A Synthesization of Legislation & Regulation Legislation & Regulation, Winter 2012, BYU Law, Prof. Daniels Contents I. Overview and Theoretical Models ......................................................................................................... 3 A. Congressional Process ...................................................................................................................... 3 1. The Bare Bones ................................................................................................................................. 3 2. Windows to Look at a Bill ............................................................................................................... 3 3. The Griggs Problem ......................................................................................................................... 4 B. Proceduralist Theories of Legislation ............................................................................................. 4 1. Liberal Theory ................................................................................................................................... 4 2. Republican Theory ............................................................................................................................ 4 C. Pluralism: Public Choice/Transaction View of the Process ....................................................... 4 1. Demand Patterns............................................................................................................................... 5 2. Supply Patterns .................................................................................................................................. 5 D. Modes of Interpretation ................................................................................................................... 5 1. Weber.................................................................................................................................................... 5 2. Johnson .................................................................................................................................................. 6 II. Legislation: Theoretical Overview .......................................................................................................... 6 A. Formalism v. Realism ....................................................................................................................... 6 1. Four Ways a Court Might Deal with Legislative Innovation ...................................................... 6 B. Modern Legal Process Theory ........................................................................................................ 6 C. Stare Decisis ....................................................................................................................................... 7 1. Upholding Previous Precedents ...................................................................................................... 7 2. Overturning Stare Decisis Precedents............................................................................................ 7 D. Theories of Statutory Interpretation .............................................................................................. 7 1. Eclectic Approaches ......................................................................................................................... 7 2. Systematic Approaches ..................................................................................................................... 8 3. Funnel of Abstraction....................................................................................................................... 8 III. A. Statutory Interpretation by Courts and Agencies ............................................................................. 8 New Textualism................................................................................................................................. 8 Page 1 of 16 1. Bock Laundry ....................................................................................................................................... 8 B. Correcting Legislative Mistakes ....................................................................................................... 9 C. Changed Circumstances ................................................................................................................... 9 1. The Soup Meat Directive ................................................................................................................. 9 D. Doctrines of Statutory Interpretation ............................................................................................ 9 1. Textual and Grammatical Canons .................................................................................................. 9 2. Substantive Canons .........................................................................................................................10 E. Extrinsic Sources for Statutory Interpretation ............................................................................12 1. Legislative History ...........................................................................................................................12 IV. Agency Regulation...............................................................................................................................13 A. Congress Delegates Rule Making and Judicial Authority to Agencies ....................................13 B. Legislative Oversight ......................................................................................................................13 C. Budgetary and Appropriations Power ..........................................................................................13 D. Control Agency by Designing Its Structure ................................................................................14 V. Reviewing Agency Actions ....................................................................................................................14 A. Informal Actions .............................................................................................................................14 B. Formal Actions ................................................................................................................................14 C. An Actual Action for Judicial Review ..........................................................................................14 1. Hard Look ........................................................................................................................................14 VI. Judicial Deference to Agency Interpretations .................................................................................15 A. Mashaw Table ..................................................................................................................................15 B. Skidmore ...........................................................................................................................................15 C. Chevron ............................................................................................................................................15 D. Mead ..................................................................................................................................................15 E. Chevron Step One—Not As Clear as You Would Think ........................................................16 F. Deference and Stare Decisis ..............................................................................................................16 Page 2 of 16 I. Overview and Theoretical Models Pluralist theory concerns the role of interest groups in policymaking. Proceduralist theory looks at the obstacles a bill encounters before becoming law. Institutional theories look at statutes from the perspective of enacting, implementing, and overseeing said statutes. A. Congressional Process 1. The Bare Bones Introduction of Bills: Legislators or executive interests start to draft bills. The President can draw attention to certain issues, propose options, and has resources to draft bills, though he needs a legislator to introduce what he would propose. Committee Consideration: The presiding officer of the legislative body sends a bill to a committee where the bill can either be negated or promoted. Choice of committee is important. The committee chair has incredible power. Scheduling Legislative Consideration: The bill escapes from the committee and is put on the calendar. There is the Union, House, Private, Consent, and Discharge Calendars, among others. In the Senate, you find the General Orders and Executive Calendar. The Rules Committee will decide how to debate the bill. The Senate’s procedures are more loose. Floor Consideration: We find empty-room speeches and baloney later put onto the legislative record. Amendments may be added. (Perfecting, saving, riders, killer, and substitutes (of the bill and of other amendments). Votes are taken in various ways. Reconciliation: Bills have to spend time in conference so they can match. The people in these conferences are usually high-powered people. Executive Signature: 10 days minus Sunday. 2. Windows to Look at a Bill Historical Moment: What is going on in the nation? What is public opinion? Who are the people in power and with a voice? Key Players: Who are the key players? What about the leadership of the legislative body? What about the committee chairs? What about people on the Rules or Appropriation committees? Procedural Hurdles: Who will sponsor the bill? Who will move it through the committee? Who will force it onto the calendar? Who Page 3 of 16 3. B. C. will help you win on the floor? Who will help you dodge filibuster? What about convincing the president to sign the bill? Strategies: How can committees be balanced and assigned? Which committee will see the bill? Can the bill be discharged from committee? What can you say on the record? Can you vote order, time, or exchange votes? President: Can he use the bully pulpit? The Griggs Problem The power plant has merit testing for transferring departments. The Civil Rights statute has intricate language on the subject. The appellate court justified its opinion by looking at an amendment and at the statement of the Senator who proposed it (Proceduralist). The concurring judge argued that the Act clearly had an overall purpose, that racists had used tests that were seemingly neutral to discriminate. He felt the problem should be considered in this light. (Pluralist: look at overall problem.) Proceduralist Theories of Legislation Madison was the founding father of this idea and sought to contain the effects of factions. The slow and frustrating process is the best way to discuss and refine the ultimate result. This tends to be frustrating. The bars to legislation are called veto gates. The gates are good places to find important information. This is also where the opposition will make their attacks. 1. Liberal Theory Statutes should be hard to enact. It is better to have good laws than have bad laws enacted. Furthermore, if we are going to limit people’s freedoms, we had better do it right. 2. Republican Theory There is value in the process itself that will make good things happen. Perhaps people will be able to learn about the public good. Pluralism: Public Choice/Transaction View of the Process A pluralist believes that the audience always gets it right. The ugly view is that this transforms into a market where everyone looks at for self-interest. Legislators are rational actors and maximizers looking to increase votes among the constituency. Senators need votes and most think they will be President one day. This is where log rolling comes in—multiple people working to roll the log. Page 4 of 16 1. Demand Patterns Majoritarian Politics (distributed costs, distributed benefits): Large majorities weigh in favor of stuff that turns into people symbolically voting for junk that does not do anything. (No Child Left Behind) Entrepreneurial Politics (distributed benefit, concentrated cost): Organized interests will form to derail legislation. Support is likely only if some entrepreneur is willing to push, rouse the public, and get citizen groups, e.g., the Occupy Movement. Client Politics (concentrated benefit, distributed cost): There are consensual interest groups who will log roll and employ sketchy lobbyists. This is what happens when the public is uniformed. Interest Group Politics (concentrated benefit, concentrated cost): One small interest group whacks another small interest group. 2. Supply Patterns The legislator is always looking for a way to get reelected while balancing interests without cutting off other supporters. D. Legislator passes ambiguous bill for an agency to interpret. This leads to agency capture. Rent extraction: Legislator can threaten to harm interest group. Modes of Interpretation Originalism/Textual Arguments: The statute should be interpreted according to the plain words and according to what the people who made the statute wants. Dynamic Reading: We live in this world now, we must go forward from the circumstances and needs that we see at this moment. Stare Decisis: We must follow even where we’ve been wrong. (But, reliance on a bad opinion is where that opinion is not following stare decisis and on a young topic, it is not traumatic to turn around. Congressional Silence: If the court was wrong, why did Congress do something? (Flaws: acceptance of status quo, no agreement on how to alter status quo, unawareness, indifference, cowardice.) 1. Weber White workers sue when affirmative action hurts them. The textual argument is pretty clear that Congress did not want to hurt white people, but the dynamic readers see that affirmative action is becoming necessary to break the barrier. Otherwise, the statute as it stands could leave things in a status quo circle. The blacks are still suffering the effects of discrimination which could forever bar them from equality. Page 5 of 16 2. II. Johnson A white person sues over affirmative action denying him a promotion. The argument now is that even though it is clear that legislative intent has been violated, there is stare decisis to consider. Furthermore, one can look at this case from a congressional silence standpoint. Legislation: Theoretical Overview A. Formalism v. Realism Formalism: These people are not especially appreciative of Congressional enactments. They feel that judges have used principles to shape laws through the centuries. Legislators are highly political and somewhat flighty. Judges want to reason and discover what the proper law is. Realism: The legislature is best equipped to dictate social policy. Justice Brandeis points this out in AP v. INS. 1. B. Four Ways a Court Might Deal with Legislative Innovation Receive it fully into law as a rule and principle more recent and superior to common law. Receive it fully to be reasoned from by analogy the same as any other rule of law, regarding it as an equal authority with the common law. Refuse to receive it fully into law and give effect to it directly only, allowing it to cover the field it was designed to cover. (Majority) Narrowly interpret the statute and only use it in cases it expressly covers. (Orthodox) Modern Legal Process Theory The best of both formalism and realism should be incorporated, giving respect to where each side is coming from. Principles: Nature of Interpretation: The court decides what meaning should be given to the statute. Mood: The legislature should be respected, but the nature of law should not be ignored. The Task: Decide purpose of statute and interpret the words without giving them meaning they won’t bear or giving them meaning that violates the established policy. Page 6 of 16 C. D. Double Role of Words: Words should both generate ideas about and limit meaning. Meaning Words will Bear: Be linguistically wise. Policies of Clear Statement: Do not read stupid stuff into a clear meaning. Attribution of Purpose: Do not be stupid about the legislature’s purpose. Interpret Words to Carry out the Purpose: Agencies should be given the first opportunity to figure out the purpose of words, etc. Stare Decisis The Formalists are in favor of stare decisis and the vertical coherence of laws. The Realists feel that laws should coincide with the situation and policy of the day. They favor horizontal coherence. 1. Upholding Previous Precedents The major example is Flood v. Kuhn, the baseball case. The court declined to overrule their old precedent for a number of reasons: The ruling had stood and Congress did nothing. (See Scalia’s reasons for invalidating theories of congressional inaction—acceptance, unsure of alternatives, unaware, indifferent, cowards) Baseball has developed around this ruling—reliance. There is reluctance to cause retroactive effect. Remedy should come through legislation. 2. Overturning Stare Decisis Precedents Intervening development of law o Growth of judicial doctrine o Further action by Congress Positive detriment to coherence and consistency in law Outdated after being tested by experience and has been found to be inconsistent with the sense of justice for national welfare. Clearly erroneous Two-edged stare decisis Implicit approval from Congress Requirements of a dynamic statutory scheme Theories of Statutory Interpretation We move from eclecticism to systematic ways to interpret. 1. Eclectic Approaches Mischief Rule o What was the common law prior to statute? Page 7 of 16 III. o What was the mischief and defect the common law did not cover. o What was the remedy Parliament hath settled on. o The judge should suppress the mischief, advance the remedy, and suppress subtle inventions and evasions to continue the mischief and cure the remedy according to the intent of the legislature. Golden Rule: Take the meaning as the legislature would have wanted. Literal Rule: Follow the plain meaning, even if absurd Second Breath of Fresh Air: Fetch some soup meat! 2. Systematic Approaches Intentionalism (conservative) Purposivism (realist—liberal) Textualism (conservative) 3. Funnel of Abstraction Unsupported Purpose Purported Purpose Historical reading Statutory reading Textual reading Statutory Interpretation by Courts and Agencies A. New Textualism Judges began moving away from Hart and Sacks. This particular movement moved away from plain meaning toward the meaning of words at the time the statute was enacted. If one is to look at legislative history, it would be for the purpose of ascertaining the meaning of a word. All other legislative history is to be ignored and certainly not used some other way. 1) We have a government of laws and not of men. 2) The debate does not truly reflect anything about the final result. 3) One can always find their friends in the legislative history. Old textualism would have been more likely to rely on legislative history to discern certain things. 1. Bock Laundry Scalia, the father of new textualism found himself in a box. The meaning of the words at the time still led to an absurd result. Thus he did this analysis: 1) What plain meaning is in accord with legal usage, and 2) most compatible with the body of surrounding law? Page 8 of 16 B. Correcting Legislative Mistakes What happens when there are legislative mistakes in the nature of scrivener’s errors that still give rise to some requirement, but one that is not very nice? In the Shine divorce/bankruptcy case, the court decided to do the right things, particularly where there was compelling evidence and strong public policy in favor of the person the error was hurting. However, in Locke, they thought it a mistake to set 30 December as the due date, however, Marshall said that Congress’s habits should not give the court carte blanche to do whatever it wants. C. Changed Circumstances Cases to consider: the homosexual adoption, the California Supreme Court enacts comparative negligence over a contributory negligence statute, and the female juror cases. 1. D. The Soup Meat Directive The parent/landowner goes away, giving the babysitter the direction to buy soup meat on a certain day in a certain place and use it to feed the children. a) Social Context What if the soup meat is unavailable? What if a child becomes allergic to soup meat? To what extreme should you go to fetch soup meat? b) New Legal Rules and Policies What if the parent/landowner sends a new letter saying the children should have a low-cholesterol diet? What if it is discovered that bran muffins cause cancer in rats? How much do the new policies and rules have to conflict before you throw out the old ones? c) New Meta Policies Endogenous: Generated from the principal herself. The parent/landowner enacts financial cutbacks. Exogenous: What about policies generated from an authority greater than the principal? A ration on soup meat, for instance? Doctrines of Statutory Interpretation 1. Textual and Grammatical Canons a) Textual Ordinary v. Technical Meaning of Words Noscitur a Sociis: It is known from its associates. Ejusdem Generis: Of the same class, kind or nature Page 9 of 16 b) 2. Expressio unius: Words omitted are significant Grammar Assume the legislature knows grammar. Punctuation: o Not favored o Can be an aid o Sometimes a last-ditch attempt Last antecedent Debate about and/or May v. Shall Singular/plural, male/female Golden Rule against Absurdity Whole Act: (not all acts coherent though) o Look at: Titles Preambles and Purpose Clauses Proviso o Avoid redundancy o Presumption of consistent usage o Rule against interpreting a provision in derogation of other provisions. (Operational, Philosophical, Structural) Substantive Canons When applying substantive canons, consider whether they make it a clear statement, strong inference, or are merely tie-breakers. With substantive canons, there is a tendency to treat different sorts of statute differently. For instance, in the criminal situation, there is the Rule of Lenity. Strict Construction of Statutes in Derogation of Sovereignty Strict Construction of Public Grants Strict Construction of Revenue Provisions Presumptions against tribal/Indian diminishment Presumption that Congress does not want to violate international or constitutional law, violate treaties, have international application, is not in favor of retroactivity. Page 10 of 16 Presumption that Congress stays out of state business, allows courts equitable discretion, allow relief where there are statutory rights, won’t derogate the President’s traditional powers, etc. a) Clear Statement Congress must clearly say it is doing something if there is a presumption that Congress does not do that usually. b) Rule of Lenity Courts think that people should have fair notice as to what a crime is, that there should be culpability, and a separation of powers for the legislature to retain power to condemn certain acts. This rule is best used with sentencing guidelines, nowadays. At best, it is probably a tie-breaker. c) Avoid Constitutional Problems The Court should not hold a statute unconstitutional if there is a legitimate interpretation of that statute that is constitutional. This is a good rule of thumb, the court can narrow statutes, and the court can avoid unnecessarily incurring the wrath of the majority. d) Thrusts and Parries Text only Statutes limited by common law Statute in light of common law Follow other states’ lead on new statutes New penalties or liabilities do not get retroactive application Don’t allow rules of construction to force a bigger statute Titles, preambles, etc. do not control meaning Plain language is given effect. Follow court’s prior use of certain words Judicial interpretation of words prevails Words taken in ordinary meaning unless they are terms of art Every word and clause given effect Page 11 of 16 Effect purpose Not if they are remedial Common law gives way to statute Don’t follow other states Remedial statutes are to be liberally construed so as to promote justice Follow rules of construction Titles, etc. may be consulted as guides. Not if it is an absurd result. Not if statute otherwise defines them. Executive interpretation Words construed so as to agree Some rejected as needful Same words have same meaning Grammar followed Cannot read exception not included Expressio unius General terms, general construction Previous antecedent Punctuation governs or is a tiebreaker Assume grammar intended Distinction between permission and mandatory Proviso qualifies provision When enacting clause is general, proviso strict Maybe Maybe The reason of the law is the law Those are only examples Might be limited Not when ridiculous Not when ridiculous And/or interchangeable Meh. Broader scope Not when necessary to extend These can be useful tools, but often they do not reflect how the legislature thinks, they are not common sense, they do not constrain judges, and they do not force the legislature to do anything. Are they just ways to apply openly normative visions? E. Constitutional principles: avoid doubts, federalism, accountability, public deliberation, rights Institutional Concerns: narrow construction, presumption in favor of judicial review, etc. Counteracting Statutory Failure (coordination, exceptions, etc.) Extrinsic Sources for Statutory Interpretation Extrinsic sources include common law, legislative background, and other states’ interpretation of the law. Legislative history is widely used, though the New Textualists despise it in most cases. Their particular concern is that committee reports can be hijacked. 1. Legislative History a) Committee Reports The committee is a veto gate. This is where a lot of the important things happen. This is also where the losers plants seeds of destruction, but in general, this is where the experts and concerned people are. This is where the drafting and major work is done on the Page 12 of 16 bill. However, sometimes there is no report or it is ambiguous or sabotaged. b) Statements by Sponsors or Drafters These people carry more weight than some other random legislator. However, the friendly colloquy is a nice way to manipulate here. (1) c) IV. Dog Does Not Bark If someone fails to say something, then perhaps it is okay to assume that what was said was what everyone was on board with. However, there are situations where someone would avoid saying something. (Alaska lands hypothetical) Presidential Signing or Veto Statements The President can sign the bill and talk about the important features, make objections to constitutionality and promise to apply it narrowly, or even talk about how it interprets the bill. A veto statement that is overridden can also be indicative of the legislature’s intent. Agency Regulation A. Congress Delegates Rule Making and Judicial Authority to Agencies High information cost to do it on their own. High cost of procedure to do it High costs on bargaining The result is bureaucratic drift where the eventual result is not quite what the House or Senate wanted and is largely influenced by the President dragging things one way or another. B. Legislative Oversight One attempt to control via police patrols or fire alarms. McCarthy and industrycontrolled committees are examples of problems. Furthermore, Congress people do not want to waste time when they could be doing stuff that might get them votes. C. Budgetary and Appropriations Power Congress has plenary power over government spending. The statute creating the agency does not give it money. The appropriations committee (not oversight) will think about giving them money. They can send strong signals that way and the agency is wise to pay attention to the relevant people. Page 13 of 16 D. V. Control Agency by Designing Its Structure Congress can give lots of clients or not so many clients and may even create agencies that compete and could get more funding. Congress can also make it very difficult for the agency to act decisively. Reviewing Agency Actions A. Informal Actions The agency refuses a permit or does something in relation to a single person. The standard for dealing with this is arbitrary and capricious. B. Formal Actions An agency’s formal action had proceedings with testimony. The court is going to look for substantial evidence more often than not. C. An Actual Action for Judicial Review The APA allows citizens to sue government for screwing up if they have standing. In action for judicial review, court shall (not determining the right thing, but the permissible thing, not changing the standard just because it is an important decision) Compel agency action unlawfully withheld or unreasonably delayed. Hold unlawful and set aside agency action, finding, conclusions found to be: o Arbitrary, capricious, abuse of discretion: The agency must examine data and articulate a satisfactory explanation for its action including a rational connection between facts and choice and the court sees if there has been an error of judgment. o Contrary to constitutional right, power, privilege, immunity o In excess of statutory jurisdiction, authority, or limitations o Without observance of procedure required for law o Unsupported by substantial evidence in the case o Unwarranted by facts to extent facts are subject to de novo review. 1. Hard Look There arose a strong presumption that agencies would be scrutinized by the courts. In order to avoid putting the vain politician on the stand, agencies began to keep very careful records—ossification. Some judges have taken to using soft glances. Overton Park is the classic hard look. Motor Vehicle Mfgs v. State Farm was another incident where the court said the agency did not support killing a rule very much, although in Heckler v. Chaney, the court said that failure to investigate an issue by an agency to see if a rule is being violated is not something the court will get into. Page 14 of 16 VI. Judicial Deference to Agency Interpretations A. Mashaw Table Agency Court Follow president Yes No Avoid raising const q No (Daniels takes exception) Y Legislative history as primary guide Y N Give energy and breadth to all programs within you jxn Y N Activist lawmaking Y N Respect judicial precedent N Y Interpret to lend coherence to legal order N Y Pay particular to the parameters of interpretive efficiency Y N Interpret to secure control over subordinates Y N Pay attention to politicians Y N B. Skidmore Justice Jackson says that the agency’s interpretation is entitled to some deference, at least it should be given respect, though it is not a binding interpretation. In General Electric Co. v. Gilbert, Rehnquist made his decision based on how the agency had changed interpretations and had not been very firm on what their interpretation was. C. Chevron Here, Stevens decides to give the agency deference .The Chevron challenge goes something like this: Is Congress’s intent clear? o If yes, you’re done and the agency is thus bound. o If no, then is the agency’s interpretation permissible? It is rare for someone to lose once the court has decided that Congress was ambiguous. D. Mead This case addresses tariff classification rulings that are more like informal agency adjudications. In light of Mead, the following test applies. Page 15 of 16 Is the intent of Congress clear? If yes, then that is the end of the matter. (This is where the battle will be won or lost in most cases. If no to above, then is this a rulemaking/formal adjudication situation? If so, proceed to Chevron step 2, asking if the agency’s interpretation is permissible, as in is it facially where Congress wanted, consider that the agency are experts, more politically accountable, and have been given power by Congress. If no to above, then give the proper amount of deference the action deserves based on Mead/Skidmore analysis. Did they use expertise? Did they rely on public input? Were they consistent over time? Is it persuasive? E. Chevron Step One—Not As Clear as You Would Think See the first two-thirds of the course. Example is Palm Beach County Canvassing Board v. Harris. F. Deference and Stare Decisis Once a court has determined a statute’s meaning, the court adheres to the ruling and holds the agency to it. However, Chevron deference still applies to later agency actions—as in more refined rules. Page 16 of 16