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