Statutory Interpretation
True or False: Scalia believes in Original Intent
False: He believes in original meaning
What is the avoidance canon?
Presumption that Congress does not intend to enact unconstitutional legislation and as a result will interpret ambiguous, but potentially unconstitutional, statutes in ways that avoid the constitutional problem. The court flags a potential constitutional question and so moves to an alternative interpretation to avoid having to address issue.
True or False: A substantive canon is policy neutral
False: grammar cannons are policy neutral
What is the non-delegation principle?
Congress may delegate vast amounts of authority to the President and his agents as long as there is an “intelligible principle” by which the power is granted
True or False: Under Chevron, the court retains ultimate interpretative authority to determine the "best" policy decision.
False: That is the holding in Skidmore. Chevron has courts defer if the agency provides a "reasonable" explanation.
Benefits of Textualism (name 5)
1. Predictability for lay readers / certainty / fairness / objectivity
2. Judicial constraint
3. Realism / collective intent
4. Separation of Powers / Const. is inflexible
5. Incentivizes legislature to draft clear laws
What are the (3) New Federalism Canons?
Plain or clear statement requirement
Silence requirement
Presumption Against Federal Preemption of Traditional State Regulatory Regimes
Name the (3) Textual Maxims
Ordinary vs. Technical meaning
Noscitur a sociis translates as “[i]t is known from its associates.”
Ejusdem generis; meaning "of the same kind"
True or False: Congress is free to impose removal restrictions on inferior officers.
True: Congress may restrict the removal of inferior officers so long as they don't “impermissibly undermine” the powers of the Executive Branch, or “disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.”
Legislative regulations are given controlling weight unless they are __________ to the statute.
Hint: APA §706
arbitrary, capricious, or manifestly contrary
What does a "dynamic" legislative intent interpretation entail?
Law should evolve and consider new social norms and circumstances
Plain meaning may differ from ordinary meaning where: (3)
Congress has defined the term in the statute; or
The term has been authoritatively construed by the Court, or perhaps even just by the specialized community to which the statute applies (or experts testifying about that); or
The ordinary meaning is inconsistent with the whole act or with the way Congress has used the term in other statutes.
Name the (4) grammar cannons.
(1) Punctuation
(2) The Rule of the Last Antecedent
(3) The Golden Rule / Rule Against Absurdity
(4) Expressio/Inclusio Unius
Name (6) agency tools
(1) Substantive/Legislative Rulemaking
(2) Adjudication
(3) Initiation of Litigation in Court
(4) Agency Guidance
(5) Advice-Giving
(6) Investigation, Information-Gathering, Promulgation, and Publicity
Congress may turn on Chevron deference by doing what?
Explicitly granting the agency at issue the power to make rules with the force of law.
What is the difference between legislative acquiescence and the rejected proposal rule?
LA: failure to overrule an agency rule = acceptance of rule
RPR: repeated veto of proposed legislation to overrule = acceptance of rule
What happened in Tennessee Valley Authority v. Hiram G. Hill, Jr. and what (if any) Congressional response was there?
"We conclude, however, that the explicit provisions of the Endangered Species Act require precisely that result." "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost.
Name the (3) corollaries to the whole act rule.
(1) Rule to Avoid Redundancy
(2) Presumption of Consistent Usage - and of Meaningful Variation
(3) Rule Against Interpreting a Provision in Derogation of Other Provisions
The (6) indicia of independence that independent agencies often have in common are:
for cause removal protection;
multi-member board or commission structure;
exemption from Office of Management and Budget (OMB) legislative clearance requirements;
exemption from presidential review of agency rulemaking procedures;
direct or concurrent budget submissions to Congress; and
independent litigating authority
What is the major question rule?
bonus: What are (3) types of this rule?
The assumption is that Congress does not intend to give big-ticket questions to agencies, and so courts should not impute such congressional intent unless the text clearly delegates that authority.
Deference to agency interpretations about preemption of state law
Deference to agency interpretations of their own jurisdiction
Deference to agency interpretations of their own regulations
What is Justice Breyer’s approach to statutory interpretation and his three justifications for that approach?
hint: pg. 94
Puts “purpose and consequence” ahead of text:
First, Justice Breyer argues that the public does not read statutory text but, rather, understands only statutory purposes.
Second, Justice Breyer argues that a purpose based approach makes statutes “work better” for the public they are intended to serve.
Third, such an approach “help[s] Congress better accomplish its own legislative work.”
The DPC may require a hearing when _____.
Why?
There is a small number of people who are exceptionally affected or equally concerned.
Representative government demands pragmatic solutions - necessary to limit individual arguments.
What are the (4) categories of statutes that are to be strictly construed?
(1) Strict Construction of Penal Statutes (i.e. rule of lenity)
(2) Strict Construction of Statutes in Derogation of Sovereignty
(3) Strict Construction of Public Grants: public grants by the government to private parties are to be construed in favor of the government.
(4) Strict Construction of (Some) Revenue Provisions: “courts have settled the rule that tax laws are strictly construed against the state and in favor of the taxpayer"
Legislative Mechanisms to Control Agencies (6)
(1) Detailed Legislation
(2) Legislative Oversight and Investigation
(3) Control Over Appointment of Administrators
(4) Appropriations Authority
(5) Design of Implementing Agency & Procedures
(6) Legislative Veto
Name the (10) "totality of circumstances" factors from Skidmore.
whether the agency construction was rendered contemporaneously with the statute’s passage;
whether the agency’s construction is of longstanding application;
whether the agency has maintained its position consistently;
whether the public has relied on the agency’s interpretation;
whether the interpretation involves a matter of “public controversy”;
whether the interpretation is based on “expertise” or involves a “technical and complex” subject;
whether the agency has rulemaking authority;
whether agency action is necessary to set the statute in motion;
whether Congress was aware of the agency interpretation and failed to repudiate it; and
whether the agency has expressly addressed the application of the statute to its proposed action (internal citations omitted)