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
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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
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

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.
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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.
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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.
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




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?
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


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
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
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
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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
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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.
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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.
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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.
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


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.
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