Hills ARS, Spring 2010, A- in the class
Admin Outline
Introduction to Statutory Interpretation
- TVA v. Hill
- Sources of Statutory Interpretation
- Plain Text/Ordinary Meaning
- Constitutional basis because ratified
- Direct lineage to the people
- Best empirical evidence of legislative intent
- Sources for interpreting text
- Dictionaries
- Previous law with similar language
- Ordinary meaning
- Court uses this
- Powell’s Dissent: Canon against mere surplusage
- Waste no words
- “authorized, funded, or carried out” limits to these actions, not any actions as in majority
- Object of the Statute
- Written into Act in Preamble
- Not operative text
- But, actually passed by Congress
- But, not haggled over like other parts of Act
- Deals needed to pass bill could be counter to purposes of bill
- Legislative History
- Used to respond to Powell’s absurdity argument
- Article I procedures
- Earlier versions of bill
- Conference records
- Speeches
- Represent view of only one person
- No constitutional basis
- Canon against retroactivity
- Majority position would allow for a retroactive effect
- Absurdity Argument
- Have to shut down fully functioning dam
- Subsequent Legislation
Purposivism
- Purposivism Hard
- Even when plain text contradicts the purpose of the act, ignore text
- Riggs v. Palmer
- Court never quotes text, go straight to purpose
- Plain text doesn’t allow for murdering the testator exception
- Court finds a purpose to enforce person’s final wishes, which would probably not be to reward their murderer
- How do they find purpose?
- Subjunctive inquiry, what legislature would have intended
- Absurdity – inconceivable that leg would reward murderer
- Anti-derogation canon – common law maxim of not allowing profit from your crime
- Could have found other purposes
- Not allowing courts to add penalties to criminal law
- Principle of lenity
- Avoiding redundancy
- Upholding an easily administered bright line rule
- *Dangers of Purpose*
- the purpose you find could override other, equally valid, purposes
- Purposivism Light
- Use purpose when text is ambiguous as a tie breaker
- Holy Trinity Church
- Plain text seems to cover Reverend Warren, but there could be some ambiguity
- Court finds a general purpose to apply to manual labor
- Title of Act: “labor”
- Circumstances:
- Common knowledge
- Private petitioners
- Senate and House reports
- Anti-Absurdity canon based on communal social norm of this being a Christian nation
- Is this correct purpose?
- What about administrative simplicity?
- Legislative Process
- Theory
- Cycling – because of pair-wise voting and different first and second preferences, a generally less popular option can win given the right voting rules
- Does not occur if you have a policy preference continuum
- But, reemerges if you combine policies into one bill
- Germaneness Rule – In House you are not allowed to have amendments on a different topic to the bill
- No such rule in Senate
- Could have strategic voting to kill off unwanted amendments
- Thus, voting on amendments might not reflect actual intent of congressperson, Congress
- Might not have any one “Intent of Congress”
- Fact
- Procedure in the House
- Rules Committee develops special rule for a bill
- Open rule – subject to Amendment Tree
- Closed Rule/gag rule – no floor amendments
- Modified closed rule – limits number and type of amendments
- Any rule can waive germaneness requirement
- Voted on, according to one hour rule, by whole house
- Generally majority party will automatically pass
- Amendment Tree ORDER AND NUMBER matter
- Two degrees rule – no amendments to amendments to amendments
- Voted on in reverse order of offering
- First Degree Amendments
- Motions to strike/insert
- In the nature of a substitute
- Second Degree/Perfecting Amendments
- Strike out old language and insert new language into a first degree amendment
- Take aways from the Amendment Tree:
- Canny majority leaders can “fill the amendment tree” with unimportant amendments to block more controversial measures being proposed
- When and how you introduce amendment can affect its viability
- Senate Debate
- No rule on germaneness of amendments, no limit on number of amendments, or length of debate
- Can only limit debate with vote for cloture
- Unanimous consent agreement – all agree to waive cloture rule to prevent one Senator holding things up
- Conference Committee
- Can undo work of House or Senate in order to get a compromise. House must approve report, but this is an all or nothing process
- Textualism
- Casey
- Does attorneys fees include expert fees?
- Common usage – could go either way ambiguity
- Statutory usage
- In pari materia – other statutes delineate expert fees separately. Scalia says this is unambiguous
- Purposes are irrelevant unless they shed light on text
- Scalia ignores general understanding by distinguishing and requiring Congress to be more specific
- Best evidence of purpose is text
- Unambiguous through norms of usage, so don’t look to policy
- Interpret usage separate from goal of statute
- Length as well as direction
- Allowing purposive interpretation of language will let you ignore the limits of length on the statute
- Statutes defined as much by what they leave alone as what they change
- Use only canons, dictionaries, evidence of how people use term in speech
- Goal is coherence/consistency in the law
- Dicta: If there is Ambiguity:
- Look for permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law
- Role of courts is to make sense rather than nonsense of corpus juris
- Arguments for Textualism
- Respect for legislative supremacy
- Respect legislative compromise: Every piece of language should be presumed to be part of a bargain
- Choice of words is intentional, necessary to get bill passed
- Details of usage trump generalities of purpose
- Constrain judges, limit judicial discretion
- Ex Ante: Encourage Congress to be clear, draft laws carefully
Ambiguity and Absurdity
- Ambiguities
- Cline
- 2 competing definitions of “age”, purpose used to break tie
- If examination of dictionaries, mainstream and technical definitions, other statutes leave it still ambiguous. turn to LH.
- Cline Decision Tree
- Is the text Ambiguous?
- No enforce plain meaning (Casey)
- Yes does statutes’ purpose resolve ambiguity?
- Yes enforce def from purpose
- No you are SOL
- Does having 2 competing meanings create ambiguity?
- Yes Textualism is weak, because there will almost always be a competing meaning of a term
- No Textualism is strong, you use all canons and norms of usage and still meanings are evenly weighted, then, and only then, you can turn to purpose
- You will almost never find ambiguity, making Scalia a happy camper.
- **Ambiguity is a great switch that can take you to purpose**
- Absurdity
- U.S. v. Kirby
- Is it “Retarding the passage of the mail” to arrest a mail carrier for murder?
- Court held that it would be absurd to say so.
- Puffendorf’s example of letting blood in the streets to save a life.
- Why is this absurd?
- High costs – costly to let murderers go v. small benefit of timely mail
- Common law notion of law enforcement immunity
- Common law notion reflects common sense
- Easy here, could also have used violation of a social norm, as in HTC
- What is absurdity, in general?
- Plain meaning is so contrary to common sense that Congress could not have intended it.
- Could be a species of ambiguity. It is ambiguous what Congress intended because the result of the plain language is so absurd. Thus, you can turn to Purposivist tools, LH, CL, etc., to determine intent of Congress.
- How do we cure here?
- CL maxim + common sense
- Public Citizen
- Does the FACA apply to the ABA?
- Utilize is clear in terms of plain meaning, result would be absurd. How does court find absurdity?
- Reducio ad absurdium: other cases show absurdity – American Legion, NAACP, political parties
- “compels an odd result”
- But, these are not before the court. Issue of ripeness.
- Lowers threshold for absurdity
- Opposing parties think the current bodies would not create absurdity.
- Strong Textualist case to apply FACA to ABA
- Kennedy, Dissent: only need to look to constitutional issue to cure.
- How do we cure here?
- Turn to LH to resurrect text.
- Utilized really means “funded by”.
- Constitutional issues of interfering with President’s Art. II powers.
- Avoidance Canon, not absurdity.
- Public Citizen Absurdity v. Marshall Absurdity – Possible absurdities v. actual absurdities
- Absurdity and Scrivener’s Error
- Scalia: Scrivener’s error is when “legislature obviously misspoke” v. Absurdity where it “obviously over-legislated”.
- Scrivener’s error is obvious and specific error
- Absurdity is blanket phrase that is too broad
- Less discretion from court to cure a Scrivener’s error
- If you can point it out, you can cure a Scrivener’s error
- If you can point out absurdity, you still don’t know how to cure
- U.S. v. Locke - Clash between text “file by Dec. 30th, and intent to file by end of year. Court goes with literal reading
- Deadlines inherently arbitrary, but essential to accomplish goals.
- Because isn’t really bad policy, results are not world ending, go with text.
- Marshall does not care that this might be contrary to Congressional intent.
- If this is too onerous, Congress can change it
- Ambiguity v. Absurdity v. Scrivener’s Error
- Ambiguity
- Unclear what meaning the text has
- How do we cure ambiguity?
- Resort to canons, norms of usage, other legislation, LH
- Cline
- Absurdity
- A meaning follows clearly from text, but Congress could not have intended
- How do we cure absurdity?
- Congress can cure by being very explicit, unless unconstitutional.
- Adopt an old legal tradition
- Kirby, Riggs v. Palmer
- Question constitutionality
- Public Citizen
- Not really a “cure” for absurdity, more like way to attack the issue
- Look to LH
- Either to show what they would have done if confronted with issue
- Public Citizen
- Or, that leg. actually intended this result. LH to resurrect the text.
- Textualists would approve.
- TVA v. Hill
- Enforce text literally, force Congress to respond
- Marshall
- Scrivener’s error
- Obvious and specific error, easily cured
- Locke
Legislative History
- Source of Authority
- Legislative history
- North Haven Board of Education
- Plain meaning: “no person”
- Includes employment, even janitors
- Majority argues that there is no ambiguity
- Turn to LH because this is a pre-Casey case.
- Legislative History sources
- Prior legislation included “employment”
- Amendment
- Statements of sponsor in Senate, Bayh
- Post-enactment
- Legislative inaction, did not pass bills that would have exempted employment
- Arguments for legislative history
- Expertise – sponsor, committee know more about the bill
- Delegation – others look to sponsor, committee to explain bill
- Powerful with committee because chair chosen by majority, so less likely to be an unrepresentative view
- Less powerful for sponsor, though you could say it comes from the unanimous consent agreement
- Legislature will respond to Court’s construction by clarifying intent in LH
- Circular argument, plus most congressmen don’t read reports, listen to speeches
- Normative argument
- Electoral Accountability
- Congress should take their speeches seriously
- Sponsor’s Statements v. Committee Reports
- Delegation
- Sponsor statements have no opportunity for dissent
- Committee Reports will be a more precise elocution of the power delegated to them because of the need to compromise between committee members.
- Expertise
- Sponsor will likely be more zealous re bill, so not representative
- Clarity
- Contradictory statements are likely ftom a sponsor
- Not clear statement – if multipart bill, may not know which part Senator is referring to
- Committee Reports benefit form revision, time to format and make clear
- Legislative inaction
- North Haven School Board
- Conference Committee deleted language
- Could be many reasons for this – could have been removed to prevent conflict between different parts of the bill, not to change meaning of one part.
- Remove redundancy and possible expressio unius argument. Could indicate that Congress thought that meaning was already in bill
- Kinds of Inactivity
- Pure silence: no action at all, no bills even proposed
- Presumption of acquiesence
- Weakest evidence
- Congress might have had more pressing issues, minority might have kept bill from floor
- Hard to get bills through Congress
- But, can accumulate
- Extra strong form stare decisis
- John R. Sand & Gravel – jurisdiction clause was over-ruled in every other kind of statute, but not here
- Protects Reliance interests
- Negative action - Stronger
- Congress rejects bill that would overturn decision
- Flood v. Kuhn – Congress repeatedly struck down bills to remove interstate commerce exemption for baseball, and refused to allow exemptions for other sports.
- Layer of consistency over a layer of inconsistency
- Powerful statutory stare decisis
- Congress rejects amendment
- Minority Gridlock: Minority can shut down an amendment
- Re-enaction - STRONGEST
- Congress re-enacts bill without overturning interpretation, incorporates language form judicial interpretation
- In pari materia – Congress presumed to use terms as construed in past decisions
- Argument against pure silence/strong form stare decisis
- Ginsburg in John R. Sand & Gravel: when circumstances have changed, policies underlying stare decisis, stability and predictability, are weakest
- Can ensure uniform interpretation of similar statutory language
- Intervening development of law has removed conceptual underpinnings of original decision
- Legislative Action v. Inaction
- Inaction is more of a collective decision, so maybe more valuable that action of sponsor, or committee
- Textualist critique
- Blanchard v. Bergeron: why Scalia hates LH
- “Reasonable” re Attorney’s fees is ambiguous, depends on your perspective, your side in the case
- Court turns to Committee Reports
- Clear, on point, cite judicial precedent listing explicit factors to consider
- What is wrong with Committee Reports?
- Violation of bicameralism – only Senate Reports
- Violation of Article I
- Not passed via constitutional procedures
- Congress is not to be trusted unless reigned in by Constitutional procedures
- Scalia: Congress cannot tell Court how to construe terms in statute unless such instructions are in the form of terms in the statute
- Issue of “role reversal”
- Violation of separation of powers
- Legislature is telling Court how to interpret statute
- What is wrong with LH generally?
- Allows too much judicial discretion
- Court can pick and choose with aspects of LH to use.
- Continental Can
- “Substantially all” re pension plan contributions, what does it really mean?
- Unambiguously does not mean majority, but need extrinsic canons to determine what it does mean
- Post enactment speech
- Especially suspect as it contradicts other sources, can have no influence of legislation so could say anything really
- Easterbrook argues against even modest use of LH, can only use it when consistent with customary usage
- Customary usage determined here from IRS Code
- Objective definition that transcends text
- Technical rule, technical definition
Debate: Purposivist v. Textualist
- U.S. v. Marshall
- Mixture or substance: does this include the paper carrying LSD?
- Easterbrook, Majority turns to technical definition that includes paper
- Expressio argument: Congress made different penalties for pure and MOSCADA PCP, so could have differentiated if they wanted
- Surplussage: if mixture really means pure, then there are extra words
- Why no absurdity: there could be at least some legislators that would want this structure, so have to respect text.
- Easterbrook/Marshall Absurdity = reasonable congress would never pass, or plainly unconstitutional
- Dissent: Posner looks to big purpose: dose + dangerousness = sentence
- Oversight that Congress did not rewrite text here
- Absurdities that flow from Easterbrook Textualism
- Intra-drug disparities
- Kingpin could get lighter sentence for selling pure form than street dealer selling LSD on a carrier
- Easterbrook argues that other statutes take care of this, in practice not a big deal. Prosecutorial discretion could cure this.
- Narrows absurdity doctrine to as applied cases
- There could be a rational basis, costly to figure out weight of drug v. weight of carrier
- Inter-drug disparities
- LSD dealers get stiffer sentence for fewer doses than other drugs
- Easterbrook has no reply
- V. Public Citizen
- Here, possible absurdities are ignored, only actual absurdities matter
- Goals of Statutory Interpretation
- Give Congress good ex ante incentives to make good laws
- Prevent corrupt Deals
- Prevent abuse of judicial discretion
- If you allow too much Purposivism, even if okay in one case, you can start making policy decision in future
- Arguments for Purposivism
- Can correct legislative oversight
- Posner Dissent in Marshall
- Provides a fuller picture, you can use more information
- More likely to yield just results
- Avoids irrationality, absurdity
- Locke, Marshall
- Dangers of Purpose
- the purpose you find could override other, equally valid, purposes
- Issue of not following Constitutional Procedures
- Bicameralism: Floor speeches not subject to ratification by both houses
- Presentment: must be signed by President
- Title is ratified, but not subject to such intense debate
- Common knowledge never ratified
- Is this accurate logic?
- HTC: Christian nation logic does not explain exclusion of all “toilers of the brain” argued for by others
- Hypothetical Bill: Makes claim of what Congress would have wanted without knowing the procedural rules, so cannot know what the outcome would have been.
- What Congress rejected is immaterial, interested in what Congress would have passed
- Too much power to outliers, who speak on the floor, but may not represent majority
- Anti-self-delegation Doctrine – Blanchard v. Bergeron
- Congress may not delegate to itself the power to interpret laws
- Protection of Art. III powers
- Ratification process purges legislation of unsavory deals that might survive in LH
- Too much discretion
- You choose your friends from among the 435 members of Congress.
- Gives Courts too much discretion, too much discretion to individual legislators
- Arguments for Textualism
- Respect for legislative supremacy
- Respect legislative compromise: Every piece of language should be presumed to be part of a bargain
- Choice of words is intentional, necessary to get bill passed
- Details of usage trump generalities of purpose
- Gives Congress ex ante incentive to write clear laws
- Constrain judges, limit judicial discretion
- Gives Courts right sort of discretion, cabined by legalistic norms of interpretation such as consistency, conservatism about preserving precedents, attention to meaning of words as expressed by apolitical traditional sources
- Problems with Textualism
- Canons of construction might allow just as much discretion as LH
- Clear language can be a value judgment
- Inflexible and arbitrary at times
- Text can be an accident
- Congress can’t always remedy results
Canons in General