Pulsifer v. United States
Background:
●
Safety Valve provision of federal sentencing law exempts certain defendants from
mandatory minimum penalties enabling courts to give lighter prison terms. A defendant
needs to meet certain criteria, one of which addresses criminal history. The criteria
requires that a defendant “does not have A, B, and C”.
Question Presented:
●
How to understand the criminal-history requirement?
●
Government contends that the phrase “Does not have A, B, and C” creates a checklist
with three distinct conditions (Defendant would meet requirement and eligible for safetyvalve relief if he does not have A, does not have B, and does not have C.
○ If defendant has one, cannot get safety-valve relief
●
Petitioner contends that the phrase “does not have A, B, and C” means that a
defendant meets the requirement so long as he does not have all three.
●
Pulsifer had two prior convictions, each 3 points. In the government view, he was
excluded from obtaining relief, and that 3+3= 6, and he had more than 4 criminal history
points.
○ Does not have “A, B, and C” he believes means that “does not have (A, B, and
C)
●
Pulsifer claimed it wasn’t enough because his record lacked C (the 2-point offense)
Justice Kagan (Majority)
● Agree with the government’s view
● In 2018 Congress relaxed the safety-valve provision’s criminal history requirement,
making it more lenient for defendants with more extensive criminal records to qualify.
MAJORITY (context, anti-surplusage, absurd results)
Meaning of the Text (Touchstone): 2,4,8,10,11,13,15
General Legislative Intent (Touchstone): 12, 13, 14,
Imaginative Reconstruction (Touchstone): 7
Text in Issue: 4
Whole Act Rule: 4,8
Constituent Usage: 5,6
Meaningful/Deliberative Variation: 13
Counterfactual Text: 6
Anti-Surplusage: 5,6,8,9
Pari-materia: 6
Noscitur a sociis: 8
Legislative History: 13
Historical Context: 13
Absurd Results: 8, 11
Page 2: The majority explains the meaning of the text (Touchstone) of new paragraph (F)(1)
by describing the point offenses of A, B and C.
Page 4: Whole Act Rule (Tool)- we must look at the statute within the context of which it is
written. Here, the paragraph of A, B, and C must be read “in conjunction” with the Guidelines.
Page 4: The text that is at issue (Tool ) “And” is a conjunction based on the dictionary
definition.
Page 4: Meaning of the text/The text that is at issue: Interpret it as a sentence (Government
reading the statute without parentheses)
Page 5: Anti-surplusage: In giving a routine example of everyday language and an example
from the constitution, the majority is showing that it is more efficient to use the lead in language
as a simplified list then to restate the preceding text with every individual element.
Page 5/Top of 6: Consistent Usage: Discussing language in the Cambridge grammar of the
English language. The majority is showing that using a negative sentence like “I didn’t like his
mother and father” is applying to both the mother and the father, and that the list in the sentence
will carry over.
Page 6: Read in Pari Materia: In using 34 U.S.C. §20101, the majority is showing how an
earlier statute with similar language is supposed to be interpreted with language in the negative
like “does not include A, B, and C”. Here, the “does not include” language applies separately to
A, B, and C.
Page 6: Anti-Surplusage: Congress drafting more “concisely” insteading of using “does not
include” in front of each line.
Page 7: Why Congress might have chosen to use “and” - Imaginative reconstruction. In
order to create an eligibility checklist, and using”and” would connect more than 4 points.
Reconstruction of a principal to show that Pulsifer’s interpretation would lead to an
absurd result. We want to avoid this. Using a more realistic example makes it easier to
relate to.
Page 8: Meaning of the text/Whole Act Rule/ Noscitur a sociis
Page 8: Rule of Redundancy/Anti-Surplusage
Page 9: Rule of Redundancy/Anti-Surplusage
Page 10/11: Plain Meaning of Guidelines show that there is nothing in the statute that would
allow Pusifer’s zero-point situation to come up if the statute is just read. There is a safeguard
against the zero-point situation happening because there is not charge for a 1-point offense.
Page 11: Not going to congressional intent because there is not a lot of ambiguity.
Page 12: General Legislative Intent: Congress knew that they could not rely on sentencing
discretion, and that is why they created this statute.
Page 13: Meaningful/Deliberate Variation: the court is saying that using different words of
“and” and “or” to an analogous statute show that they have different meanings in regard to the
statute. (Different words have different meanings)”And” is naturally conjunctive and “or” is
naturally disjunctive.
Page 13: Meaning the text is clear when using “And” / Noscitur a sociis
Page 13: Legislative history/Legislative intent of when paragraph F(4) and paragraph F(1)
were drafted showing that they had the opportunity to fix this supposed disagreement and they
did not. This means that they intended the paragraphs to say two different things. Using the
history to get at the intent.
● Dissent is saying that if you don’t meet 4, then nothing else matters
Page 14: General Legislative Intent: widening the opportunity for safety valve relief
● No law purses its purpose at all costs
● Every law has its limits and Congress believed they found those limits
Page 15: Plain Meaning- no ambiguity because “and” means “and”, and “or” means “or”,
especially when looking at the overall context of the statute. (Operative effect of the lead in
language)
DISSENT
Meaning of Text (Touchstones): 19, 20, 22, 25, 32, 33
General Legislative Intent: 16, 21, 22, 23, 24, 25
Historical Context: 16
Legislative History: 16
Absurd Results: 16
Meaningful/Deliberative Variation: 20
Consistent Usage: 20
Text at Issue: 21, 28, 29, 31
Whole Act Rule: 22
Pari Materia: 23,26
Rule of Lenity: 32, 33
Page 16: Legislative History (sequence of events)/ Congressional Intent
Page 16: Absurd Results - adopting the government’s preferred interpretation is not the
way to go
They had the opportunity to do something, they didn't, therefore it is their intentional.
Congress made it where they don’t want to lock up those for 10-15
Over- sentencing was fixed.
Page 19/20: Meaning of the Text/Plain Meaning - as an ordinary person would read it.
● “Does not have” is basically equivalent to unless, which would mean that “and” in the
the proceeding list would not apply to each term.
Page 20: Meaningful/Deliberative Variation
● The dissent is saying that it should be all or nothing
Page 20: Consistent Usage
● Of what was used in the other provisions of the statute (“or”)
Page 21: Text that is in issue; General Legislative intent
Page 22: Whole Rule Act; Meaning of text; (intentional in how they wrote it) General
Legislative intent (because they intentionally wrote it to be interpreted in one direction)
Page 23: General Congressional Intent; Read in Pari Materia:
Page 24: General Intent
Page 25: Read in Pari Materia; Plain Meaning (Meaning of the text); General Intent
Page 26: They compare the effective changing of “and” & “or” in the 6th Amendment;
Dissent says that the defendant offers a natural reading of law.
Page 28: The text that is at issue;
Page 29: the text that is at issue; Combating superfluous argument
Page 30: Combating absurdity doctrine
Page 31: The text that is at issue
Page 32: Meaning of the Text (Plain Meaning)/ Rule of Lenity pointed out
Page 33: Rule of Lenity/ Plain Meaning
Difference in Touchstones
The majority and dissent both use the touchstones of plain meaning and legislative
intent consistently. The dissent states that “and" and “or” are two distinctly different words and
the majority states that there is no ambiguity in the statute because “and” means “and” and “or
means “or”. The majority then turns to the statute’s lead in language and the operative effect of
this lead in language.
By bringing in additional context, the majority used a couple hypotheticals and
compared paragraph (f)(1) to another statute where its conditions were read as a checklist as
opposed to each individual condition. The dissent rejected the caterpillar metaphor the
government used by elaborating that this example should not be compared to a criminal statute.
They instead look to the fact that Congress usually is careful about each word it chooses to use,
and here, using the word “and” was what Congress intended in avoiding implicit distribution. The
implicit distribution when considering the full context is not necessary, the dissent claims,
because the express use of “and” by Congress avoided any ambiguity.
In Pari Materia
The majority is comparing the paragraph (f)(1) to another statute, 34 U.S.C. §20101(f).
The dissent is comparing paragraph (f)(1) to the same exact statute and the 6th Amendment to
show that if the same interpretative method in the 6th Amendment that the majority is employing
here, it would lead to a drastically different result.
The dissent is comparing paragraph (f)(1) to other provisions (f)(2)-(f)(4) of the same
statute and the 6th Amendment in light of the rest of the Constitution. Here, they are interpreting
the paragraph in light in the rest of the statute. This would seem to negate the dissent’s
argument, which is why they seemingly then turn to the 6th Amendment to illustrate their
argument even though it has no real bearing here. The statute at issue is completely different
than the Constitution, therefore, comparing (f)(1) to other provisions of the statute has no real
bearing on the dissent’s argument. It has no bearing because the 6th Amendment is read in the
context of the rest of the Constitution, which is a different context than the paragraph at issue in
this case.
The majority really focuses on anti-surplasage in not including “does not have” more
than 4 criminal points (“A”), a prior 3-point offense (“B”), and a prior 2-point offense (“C”).
Stating “does not have” for each line is extremely redundant and not efficient. It is also stated
that the (A) of (f)(1) would become unnecessary, or redundant because if a defendant has B
and C, then that would trigger A.
Absurd Results
The majority also focuses on absurd results. The statute here is purporting to lock up
those who have a history of violent crimes to ensure that they serve longer sentences the more
they commit these violent crimes. The majority alludes to the fact that if the statute is read the
way the dissent believes it should be read, then a large portion of violent crimes will be ignored.
This would be inconsistent with the rest of the statute and the sentencing scheme. For example,
it was noted that someone with several violent three-point offenses would get the safety-valve
relief just because they do not have a two-point offense. This is what would happen if the
dissent’s interpretation of the statute was applied.
The minority asserts that making it necessary for a defendant to not have all three
requirements would deny “thousands more people” the chance to have an individualized
sentence. It is recognized that this statute was expanded to give more defendants the
opportunity to be eligible for safety valve relief.
Whole Act Rule
The majority looks at paragraph (f)(1) of the safety-valve provision’s criminal history
requirement conditions of A, B, and C in that it must be read “in conjunction” with the guidelines.
The text of this paragraph should be read in context of the guidelines. This leads the majority to
the conclusion that A, B, and C in the paragraph were to follow an eligibility checklist that
Congress intended. Not reading it as a checklist, where three necessary conditions need to be
satisfied, would make (A) in paragraph (f)(1) “superfluous” because based on reading of the
statue as a whole, having a 3-point offense and 2-point offense would always give the
defendant more than 4 criminal history points.
The dissent claims that this statute needs to be read as whole, however, the guidelines
do not need to be considered in the context of the statute. The reason for this is because the
First Step Act does not actually produce as many outcomes as what is being claimed. For
example, like when someone says “I sell red, white and blue caps”.
Craft Hypothesis:
Here, the majority acknowledges that paragraph (f)(1) may not have been expressed by
Congress in the most clear way, however, believes that this statute can still be interpreted to
have a correct meaning. Whether “and” or “or” was used would not have made things less
ambiguous, and paragraph (f)(1)’s grammatical structure should not have been at the forefront
in deciding the case. The majority believes for the most part that the dissent’s arguments are
misguided because Congress’s intent was to require a defendant to follow an eligibility checklist
in which “and” instead of “or” would be necessary. This is evident in the discussion of the
legislative purpose of making “safety-valve relief most widely available.” The majority, while
agreeing with the dissent that more defendants would get safety-valve relief under Pulsifer’s
interpretation, believes that too many defendant’s would get relief under that reading. Overall,
the majority and dissent do not really give credit to each other’s skillful analysis in their
arguments. The dissent does not seem to use the craft hypothesis at all, instead refuting all the
arguments that the majority made. They eventually address that the meaning of paragraph (f)(1)
is reliant upon context, however, this is not pointing out the majority’s skillful analysis.
Convergence:
Here, the convergence hypothesis would really not be applicable. The majority and
dissent use both meaning of the text and general legislative intent, along with some different
tools in their argument. However, these touchstones are not leading the majority and dissent to
the same conclusion. They are not agreeing about whether Mr. Pulsifer would need to satisfy
every one of the conditions under paragraph (f)(1) to get relief.
Braided-Cable:
Here, there is really no braided-cable hypothesis occurring as the dissent addresses
points brought up by the majority, however, does not introduce several new arguments. The
dissent carefully avoided discussing anything that would weaken their argument in full analysis,
bringing up only what they wanted to. In contrast, the majority discussed both sides and were
more even-handed in their analysis.
PART B:
Specific Intent: rests on the premise that Congress had a view about a specific question
presented. 
Regarding the question presented, look to see if Congress had a view about it or if there's
evidence as to what it is. For example legislative history. 
 The court is able to say what Congress intended about the question presented based
on evidence that they consider acceptable. 
Vs. 

General Intent (Imaginative Reconstruction): even though Congress did not have precise
intent, there still is evidence where one can project or estimate what Congress would have
wanted with acceptable certainty. 


Counterfactual Text: it is an argument, and tool that's based on observation not only what the
text is but what it isn't, and what it could have been. It essentially means thinking of something
that it could have been alternative to what is. 
 Is an argument that because of the failure to use certain words which would have
been stronger or clear, the statue does not mean what the opposing argument
suggests. This argument overall is stronger based on whether one can advance from
could've to should've to would've. 
 Unlike silver blaze, it is about the text. 

Silver Blaze: it is what about the legislative history says but doesn’t say. An argument, a tool,
based on the absence legislative history on a point that would have been controversial. 

Clear Statement Rule: states that for the statute to be interpreted in a particular sensitive or
controversial way, the text must be usually explicit and clear. 

 Ex: Rule of Lenity, Ashwander Rule of Constitutional Avoidance, Major Question
Doctrine 
PART C: REGULATION
EXAM PART C (APA) (a few people/perspective) (what is this for purposes of Due
Process Clause & what is this for purposes of the APA)
Adjudication- determining the outcome in a dispute.
a. Is this rule making or adjudication for purposes of the due process clause?
 Adjudication because it focuses on how many people are
affected. Adjudication is retroactive. Rule-making focuses on
prospectivity. Regarding who the rule affects in rule-making is not
relevant. The Due Process Clause tells us how much process to have in
adjudication, and it tells us nothing in rule making.
b. Is this rulemaking or adjudication for purposes of the APA?
 Rulemaking is prospective. So it's an adjudication for purpose of the due
process clause and there is a rule making for purposes of the APA.
c. Does the Due Process Clause govern how much process should have been provided
in issuing this decision?
 Yes, because the Due Process Clause tells us how much process to have
in adjudication, and it tells us nothing in rule making. If it were rule-making
it would not. (Metallic)
d. Does the APA govern what process should have been provided in issuing this
decision?

Yes, the APA governs what process should have been provided because
under the APA, there is informal and formal rulemaking, but either way it
tells us what kind of process to do. Most cases are informal rule
making. However, for rule making, the APA does not tell us what process
should have been provided for informal adjudication.
2. Major Question Doctrine (2 kinds): If there is a broad delegation, we could
construe it narrowly.
 Basic difference is there are Chevron cases (Brown v. Williamson & MCI v.
AT&T) where we are deciding whether to rebut the inference that the gap in
the statute means an implied delegation. (First version is about implied
delegation, and second version is about expressed delegation and they
have a clear statement rule.


The original version is about 1) construing Chevron narrowly or making an
exception to Chevron, and the other is about 2) construing express
delegations narrowly unless there's a clear statement.
Justice Gorsuch claims that is doctrine is closely related to the nondelegation
doctrine because it is "a cousin" of a non-delegation doctrine. The connection he
sees is that if it is a broad delegation, we could either construe it narrowly (major
questions doctrine) or it could be struck down (non-delegation); It is an alternative
or modest way of a dealing with a delegation that seems too broad.
Chevron & APA
a. First it will be looked to whether the statute is ambiguous. The APA decides
the process of how a statute is interpreted. The Chevron Doctrine helps guide
what a reasonable interpretation will be regarding the statute and applies when
an agency wants to interpret the statute. Here, the court will use APA's
statutory interpretation rules to determine if the agency made a reasonable
interpretation of the statute. If the answer is yes, deference is given to the
agency's interpretation.
Non Delegation Doctrine – states that Congress is not able to delegate its legislative powers
to other executive agencies or other entities. When Congress allows an agency to
regulate, there has to be an intelligible principal and there has to be judicial review. There must
be an intelligible principal so it is known that the agency did what they were supposed to.
APA – recognizes 4 kind of proceedings (Formal/Informal Rule Making & Formal/Informal
Adjudication)
a. Where is the difference between formal and information rule making? –
 Informal Rule Making requires general notice and comments that people
can submit which the agency will consider. Formal Rule making needs the
deliberation of a proposed rule during a trial-like hearing process.
Formal Adjudication is more like a court-hearing, where informal
adjudication is dealing with an agent of the agency, and the majority of the
decisions are made by the agency.
a. Section 5503- Real notice must be given, where people have a chance to
comment. Their comments must be responded to, their alternatives must be
considered, and it must be explained how a decision was made.
Appointments/Removal- The president has to have power to remove. President has to have
appointment authority over principal officers, and the principal officers must have control over
the inferior officers.

Here, there is not a take away of executive power really. A Congressional Act is
constitutional unless it significantly interferes with a constitutionally assigned function of
the President. (Morrison)
Balancing Test: whether Congress' removal restrictions impede the President's ability
to perform his Constitutional duties Article II (Morrison)
Inferior Officers: (President isn’t the only one who can remove them)
 Subject to Removal by a higher Executive Branch Official (AG)
 Empowered to perform only certain, limited duties
 Office is limited in jurisdiction
 Office is limited in tenure

At tension here is the desire to let experts make decisions and wanting the people to have
input
➢Therefore, we want to limit agency heads who have a lot of authority so that they do
not wield too much power
➢Congress should not limit presidents power to remove if it would impede power to
carry out executive duties Morrison
Chadha- Only a few ways one house of Congress can act unilaterally. However,
Congress is not able to change the procedure in the Constitution, as both house and
signature of President, without amending the Constitution. A one-house veto is
unconstitutional. If a one-house veto is not allowed by the Constitution eve if it is silent
on the matter does not mean that silence should be seen as agreement either.

Paper Hearing Doctrine

Hard Look Doctrine