Legislation And Regulation Outline - Spring 2017 6x2828

Legislation & Regulation | Spring 2017 | Heather Elliott

CH. 1: LEG PROCESS + STATUTORY INTERPRETATION 1. INTRO TO LEGISLATION & STATUTORY INTERPRETATION A. [Tennessee Valley Authority (TVA) v. Hill] (SCOTUS 1978), p. 4: Dam began 1967. Endangered Species Act ed §1973 to ensure “actions authorized, funded, carried out do not jeopardize continued existence” of endangered species. Held, Stop the dam b/c it violates text of ESA. i. ii.

iii.

iv.

v.

Text: not ambiguous. Court Ø given latitude to determine “reasonableness.” Legislative history: Point towards strict upholding 1. Congress considered adding “as far as practicable”, didn’t 2. Conference Committee (to resolve differences between House, Senate bills; resolve language) considered similar situation (DoD bombing endangering species) and went with stricter level Later in time canon: later statutes doesn’t “implied repeal” earlier statutes unless intent to do so is “unmistakably clear” 1. (Arg: Congress funding of dam after ESA implies repeal), 2. BUT “not clear enough” + appropriations canon trumps Appropriations canon: appropriations bills should not be read to modify substantive law “unless clear statement” 1. Application: even though Congress funded Dam after ESA, doesn’t imply ESA repeal/exception 2. Rationale: “We don’t want people to accidentally change the law” Dissent: Let dam construction continue. 1. Text: “action” only applies to prospective action. Maj response: Uh, going ahead w/ dam work is prospective. Dissent Response: “Action” is the whole dam project, predates ESA 2. Legislative History/Legislative Intent/Absurdity: “No reasonable legislator could have envisioned this kind of outcome. We know this from absence of hearings, testimony, outrage.” 3. Canon: Rule against retroactivity: If text ambiguous, statute should not apply retroactively. Maj response: Text is not ambiguous.

B. ESA after TVA i.

ESA Amendments of 1978: allows 7 to allow extinction by a vote of 5 after specific findings.. “God Squad”

2. LETTER OF LAW V. SPIRIT OF LAW A. INTRO i. ii.

Letter = statutory text Spirit = general background purposes of statute

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Legislation & Regulation | Spring 2017 | Heather Elliott

B. PURPOSIVISM – “a thing that is within the intent of the of the makers of a statute is as much within the statue as if it were within the letter; and the thing which is within the letter of the statute is not within the statute unless it is within the intention of the makers” i.

ii.

Riggs v. Palmer [NY 1889] p.29: Held: Owner of property who murdered testator should not inherit. 1. Text: Statute clearly violated. Court: We should read exceptions into text when result is absurd. 2. Canon: legislative intent, absurdity: an “upright and reasonable” person/legislator could not have intended this result. “Nobody thought of it.” 3. Common Law + Policy: Nobody should profit by his own fraud [ø dispositive though]; don’t want murderers roaming the streets. a. “Common law fills gaps in statutes” 4. Dissent: Legislative duty to deal w/ wills; not about what Ct thinks is right/wrong. Vote in new legislature if you aren’t satisfied with the statute of wills. Slippery slope to claim to know “intent” of will writer. a. Expresio Unius: will alterations that are enumerated are exclusive and only options. b. Re: Policy – criminal law takes care of majority’s concern. Holy Trinity [SCOTUS 1892], p.36: [PURPOSIVISM] Statute made it unlawful to pay for transportation of any alien “to perform labor or service of any kind in the US.” Exceptions for “professional actors, artists, lecturers, singer, domestic servants.” Held: priest allowed to come in b/c legislative intent Ø aimed at “brain toilers” like priests 1. Text: Does a priest perform “service”? Argument for no: Some dictionaries say “service” = “domestic servant.” BUT: exceptions include non-domestic=servants. SO: statute clearly violated. [Maj. opinion concedes text applies.] 2. Title: subtitle only addresses “labor” – “No one reading such a title would suppose that Congress had in its mind any purpose of staying the coming into this country of ministers of the gospel… of any class whose toil is that of the brain” p.37 3. Mischief Rule: Asks - Does it necessarily follow that a piece of legislation is designed to address fully the mischief that inspired its enactment in the first place, or that the legislation is limited to only to addressing that particular mischief? a. Harm to be addressed was flooding with cheap labor. Narrow statute to apply to mischief they were intended to solve.  BUT, OVERRULED in Brogan, p.72. 4. Legislative History: Not dispositive. Maj: “Committee thought ‘labor + service’ might be overbroad, but kept it, to speed age.” So, expressed understanding of bill’s narrower purpose. Can’t presume legislature selected its phraseology with “meticulous care as to every word.” See LH section for rules. 5. Absurdity/Legislative Intent: (1) No reasonable legislator qould intend a priest to be banned (2) widespread core social values (3) Nobody thought about it.

C. NEW TEXTUALISM – rejected LH as tool of statutory interpretation; builds on premise of legislative supremacy to argue judges must “hew closely to meaning of clearly statutory text even when the result contradicts the statute’ apparent purpose” i.

WVUH v. Casey [SCOTUS 1991, Scalia maj.], p.42: 42 USC §1988 says losing party in civil rights cases may be ordered to pay reasonable attorney’s fees. Held: “attorney’s fee” does NOT include “expert fee,” EVEN THOUGH aim of legislation was to encourage civil rights cases. 1. Text: Clearly shows “expert fees not included” 2

Legislation & Regulation | Spring 2017 | Heather Elliott a. Maybe attorney’s fees = term of art, look at industry practice of billing  maybe “expert fees included….” b. BUT: Congress’s other fee-shifting laws distinguish b/w attorney’s fees, expert fees. Avoid surplussage. Assume Legislature purposely excluded it. 2. Mischief Rule [Aim of Statute]: a. Overturn Alyeska [1975]: Before Alyeska, many courts awarded attorney’s AND expert fees. Alyeska said: this discretion is only allowed in X [very few, specific cases]. Sponsor statements + chronology show that §1988 aimed to correct some harms of Alyeska. b. BUT: Statute is narrower than pre-Alyeska [π can only sue under X civil rights statutes] and broader [π’s can now recover w/o previous requirements that “cost barrier prevents private suits; nec. To defend rights of large # of people”]  no intention to completely overturn Alyeska. 3. Takeways a. If usage-based meaning is clear, end of story. [subject to some absurdity considerations]. If ambiguous [“Nobody thought about it”], then can look to intent/mischief addressed. i. “The purpose of a statute includes not only what it sets out to change, but also what it resolves to leave alone… best evidence = statutory text adopted by BOTH Houses.. where that contains a phrase that is unambiguous – that has a clearly accepted meaning in both legislative and judicial practice –we do not permit it to be expanded or contracted by statements of individual legislators/committees” p.48,¶2 b. Rationale for Textualism > Purposivism/Intent/”Mischief Rule” i. Empowers Congress to precisely use different words to promote diff. policies [b/c can’t find true intent, and then what Congress wanted to do can’t get done.] ii. ^ Promotes legislative supremacy [why it relies on Congr ess’s pattern of usage in past legislation]. Ct’s parsing of legislation that actually es makes law more coherent. iii. Acknowledges role of compromise [“intent of ALL of Congress, not just the committees…] 1. Sole legislative intent hard to discern. 2. Statutes are ends and means. Statute could ask courts to interpret legislation [“means”] through words like “reasonable.” If they don’t, Cts are replacing statute’s intended means, which changes the ends. c. What Textualists think are problems w/ Purposivism i. Compromise results in inability to really predict the purpose from the text, so just follow the text. ii. “Imperfection is consequence of compromise… not function of the court to upset that consequence.” iii. Structure of a bill becoming law encourages compromise inherently, and it’s not up to the judiciary to change that. 1. Congress tends to produce incoherent policy but expresses itself precisely. 2. *BOTH Textualists and Purposivists think Congress doesn’t act effectively/consistently, but they just come to different conclusions. 4. Defense of Purposivism – Stevens Dissent a. Legislative intent: override Alyeska and return to trying to incentivize public interest litigation [civil rights, environmental, etc.] 3

Legislation & Regulation | Spring 2017 | Heather Elliott Senate Committee Report: “remedy gaps… created by… Alyeska”; private AG’s; cited favorably previous cases where expert fees were awarded. House Report talked about civil rights π’s. b. Rationale #1 for Purposivism: i. Congress rationally fulfills its goals; but language can have blanks… Purposivism helps fill those blanks. ii. Legislative supremacy – Cts should deviate from meaning of text: Legislature can’t be presumed to have selected everything with specific care… purpose is easier to figure out, and easy here. Now, instead, Congress has to go back and fix/amend the statute even though we knew what they meant and wanted. c. Rationale #2 for Purposivism: Purposivist decisions don’t get overruled; Textualist decisions do. i. Examples p.51,fn11; Lily Ledbetter Act – Leg went back and changed SOL. ii. Sure, Congress can correct our mistakes, but that’s a waste of time. iii. BUT: (1) congress should respect wishes of enacting, not subsequent, Congresses; (2) “Congress should fix it” aka “textualism forces Congress to clarify things” which could be a good thi ng. i.

D. TEXTUALLY-CONSTRAINED PURPOSIVISM – Ct interprets the text in light of the purpose. i.

General Dynamics Land Sys. v. Cline [SCOTUS, 2004], p.61: ADEA which protects 40+, bars “discrimination based on age.” Could the ADEA apply to young who are treated worse than the old? Held: No. Since text [“age”] could feasibly/reasonably mean “old age,” then ADEA doesn’t protect “young” [40-50] from discrimination that favors the old over the young. 1. Text: kind of ambiguous, “age” could be read two ways. 2. Structure: Act only applies to 40+; the more expansive understanding [including the young] doesn’t square with the natural reading of the whole provision. 3. Social History: “emphatically” reveals age discrimination = against the old; statutory reference to age discrimination in this idiomatic sense is confirmed by the legislative history… 4. Purpose – Legislative History: **Congress does a good job w/ LH; RARE case where legislative history is dispositive. a. Intended to correct age discrimination. b. Testimony at hearings only about old people CAVEAT, only committee heard it, not given much weight. c. Contra, Senator [sponsor] on floor said “ADEA bars ANY discrimination favoring young OR old,” BUT this only 1 example Ø sufficient 5. Purpose – Preamble – Like title in Holy Trinity 6. Takeaway, Textually-Limited Purposivism: if (a) semantic meaning has 2 feasible interpretations, and (b) evidence points compellingly to 1 interpretation, you can use LH, other evidence for that interpretation. 7. Dissent: a. Text points woards “age = all age” b. Structure points towards majority, but rebuttle c. Counter to “social history”: i. Basically dissent says that majority says that If a specific form of discrimination is goal of a statute, then the specific quality only covers 4

Legislation & Regulation | Spring 2017 | Heather Elliott the principla or most common form of discrimination related to the personal quality – i.e. b/c discrimination against the old is the most common, doesn’t consider any others b/c of social history. ii. “race/sex discrimination” construed as both ways – Civil Rights Act doesn’t allow discrimination against males; whites 1. BUT “age discrimination” implies old age, but “sex discrimination” / “ race discrimination” are ambiguous. See majority’s social history definition argument. d. Legislative History: 1 things points to dissent [Senator sponsor’s floor statement.] This is the only LH speaking directly to the question.

E. LEGISLATIVE PURPOSE & DYNAMIC STATUTE INTERPRETATION i.

ii.

Key Question 1: How much authority should judges have to adapt statutes to unforeseen/unforeseeable circumstances, even if that way of interpreting it contradicts the original specific intent or clear text underlying original reason for enactment? 1. No authority: e.g.: Welansky [MA 1931] interpreted jury statute to exclude women. a. Purposivist: writers of statute could never have foreseen that women would have the right to vote, so including women, even though can const’ly vote now, is not within the statute’s intent & so ct is not authorized. “Statutes do not govern situations not within the reason of their enactment don’t’ govern situations that give rise to radically diverse circumstances presumably not within dominating purpose of those who framed and enacted them.” b. Imaginative Reconstruction: Cts trying to think like legislature would have at time of enactment, including historical influences and then-current laws. Key Question 2: Why should specific intention given to Legislature by the Ct trump the obvious general intent of the statute? 1. Eskridge’s Dynamic Interpretation Approach: Judges, even if embrace strong Legislative Supremacy theory, should not only enforce specific intention/ordinary semantic meaning of a statute. B/c statutes remain in place for long pds of time through lots of changes in legal/factual contexts, correct “analogy” for judicial interpretation = judge as a relational agent of the Legislature. a. Judge = subordinate representative of the principal [Legislature], follows legislative directives, creative w/ interpretation. Principal has right to control actions of the agent. Only interactions within scope of agency relationship affect the principal’s legal position. b. Judge = agent in ongoing consensual contractual relationship whose primary obligation is to try best to carry out general goals & specific orders of the principal over time. c. Agent has the power to affect the legal rights & duties of the principal [Congress]. 2. Pros & Cons of this approach: a. Pros: Prevents re-making laws every 10 yers; allows statutes to grow/adapt to changing times. b. Cons: Judges aren’t perfect, will get it wrong, 100% of misinterpretation eventually. Might disrespect purposely difficult statute process in Constitution, intention to protect minorities.

F. ABSURDITY – Judicial correction of legislative mistakes. Exception to plain meaning application. i.

Rationale: 5

Legislation & Regulation | Spring 2017 | Heather Elliott ii.

iii.

iv.

Kirby v. U.S. [SCOTUS 1868], p.78: Kirby, sheriff, obstructed mail carrier shipto make an arrest of person who was charged w/ murder. Statute barred “Knowingly and willfully obstruct… age of the mail.” HELD: ABSURD. 1. Rationale for absurdity: “contradicts common sense” [society’s widely, deeply held values] b/c legislators represent society. “Must have been failure of foresight.” Congress = faithful agent of legislative intent. Since Congress represents society, couldn’t possibly law that contradicts social norms. a. All laws should receive sensible construction… general are limited in their application so don’t lead to injustice/oppression/absurdity. b. Always believe Legislature intended exceptions to their language to avoid results like this. Reason of law > Letter here. c. Most extreme, straightforward, easy to apply form of Purposivism. d. BUT SEE: Marshall, Posner is like “absurdity is dishonest. Sometimes let’s just make the law better w/o pretending to carry out the intent of Congress” [Judicial expansion of role] 2. Modern Textualist Rationale: judges must adhere to text precisely b/c lang. chosen is result of compromise, however awkward. SO, compromise could be broad, or narrow & could maybe imply things inserted in between the line s… saying an absurd result ø intended is reading between those lines. a. *** BUT most modern Textualists accept Kirby b/c it’s not reasonable that Kirby result was from legislative compromise. 3. Elements: read exceptions into general laws; gives further definition to laws rather than changing it; faithful agent would do it; Congress has adopted a reasonable result; violates fundamental social values. 4. Another standard for calculating absurdity: harm of following letter of statute >>>>> benefit of following statute. Public Citizen v. USDOJ [SCOTUS 1989], p.81: FACA imposes requirements on advisory groups that are “established or utilized” by POTUS. Should FACA apply to ABA advice on POTUS judicial nominees? HELD: FACA statute Ø apply to this POTUS-ABA special advisory relationship because IS ABSURD. 1. Text: Statute clearly applies. 2. Absurdity: Absurd = solely that the interpretation leads to result that Congress did not intend. This result is not absurd on its face. a. Abuse argument: “Literal reading would catch far more groups than Congress would have intended” 3. Policy Concern: If held to apply, everything will be made public... who will want to be considered as a judge if required to air dirty laundry? [Process already includes lots of hurdles] 4. Concurring [Kennedy]: While FACA of its applies to ABA advice on judicial nominations, that would make FACA unconstitutional via SOP, so it is invalid as applied to judicial nominations. a. Doctrine should be limited when a result of applying plain language would be “genuinely absurd” i. Standard: “absurdity so clear its application would be patently obvious to anyone” ii. Apply: this case is NOT absurd. Ct just doesn’t like the result. Minor case - Barnhart v. Sigmund Coal [SCOTUS 2002], p.91: e.g. of “limited absurdity” – successors in interest to coal companies Ø have to fund coal pension funds, but 6

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v.

successors to “related companies’ DO have to fund coal pension funds. HELD: NOT absurd. 1. Policy absurdity: is instant result [or maybe hypothetical result[ absurd? 2. Process absurdity: could it be that way b/c of a political compromise? Other Techniques to avoid absurdity 1. “Congress overrules” 1 argument against absurdity doctrine: a. Ct is more likely to have “false positive” finding absurdity than “false negative” [finding result Ø absurd.] b. Risks of false positives much greater: Congress would fix if “false negative,” but interest groups/legislators who like the ct’s interpretation might block corrective legislation to fix false positives. 2. Using narrower principles to avoid absurdity: common-law doctrine [Kirby], using technical definitions [swordsman drew blood vs. nurse drew blood] – judicial authority to determine meaning of statutory text, not depart from the statutory text.

G. POLICY ARGUMENTS, RATIONALE, PURPOSIVISM i.

ii.

Purposivism pros: 1. Enables courts to be reasonable, fair, make body of law (clunky, imprecise statutes) more consistent, coherent. 2. Congress rationally fulfills its goals, but language can have blanks 3. Legislative supremacy: Court is faithful agent, should deviate from meanin g from text if it clearly furthers legislative goals. Doesn’t need to divine legislature’s specific intent, only further X goal of legislation. 4. Stevens dissent in Casey: Purposivist decisions don’t get overruled much, textualist ones do. Purposivism prevents wasted time. Textualism pros: 1. Empowers Congress to precisely use different words to promote different meanings 2. Promotes legislative supremacy; relies only on law that actually makes it through B&P (democratic legitimacy) and Congress’s pattern of usage 3. Acknowledges role of compromise. Sole legislative intent hard to discern; text of bill is only thing that 535 people agreed on 4. Statutes are ends and means. If statute has an open-ended term like reasonable, the “means” = court can interpret it. If there are no open-ended , the statute is saying hey courts, don’t insert your own interpretations.  Legislative supremacy 5. Predictability

3. WHAT IS THE TEXT? Language has meaning only because it reflects practices and conventions shared by community of speakers and listeners. Thus, meaning of words is determined by the shared understandings of the relevant linguistic community.

A. SCIENTIFIC OR ORDINARY MEANING? i. ii.

Meaning of words determined by the “shared understandings and expectations of the relevant linguistic community” Nix v. Hedden [SCOTUS 1898], p.102: is a tomato a fruit or vegetable? HELD: tomato = veggie b/c ordinary meaning > scientific/technical meaning  but limited for Legal of Art [see Moskal] 7

Legislation & Regulation | Spring 2017 | Heather Elliott 1. Consider: whom Legislature was addressing. a. If ambiguous: presume ordinary meaning of statutory language = legislative purpose. E.g. tax code construed against gov’t. b. Exception: technical audience. Then look to trade usage. 2. Rationale: want adequate notice for crimes; want laws to be accessible.

B. LEGAL OF ART i.

ii.

Moskal v. U.S., [SCOTUS 1990], p.105: Is someone who received real cart certificate by sending in fake odometer info gulty of trafficking in “falsely made” titles? HELD: maj. reads operative term in criminal statute [“falsely made”] according to ordinary meaning – yes, ∆ criminally liable. Ordinary meaning ?>? Legal Term of Art [at least when AMBIGUOUS term of art]  NOW, Legal of Art mostly prevail. 1. Text [ordinary usage]: “falsely made” includes genuine docs using false info. 2. Structure + Canon Against Redundancy: curb “further frauds” dispersed among many states that trad’lly elude states’ law enforcement 3. ∆ arg: common-law meaning [“falsely made” = “forged”] exonerates him: a. Maj. Respnose 1: not universal common law. i. Takeaway: When no one fixed usage exists at common-law, asking “which common-law meaning best serves purposes” > asking “which common-law meaning prevails in largest # of court s” b. Maj. Response 2: Congress’s purpose > common-law construction. 4. Scalia Dissent: Ø criminally liable; treated it as narrow/technical legal term of art – means “forged.” a. Even under ordinary meaning, Maj. interpretation is wrong: i. Dictionary: “falsely made” v. “false”: Webster’s defines “forge” as “to make falsely” ii. Response to Maj. Redundancy Arg: Lawyers are always redundant b. “Falsely made” has specialized legal meaning. i. Black’s Law: False Making = forgery ii. Draws on Morrissette [1952] iii. Common law: majority of cases Scalia [“falsey made = forgery”; only a few Maj. He thinks those cases are dumb” iv. Response to “Congress Purpose > Common Law”: Sure, but Congress Ø speak to this specific interpretation. Moskal cont. [Notes after case], p.112-114.: Rationale for Legal of Art 1. Morissette, see below: When Congress borrows legal of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the law, and the meaning its use will convey to the judicial mind unless instructed.” w/o instructions, defer to legal term of art. 2. Why use common-law, esp. if Congress doesn’t read common-law? a. Theory of Objective Intent – Congress may not have an actual or genuine intention re: most difficult interpretative questions, but the theoretical requirement of legislative intent is satisfied by the “plausible assumption that legislators intend to enact a law that will be decoded according to the interpretive conventions prevailing the relevant legal culture” AKA we assume from this that Congress intended for law to be interpreted according to common law. They know they are making law. i. This “minimal intention” is enough to preserve “essential idea that legislators have control over the law” 8

Legislation & Regulation | Spring 2017 | Heather Elliott ii. iii.

If all attorneys understand, makes sense that the word was picked for a reason Drafting legislation is difficult – errors happen. By enforcing TOA, allow Congress to “tap into” jurisprudence that Cts have already created  makes Congress’s job easier.

C. COLLOQUIAL MEANING OR DICTIONARY MEANING? i.

ii.

Smith v. U.S. [SCOTUS 1993], p.115: Do higher penalties “for (a) during & in relation to any crime of.. drug trafficking, (b) uses or carries a firearm” apply to ∆ who traded gun for drugs? HELD: YES. Trading a gun for drugs IS “use of gun in gun trafficking” 1. Text [dictionaries]: “use” can mean “for any purpose” – included in ordinary meaning [even though may not be primary meaning] 2. Arg: “Even though our interp. is broad, it’s sufficiently limited by “in relation to a crime” such that someone using a firearm to scratch his head wouldn’t be indicted”; a. Maj. response to dissent/Smith: just b/c an intended purpose and “use” that immediately comes to mind [firing a gun’ doesn’t preclude other uses [like for trade] from qualifying as well. 3. Structure: Looks at entire statute. Diff. section includes firearm “used in trades”… shows that using it in trade is a “use” of the gun. Unless hold that “use” of firearm is different here than in another section [which is against canon], no way to let Smith off hook. 4. Purpose: Guns are dangerous, let’s limit their use in bad situations.  Use pureposivism when ordinary + dictionary meanings are open-ended. 5. Scalia Dissent: Mainly rule of lenity. a. Maj.: Rule of lenity only applies when statute is ambiguous. It’s not here. Takeaway: Small subset of cases where “usage” is determinative, no answer in canons. Comes down to judge’s sense of “how are used”  so, could go either way.

4. LEGISLATIVE HISTORY A. Cases already ready that use LH: i. ii. iii. iv. v. vi.

TVA Holy Trinity [anti-immigration statute; priest;] WVUH v. Casey [Stevens’s dissent] Cline [ADEA case] Public Citizen v. DOJ [Fed Adv. Comm. Act] Moskal

B. In General i. ii. iii. iv.

Background: disfavored until landmark American Trucking case. Began longtime of reliance until Textualist Critique began in 1970s/1980s w/ Scalia led to reduction in usage. Legislative History Hierarchy: committee reports > sponsor statements > committee hearings > statemts after age Statute must be ambiguous. WARNING: DON’T USE IF EVIDENCE OF CIRCUMVENTION OF BICAMERAL + POTUS 1. Generality shifts [Blanchard – “reas. Attorney fees” turned into 12-factor test. 2. Unnatural readings: Ckntingental Can, “substantially all” = 51%

C. Policy Arguments For & Against 9

Legislation & Regulation | Spring 2017 | Heather Elliott i.

ii.

iii.

Against: 1. LH = murky, ambiguous, contradictory, allows judges to project biases. 2. Circumvents democratic will of Congress: a. Committees aren’t democratic. Special interests are overrepresented on Committees. LH is not voted on by majority of congress [may not be read even], has no POTUS veto. b. Committee or lobbyists manipulate LH to achieve results they couldn’t through full Congress process. 3. Impermissible shift of “interpretation authority” from Cts  Congress. [conflicets slightly w/ point 1..] a. Statutes are ends and means. If Congress uses “term of art” it’s using its words to signal what interpretation it wants Ct to use. If Congress uses vague word like “reasonable” it’s signaling that it wants the court to have discretion using common-law. [“creates a standard for Cts to interpret”] Blanchard b. Congress created a standard w/ their vague language, delegating interpretive power to the Ct. then sponsors try to sneak in a rule, narrowing the Ct’s interpretative power and giving sponsor/committee interpretive power. That ’s not what Congress voted for. Continental Can. For: 1. Encourages Congress to write clearer statutes. 2. Committee Reports are representative of intent: sponsors are key actors, experts, “agents of majority.” Have incentives to Ø distort meaning b/c they are r epeat players  reputation matters. 3. Who knows what the subjective intent of 535 people is? LH is as good a tool as any to decode “intent.” One in the arsenal. 4. Acceptable uses as interpretive tool a. What ills was the bill intended to address? Cline b. Words should be interpreted as of art. i. BUT, court should , b/c Congress can’t just make up a term of art. Blanchard. c. Can use to back up absurdity doctrine, [“ that what seems to us unthinkable, was actually unthought of”] Train v. Colorado PIRG, [SCOTUS 1976], p.129: Whether EPA has authority under FWPCA to regulate discharge into waterways of nuclear waste materials also subject to regulation by another agency under AEA. Are these materials “pollutants” within FWPCA? HELD: NO. Congress intended to exclude them aka intended for term to have specialized meaning. 1. Text: Ambiguous. 2. Legislative History: Used House Committee reports; relied on Senate colloquy b/w primary author + chairman of relevant committee; fact that House rejected an amendment that accomplished the same thing π want here; ranking member of conference committee that reconciled H/S versions confirmed all of this. 3. Series of statutes: What happens when a later statute appears to conflict with an earlier statute? Cardinal rule: repeals by implication are not favored. Where there are two acts on the same subject, effect should be given to both if possible. a. Categories of repeal by implication: i. (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier act; & 10

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(2) If the later act covers the whole subject of the earlier act and is clearly intended as a substitute, it will operate similarly as a repeal of the entire earlier act. 4. Congressional Acquiescence: Recently Ct is skeptical: “impossible to assert w/ any degree of assurance that congressional failure to act represents affirmative congressional approval of the Ct’s statutory interpretation” Patterson v. McLean Credit Union [SCOTUS 1987] p.144¶3

D. TEXTUALIST CRITIQUE OF LEGISLATIVE HISTORY i.

ii.

iii.

One concern: “Judicial Activism” – no rules giving weight to an element of legislative history, so judges have no limits on what to rely on when or when they want to discard it when it doesn’t go with their personal beliefs. There is “something for everybody” to pick and choose. p.160, n5 Blanchard v. Bergeron [SCOTUS 1989] p.146: Statute said ct may award “reasonable attorney’s fee.” HELD: Senate Committee Report that says “refer to Johnson [5th Cir] for 12 factors” to determine what a reas. Attorney’s fee – those factors may be considered, but are NOT binding. 1. Scalia concurrence: should ignore the “look to Johnson” hints; putting too much weight to lower Ct’s precedents. a. “Reasonable attorney’s fees” are NOT term of art b/c SCOTUS has not authoritatively inteprerteted it; there’s no “sufficient pattern” of legal usage. b. “Congress can’t create a term of art where there is none” c. Lots of common law meanings of “reasonable.” By using word “reasonable,” legislation signals delegation to Ct – “statutes are ends and means, by using ‘reasonable’, the means are court interpretation” d. Criticizes majority's reliance on legislative history: i. the document was issued by single committee of a single house, which ≠ the opinion of the entire Congress or represent their actions . ii. “It is neither compatible with our judicial responsibility of assuring reasoned, consistent, and effective application of statutes, nor conducive to a genuine effectuation of congressional intent, to give legislative force to each snippet of analysis, in committee reports that are increasingly unreliable evidence of what the voting of Congress actually had in mind." Scalia, Blanchard, p.148¶2 Continental Can, [7th Cir.1990], p.148: Easterbrook, J: HELD: “substantially all” does NOT mean 51% just because a bill sponsor said it after the bill was ed – unnatural meaning. 1. Arg (applies to Blanchard too): “Congress created a standard with their vague language. Legislative history revisionism takes away the delegation of power to Court by subbing in a rule. That’s not what Congress voted for.” a. “Congress votes to delegate authority to interpret to the Court using open ended language, then sponsors try to narrow it more favorably to their side by sneaking in legislative history.” b. “Changes interpretation from Court’s purview to Committee’s”. 2. Takeaways: a. Comments added to the Congressional Record post-age of a statute should not have any power as to interpreting any meaning from statute for courts. Why? Can't be the intent of Congress if they didn't have that in mind/were aware of that interpretation when they voted it into law.

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iv. v.

b. The text of the statute and not the private intent of the legislators, is the law… Only the text survived the complex process of becoming a bill law. c. Constitution gives force only to what is enacted. New Synthesis on Use of LH Further Critiques on LH

5. JUDICIAL POWER & EQUITABLE INTERPRETATION A. U.S. v. Marshall [7th Cir.1991], p.187: LSD case. Was the LSD + paper a “mixture”; did mandatory minimums kick in b/c LSD + paper weighed above a certain amount? HELD: Yes. i. ii. iii.

iv.

Text: Maj. says it’s clear that “mixture” = LSD + paper… but I don’t think it is. Structural: other provisions distinguish pure v. mixture. So, Congress knew they were different and chose not to make that distinction here. Posner dissent [important: junior partner theory]: 1. Judicial interpretive power means judges have authority to make law fairer [“more in accordance w/ moral, social values”], more rational, make scheme more consistent with other laws. 2. Notable b/c he doesn’t even try to say “faithful agent, I’m furthering legislative intent” which is the majority view – he’s saying “Congress literally never thought of this, has no intent”  more “honest” than absurdity 3. NB: “absurdity” argument maybe fails, b/c you could envision (1) policy reasons for punishing mixtures [ready doses more dangerous than pure LSD] and (2) political compromise 4. Potential “plain meaning” / ”lenity” argument for Posner? “Majority’s view is probably outside scope of plain meaning  text ambiguous  lenity” Majority view: Ct is faithful agent [influences Purposivism, absurdity] 1. Ct should apply laws as Congress meant them [Purposivism justification] 2. Congress represents society – democratic legitimacy 3. Congress represents society – wouldn’t laws that contradict universal social values [justification for absurdity]

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CH. 2: CANONS OF CONSTRUCTION 1. CRITIQUES [P.205-206] A. Dueling Canons

2. SEMANTIC CANONS A. Describe how people use language, tool to understand meaning of statute. i.

ii.

iii.

Examples: ejusdem generis [of a type], expresio unius [saying one things means you are excluding other things], noscitur a sociis [words’ meanings are known by context], words are consistent throughout [Cline, although there “age” was not consistent throughout], words Ø redundant. McBoyle v. U.S. [SCOTUS 1931] p.202: Motor Vehicle Theft Act, “automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails” – is a plane a vehicle? HELD: No, “statute evokes in common mind… picture of” land vehicles. 1. Non-canon: LH; colloquial meaning v. dictionary meaning [like Nix, Smith v. US w/ guns] 2. Semantic Canon: ejusdem generis – catch-all takes on character of enumerated . a. Rationale: If enumeration were not designed to show intent of drafter [to narrow catch-all], there would be no point… might as well not even have the specifics listed before the general catchall if the catchall isn’t narrowed by them – rule against surplussage. 3. Substantive Canon: Rule of Lenity – when statute is ambig., construe statute in favor of ∆. a. Rationale: give potential criminals adequate notice, constitutional reasons. Silvers v. Sony Pics Entertainment [9th Cir.2005] p.208: Statute says people with 6 enumerated rights [e.g. performance rights, film rights] can sue. Silvers was given none of 13

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iv. v.

vi.

those rights, but she wants to sue. HELD: No, cannot sue – expresio unius: a list that “is normally expected to be exclusive” is exclusive. 1. Counter: Yes, b/c suing is “incidental” to enumerated rights; should not be excluded by the list of enumerated rights. Gustafson v. Alloyd Co. [ People v. Smith [Mich.1975] p.250: Statute against holding “dagger, dirk, stiletto, or other dangerous weapon except hunting knives”; HELD: catchall phrase was NOT to include rifles. 1. Canon: ejusdem generis – catch-all takes on character of enumerated a. Rationale: “Dirk, dagger, stiletto are all clearly dangerous weapons, not borderline. Normally, you’d enumerate borderline cases. Since they are not borderline cases, their inclusion would be superfluous unless you read their inclusion as a signal for how the catchall should be read.” Circuit City v. Adams [SCOTUS 2001], p.237: FAA exemption clause: not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” So, “Commerce” as Congress in 1925 understood it or “commerce” = plug in whatever evolving interpretation is? HELD: Commerce as Congress in 1925 understood it. 1. Text: “in commerce” = Term of Art. a. Rationale: To say that “engaged in commerce” is to be interpreted depending on the date, ignores reason why it became a term of art in the first place: its plain meaning is narrower than more open-ended formulations [“affecting commerce” and “involving commerce”] 2. Commerce Clause: variable standard would bring instability to statutory interpretation. Ct declined to give significance to “in commerce” in the same way that CC statutes give CC acts a wide scope of applicability, “to the outer limits of authority under CC.” a. Congress obviously knew how to create an Act that has that scope; if they had wanted the FAA to have it, they would have used “affecting commerce” 3. Canon: ejusdem generis – “any other class of workers” is limited by the “seamen, railroad employees”.. if not, then what was the point of enumerating those classes?

3. SUBSTANTIVE CANONS – A. In General i.

ii.

Reflect substantive/policy goals or values; persuasive but not dispositive; 1. Favor or disfavor certain results; 2. Put the thumb on one side of the scale; 3. Set a default presumption that must be overcome; 4. Often operate via a “clear statement rule” or even a “super-clear statement rule” a. Assume that legislature has done x if they don’t say explicitly that they really want to do y. Examples: 1. Rule of lenity [only one that’s not a clear statement rule] 2. Tax laws construed narrowly 3. Federalism – Gregory v. Ashcroft 4. Canon against retroactivity – TVA 14

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iii. iv.

5. Presumption against implied repeal – TVA 6. Appropriations bill doesn’t change substantive law unless clear – TVA 7. Constitutional avoidance – MCI, Brown Pros: less harsh than judicial review, reflect values. Cons: hard to apply [“how clear is a clear statement?”], increase costs of legislation, but this is maybe justifiable

B. Lenity i.

U.S. v. Bass [SCOTUS 1971] p.304: crime is to “receive, possess, or transport gun in interstate commerce.” ∆ possessed a gun, but not “in commerce.” Does “in commerce” apply to first 2 verbs? Nobody knows. So, rule of lenity when the statute is ambiguous. HELD: ∆ must “possess a gun in commerce” to violate statute. 1. Substantive Canon: Rule of Lenity a. Rationale: Notice – fair warning to potential criminals. Criminal penalties are serious and represent a “moral judgment,” so “legislatures and not Cts should define criminal activity”  when there’s ambiguity, resolve in favor of defendant. 2. Why is lenity good and better than, e.g., federalism “clear statement” rule? a. Institutes Constitutional requirement [DP], not just Const’l preference. b. Notice  value itself is clarity, not just requiring clarity to uphold other values. c. Deeply embedded, accepted, & non-controversial value in US [contra, federalism v. strong central gov’t – highly debated] d. Ambiguity would allow gov’t prosecutors to abuse discretion, “make law”. Lenity checks potential abuse.

C. Constitutional Avoidance i.

In General 1. Where an otherwise acceptable construction/interpretation of a statute would raise serious constitutional problems, the Court should construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. a. Order: Courts should always try to resolve the issue first on statutory grounds to see if they will dispose of the case before addressing const. objections. i. Example: if website operator convicted of violating federal anti-porn statute, & on appeal he argues (1) material on website was not porn within meaning of statute, and (2), that the statute is unconstitutional interference w/ 1st Amdmt guarantee of freedom of speech, the Ct applying the above rule would address statutory issue first. b. If there is serious doubt about constitutionality of a fed statute, court should see whether a construction of stat is “fairly possible”/reasonable that would not raise “grave” or “serious” constitutional questions. i. Example [cont. from above]: Ct applying this rule would see if it were possible to interpret anti-porn statute so operator is not in violation. If 2 plausible constructions, one finding operator criminal thus implicating con’l concerns; and the other not, the Ct will adopt the last interpretation. ii. *If construction isn’t “fairly possible” may be “avoiding a difficulty to the point of disingenuous evasion.” [Brennan dissent, Catholic Bishop] c. Construction does not have to be determined to be actually unconstitutional. 15

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ii.

2. Prudential concern that Const. issues should not be needlessly confronted [judicial restraint.], const. decisions are a much more significant judicial restraint on other branches of gov’t than are other statutory decisions. 3. Recognizes Congress is bound by/swears to uphold Const., so Ct won’t lightly assume Congress intended to infringe upon const. protected liberties or usurp power constitutionally forbidden it. 4. Protecting const. values 5. While within judicial power to do so, counter-majoritarian difficulty in overriding the will of the elected Congress. a. But may lead to excessive caution, interpretations that Congress wouldn’t want b. “Gravest and most delicate duty that the Ct is called upon to perform” Blodgett v. Holden [1927, Holmes, concurring]. NLRB v. Catholic Bishop of Chicago [SCOTUS 1979], p.252: Whether religious schools are “employers” under NLRA w/ respect to lay teachers. HELD: Not employers; Act Ø applicable to religious schools. 1. Clear Statement Rule: Must have an “affirmative intention of the Congress clearly expressed…” in order to even consider the constitutional question. a. BUT, not decisive resolve that question as matter of formal doctrine. b. SCOTUS + lower cts Ø consistent. 2. Justifications/Rationale: see p. 262-267. 3. Consequence: Ct doesn’t answer the constitutional question at all if it can avoid it. Contrasts w/ Classical Approach.

4. REGULATORY PROCESS A. APA Generally – “istrative Constitution” [p.893] i. ii. iii. iv.

Congress must have authority to enact statute Congress must ENACT it. Agency must promulgate regulations to implement statute. Agency has to interpret regulations to apply to NEW situations.

B. 3 Big Ways to Act i.

ii.

Rule-making: quasi-legislative 1. Formal [trial-type] 2. Informal [notice-and-comment] Judicial Review of Agency Action

C. Judicial Review and Questions of Law - Chevron i.

ii.

Pre Chevron: §706(2) is standard for judicial review of agency lawmaking. There was a patchwork of review standards, depending on “question of law, fact, or mixed”. “Whether agency expertise was required, whether the statute gave agency express power, longstanding agency interpretation.” [Chevron v. NRDC] (SCOTUS 1984) p. 756: Is a “stationary source” of air pollution a factory system or individual smokestack? A: unclear. Text is completely indeterminable. 1. [3] Step Test: a. Step 0: Check if Congress delegated the agency such power to decide/make a judgment call. 16

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iii.

iv.

b. Step 1: If so, ask whether Congress has directly spoken to the precise question, using all tools of statutory interpretation. If this intent is clear, then the matter ends, and that intent is honored. If Ø, go to… c. Step 2: Ask whether the agency's answer in question is based on a permissible or reasonable construction. [APA & Procedure stuff] 2. Why is Chevron [deference to agency interpretation] good? a. If statute is ambiguous about who gets the delegation of authority, Agencies, not courts, should fill it in (“implied delegation to agency”). Why? Because i. expertise ii. agencies are more able b/c President is elected ( democratic ability) – even independent agencies (intersects w/ removal) iii. promotes uniformity in the law b. Since authority is delegated to the agency… If reasonable people differ on interpretation of statute, it’s not court’s role to pick which interpretation it li kes best, as long as agency operates within “zone of reasonableness.” Another way to think about it: 1. Range of meanings of statute: a. Statue can mean only X, agency must do X. b. Statute can mean X, Y, or Z, agency may choose any of those three. 2. Court may not interfere if agency chooses X, even if court thinks Z is best. 3. P. 763… agency must go within the bracket. Agency can't choose W or Q, etc. or anything outside the bracket. Objections to Chevron: a. Excessive power for unelected bureaucrats? b. Cause Congress to delegate unpopular, or politically sensitive topics to agencies? Congress would write vague statutes to allow agencies to do whatever they wanted, insulated from judicial review? c. Why is Congress’s silence on who gets the delegated authority = agencies, not courts, get it? i. Sure, there are good reasons, but can we really say Congress intended it? Usually the record is blank. ii. We can call this a “canon of construction” or “clear statement” rule: value of the constitutional system is for policymaking to be done by agencies, not jduges. iii. Response: well, Congress can always fix it, overrule Chevron or explicitly state the standard of review. Court’s judicial review power is determined by legislature so they can change it. Maybe Congress has “implicitly acquiesced” to delegation to agencies.

D. Post-Chevron i.

ii.

Many factors that were previously relevant in deciding level of deference become irrelevant… at least when ct faced w/ rule or order produced thru proper procedures, which are: 1. Consistency of approach 2. Closeness to time of statute's adoption 3. Complexity of question requiring expertise. Hard Look Doctrine 1. Under Chevron, Cts defer to agency's reasonable interp. of ambiguous statute, even though ordinarily think of courts as law interpreters 17

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iii.

iv.

2. BUT not automatic glance without any attention. Under "hard look" doctrine which Chevron did not displace - courts will conduct a pretty aggressive inquiry into how the agency produced its rule or order. a. This is done under the State Farm standard of review: an agency's action is arbitrary and capricious if: i. It fails to consider an important aspect of the problem; ii. It relies on factors Congress did not intend it to consider, and iii. The agency has offered an explanation that runs counter to the evidence or is so implausible that it could not be a product of a difference of opinion or agency expertise. b. ***Wants to be sure the AGENCY gave a hard look, Ct is not giving a hard look to statute/rule/regulation itself. [which would go beyond scope] MCI v. AT&T [SCOTUS 1994] p.778: Statute allows FCC to “modify” filing requirements. FCC decides to remove filing requirements for non-AT&T (“non-dominant”, remaining 40% of market) carriers. Hard-look step 1: FCC’s action was not modification. “Agency’s interpretation goes beyond meaning the statute can bear  no judicial deference.” 1. Text: “Modify” doesn’t mean “fundamental revision” (dictionary definitions). Only exception to “modify” is tiny exception, expresio unius, implies that other (bigger) exceptions Ø allowed. 2. Purposivism: Petitioners argue that FCC regulation “furthers the Communications Act’s broad purpose of promoting efficient telephone service.” We get it. But that’s not what the text says; that’s a matter for Congress to change statutory authority. 3. “Clear Statement” of NDD: Scalia (Maj.) says “if modify = fundamentally change, then FCC would get too much authority to determine whether an industry will be entirely/substantially rate regulated. Can’t believe Congress would delegate this; not what Congress intended under the Act”  MCI could have been decided on other grounds. a. Why is a hard-edged step 1 good? Court is worried that (unelected) agency will depart from its mandate, functionally repeal its authorizing statute that was a result of Congressional compromise. (Rather than just filling in gaps.) 4. Stevens Dissent: FCC's reading is not unreasonable b/c its informed by practical understanding of the role that tariffs play in modern regulation of telecommunications industry. FCC's use of "discretion" to modify conferred by statute reflects "reasonable accommodation of manifestly competing interests and is entitled to deference" a. Thinks another way that is equally valid is the fostering competition part. Thinks it is totally okay because it achieves the goals Congress wants to achieve. Babbitt v. Sweet Home [SCOTUS], p.790-803: Endangered Species Act - "Take" definition at question. Did Secretary of Interior exceed authority under Act by promulgating that regulation? 1. W/o Chevron: a. Dictionary b. Legislative History c. Semantic Canons? d. Noscitur a sociis i. DC Circuit used this to decide that "harm" = limited to action that perpetrator uses to directly act upon the member of the species 18

Legislation & Regulation | Spring 2017 | Heather Elliott ii. Also what dissent argues. 2. Majority a. Dictionary definition of harm s F&WS b. Broad purpose of ESA (using another case as basis for its purpose: TVA v. Hill) c. Purpose of the Act as according to the act itself: Respondents approach would prevent liability even for intentional but indirect harm, like draining a pond [know for a fact that if drain, willl kill all the fish/ of endangered species. But not directly, not killing it by hitting it]. d. Surplussage Problem e. Legislative History: 3. Is this even a Chevron case??? 4. Example of Dueling Canons here a. DC Circuit and dissent say that noscitur a sociis requires that "harm" be read like the other words in the list - direct and intentional pps of arm. b. So, choice b/w canons… which one have more relevance/importance/rank? c. Does Chevron suggest that, if there are dueling canons, that creates th e space for agency discretion? d. Still no good guidance on how to fit the statutory interpretative tools we know with the deference and ambiguity of Chevron! v.

[FDA v. Brown & Williamson] (SCOTUS 2000) p. 803: Does FDCA give FDA authority to regulate tobacco? “Drug” = “articles other than food intended to affect the structure and function of the body.” Held: No, b/c Congress intended NO, intended to preclude FDA regulation of tobacco, through FDCA overall regulatory scheme, and post-FDCA tobaccospecific legislation. Presumption of NDD. 1. Majority arguments for hard-edged Step 1: a. “Ban argument”: If tobacco is a drug (and FDA has acknowledged that it’s unsafe) and FDA must “ensure that drugs are safe and effective”, FDA would have to ban. That’s not relevant action here. b. “Subsequent Acts can shape or focus meaning of statute.” i. 6 acts created comprehensive regulation of tobacco ii. FDA action would contradict, step on toes of ^ schema. FDA can’t overrule where Congress has spoken. iii. “Congress acted against backdrop of FDA’s consistent, repeated statements that it lacked authority”  “effectively ratified” FDA position iv. NB, Congress’s failure to enact bills barring FDA authority NOT convincing v. Criticism: Agencies should be able to modify their interpretations as long as the new interpretations are reasonable, that’s the whole point of Chevron Step 2!! Congressional legislation was Ø ratification of “FDA has no jurisdiction”, just acknowledgment that at the time, FDA didn’t have the authority, or didn’t think it did. vi. My take: Don’t use subsequent acts as evidence or “ratification” of lack of jurisdiction unless there’s directly contradicting legislation (e.g. removing authority of FDA to regulate tobacco) 2. Majority backing-up NDD argument, “clear statement” canon:

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Legislation & Regulation | Spring 2017 | Heather Elliott a. Like MCI, fear of delegation problems leads to very aggressive Chevron Step 1. i. Tobacco = huge industry, very important to Congress. We don’t want to “read in” a delegation of authority to regulate such an important industry if there’s no clear statement. 3. Criticism of Brown: a. Agencies should be able to modify their positions in Chevron type case

E. Chevron + Substantive Canons i.

ii.

Constitutional Avoidance Takeaway [DeBartolo v. Florida Gulf Coast Building]: When an otherwise reasonable agency interpretation would raise a serious constitutional question, the court should reject the agency's interpretation in favor of a reasonable alternative construction that does not raise the constitutional question…. But this isn't as simple as it seems in practice b/w of how "malleable" the con'l avoidance canon is. [Rust]: Regulations did not raise the "grave and doubtful con'l questions" that would lead ct to assume Congress did not intend to authorize their issuance by agency. So, Ct doesn't have to invalidate the regulations to save the statute from unconstitutionality.

F. Limits of Chevron i.

Mead [SCOTUS 2001] p.??: What is Mead's 'Dayplanner' categorized as for customs importing tax purposes? Was, at first, "other" category & not taxed. Then, defined as "diary" & taxed. Mead protests tariffs and wants to get reimbursed. HELD: Congress delegated authority; but beyond Chevron scope. 1. Case turns on "Step 0" Question. a. Did Congress "delegate authority to the agency generally to make rules carrying the force of law" YES, & b. “Was the agency interpretation claiming deference… promulgated in the exercise of that authority?" NO. c. But why does it matter, why isn't it just Chevron deference? i. Because it is question whether the categorization is arbitrary and just a decision, or whether it is notice and comment rulemaking [showing their work]. 1. If notice-and-comment: deference. If not, Ct needs to look at it. 2. But where in Chevron was it worried about reliability, procedures, etc.? 3. It isn't in Chevron… it is pre-Chevron: Skidmore! 2. ***Maj: doesn't think Chevron overruled Skidmore… doesn't think bright line rules are necessarily applicable here. a. Don't just need to know whether agency had AUTHORITY to speak w/ authority of force of law, but whether they ACTUALLY EXERCISED THAT AUTHORITY. b. Thousands of these categories are being issued from like 46 diff offices.. Doesn't look like laws. Why? c. Fact-specific, only applicable to Mead's dayplanner i. E.G. if Kate Spade tried to rely on the rule, Customs would say no, not the same… so not a broad scope, this doesn’t s ound much like a law. ii. Law tends to create categories that a lot of things fall in. 3. Majority's opinion about test: "The fair measure of deference to an agency istering its own statute has been understood to vary with consequences" i.e. a "dial" a. Scalia dissent: prefers on/off switch. 20

Legislation & Regulation | Spring 2017 | Heather Elliott ii.

iii.

What does it mean for Congress to "delegate authority to the agency generally to make rules carrying the force of law"? 1. Doesn't have to be explicit, can implicitly delegate: Indication that Congress would EXPECT agency to apply force of law good = Congress gave agency power to engage in adjudication or notice-and-comment rulemaking OR some other indication of "comparable congressional intent.” a. So what can Congress do to express this comparable intent? i. p.858, ¶2: assumes generally that Congress "contemplates istrative action w/ effect of law" when it gives a relatively formal istrative procedure "tending to foster the fairness and deliberation that is expected to underlie a pronouncement of such force" ii. BUT Ct also says further down that this is not necessary for Chevron deference b/c they have given it when no istrative formality was found… so the fact that the tariff classification here is not a result of formal . Processes doesn't alone bar Chevron deference. Skidmore deference factors: 1. Thoroughness evident in its consideration; 2. Validity of its reasoning; 3. Consistency w/ earlier and later pronouncements [this is what gets Scalia so upset]; & 4. All those factors which give it power to persuade, if lacking power to control.

POLICY ARGS Textualism good, LH bad, purposivism bad. However, maybe court should reinforce that when “plain meaning” actually has a range of meanings, or when ambiguous are used such as “reasonable” or “appropriate” (creating a “zone of reasonable meanings”), that means court/agency gets discretion on a case-by-case basis. Absurdity should be limited and clarified The Public Citizen rationale, “using possibly absurd results as a way to make a more general argument about statutory meaning” should not be OK. Also, in Public Citizen, the court used the rationale of “Congress wouldn’t have intended this b/c politically toxic”, not “offends some deeply held value.” While the Court has taken a more limited view of absurdity in subsequent cases such as Barnhart, which emphasize “process absurdity” (in addition to “policy absurdity”), the Public Citizen rationale has never been overruled. We don’t really know what the state of absurdity after Barnhart is. Absurdity should be more limited, even more limited that it is now. EG Public Citizen, p. 81, Kennedy concurrence. Notably, he says the majority arrives at absurdity loosely and uses it to preclude a constitutional question – another example of constitutional avoidance! - “It does not foster a democratic exegesis for this Court to rummage through unauthoritative materials to consult the spirit statute with which the Court is more comfortable”  undermines democratic legitimacy - “Court’s loose invocation of absurdity creates too great a risk that the Court is exercising its own WILL instead of JUDGMENT with the consequence of substituting its own pleasure to that of the legislative body” 21

Legislation & Regulation | Spring 2017 | Heather Elliott “The potential of this doctrine to allow judges to substitute their personal predelictions for the will of Congress is… self-evident. Cites Holy Trinity. Perhaps it should also be limited only to when Congress clearly hasn’t thought of it. - Posner’s opinion in Marshall – we’re not trying to figure out intent, Congress just literally never came up with this question - Scalia in Bock Laundry: use legislative history to “ that what seems to us an unthinkable disposition was indeed unthought of, and thus to justify a departure form the ordinary meaning of the Rule” p. 18. -

Why must it be so hard for Congress to make laws (under B&P)? - This applies to NDD (it’s good for agencies to make laws because they’re faster and more flexible, BUT Congress can’t just abdicate responsibility and hand it over to agencies.) - Also applies to Congressional control of agency lawmaking through veto and removal (we acknowledge that Congress handed over power to agency b/c it was easier for agency to get stuff done. Congress can’t retain a hand, must do full B&P - Arg: they’re politically able, the “they have no incentive to any laws” argument fails - Legislation is meant to be slow, protect against tyranny of majority - Perhaps Congressional gridlock reflects gridlock of the nation – Congress’s job is to make “hard choices of social policy” Constitutional avoidance is NOT GOOD (Federalism canon, NDD, hard-edged Step 1) Constitutional avoidance sometimes gets sold as a form of legislative supremacy – court is concerned about their lack of being elected, so they’re hesitant to overrule statutes on constitutional grounds. While I think it’s OK for statutes to be construed narrowly, Courts should not be allowed to rewrite statutes or give them unnatural meaning just to avoid a constitutional question. - Kennedy concurrence in Public Citizen: using the absurdity excuse too freely is not democratic, doesn’t give effect to will of Congress - Benzene, NDD avoidance - MCI, Scalia backs up reasoning by saying “I can’t imagine Congress would delegate rateregulation power over entire industry to MCI.”  Meh, not necessary argument, the text s him too. Why? - Undermines “Congress should be allowed to use its words to do what it wants”. So court is actually impeding legislative supremacy - Undermines predictability. I think we expect that laws will be interpreted in reasonable ways, not weird ways that the Court tries to get around. - Congress thus writes terrible legislation. Doesn’t make the conscious decision to legislate where it hasn’t legislated before. Or if it does, knows that it doesn’t matter What are some arguments for avoidance? - “Judges may not be able to set a rational standard between permissible and impermissible delegations of authority, but they can interpret statutes” – gives judges a “finer weapon” o Response:  That’s retarded. Judges are still making that judgment call, just hiding it. - It’s like a “clear statement” canon, “thumb on the scale” pressuring Congress into not delegating inappropriately. Response: uh, Congress would also not delegate improperly if they were going to get overruled. - Argument against me w/r/t NDD: Some of the IP’s are truly meaningless, like “public convenience” or “unduly complicated corporate structure.” How come courts can narrow that language but can’t narrow language that raises a Constitutional question? o Response: That language is narrowed using industry usage (eg SEC-regulated bank might know what “unduly complicated” means). There’s no similar principle for 22

Legislation & Regulation | Spring 2017 | Heather Elliott narrowing of non-industry (constitutional-question-raising) language. Congress uses those words in the statutes to signal to industries what it means; there’s no signaling value attached to non-industry language. (No meaning already associated; means that the narrower meaning Court applies is not grounded in reality.)

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