STATUTORY INTERPRETATION
Introduction to Statutory Interpretation
A.
B.
C.
Law - Most of federal law emerges from implementation or interpretation of the statutes that Congress
enacts. This is principally the work of courts and agencies.
Tools of the Court in Statutory Interpretation
i.
Text - the starting point for analysis is the actual text
ii.
Intent - Legislative history - the likely intent of the law's primary drafters
iii.
Purpose of the statute as a whole - what was the goal/motive/intent?
iv.
Avoiding absurdity - Under what circumstances is the Court justified in deviating from a statute's
ordinary meaning in order to avoid absurd results?
Cases:
i.
TVA v. Hill
1.
ESA's language "admits of no exceptions" and to sustain the position that it would not apply
to projects that commenced prior to its enactment would require ignoring the "ordinary
meaning of plain language."
2.
Literal reading is the job of the Court - no more, no less. TEXTUALISM.
Statutory Interpretation: Text v. Purpose
I.
Approaches to Statutory Interpretation (mix and match)
A.
3 approaches
i.
Textualism = interpreters should strive to discern how reasonable people would understand the
semantic import or usage of the precise statutory language that Congress adopted.
ii.
Intent = What would the legislature have intended if confronted with the particular interpretative
question before the Court
iii.
Purposivism = more general than intent; what was the legislature trying to accomplish broadly?
Courts should read specific statutory provisions to advance the purpose or general aims of the
legislation, as derived from a variety of sources
B.
Objectives
i.
"Faithful agent" - All 3 approaches are grounded in legislative supremacy, which is the idea that in
the US system, acts of Congress enjoy primacy as long as they remain within Constitutional bounds,
and that judges must act at Congress's faithful agents.
ii.
Avoid absurdity - should courts avoid absurd results in the letter of the law by deferring to the spirit of
the law?
C.
Purposivism Cases
i.
Riggs v. Palmer - grandson murders grandfather to inherit his estate (absurd result doctrine)
1.
Majority - court rules that despite black letter of law, grandson should not receive inheritance
because no legislature would have intended that result.
2.
Dissent: "the matter does not lie within the domain of conscience. We are bound by the rigid
rules of law."
ii.
Holy Trinity v. US - High water mark of purposivism. Issue: Was church in violation of statute that
nobody shall assist the importation of alien?
1.
Based on textual interpretation of statute, Warren is not covered by exception.
2.
Majority: purpose of act was to keep out "manual" laborers, not clergymen. The words of the
law don't matter as much as the spirit of the law. ("Christian nation")
II.
New Textualism:
A.
Introduction: Near the close of the 20th century, a group of self-described "textualist" judges (Scalia,
Thomas) emerged and challenged many of the key assumptions defining traditional purposivism. They didn't
necessarily reject legislative history as a tool of interpretation, but rather built on the premise of legislative
supremacy to argue that judges must stay close to the meaning of a clear statutory text even when the
result contradicts the statute's apparent purpose.
B.
Principals:
i.
rough-and-tumble of political compromise must be respected in interpreting statutes
ii.
emphasize that statutes embody choices about both an ends and means to meet a purpose (whereas
purposivism usually stresses the ends)
iii.
criticize the notion that a judge can discern the single statutory "purpose." The purpose can be framed
in lots of levels of generality
iv.
The onus is on Congress to draft clear rules or risk having to go back to amend them.
C.
Cases
i.
WVU Hospitals v. Hill
1.
Majority (Scalia): flatly rejects legislative history, imaginative reconstruction of statutes, and
purpose over text, and if you do those things, you are usurping Congress' role. Don't just look
at what the statute changes, but also look at what it leaves alone - don't enlarge the statute.
2.
Dissent (Stevens): It may be more faithful to Congress to look at underlying intent. Stevens
talks a lot about the empirical evidence that the Court is usually overturned when they apply a
textualist interpretation. We should care about economic efficiency, and it is not economically
efficient for Congress to backtrack.
III.
Textually Constrained Purposivism - Dynamic Statutory Interpretation
A.
Introduction: Holy Trinity type Purposivism has been largely rejected (not cited in a SCOTUS opinion in 20
years), but we've seen the emergence of TCP. TCP analyzes a statute's language to see if it there is
ambiguity. IF AND ONLY IF the language is ambiguous (don't use vague here), the court can depart from text
and look to other sources.
B.
Different from traditional purposivism or just a change in rhetoric?
C.
General Dynamic Land Systems v. Cline:
i.
Issue: Does the ADEA prohibit age discrimination in favor of old workers?
ii.
Definition of the word "age" is the key consideration. Souter defends use of purposivism by pointed
out that "age" is ambiguous in the text - it could mean the years of someone's life or it could mean
"old age" - he uses this as his license to get into a more purposivist construction.
D.
Dynamic Statutory Interpretation (Eskridge)
i.
Extols the ability of judges to interpret statutes freely. A return to Holy Trinity.
ii.
Should courts feel bound by the intentions of the enacting legislature when faced with circumstances
that the legislature could not have foreseen? Prof Eskridge says no.
iii.
"Faithful agent" - "must first understand the assumptions underlying the original directive, including
its purpose,' and then 'must figure out how the statute can best meet its goal(s) in a world that is not
the world of its framers."
iv.
PROS
1.
Avoids statutory irrelevance - keeps the law nimble enough to accommodate unforeseen
circumstances.
v.
CONS
1.
Judges may not be all that good at figuring out when new developments justify deviation from a
clear, specific statutory directive.
2.
Maybe it doesn't adequately respect all the safeguards built into lawmaking that make it such a
slow and cumbersome job to make a law? This dynamic approach to interpretation facilitates
more rapid and flexible legal change, but is that a good thing??
3.
May undermine the interest in legal stability and predictability.
vi.
When appropriate? Maybe for more open-ended statutes. Some statutes are very specific in their
language and others are more open-ended and goal-oriented. Maybe the dynamic approach is okay
for the latter.
IV.
Judicial Correction of Legislative Mistakes
A.
Absurd Result Doctrine
i.
"ABSURD RESULT" - one principle of statutory interpretation holds that statutes should not be
construed to create absurd results.
ii.
Definition of Absurd Result: the judicial obligation to enforce statutory text abates when "the
absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind
would, without hesitation, unite in rejecting the application." (Justice Marshall)
iii.
CONS:
1.
how do courts go about distinguishing outcome that are truly absurd from outcomes that are
merely unlikely?
2.
the risks of "false positives" (finding absurdity where there is none) are significantly greater than
the risks of "false negatives" (failing to prohibit an absurd application). A false positive might go
uncorrected bc legislators and interest groups who favor the court's interpretation may be able
to block corrective legislation, whereas a blatantly absurd interpretation that nobody agrees
with would probably be overturned.
iv.
Cases
1.
United States v. Kirby - the mailman indicted for murder, arrested by sheriff. Sheriff indicted
for "obstructing delivery of mail." - application of absurd result doctrine.
a.
literal interpretations which "lead to injustice, oppression, or an absurd consequence"
should be avoided. PROF: this doctrine has been narrowed overtime to just include
"absurd result." injustice and oppression are too open-ended, but isn't absurdity as
well?
2.
Public Citizen v. US Dept of Justice
a.
Really broad application of "absurdity doctrine" - statute, read literally, describes
advisory committees as any group that the executive branch "utilizes," which would
extend the Act to any group of two or more persons from which the President or an
Executive Agency seeks advice. Brennan says, "we are convinced that Congress did not
intend that result."
B. Scrivener's Error
i. "scrivener's error" - an obvious mistake in the transcription of the legislature's policies into words
ii. Cases:
1. US v. Locke, debate over whether "prior to December 31" is a Scrivener's error. Stevens thinks
it is obviously from the context and purpose and intent of the statute that it is. But the Court
ruled differently, saying that "prior to Dec 31" provided clear instructions.
2. Stevens dissents. He reasons that there are a lot of ambiguities in the deadlines imposed. He
says the statute is drafted poorly in several ways.
V.
What is the Text?
A.
Textualism seems like the easiest approach, but it raises a very important question: When you are reading
words in a statutory provision, do you give them ordinary meaning, colloquial meaning, scientific meaning,
or something else?
B.
When the same word or phrase has different meanings, judges need some way of determining which
meaning was intended or understood by the legislators who enacted the word into law …
C.
Battle of the Dictionaries - The court's practice of using dictionaries, though increasingly common, is
controversial … even the strictest textualist would agree that dictionaries, though helpful, cannot
conclusively answer questions of statutory construction … and could be misleading.
D.
Cases
i.
Nix v. Hedden (ordinary v. specialized meaning?)
1.
Is a tomato a fruit or veggie? consider WHO the legislature is addressing … if to ordinary
people, they must be read with the mind of an ordinary person … if to specialists, then read
with the mind of a specialist.
2.
The court resolved Nix by applying the presumption that that Congress uses words in their
ordinary sense.
ii.
Moskal v. US (legal terms of art)
1.
Majority: "falsely made" - legal term or art meaning or ordinary meaning? Majority again
adopts the ordinary meaning
2.
Dissent: objects to using the "ordinary" meaning of "falsely made" when there is a clear legal
definition that recognized "falsely made" as an element of forgery.
3.
The "reasonable user of language" canon recognizes that b/c it is impossible to ascertain
subjective legislative intent on almost any hard interpretative question, the best one can do it
attribute to Congress the meaning that a reasonable legislator conversant with applicable
social and linguistic conventions would have understood the text to mean.
iii.
Smith v. US (colloquial v. dictionary meaning?)
1.
Majority: "use" of firearm - adopted the expansive meaning of "use" to encompass the type
of use that the defendant perpetrated
2.
Dissent (Scalia and Stevens): "The Court does not appear to grasp the distinction between
how a word can be used and how it ordinarily is used."
Legislative History and its Critics; Equitable Interpretation
I.
Legislative History
A.
Introduction:
i.
Legislative History was not initially popular (rejected until the 40s - pragmatic response to New Deal statutes
passed between 1933 and 1940 that were more open-ended that statutes traditionally had been)
ii.
Legislative history remains one of the most controversial sources of statutory interpretation
1.
Some states are still not allowed to cite or quote leg history - Georgia is one of those states.
iii.
Legislative History includes:
1.
Changes and amendments to a bill - may reveal what legislators considered - and what they rejected - in
settling upon the language ultimately enacted.
2.
Committee report that explains why the committee members framed the bill the way they did, what they
sought to achieve, sometimes even what they specifically understood words and phrases to mean.
3.
Debates on the floor of house and senate (bear in mind that these are not necessarily spoken)
B.
New Haven
i.
Issue: Title IX definition of "no person" - does it include employees?
ii.
Majority: interpreted "person" broadly to include employees. Used a variety of leg history.
iii.
Dissent: said that neither text NOR leg history supported majority interpretation
C.
Types of Legislative History:
i.
Committee Reports ("the gold standard of leg history") - reports prepared by House and Senate committees that
accompany bills and the conference committee report which accompany the reconciled version of the bills.
1.
Argument against: It is impossible to know what is in the minds of several hundred men. The only gesture
we have from those men is a gesture of acquiescence when they vote, which could be motivated by
hundreds of variables.
2.
Counter-argument in favor of reports: it is the lesser of two evils (the court deriving meaning solely from
the text and conjecture as to what the text means or actually attempting to understand the meaning …)
ii.
Statements of Individual Legislators
1.
Floor statements in general - although it is not unheard of to use floor statements, the court's official
position is that floor statements are not to be used. A big problem with floor statements is that they are
not all spoken - some are just inserted as "bullets" into the record after the fact.
2.
Statements made during hearings -Also a deep skepticism from the court about the value of statements
made during hearings.
a.
The benefits: hearing transcripts disclose a lot of information and the political dynamics leading up
to the proposal of a bill, they also contain the expressed views of key legislators who framed the
legislation.
b.
BUT all of that is likely to be heavily stacked in favor of bill's proponents and therefore maybe not
very reliable after all. In addition, even supporters of a bill might attach different meanings.
3.
Sponsors' statements - The Court has described the views of sponsors as weighty, or even authoritative.
He took the lead in framing the legislation and is most likely to know what the legislation is about and
therefore Members are likely to pay attention to what he says.
a.
In other words, members could be said to "defer" to sponsors, thereby giving them implicit
authority to explain the bill.
b.
But then again aren't the sponsors' statements even more susceptible to opportunistic
manipulation than committee reports, which at least require negotiation of different interests?
iii.
Successive Versions of a Statute
1.
Most commentators argue that changes to draft bills should carry no weight. "Successive drafts are not
stages in development, but separate things of which we can say only that they followed each other in a
definite sequence and one was not the other."
2.
But Learned Hand once argued: "if a bill is changed in a most significant way," and a court can discern a
reason for the change that makes sense of the enacted text, then to disregard such evidence would be illadvised.
iv.
Congressional action or inaction in response to judicial interpretation
1.
What happens if a court adopts a view of a statute and then Congress doesn't do anything? Are they
telling the court that they approve of the interpretation? Maybe but not necessarily - they might be too
busy.
2.
Action should be weighed heavier than inaction, because inaction could just be the result of the heavy
burdens of the legislative process. Congress doing nothing isn't all that persuasive - they are busy people.
3.
Also, it is the Congress who passed the bill whose intent we care about - not later Congresses.
II.
Textualist Critique of Legislative History (led by Scalia and Easterbrook)
A.
B.
C.
D.
E.
F.
Scalia and Thomas (and possibly Alito) will not join an opinion that uses legislative history. They might
concur in result, but will not join an opinion.
Legislative History is Not Law Argument
i.
Legislative history lacks legitimacy because it hasn't gone through the constitutionally mandatory
processes of bicameral passage by the House and Senate and presentment to the President for
approval or veto.
ii.
BUT what if "statute is the only law" misses the point? Judge Breyer says you cannot interpret words
of an ambiguous statute without looking beyond its words. So textualists DO use extrinsic sources such as dictionaries, which are also not "enacted by law" as well as other un-enacted "sources" (p 171
iii.
Perhaps the principal concern with leg history isn't so much that it is not enacted law but that
legislators and public interest groups may deliberately use leg history as a way to circumvent the
Article I, Section 7 process …
Judicial Activism Argument
i.
judges using an overly loose and undisciplined form of "interpretation" to implement their own views
of public policy.
ii.
Scalia: "in any piece of major legislation, the legislative history is extensive, and there is something for
everybody."
iii.
Eskridge counters: legislative history does more to constrain judges than to liberate judges - if a
statute is ambiguous, doesn't a court's ability to consult leg history ensure that some form of
legislative signal will resolve the ambiguity, rather than the judge's own conception of which
interpretation better completes the statutory scheme?
The Economic Argument
i.
There is a new school of thought that says it is simply impossible to tell whether judicial reliance
averts more errors than it causes or vice versa. So the reason to get rid of leg history, then, is because
it is too costly to do the research and litigation relating to leg history.
New Textualism Has It's Benefits no matter what (Eskridge admits)
i.
Reminds the court to devote more time to analyzing statutory texts
ii.
Reminds the courts that leg history is, at best, a secondary source
iii.
Inspires the court to be more critical of the leg history it does decide to use
New Synthesis
i.
Framework for Textualists - if the text is clear, no need to consult extrinsic sources. So if the question
is "is the text clear?" what is the threshold? At what point of vagueness are they allowed to move onto
leg history?
ii.
Exxon Mobile - majority refuses to look to leg history because the statute is not ambiguous
III.
Other Uses for Legislative History
A.
Legislative History is not used solely to discern congressional intent. It can be used for other important
things.
i.
PROF is skeptical about whether these are really alternative uses of leg history, but rather a way to get
around the fact that leg history is being used to divine legislative intent.
B.
Leg History to understand the Enacting Congress p 197
i.
Social and political climate
ii.
Terms of art that might have had multiple meanings
iii.
Context of the particular Act.
C.
Specialized Meanings and the Problem of Multiple Audiences p 200
i.
Any given act might be addressed to multiple audiences. Which audience do we consult for "meaning"
ii.
For example, "working conditions" would be common parlance for one audience and a term of art for
another audience
D.
Changes in Specialized Meaning over time p 201
i.
What about changes in word meaning/usage over time?
ii.
Must we only apply the meaning at time of enactment, or can we consider the meaning at time of
enforcement?
iii.
We usually take the original meaning of enacting legislature. But what if the enacting Congress
intended for the meaning to be more elastic?
E.
"Faithful Agent" (majority) v. "Junior Partner" (minority)
i.
Faithful agent - text, intent, and purpose advocates proceed on the assumption that judges must act
as Congress' faithful agent.
ii.
Junior Partner - there is also the "junior partner" model that allows "equitable interpretation"
1.
rooted in English traditions that the founders would have been very familiar with … where
exceptions dictated by sound policy were written by judges, and situations were brought within
the reach of a statute that were otherwise outside of their limits.
iii.
There are different kinds of statutes. Some might call for textualist interpretations; others for a more
"junior partner" type interpretation.
1.
Micromanager statutes - such as the Internal Revenue Code - thorough and tries to address
every question that might arise. Textualist interpretation is more appropriate
2.
Delegating Statutes
i.
Statutes adopting common law - some statutes are just codification of the common law
and should not alter the further development of law by courts. The court has a more
dynamic function her. "Junior Partner" is more appropriate.
j.
New Policy Statutes - this falls somewhere between "micromanager statute" and
"delegating statute" - the legislature enacts a new policy but does so in vague, imprecise
language and trusts the courts to answer questions as they arise in light of the legislative
objective that the statute is trying to achieve.
F.
United States v. Marshall (LSD case)
i.
The Semantic Meaning of Statutory Text p 212
1.
Semantic meaning vs. a more sensible reading. Commonplace meaning vs. technical meaning.
In Marshall, there could be disagreement over meaning of "mixture or substance"
ii.
What is Judge's role? P 214
1.
Easterbrook' s approach "buys political neutrality and a type of objectivity at the price of
justice."
2.
Posner's approach "buys justice in the individual case at the price of considerable uncertainty
and, not infrequently, judicial willfulness."
Canons of Construction
I.
Introduction
A.
Canons of construction are interpretive principles or presumptions that judges use in interpretation
a.
Semantic canons - how the English language is conventionally used and understood
1.
Purport to be neutral to outcomes
b.
Substantive canons - a judicial presumption in favor of a particular outcome (lenity rule, for example)
1.
Favor a certain outcome
II.
Semantic Canons
A.
Expressio Unius - expression of one thing implies exclusion of others.
a.
McBoyle v. US - is an airplane a "vehicle" as defined by the statute?
1.
"the term motor vehicle shall include an automobile, automobile truck, automobile wagon, motor
cycle, or any other self-propelled vehicle not designed for running on rails"
2.
Expressio Unius - when a statute includes some things, it impliedly excludes other things. So the
fact that aircraft is excluded is probative. The general word "vehicle" is at the end of a long list of
more specific terms that "provide guidance regarding the proper construction of the more general
word 'vehicle.'" So here, the judge thinks that that because all of the specific terms are vehicles
that stay grounded, the statute excluded aircraft.
b.
Silvers v. Sony Pictures - copyright statute
1.
Expressio Unius: "The statute does not say expressly that only a legal or beneficial owner is
entitled to sue, but Congress' explicit listing of who may sue should be understood as an exclusion
of others …"
2.
Dissent: majority obviously found the statute ambiguous because it needed to invoke a canon
(expressio unius) but it should have first looked to the intent of Congress via leg history. Also,
there is no hierarchy of canons, and this is problematic. Canons conflict with one another.
c.
SCOTUS on Expressio Unius: "The canon expressio unius … does not apply to every statutory listing or
grouping; it has force only when the items expressed are members of an 'associated group or series,'
justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence." p
232
B.
Noscitur a Sociis - a word is known by the company it keeps
a.
Gustafson v. Alloyd - definition of "communication"? Could be read broadly - any type of communication
- or narrowly - only public communication. Kennedy used the words around it to decipher meaning
C.
Ejusdem Generis
a.
A list of specific terms followed by a more open-ended residual term at the end - the residual term is read
more narrowly so that it encompasses only things that are similar to the items already listed.
b.
This canon makes a lot of intuitive sense in most contexts. But you must figure out what common
characteristics of the specific terms are relevant and what common characteristics are not relevant.
Sometimes hard to call.
c.
Ejusdem generis and noscitur a sociis - closely related and often conflated. Both involve "narrowing" the
range of meaning by reading a term in context of related terms. The difference is that Ejusdem Generis is
usually invoked for a residual term at the end of a list of terms …
D.
Consistent Usage of Words
a.
The presumption of consistent usage - "identical words used in different parts of the act are intended to
have same meaning,"
E.
Canon against redundancy (every word has a meaning)
a.
The presumption against superfluous statutory language canon - judges should construe statutes so that
every word has meaning if possible. But isn't redundancy quite common in language? Is redundancy more
or less likely to appear in legislation?
b.
Contradicts noscitur a sociis and ejusdem generis - If you narrow the meaning of a word by the words
around it, you are essentially saying that the word is not necessary. But the canon against redundancy says
that EVERY word has meaning. So direct contradiction.
F.
What's the point of semantic canons?
a.
Textualists use these canons to establish that the text is clear so that they can avoid leg history.
b.
Purposivists would argue that the mere invocation of a canon suggests that there is unavoidable ambiguity.
III.
Substantive Canons
A.
Canon of Constitutional Avoidance
a.
b.
c.
d.
e.
f.
g.
Principal: the judicial power includes the power to rule on the constitutionality of legislation. SCOTUS
has expressed a STRONG presumption in favor of upholding statutes as constitutional
Justice Brandeis articulated all the ways the avoidance doctrine worked, including:
1.
Rule 4: if a case can be decided on either of two grounds, one involving a constitutional question
and the other a question of statutory construction, the court will decide only the latter …
2.
Rule 7: when the constitutionality of an act of congress is drawn in question, and even if serious
doubt of constitutionality is raised, and the statute is capable of two or more constructions, one
of which leads to constitutional problems and the alternative construction is at least "fairly
possible," court will adopt the latter.
NLRB v. Catholic Bishop of Chicago
1.
Majority: "we decline to construe the act in a manner that could in turn call upon the Court to
resolve difficult and sensitive questions arising out of the 1st amendment" p 275
2.
Dissent: Although constitutional questions are difficult, they shouldn't be avoided to the point
of disingenuous evasion. P 278
Clear Statement Rule - if Congress wanted a general statute to confront constitutionality problems, it
would need to provide a "clear expression" of it's "affirmative intent" to do so.
How serious must the constitutional problem be? At what point is it serious enough to "trigger" this
canon?
What is the justification for the avoidance canon?
1.
An empirical claim about likely congressional intent. Congress tries to respect Constitutional
limits and therefore it is a good indication of Congressional intent to assume a construction that
does not violate C. But there is very little evidence on the record that Congress is all that
adverse to enacting legislation that raises difficult C questions
2.
A prudential tool of judicial restraint p 282 - a lot of interest in avoiding unnecessary
adjudication of C issues.
3.
Protecting constitutional values p 285 - fosters careful deliberation in congress on issues that
are constitutionally problematic.
Empowers Judges - the canon enables Burger in this case to make a ruling on thinly veiled reasoning.
B.
Canon of Federalism
a.
b.
c.
d.
Principal: promote state autonomy and freedom from federal regulation of state governmental
practice.
Rationale: Our federal gov't allocates powers/authorities to federal gov't and state gov't. A number of
provisions promote federalism. 10th Amendment is one. So a natural tension between Supremacy
Clause and 10th Amendment
1.
Interpretations of 10th Amendment
a.
National League of Cities v. Usury - expansive reading of 10th amendment
b.
Garcia v. San Antonio Metro Authority - overruled national league
c.
Today's Rule: so long as congress has some constitutionally vested authority, the 10th
amendment doesn't impose substantive limit on their powers to legislate.
Rule #1 to invoke Federalism Canon: Clear Statement Rule:
1.
The canon of federalism is a clear statement rule that before a statute will be read to interfere
with a core state governmental operation, Congress must make its intent to do so crystal clear.
2.
Justification for Clear Statement Rule: improves the legislative drafting process and encourages
the resolution of clear conflicts.
a.
Are congressmen really preoccupied with canons of construction?
b.
Are canons used consistently/predictably enough to really have an impact?
c.
What about statutes that were enacted before a canon became popular? Should canons
just be applied prospectively? Doesn't usually happen that way
Rule #2 to invoke Federalism Canon: Core Government Functions or Operations Rule (a nod to the
Supremacy Clause):
1.
The canon is intended to protect core governmental functions or operations. So not every
conflict btwn a state statute and a federal statute implicates this canon.
2.
does not come into play anytime there is a plain vanilla conflict between federal law/state law …
it only comes into play when there is a serious challenge to a core governmental function or
operation. If congress is going to interfere in core gov't functions or operations, then Congress
must put forth a plain statement of intent to do so.
3.
Does a mandatory retirement age for judges (Gregory v. Aschcroft) fall into the category of core
gov't functions or operations? No clue … how is this defined?
4.
So the built-in protection to avoid subverting the Supremacy Clause in all cases maybe isn't all
that effective - states will argue that EVERYTHING is core to their functions and operations.
ADMINISTRATIVE AGENCIES AND THE REGULATORY PROCESS
I.
Delegation and Theories of Regulation
A.
What?
a.
Congress frequently enacts statutes that delegate to administrative agencies the power to enact
regulations, and this power to enact regulations is intended to achieve the broad goals that Congress
lays out.
b.
We have seen so many broad statutes with open-ended goals and purposes … the delegation to an
administrative agency is intended to achieve some of those goals.
1.
Exceptions: there are instances when congress will write a micro-managing statute with very
detailed specifications. Good example: healthcare reform bill falls into micromanagement
category.
c.
Since the New Deal (1930s) it is accepted that administrative agencies, part of the executive branch,
wield substantial power, and the constitutional restraints on the exercise of that power is limited. So
the question becomes: Did Congress intend for the administrative agencies to have this power and
HOW is it to be exercised?
B.
Why?
a.
Arguments for?
1.
Admin agencies have expertise that makes them more effective policymakers especially in
complex fields like environmental protections or securities regulations
2.
Congress simply does not have time to study and address all of the issues that arise with respect
to even a moderately complex statute
3.
The legislative process is slow and cumbersome, so there isn't much nimbleness to react to new
information or circumstances
4.
The pressures of day-to-day partisan politics may inhibit pragmatic application of the best
available info to the problem at hand
b.
Arguments against?
1.
Heads of Agencies are often executive branch political appointments (NOT elected)
2.
Isn't there something inherently anti-democratic about insulating regulatory policy decisions
from the political process?
3.
Keep in mind that they aren't entirely immune from democratic constraints - agencies only have
the authority that Congress grants them and congress can exert other forms of oversight as well
4.
Does the delegation of public policy decisions allow legislators to evade accountability?
C.
Theories of Regulation
a.
Cass Sunstein - Why do we need regulation? Because we cannot rely on actors in industry to do the
right thing. In other words, we need regulation in response to market failure. He lists the kinds of
market failures that give rise to the need for regulation:
1.
Collective action problem (b/c resources are public, such as the environment, they aren't always
taken care of by "collective action" and you need regulation.
2.
Coordination Problem - even if people could agree on how to manage or regulate public goods,
how do you actually coordinate those actors to do the right thing?
3.
Externality - private conduct with external costs, but because it doesn't affect the actor, he
doesn't weigh it in his analysis of whether he should engage in that conduct or not (i.e.
pollution)
4.
Redistribution of resources (taxing is one example). BUT he points out that a paradox of the
regulatory state is that these efforts often have a backlash.
5.
Social subordination values … anti-discrimination laws … markets don't have a lot of incentive to
eliminate discrimination, so you need regulation response to that.
6.
As a response to Irreversibility. Fancy talk for short-term thinking at the expense of long-term
thinking. Example: endangered species act.
b.
Richard Posner
1.
Public interest theory - an early version of Sunstein's market failure approach (see above).
a.
The one thing Posner adds to the discussion is something that has puzzled people for
generations - if this notion of correcting market failure is so obvious needed, why are the
results of regulation oftentimes so disappointing? Criticism of administrative action is that
it is slow, it takes the average administrative agency 3-5 years to publish regulations.
Congress' oversight of agencies is weak and ineffective. So Posner asks: Why doesn't it
work better? And he has a theory …
2.
The Capture Theory
a.
Assumes that industries that are being regulated are "hijacking" the regulatory process
because they are appointed from industry and go back to industry. So the revolving door
presents a huge conflict of interests and removes objectivity.
b.
Posner's criticisms of Capture Theory arrive at a Political Economy of Regulation
i.
Regulation is subject to supply-demand. Just like goods and products, supplydemand for regulations … regulations will be supplied to those who value it the
most.
ii.
Posner imagines 3 kinds of regulatory systems
Entrepreneurial - favorable regulations is "sold" to the industries who value it

the most.
Coercive system - favorable regulation goes to the industries that can cause

the most trouble (ie France)
Democratic System - favorable regulation goes to the industries who voters

support - so Agriculture, Labor, those types of industries
Posner sees the US as a combination of Entrepreneurial and Democratic

Systems
c.
The Capture Theory is the dark-side of regulation - agencies are not neutral and not nonpolitical and sometimes not very expert. The possibility that these agencies will be
"captured" by the market actors that they are supposed to regulate is very high. This is a
scary thought.
II.
Basics of the Regulatory Process
A.
Overview
a.
The Goal: to reap the perceived benefits of broad delegations - flexible, expert decision making insulated from
partisan politics - while avoiding the perceived danger of arbitrary, abusive gov't by unelected ppl.
b.
How? Procedural requirements
1.
admin procedures facilitate broad public participation in decision-making, alleviating or compensating for
the lack of democratic process
2.
Procedures can slow down the process enough for Congress to have oversight
3.
BUT procedures can be costly and cumbersome
B.
Statutory Framework: The Administrative Procedure Act (APA)
a.
Passed in 1946; establishes the basic default rules of procedures for federal agencies to use when creating and
enforcing regulations.
b.
Forms of Administrative Action under the APA
1.
The two major types of agency action are defined as "rules" and "orders" (or "adjudications") … each is
divided into two subcategories of "formal" or "informal"
2.
Formal Rulemaking is governed by Sections 556 and 557 and involves adversarial hearings at which the
proponent of the rule (the agency) carries the burden of the proof on contested issues and must show
that the proposed rule is supported by "reliable, probative, and substantial evidence."
3.
Informal Rulemaking is governed by Section 553 of the APA
a.
Widely known as "notice-and-comment" rulemaking
b.
First, an agency that proposes to make a rule through this progress must give public notice by
publishing the notice in the Federal Register
c.
Second, the agency must provide the public with an opportunity to comment on the agency's
proposal.
d.
Third, if the agency decides to publish the rule, it must publish an explanation of the rule
4.
Formal Adjudication is governed by Section 556 and 557 of APA
5.
Informal Adjudication - no section governing, but some generic APA provisions apply to all agency actions,
including these
c.
Distinguishing Rulemaking (Rules) from Adjudication (Orders)
1.
The APA talks about two main forms of administrative action:
a.
Rules - analogy to lawmaking - rules apply prospectively
b.
Orders - analogy to judicial - enforcement/application of rules in the form of orders
"Rules" - rulemaking prospectively (law-making)
"orders/adjudications" applying rules
Formal
hearing (as required by statute) - appropriate when a small
group is exceptionally impacted by outcome
NOT COVERING
Informal
"notice-and-comment" – agency drafts rule and the rule is
disclosed in registry - public is given time to respond and
make comments. Agency reviews comments and, makes
revisions, and then publishes final draft of rule.
NOT COVERING
d. When must an agency use formal procedures?
1. Section 553 states that rulemaking is governed by the formal procedures if the agency rule in question "is
required by statute to be made on the record after opportunity for an agency hearing."
2. But sometimes the statutes are not very clear - indeed, ambiguous - on whether formal procedure is
required, and this is where courts have to get involved in interpretation
a. United States v. Florida East Coast Railway Company p 588
i.
Majority: a statute must be CRYSTAL CLEAR in requiring formal rule-making, or the default
is for informal rule-making, which provide more speed and flexibility.
ii.
Dissent: this is a violation of due process
3. Due Process and the Interpretation of Administrative Statutes
a. SCOTUS has distinguished between rules/orders that impact a few people (Londoner) and those
that impact a broad class (Bi-Metallic), saying that the former invokes Due Process requirements
and the latter does not.
e.
Concerns about Lobbyists – interest groups can concentrate their influence on agencies …
III.
Judicial Review of Agency Rules - "Arbitrary and Capricious"
A.
B.
C.
D.
Judicial Regulation of Regulation and Procedures
a.
Questions: How do judges effectively enforce admin procedures? How much substance is there in
judicial review? What is the appropriate balance of power between judicial system and agencies?
b.
APA (p 718): When can a court set aside agency action, findings, and conclusions?
1.
We will focus on (a) arbitrary and capricious, an abuse of discretion, or otherwise not in
accordance with law … but (a) is only one of the standards.
History of judicial review after enactment of APA
a.
For the first two decades, very little
b.
Late 1960s, in response to concerns about the "capture" of admin agencies by special interest groups,
the courts adopted a more aggressive approach
c.
Overton Park - SCOTUS weighed in with a decision in 1971 and laid out general principals to make a
finding that an agency action was arbitrary and capricious, the court would consider:
1.
Procedural Element: Whether the decision was based on a consideration of the relevant
factors
2.
Substantive Element: AND whether there was a clear error of judgment.
i.
the ultimate standard of review was narrow, and the court is not empowered to
substitute its judgment for the agency's.
Vermont Yankee and the Over-Proceduralization Concern (p750)
a.
Vermont Yankee held that courts may not impose procedural requirements that go beyond those
mandated by statute, constitution, or agency's own regulations.
b.
No "federal common law" for admin procedures - courts don’t have that authority.
c.
This case is often associated with establishing a limited role for judicial review. It narrows the
"arbitrary and capricious" standard in the APA
d.
Rationale: courts give deference to an agency to create procedures because:
1.
agencies are experts
2.
if the courts had the authority to require additional procedures, the process becomes
unpredictable, overproceduralized, timely, costly
3.
agencies, worried about being reversed, would always use formal rulemaking, meaning that
the advantages of informal rulemaking (notice-and-comment) are lost.
4.
procedural impositions could be used as a cover for disapproval of a substantive decision
Modern Hard Look Review (SEE NEXT PAGE)
a.
After Vermont Yankee, many thought the courts would be more deferential in their review of agency
actions. Not so. The next case, State Farm, seems to reaffirm and even expand on Overton Park's
endorsement of "hard look" review.
1.
Judge Leventhal's original formulation of "hard look" review referred to the agency's obligation
to take a "hard look" at the relevant factors. Over time the phrase has come to connote the
court's "hard look" at the agency's reasoning.
E.
Modern Hard Look Review
.
After Vermont Yankee, many thought the courts would be more deferential in their review of agency actions.
Not so. The next case, State Farm, seems to reaffirm and even expand on Overton Park's endorsement of
"hard look" review.
0.
Judge Leventhal's original formulation of "hard look" review referred to the agency's obligation to take a
"hard look" at the relevant factors. Over time the phrase has come to connote the court's "hard look" at
the agency's reasoning.
b.
State Farm: The Hard Look Review p 769
1.
Agency action is arbitrary and capricious if:
i.
Has relied on factors which Congress has not intended it to consider
ii.
Entirely failed to consider an important aspect of the problem
iii.
Offered an explanation for its decision that runs counter to the evidence before the agency
iv.
Or is so implausible that it could not be ascribed to a difference in view or the product of agency
expertise.
2.
Hard Look Review applies to ALL agency actions, findings, conclusions (APA) - formal and informal
rulemaking and formal and informal adjudication are all included.
c.
Vices and Virtues of Hard Look Review p 775
1.
VIRTUES:
i.
constrain administrative arbitrariness
ii.
creates incentives for thoughtful and careful agency consideration of all significant aspects
iii.
mitigates the ability of special interest groups to exert undue influence
iv.
Facilitates meaningful citizen participation in agency decisions by giving agencies a greater
incentive to take public comments seriously and by forcing agencies to present their analyses and
conclusions in a form that courts and the general public can understand.
2.
VICES:
i.
Judges do not have the necessary technical background to evaluate evidence or arguments
proffered by agency
ii.
Hard look review might lead judges - perhaps subconsciously - to "substitute their judgment for
that of the agency"
iii.
Producing the types of records necessary to survive hard look review is costly and time consuming
d.
Judicial Review of an Agency's Rescission of an Existing Rule
1.
Section 706(2)(a) instructs reviewing courts to set aside arbitrary and capricious "agency action" and
Section 551(13) defines "agency action" as including "failure to act."
2.
Most courts have held that judicial review of an agency's decision not to initiate rule-making proceedings
is more deferential than review of an agency's decision to adopt a new rule.
3.
The essence of the losing argument in State Farm was that a decision to rescind a regulation should be
treated the same as a decision not to enact a regulation in the first place. SCOTUS disagreed.
4.
What is wrong with an agency changing its mind (rescission)? Well, several things: if the relevant data
substantiated the rule in the first place, unless there is new data, then how do they justify a change?
5.
Should there be a presumption towards the status quo? Once an agency goes down one path ("path
dependence") doesn't a presumption towards status quo mean that the agency is stuck? Doesn't that
inhibit the agency's flexibility?
e.
The Role of Politics in Administrative Decision Making p 787
1.
State Farm dissent points out that the agency's change in position was due to a new President (Reagan) ,
who was more skeptical of government regulations.
2.
Rehnquist thought that the change in political priorities - voted on by the people - was a good enough
reason.
3.
Delegation to agencies is controversial in part because it threatens to undermine democratic
accountability. One response to that concern is to emphasize that agency officials, though not themselves
elected, are part of the executive branch under the control of the President.
4.
On the other hand, aren't agencies supposed to provide technocratic decision-making that is at least
partially insulated from day-to-day partisan politics??
f.
How to reconcile with Vermont Yankee?
1.
This is unlike Vermont Yankee - but does not overrule it.
2.
VY is more about procedural reviews. VY indicates a much more narrow and deferential approach to
procedural review.
3.
This case indicates a broader approach to substantive review … based on the above definition of "arbitrary
and capricious."
STATUTORY INTERPRETATION IN THE ADMINISTRATIVE STATE
Judicial Review of Agency Statutory Interpretation
I.
II.
III.
Evolution of Judicial Review of Agency Statutory Interpretation
A.
Introduction / Integration: above we are looking at judicial review under the arbitrary and capricious
standard. Now we turn to a judicial review of an agency's interpretation of statutes that the agency is
charged with administering. Much agency action turns on the agency's interpretation of the Congressional
statute giving the agency authority to act.
B.
Questions: When should a court independently and without deference apply its own standards of statutory
construction? And where is it appropriate for courts to defer to an agency's construction of a statute?
Pre-Chevron Judicial Review
A.
Hearst Test (most deference)
a.
Pure question of law - no deference owed to agency - de novo review.
1.
What is the pure question here? The definition of employee under the Act …
b.
Mixed question of law and fact - high level of deference to agency. Agency's construction will be
upheld if warranted in the record and there is a "reasonable basis in law".
1.
What is the mixed question here? Whether THESE newsvendors should qualify as employees
c.
Roberts' dissenting view:
1.
Third category: Pure Fact - He would defer for questions of pure fact ONLY
2.
He would not defer on any issues of LAW - so for the mixed questions, he would review de novo.
B.
Packard Test (middle deference)
a.
Similar to Hearst except that the mixed question of law and fact in the previous case (re:
newsvendors) is presented as a pure question of law here (re: foremen). The court points out that the
NLRB has been inconsistent about whether foremen are "employees."
C.
Skidmore Test (least deference)
a.
court says it will "respect" opinion of agencies, but claims greater judicial power to review decisions.
Skidmore doesn't say it will NEVER defer, but just that it depends on circumstances.
D.
Pre-Chevron Doctrine Summarized:
a.
Pure question of law: de novo (Hearst)
b.
If mixed question of law and fact: upheld if reasonable (Hearst)
c.
Later cases (Packard, Skidmore) suggest:
1.
that the greater the need for agency expertise, the greater the deference.
2.
if the agency's interpretation is consistent with congressional intent, the greater the deference.
3.
If the agency's interpretation is inconsistent with the plain meeting of the statute, no deference.
4.
If the agency's interpretation is consistent over time, the greater the deference.
E.
Conclusion: Leading scholars have viewed this pre-Chevron standard-of-review as puzzling, incoherent, and
unpredictable. Perhaps in response to this set of concerns, the Court dramatically altered the doctrinal
framework in its Chevron decision.
Chevron
A.
Background of the Case
a.
Issue: whether "stationary source" could encompass an entire plant under Act.
b.
Very broad delegation by Congress to EPA to craft regulations that would fulfill very broad objectives.
c.
During Carter administration, the EPA implemented a "point source" approach and each smokestack
counted as it's own "stationary source" and had to go through all of the regulatory/permitting
requirements. The new approach allowed all buildings within a plant to be under the same "bubble"
for the purpose of regulating emissions.
d.
Conclusion: The EPA’s definition of the term “source” is a permissible construction of the statute
which seeks to accommodate progress in reducing air pollution with economic growth.
1.
Chevron Step 1: Text, leg history, and purpose are silent/ambiguous to the question at hand.
2.
Chevron Step 2: EPA's interpretation is reasonable, so it should be upheld
i.
Does it matter what interpretive process the agency used to ascertain meaning of
"stationary source." No.
B.
C.
D.
Chevron Deference (even more deference than Hearst):
a.
When a court reviews an agency's construction of the statute which it administers, it is confronted
with 2 questions:
1.
Whether congress has directly spoken to the precise question at issue. If the intent of
Congress is clear, that it the end of the matter and the court and the agency must give effect
to the unambiguously expressed intent of Congress
2.
If the court determines Congress has not directly addressed the precise question at issue, the
question for the court is whether the agency's answer is based on a permissible / reasonable
construction of the statute. If it is, court MUST defer even if they don't agree with the
interpretation.
Reconciling Chevron with Pre-Chevron
a.
Chevron appears to be the highest level of deference of all of the cases
b.
Chevron did not make any mention of considerations that had previously been used in judicial review
of agency's statutory interpretation, such as whether the agency's interpretation was longstanding
and consistent, whether it was issued contemporaneously with the enactment of the statute, whether
Congress had acquiesced in the agency's interpretation, and whether it was a highly technical issue
deserving of deference due to agency's supposed expertise.
c.
Chevron even directly conflicted the consistency consideration, stating that "an initial agency
interpretation is not instantly carved in stone."
Chevron and State Farm (Hard Look Review)
a.
Justice Breyer had this to say about the contrast between the 2 approaches to judicial review: "The
present law of judicial review of administrative decision-making, the heart of administrative law,
contains an important anomaly. The law 1) requires courts to defer to agency judgments about
matters of law, aka Chevron but 2) it also suggests the courts conduct independent "in-depth"
reviews of agency judgments about matters of policy, aka State Farm. Is this not the exact opposite
of a rational system? Would one not expect courts to conduct a stricter review of matters of law,
where courts are more expert, but more lenient reviews of matters of policy, where agencies are
more expert?
IV.
Chevron and Textual Interpretation
A.
AT&T: Scalia uses dictionaries to define "modify"
a.
Bottom line: If you can find a "clear meaning" in any statute, you will never get past Step 1 of
Chevron. Scalia's approach undermines deference to the agency.
B.
Sweet Home: "take" is a term of art at dispute. Section 9 of ESA defines take as "harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct"
a.
The majority pointed out that the question in Sweet Home was NOT whether the agency's
interpretation of "take" was correct, but whether it was sufficiently "reasonable" to merit
deference under Chevron (skipped to Step 2 of Chevron)
b.
Competing Semantic Canons:
1.
The dissent uses noscitur a sociis to say that "harm" should be given the narrower definition
because the other words in the definition were narrow
2.
The majority on the other hand emphasizes the presumption against repetition to defend the
broader interpretation.
C.
Chevron Step 1 is where all the action is … that is, whether or not "Congress has directly spoken to the
precise question at issue."
a.
Chevron courts say that courts should employ the "traditional tools of statutory construction" to do
this.
1.
So we have come full circle back to statutory interpretation (first part of course)
2.
But Chevron can't possibly mean that the court may defer to the agency only when the
traditional tools of stat. const. provide NO ANSWER whatsoever to the interpretive question that would make the Chevron doctrine meaningless.
3.
Chevron must instead mean that a reviewing court should defer to the agency if the application
of the traditional tools of statutory construction fails to supply a SUFFICIENTLY CLEAR answer to
the interpretive question?
D.
Textualists and Chevron Deference
a.
Textualists are more likely to discern a "clear" statutory meaning and therefore, less likely to defer
under Chevron
1.
True with Scalia, who defends Chevron doctrine but rarely defers to agency interpretation b/c
he thinks the text is clear
E.
What constitutes ambiguity?
a.
All language has some ambiguity, at least at the margins - how strenuously should reviewing courts try
to resolve such ambiguity? Should courts defer only after exhaustive efforts to resolve a surface
ambiguity has left lingering doubt? Or should a court defer whenever the resolution of a surface
ambiguity would require close, intricate analysis?
b.
Some would argue that when judges exhaustively try to resolve ambiguity with all of the tools of
statutory interpretation, they undermine the values of the Chevron doctrine - democratic
accountability, expert decision-making, statutory flexibility, and nationwide legal uniformity.
c.
In addition, is it any more likely that Congress will arrive at the "right" interpretation than the agency?
Aren't they then just substituting their own judgment?
V.
Chevron and Substantive Canons
A.
CHEVRON IS ITSELF a substantive canon: where a statute is silent or ambiguous, we will defer to agency's
interpretation if it is not unreasonable.
B.
Constitutional Avoidance Canon:
a.
DeBartolo:
1.
Agency construction of a statute that would normally be afforded Chevron deference.
2.
But it raises first amendment issues.
3.
So constitutional avoidance canon is invoked.
4.
Resulting RULE: 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 question.
5.
So is this an easy way to get around Chevron? Just find a constitutional issue?
b.
Sullivan:
1.
the statutory language is ambiguous and therefore, proceed to Step 2 of Chevron
2.
"the broad language of Title X plainly allows the Secretary's construction of the statute"
3.
Secondly, the regulations do not raise the sort of "grave and doubtful constitutional
questions" that would lead us to assume Congress did not intend to authorize their issuance."
4.
So it has to be a SERIOUS constitutional issue to ignore Chevron?
C.
Federalism Canon
a.
SWANCC:
1.
SWANCC can be read as standing for the proposition that Chevron deference yields to
federalism canons - agencies can only encroach on traditional state authority if the statute
clearly authorizes them to do so.
D.
Conflicting Canons
a.
In cases of conflict, which canon should win? In DeBartolo, constitutional avoidance wins. In Rust,
Chevron wins. And in SWANCC, federalism wins.
b.
Clearly the justices have the ability to use substantive canons to trump Chevron or not. What is the
trigger?
c.
Does the constitutional issue have to be "serious" or "grave and doubtful"? It appears so.
d.
But for the federalism canon, there is not a clear line.
e.
Very subtle interplay between the canons. Normally you would think that Chevron is pretty strong and
would win most of the time, but not in this set of cases
f.
So if you have a case where is seems obvious that Chevron applies, you need to look at other
substantive canons to make sure there is not a conflict …
1.
You need to know what the triggers are for each canon
2.
And you need to know what the considerations would be on both sides when there are
competing canons.
VI.
The Limits of Chevron's Domain: Chevron Step 0
A.
B.
C.
Chevron Step 0: Are there certain cases where Chevron deference should not apply at all?
a.
When the interpretation was produced through a highly informal procedure, Chevron deference might
not be appropriate.
b.
Formal processes (notice and comment rulemaking) will almost always be given Chevron deference
c.
But what about when it drops below that threshold? Just depends …
Mead:
a.
Issue: through a ruling letter, customs changed the classification of duty letters to a category that
was subject to a tariff. Is this ruling entitled to Chevron deference.
b.
Majority: NO. Chevron deference does not apply. It only applies when it appears that Congress has
delegated to the agency the authority to make "force of law" rulings. Even though it is not entitled
to Chevron, it might be accorded Skidmore "respect" - a much weaker form of deference.
Remanded.
c.
Dissent (Scalia): As long as there has been some delegation by congress to the agency, it shouldn't
matter if the agency's interpretation is the result of an informal/formal process.
1.
Mead decision will lead to unpredictability for agencies, increases in formal rulemaking
The Importance of Procedural Formality:
a.
The less procedural formality, the less likely that congress intended for agency interpretations to have
the force of law.
b.
Does procedural formality result in better interpretations? Probably. Also, there would be due process
concerns if we allowed agencies to make thousands of informal rulings with no judicial check other
than last-ditch safeguard of chevron step 2 (is it reasonable?). Almost everything could be
"reasonable."