attorney general to suspend removal of an individual for various statutory reasons

  • Requires a report to Congress whenever suspension occurs and allows either chamber of Congress to disapprove of the suspension, fording the removal of the individual

  • Replaced an older "private bill" system where individuals subject to removal could go to congress and seek an individual bill canceling their removal, subject to approval by the President like any other bill

• Key question: is a veto a bill?

  • If so, it violates article I, section 7 by failing to go through bicameralism and presentment

  • Majority: yes - when Congress acts to change the status quo, it is legislation subject to constitutionally prescribed procedures

Formalism vs Functionalism

• A functionalist says they aren't concerned who the power is for, power is somewhat mixed among the branches and that’s ok

  • Each branch can exercise some of the powers that are quintessentially powers of another branch

• A formalist will insist that we put clear labels on each branch's power - this leads pretty clearly to the majority's approach

  • Institutionalist formalism: each branch of government exercises a mix of essential powers, but we embrace the fiction that when they act, they’re exercising only one power

  • Essentialist formalism: each branch should only exercise the powers that are quintessentially associated with that branch and cannot exercise powers that would quintessentially fall within the purview of another branch

legislative veto - Congress’s response to its loss of power

• Ignore: lots of legislative vetoes remain on the books, many added after Chadha

• Congressional Review Act, 5 U.S.C. § 801-808

  • Within 60 days of the promulgation of "major" rules, Congress can pass a "disapproval resolution" under fast-track procedures and forward to the President for signature. The passage nullifies the rule and bars any "substantially similar" rule in the future

• Regulations from the Executive in Need of Scrutiny (“REINS”) Bill

  • "major" rules would have to go through bicameralism and presentment before they could go into effect