Legislation & Regulation Flashcards
Steps of Statutory Interpretation
1) identify the legal issue
- identify the operative section of the act related to legal issue
2) identify the specific language in the operative section of the act or regulation related to the legal issue
3) determine whether Congress intended the language to have its ordinary or technical meaning
4) determine if the language is ambiguous
5) determine whether there is reason to reject the ordinary meaning
6) determine if intrinsic sources relate to meaning
7) determine if extrinsic sources relate to meaning
8) determine if policy-based sources relate to meaning
plain meaning canon
directs that words and phrases shall be construed according to the commonly approved usage of the language
ordinary meaning
the meaning most people would give the language and is narrower that dictionary meaning
Places to find ordinary meaning
dictionaries, newspapers, literature, grammar & punctuation,
Dictionary meaning
all ways words are used and is broader
Technical meaning canon
technical words and phrases have acquired a peculiar meaning and shall be construed accordingly
Ambiguity (easier to meet)
2 or more reasonable people disagree
Ambiguity (harder to meet)
2 or more equally plausible meanings
Modern Constitutional Avoidance Doctrine
If there are two reasonable interpretations of a statute, one of which raises serious constitutional issues, and one interpretation doesn’t, the court should adopt the one that doesn’t.
absurdity (harder)
result would shock the general moral/common sense
Absurdity (easier)
result would frustrate purpose/intent
Scrivener’s Error
an obvious drafting error
Reddendo Singula Singulis
(referring each to each)
Ex: “for money or other good consideration paid or given” -> “for money paid or good consideration given.”
Doctrine of last antecedent
words or phrases modify only the immediately preceding noun or noun phrase in a list of items
grammar & punctuation General Rule
acts are interpreted as using ordinary rule of grammar unless either contradict the ordinary meaning
And v Or
“and” has a conjunctive meaning while “or” has a disjunctive meaning
- however, when context indicates, courts will interchange these two
Singular & Plural
for ease of drafting, laws are typically written in the singular
- the legislature’s use of singular is assumed to include the plural, and vice versa
Masculine v. feminine
for ease of drafting laws are typically written in the masculine
- masculine pronoun is interpreted to include the feminine or neuter
Mandatory & Discretionary
“shall” is mandatory
“may” is discretionary
“must” is mandatory and used when a condition precedent is present
“should” is discretionary
In pari materia (“part of the same material”)
other sections or statutes in an act or code can be considered to discern the meaning of the statutory language
Whole Act- the entire act is relevant to interpretation
Whole code- acts within similar purposes may be relevant to interpretation
Presumptions of Consistent Usage
When a legislature uses the same word in different parts of the same act, it intended those words to have the same meaning (identical words presumption)
Meaningful Variation
If the legislature uses a word in one part of an act and then changes to a different word, it intended to change the meaning
Noscitur a Sociis
“it is know from its associates”
- used for words within a list, not for the catch-all
- when a word has more than one meaning, the appropriate meaning should be gleaned from the textual context (the surrounding words in the act)
Ejusdem generis
“Of the same kind, class, or nature”
- used for general words & catch-alls, not for words within a list
- when the general words or catch-alls are near specific words or listed words, the general words and catch-alls should be limited to include only things similar to the specific words
Canon against Surplsage
every word, phrase, section, etc. has an independent meaning; nothing is redundant or meaningless
Expressio unius
(inclusion of one is the exclusion of the other)
- when the legislature includes things explicitly, courts should conclude that the legislature intentionally omitted other similar things that would have logically been included
extrinsic sources
sources outside of the enacted act but within the legislative process that created the act
Rule of Lenity
ambiguity in criminal statute resolved in the defendant’s favor.
- intended to protect defendant 5th and 14th Amendment due process right to be on notice of what they are charged for
- rule of last resort; only used if ambiguity remains after “seizing everything from which aid can be derived”
Retroactivity
civil statutes apply prospectively unless legislature intended retroactive application that will not impair a vest right
Youngstown (Jackson)
braches aligned: executive power at its fullest extent
One branch silent: invites testing boundary (zone of twilight)
branches conflict: executive power at lowest ebb
INS v. Chadha
- Sep. of Powers
- formalist
- one house veto violates bicameralism & presentment
King v. Burwell
- “exchange established by the state”
- in pari materia: look at the full act purpose
Scalia dissent: canon against surplusage and meaningful variation
Smith v. US
“buying drugs with a gun”
- uses dictionary meaning of “use”
Scalia-Ginsburg dissent: ordinary use of a firearm as weapon
- invokes rule of lenity
Watson v. US
“buying gun with drugs”
ordinary “use” does not include “receive”
O’Conner v. Oakhurst Dairy
serial comma case
Steelworkers v. Weber
- affirmative action case
both sides use different legislative history
“discrimination” as “decisions on race to harm minority”
US v. Marshall
“LSD carrier”
- constitutional avoidance: didn’t find another interpretation “fairly possible,” so constitutional avoidance does not apply
Yates v. US
tangible fish case
Ginsburg: noscitur a sociis & ejusdem generis are used to narrow the meaning of “tangible object” to mean tangible objects that are used to record or preserve information.
Alito concur.: Look at Title; tries to answer surplusage argument
Holy Trinity
purpose/long title overrides plain meaning
Legislative history
- Conference Committee Report
- House/Senate Committee Report
- Earlier/Drafters of the Bill
- Sponsor/Drafter’s Commentary
- Floor Debate Statements
- Unenacted Bils
- Congressional Silence
- Presidential signing statements & veto messages
- purpose or spirit of the law
Post enactment context
- subsequent legislative inaction
- stare decisis & legislative acquiescence
- later bills and acts
De Novo
default; language in other statutes
Formalism
keep branches separate
- determine the power being exercised
- determine if the appropriate branch exercises that power
Functionalism
Protect core functions; undue encroachment
- balance competing powers’ interests with pragmatic need for innovation
Long title, short title, section title
- a component
- Title of any kind cannot trump clear text, but titles can be relevant when text is ambiguous or absurd
Findings clause
identifies the legislative facts (the mischief) that lead the legislature to enact the bill
Purpose clause
identifies the purpose of the bill (the remedy)
Findings & Purpose Canon
can’t trump clear text but can resolve ambiguity and absurdity
Statutory definitions
- Statutory definitions are critical and controlling
- Statutory definition is controlling even if it makes no sense or defy common sense
- Definitions that apply to whole act are usually placed in definitions section
o Definitions that apply only to one section are usually placed in that section
Exceptions and Provisos
- Exceptions begin with “except for…”
- Provisos begin with “provided that…” or “provided however…”
- Canon is that exceptions and provisos should be narrowly construed
Harmonizing Statutes Order
1) specific v. general
2) later enacted
3) repeal by implication disfavored
Specific v. general
Specific provision construed as an exception
Later Enacted
Newer statute viewed as clearest and most recent expression of legislative intent
Repeal by Implication Disfavored
a. When a leg wants to repeal a statute, it does so explicitly
b. If there are two reasonable interpretations judge should choose the interpretation that does not repeal an existing statute or any part of it
c. If repeal unavoidable, then second statute is only repealed to the extent of the irreconcilability
When can repeal by Implication Disfavored be overcome?
1) new statute comprehensively covers entire subject matter or prior statute
2) new statute is completely incompatible with existing statute
hierarchy of legislative history
1) conference committee reports
2) house/senate committee reports
3) Earlier drafts of the bill
4) sponsor/drafter’s commentary
5) Floor debate comments
6) Unenacted bills
7) Congressional Silence
8) Presidential Signing Statements & Veto Messages
Conference Committee reports
most persuasive evidence of congressional intent because it is generated by members of both chambers
Earlier Drafts of the Bill
Including any rejected amendments
- explains what legislature intended when adopting this draft/this language
Sponsor/Drafter’s Commentary
Prepared bill before it was subject to legislative manipulation; legislature likely considered the comments
- intent of whole legislature is more important than statements of individual drafters/sponsors
Floor Debate Statements
Reflect only one legislator’s intent; sometimes made in empty chambers
Presidential Signing Statements & Veto Messages
Lowest in hierarchy – don’t come from the legislature; subsequent executive history
Judicial Willingness to Use Legislative History - Common
to determine the meaning of ambiguous and absurd text
Judicial Willingness to Use Legislative History - Less common
to confirm the meaning of clear text
Judicial Willingness to Use Legislative History - Even less common
to defeat the meaning of the clear text
Constitutional Issues of Legislative History
- does not go through bicameralism and presentment (Sep. of powers issue)
- Constitution delegates lawmaking power to legislature as a whole, not to committees, individual legislators, staff members, or lobbyists.
- Due process requires that citizens have notice of the law (text should be clear).
Accessibility and Cost Consideration
- Voluminous (non-existent)
- Hard to find
- Time-consuming
Reliability Concerns
- Legislators don’t read every report or attend every debate
- Contradictory statements can often be found in the legislative history
How to find expressed purpose
- Look at text of statute: preamble, findings and purpose clauses
How to find unexpressed purpose
- Based on text, figure out the problem the statute was intended to address and what remedy the statute provided
(4-step process heydon’s case)
1. Determine what the law was prior to the Act
2. Determine the problem (“mischief”) with existing law
3. Determine the remedy that the legislature devised to fix the problem
4. Construe the Act in a way that minimizes the mischief and furthers the remedy - Look at legislative history
Using Purpose
- Confirm ordinary meaning of unambiguous text (especially when judge not a textualist)
- Resolve ambiguous text or prevent absurd outcomes, resolve scrivener’s errors, or support an interpretation that avoids a serious constitutional issue
Subsequent legislative Inaction
- super strong state decisis
- legislative acquiescence
super strong stare decisis
o Stare decisis even stronger in statutory interpretation. If legislature didn’t react to court’s interpretation, court shouldn’t alter its interpretation.
Legislative Acquiescence
o Courts presume that legislature’s failure to act means, agreement with court’s interpretation
Subsequent Legislative Action
o May affect the meaning of an existing act (e.g. in deciding whether Title IX allows money damages, Court looked to two subsequent acts that defined express remedies to include all forms of damages).
Subsequent Legislative History
- Canon is that subsequent legislative history should never be relevant. But sometimes, in unusual situations, there are exceptions.
Constitutional Avoidance Counter Arguments
o The other side’s interpretation is not reasonable
o There aren’t any serious constitutional concerns
Criminal Statutes apply…
Prospectively
- they violate the constitution’s ex post facto clause if they apply retroactively and disadvantage the defendant
Ex Post Facto 1
Statutes that criminalize actions that were legal when committed
Ex Post Facto 2
Statutes that alter a crime so it is categorized more severely than when it was committed
Ex Post Facto 3
Statutes that increase the punishment for a crime
Ex Post Facto 4
Statutes that alter the rules of evidence to make conviction easier
When do you need a clear statement rule?
- Abridge long-held individual or states’ rights; or
- Make a large policy change
Where are clear statement rules required?
1) federalism
2) Preemption
3) American Indian Treaty Rights
4) Sovereign Immunity
Derogation Canon
Courts should strictly interpret acts in derogation of the common law (judge-made law)
- An act is in derogation from common law when it partially repeals or abolishes common law rights
Remedial Purpose Canon
Courts should broadly interpret remedial acts
- Remedial acts create new rights or expand existing remedies
Agency Overview
- Departments
- Executive Agencies
- Independent Agencies
Departments
- Largest and most influential federal agencies are departments
- Sub-agencies within each agency
Executive Agencies
- All departments and almost all agencies within departments are executive agencies
- Serve at the discretion of the President
- Headed by Secretaries who make up the presidential cabinet
Independent Agencies
- Freestanding; not part of any Department (more independent from the President’s influence than executive agencies)
- Usually headed by a multi-member board from both political parties, not a single individual
- Members can be removed for cause
- Members serve for specific terms on a staggered basis
Administrative Procedure Act (APA) § 5 U.S.C. § 551
- Identifies the procedures that govern agencies
- Does not include the President in the list of exceptions to what an agency is
Statutes enacted by Congress
- Agencies are founded by an “enabling” or “organic” act that defines the scope of what the agency can regulate
- U.S. Constitution
What Agencies do
Rulemaking; adjudication; investigation
Rulemaking
- Marking, amending, repealing rule (regulation)
- involves new rule applying to large numbers of people
- Congress enacts & codifies statutes in the U.S.C.
- Agencies promulgate & codify regulations in the C.F.R.
- Rule: “an agency statement of general . . . applicability and future effect designed to implement, interpret, or prescribe law or policy.”
Adjudication
- Applies existing rule to a set of acts
- Results in an order
Investigation
- Investigating compliance of regulated entities
Less formal agency guidance
- Guidance documents, Opinion letters, Bulletins, Policy Statements, Interpretive rules. Press releases, & Amicus briefs.
Legislative Rules
- Imposing a binding requirement; have the force of the law
- Must go through Notice and Comment Proceedings
Non-legislative Rules
- Interpretive rules
- How the agency will interpret the language of its regulations - General statements of Policy
- How the agencies will use its power in the future
- Provide guidance
- Exempt from Notice and Comment unless required by statutes
Informal Rulemaking
- Requires notice and comment procedures, publication
- Most rulemaking is informal
Informal Process
- Notice of Proposed Rulemaking (NPRM)
- Must fairly apprise interested persons of issue involved
- Must reference legal authority under which rule proposed - Public Comment Period
- Opportunity for public to submit views
- Changes may be made based on comments
- No minimum time period - Publication of final rule in Federal Register with “general statement of basis and purpose”
- Must be published at least 30 days before effective date
Formal Rulemaking
- Rarely used by federal agencies
- Requires Congress to use magic language
- Statute must require rule to be made “on the record after opportunity for agency hearing.”
- Requires procedures in 5 U.S.C. 556 & 557
Adding Procedures
A court cannot add procedures that an agencies has to follow; only Congress can add procedures that an agency must follow (Vermont Yankee holding).
Legislative Rules exempt from Notice and Comment
a. Military and foreign affairs
b. Agency management or personnel
c. Public property, loans, grants, benefits, contracts
Procedural Rules
“rules of agency organization, procedure, and practice”
Good cause exemption
a. Impractical
b. Unnecessary
c. Contrary to public interest
d. 30 day publication requirement can also be waived for “good cause”
Non-legislative rules
a. Interpretive rules
b. Policy statements
Formal Adjudication
- Most adjudication is formal
- Triggered by the magic language: “on the record after opportunity for an agency hearing.”
- Trial-like procedures
o Notice to parties
o Agency can use an Administrative Law Judge (ALJ)
o No ex parte contacts with judge
o Separate prosecuting and adjudication functions
o Submission of oral and written evidence
o Cross-examination of witnesses
o Decision must be based on entire record - Results in an “order” with findings of fact and conclusions of law.
Informal Adjudication
- No requirements in the APA.
- Agencies can decide their own informal procedures.
o E.g., Federal Student Aid; hunting & fishing license
Agencies Investigation Powers
- Subpoena power
- power to order periodic or special reports
- inspecting premises of a regulated entity to assess compliance with regulations or statute
- agencies must generally get a warrant to search or inspect premises unless the entity falls into a “closely regulated” exception
Legislative Oversight
- enabling legislation
- subsequent legislation
- appropriations
- hearings, investigations
Presidential Oversight
- appointment power
- removal power
- executive orders
Removal power
president may only remove officers for cause
Executive Order 12,866
forces agencies to perform “regulatory analysis” assessing the costs and benefits of major proposed regulation
Executive Orders
- executive order 12,866
- presidential directives
- signing statements
Signing statements
courts have ignored them in statutory interpretation, but agencies are influenced by them
Standard of Review
the amount of deference a court given to an agency’s interpretation or finding in reviewing of a case
Standards of review for findings of fact and policy
- arbitrary and capricious
- substantial evidence
Arbitrary and capricious
applies to informal rulemaking and informal adjudication
- whether agency’s findings were bases on a consideration of relevant factors or whether the agency made a clear error of judgment
Substantial evidence
applies to formal adjudication and formal rulemaking
- whether the record contains “such evidence as a reasonable mind might accept as adequate to support a conclusion”
Standards of Review for Questions of Law
- De Novo
- Skidmore
- Chevron
- Brand X
- Seminole Rock (Auer-Kisor)
De Novo
standard blank analysis for questions of law
- also used on issues of “deep economic and political significance.” (King v. Burwell)
Skidmore
agency interpreting enabling statute w/ rule that does not have force of law, but it now applies to interpretations that do not have the force of law since Chevron has been over turned
Skidmore Power to Persuade Factors
- throughness evident in agency’s consideration
- validity of its reasoning
- consistency with earlier and later pronouncements
- all those factos which give it the power to persuade
Chevron
agency interpreting enabling statute w/ rule that has force of law
if the statute is ambiguous, courts defer to any reasonable interpretation by the agency
Chevron 2 step test
1) did congress speak to the precise issue before the court?
- if yes, inquiry stops there
- if not, move to step 2
2) is the agency’s interpretation reasonable?
- if yes, then defer to the agency’s interpretation
Brand X
applies when there is a prior judicial interpretation of the statutory provision at issue and the agency promulgates a legislative rule that disagrees with that prior judicial interpretation
Brand X 2 Step Test
1) if prior judicial decision was made at Chevron Step 1, then it controls
- if the statute is not ambiguous, there is no gap for the agency to fill because only one interpretation can be reasonable
2) if prior judicial decision was made at Chevron Step 2, then agency’s new interpretation controls as long as it is reasonable
Seminole Rock-Kiser
agency interpreting its own regulation (most deferential)
plainly erroneous or inconsistent with the regulation
exception: if the regulation parrots statutory language, then it does not get Auer deference
Seminole Rock-Kiser Analysis
1) the language at issue must be truly ambiguous after using all the tools of statutory interpretation
- if ambiguity remains, the agency’s reading must be reasonable and “Must fall within the reasonable bounds of interpretation.”
2) a reasonable agency interpretation can get deference if it meets the 4 prerequisites
