LEGISLATION (HALL)
Study Guide for Exam
Che Clay/Fall - 2007
RULES AND CANONS
INTERPRETIVE CANONS
1. Statutes in derogation of (displaces) CL are t/b narrowly construed. (Judges will look at it only if it perfectly applies.)
2. Plain Meaning Rule– follow the plain meaning of the text of the statute unless it leads to an absurd result or unless it contains a scrivener’s error.
3. Do not interpret so as to render statutory language unnecessary or surplusage. (Don’t assume that leg is redundant; always assume that each word has separate meaning.)
4. Cross-References: (juris split)
a. Fixed Meaning Approach – the meaning of a cross reference is fixed at the time the cross-referencing statute is enacted (and repeal does not affect analysis)
i. When cross ref is to a general body of law instead of by number, look at amendments to that body of law.
b. Evolved Meaning Approach – statutory cross reference to a provision of another statute incorporates subsequent to the reference provision
5. In Pari Materia - When group of statutes deal w/same subject, read them together as a unit rather than individually. (Interpret statutes parallel w/ea other; construe and apply as a whole)
6. Statutory Conflict – try to harmonize and reconcile; if not possible, go to tiebreakers:
a. the later prevails over the earlier (later leg. c/h amended earlier statute)
b. mandatory language prevails over discretionary language
c. Specific Over General – specific is an amendment or an exception to the general statute
d. Give effect to every word and avoid rendering provision unnecessary or surplusage.
7. Interpret Based on Legislative Intent - Specific Intent of leg. will give meaning to statute. General Intent will help to eliminate some of the possibilities.
a. The purpose of the statute
8. Interpret Based on Legislative History
9. Expressio Unius – expression of one thing implies exclusion of others; negative implication
10. Ejusdem Generis – general words in state are narrowed based on specific words in statute (narrow construction)
11. Rule of Lenity – interpret in a way that is favorable to defendant in
12. Nosciture a sociis – words take meaning from words with whom they associate
13. Singular v. Plural – Singular includes plural; anytime statue uses singular it includes the plural
14. And/Or Canon – OR means instead (disjunctive); AND means combine (conjunctive); but sometimes AND means OR
15. Punctuation Canon – Follow normal rule of grammar *weak canon; cannot look up anywhere, it’s easy scrivener’s error, easily rebuttable*
16. Titles/Headings – Title and section headings do not alter plain meaning, but may resolve textual ambiguity. If conflict, text wins. If text is ambiguous but title is clear, the title wins.
17. Judicial Assumption of Leg Consideration/Uniform Acts Canon – When interpretation a uniform act, give another’s state’s judicial decisions greater value b/c of importance of consistent interpretation of the uniform act. (Assuming leg. adopted uniform law to achieve uniformity; c/h written a unique law instead.)
18. Judicial Assumption of Leg Consideration/Laws Modeled on Laws of Another State - ...give that other state’s pre-existing judicial interpretations controlling weight.
19. Reenactment Following Judicial Interpretation is evidence of court’s endorsement
20. Inaction Following Judicial Interpretation is evidence of acquiescence.
21. Dynamic Interpretation – you should look at statutes and how it interacts w/other bodies of law and our nation’s history
22. Constitutional Avoidance – if statute has two possible meanings, interpret in a way to avoid a constitutional issue.
23. Chevron Deference v. Const. Avoidance – Con. Avoidance trumps Chevron Deference
RULES
1. CL is inferior to statutes if the statutes apply.
2. Words have ordinary (dictionary) meaning unless the context implies a specialized meaning.
3. A Dictionary Act will apply to all statutes. A definition statute will apply only to words in that statute.
4. When group of statutes deal w/same subject, read them together as a unit rather than individually
5. If statutes conflict (lead to opposite result), first try to harmonize. If not possible, go to 4 tiebreaker rules.
6. Post-enactment remarks cannot change leg intent of Congress that enacted original legislation and it should not be used.
7. Title and section headings do not alter plain meaning, but may resolve textual ambiguity. If conflict between heading and text, the text wins. If text ambiguous but title clear, title wins.
8. Clear Statement Rule – leg must explicitly state its intent to impose criminal liability.
9. Reenactment of statute following judicial interpretation constitutes a legislative adoption of the judicial construction. It is harder to overrule than interpretation followed by Congressional silence.
10. Agency’s change in position does not undermine the quality of agency’s interpretation.
11. “Less Chevron” Deference should be applied when dealing w/smaller issues that affect smaller group of people. Court should interpret when dealing w/nat’l importance. **EXAM**
12. Constitutional Avoidance trumps Chevron Deference.
13. There’s a presumption of severability, so courts should sever unless remaining provisions lead to absurd result or unless there is proof that leg w/n/h wanted remaining provisions to stand alone.
14. Retroactivity of civil action (unlike criminal) is allowed if there is a clear statement from Congress that is meant to be retroactive; otherwise, presumption against retroactivity.
15. A rule is retroactive only if it is substantive (affects rights or liabilities). Procedural rules are never retroactive; they are applied on the day the court holds the procedure.
16. A Court’s statutory interpretation decisions have retroactive application.
17. Enrolled Bill Rule – Look only to enrolled bill to find evidence of a due-process of law-making violation
18. Modified Enrolled Bill Rule – Enrolled bill conclusive evidence of proper enactment w/exception for procedures on which constitution mandates a journal entry; then journals will be evidence along w/enrolled bill.
19. Journal Entry Rule – courts will look at enrolled bill and legislative journal regardless of whether the constitution mandates it
20. Extrinsic Evidence Rule – Court will look at any evidence; enrolled bill is prima facie evidence of proper enactment, but overcome by clear and convincing evidence of due process violation
Anything defined by USSC has a fixed meaning in the legal system. There is a presumption that legislature has constructive knowledge of definition when they create statutes.
Legislative Consideration - Courts assume that leg has constructive knowledge about something that leads to conclusion about intent/purpose. (e.g. court decisions)
Direct democracy (initiative, referendum, recall) is equal to legislative law and s/b state in direct democracy answer.
OTHER IMPORTANT NOTES
Hierarchy of Evidence of Intent
1. Text (substantive provision)
a. statement of purpose (direct evidence)
b. related statutes/provisions (also text)
c. analogous provisions
2. Statutory History (old statutes)
3. Legislative History
Hierarchy of Legislative History
1. Amendments to the Statute (in the statute and c/b argued as text; can infer what the intent is not)
2. Conference Committee Report (represents most members of leg)
3. Committee Report-House/Senate (the official report of the committee)
4. Sponsor Statements (m/b underlying intent)
5. Rejected Proposals
6. Floor & Hearing Debate
7. Hearing Testimony/Reports
Other Considerations
1. Statutory History
2. Executive History
3. Non-gov’tal statement
Hierarchy of Types of Precedent
1. Statutory Interpretation Followed By Reenactment (assumption of leg consideration)
2. Statutory Interpretation Followed By Leg Silence (assumption again)
3. Common Law Precedent
4. Constitutional Interpretation (weak; leg cannot ‘fix’)
Skidmore Deference – courts may defer to regulation by agency based on
· expertise
· technical or complex issue
· high level authority adoption (not flunky)
..and it may apply if Chevron Deference does not
SEVERABILITY
· 2 options: Either entire statute is invalid or provision is severed and declared invalid.
RETROACTIVITY
Steps in Analysis
1. Is it substantive or procedural? (No retroactivity for substantive.)
2. Is it civil or criminal? (No retroactivity for criminal.)
3. If civil, is there a clear statement? (If no, presumption against retroactivity.)
Examples:
· Statute enacted. Than statute reverses interpretation of statute. Then Congress amended statute and gives diff interpretation.
o Congress says court interpreted correctly, but it wants diff result – no explicit stmt, so no retroactivity
o Congress says court interpreted improperly, but leg wants to correct interpretation for the future – not retroactive (explicitly non-retroactive)
o Congress says court improperly interpreted and it wants to restore for past conduct – retroactive back to date of enactment
A court’s decision always operates retroactively to the date of enactment per USSC.
Gubernatorial Veto (Line Item Veto)
· In single topic state that allows line item veto, the gov’nr has the power to amend legislation
· In multiple topic state, the gov’nr may want to use to strike down single topic.
· Some states allow line item veto for budget items (controls how to execute law, but not what the law is)
· In small number of states, gov’nr can veto w/recommendations to leg; if leg adopts them w/majority vote, it b/c law
ARGUMENTS
If plain meaning hurts your argument, and you can’t argue scrivener’s error or absurd, try to make it ambiguous.
Cross Reference Arguments:
-Leg. presumed to know statutes change so when it includes cross-reference to statute by number, they are including any amendments to that statute; if not, they could have used the exact language instead of referencing it by number.
-Leg. intended the meaning at the time the cross-reference was made.
Conflict: X is misreading, and statutes aren’t in conflict. / …conflict b/c they lead to opposite results.
To Get Textualist Judge to Look at Extrinsic Evidence:
This is unusual case that should be exception to general rule b/c we learn something about statute by looking at extrinsic evidence.
Old Statute - Once was text and it gives us meaning of the current text.
Because of the direct evidence of intent, X piece of leg. history, normally low in hierarchy should be given more weight.
Absence of forbiddance is authorization – argument by negative implication.
Judicial assumption of legis. consideration is a valid assumption as there is evidence of leg rejecting court’s interpretation.
Giving “and” its plain meaning would lead to absurd result; or argue scrivener’s error.
The heading is informational, not purely organizational, so we should look at it.
Congressional silence following judicial interpretation of statute indicates leg acquiescence in interpretation. No action by Congress makes precedent stronger.
Legislative inaction after statutory interpretation s/n be given any more weight that post-enactment leg. history. Neither are true indicators of Congressional intent.
Argue statute is clear and agency misinterpreted statute to stay under 1st step in Chevron Deference and have better chance of winning. Argue agency inconsistency is evidence of arbitrariness and agency is being unreasonable. Agency changes position to represent current policy position of the people and it is exercising political decision making. Agency acting beyond its authority and its interpretation is irrelevant to the court. This is an issue of nat’l importance so CD s/n apply per the FDA decision.
Severability - Argue presumption of severability and statute can stand alone w/out provision if you don’t want entire statute struck down. OR Argue statute cannot stand alone or it would lead to absurd result w/out provision. *Weigh possible outcomes if severable and non-severable.*
Origination Clause - Argue that the statute may be improperly enacted, but there’s no remedy or consequence stated in constitution, and this is an internal procedural matter that s/b left to the leg and not decided by the court.
Referral to Committee – Purpose m/b that subject needs to be reviewed by experts. If not complied, argue that it was technical, complex issue (e.g. tax bill) and it s/n/h/b bypassed; OR that we should not bypass procedures intended to slow down gov’t or we are headed to in a direction of tyranny. On the other side, argue that issue was not complex and bill does not defeat purpose of requirement (intentionalist) judge will consider this one).
Engrossed v. Enrolled Bill – Argue, the engrossed bill was the version actually voted on by leg. [OR] Argue enrolled bill was the one actually signed by presiding officer to b/c law.
Enrolled Bill Rule (Against) – Rule allows leg to reject constitution and the court’s job is to protect the constitution. Court should enforce constitution against the legislature.
Exam “Red Flags”
On statutory interpretation question, make arguments about what should be looked at and state what the intentionalist judge will see and what the textualist judge will see.
Figure out how each fact helps which side and how to use.
*Watch for post-enactment remarks of legislature. Argue post-enactment remarks cannot change leg intent of Congress that enacted original statute.
Look for constitutional issues on Chevron Deference question. Argument is that we should ignore agency’s interpretation if it raises a constitutional question.
CHEVRON DEFERENCE
Preliminary Questions to Avoid Chevron Deference
1. Is the statute in agency’s sphere of authority?
2. Did the legislature confer interpretive authority?
3. What kind of format did agency use to interpret and is it entitled to substantial deference?
a. regulation and formal adjudication (CD)
b. other decision w/full effect of law (prob. CD)
c. opinion letter, informal adjudication (??-Skidmore Deference)
d. speech, letter, announcement (no CD)
**If no to any = Skidmore Deference or No Deference
2-Steps Analysis
1. Does statute resolve matter clearly or is it silent or ambiguous? (Use canons)
a. If clear, uphold/overturn agency interpretation depending on whether agency misread statute
2. If silent or ambiguous, is the agency’s interpretation reasonable?
a. Court should uphold any possible reading if adequate as long as it’s reasonable (D+)