Law School Wiki

Legislation

14 min read

Legislation

Course Info

Professor: Merrill Semester: Fall 2014 Source: Legislation - Merrill - F14.txt

Topics Covered

  • Theories of statutory interpretation: intentionalism, purposivism, textualism, dynamic theories
  • Canons of construction: linguistic canons (noscitur a sociis, ejusdem generis, expressio unius, surplusage) and normative canons (lenity, retroactivity, extraterritoriality, federalism clear statement, constitutional avoidance)
  • Legislative history: committee reports, sponsor statements, acquiescence/ratification; Merrill’s canon hierarchy
  • Stare decisis in statutory interpretation; legislative acquiescence
  • In pari materia; consistent usage; whole act rule
  • Scrivener’s errors; absurd results exception
  • Agency deference: Chevron two-step; Skidmore; Mead; Brand X; City of Arlington v. FCC
  • Preemption: express preemption, conflict/obstacle/field implied preemption; agency views
  • Preserving federalism: clear statement rules; Gregory v. Ashcroft; sovereign immunity

Detailed Outline

I. Theories of Statutory Interpretation

Intentionalism:

  • Specific intent: What did the legislators actually intend on a particular question of statutory scope?
    • Problems: Aggregation problem (did majority agree with sponsors’ interpretation?); Attribution problem (committee reports ≠ whole Congress)
  • Imaginative reconstruction: Assume the lawmaker’s position, understand mischiefs to be addressed, reconstruct intent for the specific controversy
    • Explains Holy Trinity and Weber, but doesn’t avoid aggregation/attribution problems
  • Purposivism: Focus on Congress’s general purpose, not specific intent; sets inquiry at higher level of generality
    • Holy Trinity is a purposivist decision (invokes “spirit” of the law)

Textualism:

  • Soft plain meaning rule: Plain meaning can be overcome with legislative history; goal remains intentionalist; plain meaning is AN IMPORTANT SOURCE (Breyer’s approach in Muscarello)
  • New Textualism (Scalia): Only text-based or text-linked sources; almost never consult, never rely on LH; context (dictionaries, related statutes, contemporaneous meaning) important
    • Rooted in Art. I § 7: only text passed through both houses and signed by president becomes law
    • Committee reports are unreliable; relying on LH is like legislative vetoes (lawmaking by subgroup)
    • “Absurd results” exception: Scalia acknowledges it but applies narrowly
    • Pragmatic: saves time and money; creates notice and predictability

Dynamic Theories:

  • Natural law / best answer: Read texts to reflect underlying moral reality
  • Legal process / coherence: Construe in light of purpose, precedents, and principles
  • Pragmatic: Polycentric, inductive; look at multiple goals and sources

II. Canons of Construction

Merrill’s Hierarchy:

  1. Clear Statement (“super-strong”): Text must plainly state a result; no outside sources can fill the gap (Atascadero; Landgraf/Scalia version)
  2. Clear Intent (“strong”): Intent clear in statute itself or from dispositive legislative history (Landgraf/Stevens version)
  3. Presumption (“middling”): A certain meaning prevails unless strong countervailing evidence
  4. Tie-breaker (“weak”): Only comes into play when everything else is equally balanced

Linguistic Canons:

CanonRuleExample
Ordinary meaningUse common dictionary meaningNicks v. Heddon (tomato = vegetable)
Term of artUse specialized meaning when statute adopts itBoutilier (psychopathic personality = term of art)
Noscitur a sociisWords known by their associates; construe broad term to align with statutory neighborsGustafson (prospectus defined by companions in list)
Ejusdem generisCatch-all at end of list limited by preceding specific termsMuscarello (carries = broad reading); Yates
Expressio uniusExpression of one thing implies exclusion of othersLindh (one section expressly prospective → rest apply retroactively)
Surplusage/Anti-redundancyDon’t interpret statute to render provisions redundantGustafson (if communication = everything, notice, circular redundant)
Last antecedentQualifying phrase modifies only last antecedent(limited by context)
Consistent usageSame word should mean same thing across statuteGen. Dynamics (age = chronological age, but construed as “elderly”)
Whole act ruleInterpret sections consistently with each otherSweet Home (take in § 9 vs. § 7)

Normative (Substantive) Canons:

Rule of Lenity:

  • Only applies to criminal (or penal) statutes; only helps defendants
  • “Venti” version (Scalia): Strong clear-statement rule — unless Congress clearly criminalizes conduct, construe narrowly
  • “Tall” version (Breyer): Tie-breaker — applies only when other canons have not resolved the ambiguity
  • Rationale: Fair notice; non-delegation (courts shouldn’t expand criminal liability beyond what Congress has set)
  • Case: Muscarello (Breyer used LH and purpose before reaching lenity); Cleveland (lenity limited after McNally override)

Presumption Against Retroactivity:

  • Landgraf v. USI Film Products (1994):
    • Stevens: Clear intent (LH can rebut); new statute presumed non-retroactive if it would add new legal consequences to past conduct (damages, jury trial rights)
    • Scalia: Clear statement in text; purpose informs which conduct is being regulated
  • Retroactive = attaching new legal consequences to events completed before enactment
  • Lindh v. Murphy: Expressio unius can override retroactivity presumption

Presumption Against Extraterritoriality:

  • Strong canon: Unless Congress makes clear statute applies abroad, presume domestic application
  • EEOC v. Arabian American Oil Co.: Title VII doesn’t apply extraterritorially
  • Kiobel v. Royal Dutch Shell: ATS doesn’t apply to conduct by foreign defendants in foreign countries
  • Canon can be overcome by clear congressional statement

Constitutional Avoidance:

  • If two interpretations exist — one constitutional, one not — choose constitutional reading
  • NFIB v. Sebelius: individual mandate = tax (not penalty) to avoid Commerce Clause problem
  • NLRB v. Catholic Bishop: Teachers at religious schools not covered by NLRA (avoids First Amendment question)
  • Criticism: expands judicial discretion; but amendable by legislature

Severability Canon:

  • Sever unconstitutional provisions if remaining statute can still accomplish legislative purpose
  • Courts don’t always follow legislative severability or anti-severability clauses

Savings Canon:

  • Adopt interpretation that saves constitutionality of statute
  • Marshall (7th Cir.): Posner applied savings canon to construe CSA mixture provision narrowly to avoid equal protection problems

Federalism / Clear Statement:

  • Gregory v. Ashcroft (1991): Congress must speak with great specificity before displacing traditional state functions (age requirement for judges)
  • Atascadero / Seminole Tribe: Congress must “unmistakably clearly” abrogate state sovereign immunity in statute language; cannot abrogate under Art. I powers (only § 5 of 14th Am.)
  • Presumption against implied repeal: If statutes are arguable consistent, interpret second statute narrowly to preserve older (Morton v. Mancari)

III. Key Cases on Statutory Interpretation

Riggs v. Palmer (N.Y. 1889):

  • Purpose of statute: enable testators to dispose of estates; never intended donee who murdered testator to benefit
  • Background common law maxim: no one shall profit from his own wrong
  • Dissent: Legislature imposed punishment for murder; court should not make another will
  • Lesson: Court reads implied exception into clear statute based on purpose; better alternatives (constructive trust, equitable interpretation of will)

Church of the Holy Trinity v. United States (1892):

  • Statute prohibited importing aliens under labor contracts
  • Court: Title uses “labor” not “service”; legislature concerned with cheap unskilled labor, not upscale ministers
  • Uses legislative history (Senate report) and “spirit” of statute; purposivist
  • Scalia: staunchly opposed; statute was clear; title cannot override text; mischief rule doesn’t reach this result

United States v. Locke (1985):

  • “Prior to December 31” = filing must be done by December 30; Court applies plain meaning even if likely scrivener’s error
  • Deadlines are inherently arbitrary; at least in civil case, must apply by their terms
  • Lesson: High bar for finding scrivener’s error; plain meaning governs; no “substantially complied” exception

Gustafson v. Alloyd Co. (1995):

  • Is a private purchase contract a “prospectus” for 1933 Act § 12 purposes?
  • Majority: Noscitur a sociis (prospectus defined by companions → public offerings); anti-surplusage; consistent usage across §§ 10 and 12
  • Thomas dissent: § 12(2) was broadly written to give private right of action; originalist perspective

Muscarello v. United States (1998):

  • “Carries a firearm” = carrying in a car, not only on person; gun in glove compartment qualifies
  • Breyer: Dictionaries (primary meaning of “carry”); Bible/Moby Dick; purpose of statute
  • Ginsburg dissent: Much stronger rule of lenity; “carries” should mean packing it on person; avoid mandatory minimum uncertainty
  • Lesson: Rise of dictionary usage in SCOTUS; Breyer vs. Ginsburg on lenity strength

Cleveland v. United States (2000):

  • Video poker licenses are NOT property in government’s hands for mail fraud purposes
  • Government isn’t actively managing unissued licenses; once issued, property belongs to licensee
  • Rule of lenity applied; Court construes narrowly after McNally override (federalism concern)
  • Non-delegation element: Congress hasn’t given authority to expand fraud to private individuals without clear statement

Landgraf v. USI Film Products (1994):

  • 1991 Civil Rights Act (damages, jury trial) does not apply to pending cases
  • Stevens: Compensatory damages = retroactive (adds new legal consequence to completed wrongful conduct); jury trial follows damages so also retroactive
  • Scalia concurrence: Look at purpose of statute; test is which conduct is being regulated, not merely which law applies

Gen. Dynamics Land Systems v. Cline (2004):

  • ADEA: “age” means “elderly” (protection of old from young), not any chronological age
  • Souter uses legislative history showing purpose was to protect older workers
  • Shows tension between consistent usage (age = chronological age elsewhere) and purposive reading

Lamie v. United States Trustee (2004):

  • 1994 Bankruptcy amendment: debtor’s counsel not entitled to fees from estate; plain meaning governs even if likely scrivener’s error
  • NACBA’s notation of the error before Congress ≠ congressional acknowledgment or correction
  • Court rejects legis. history where text not ambiguous

IV. Legislative History

Merrill’s View: LH is a useful but imperfect source of evidence; hierarchy matters.

Legitimate Uses:

  • Smoking-gun committee reports (Holy Trinity — Senate report identified unskilled manual labor as mischief)
  • Prior vetoed versions of statute (if Congress changed language in final bill)
  • Sequence of enactments (Koons Buick — earlier versions of statute shed light on later amendment’s meaning)

Scalia’s Objections:

  • Constitutionally inadmissible: only text passes bicameralism and presentment
  • Unreliable: committee reports drafted by staff; don’t represent majority intent
  • Dangerous: judges use LH to advance their own policy ends
  • Notice problems: people rely on letter of law; will be construed liberally

Legislative Acquiescence:

  • When Congress fails to override judicial interpretation, does that signal approval?
  • Faithful agent theory: Congress approved by not overriding
  • Integrated theory: Non-action is a data point strengthening stare decisis
  • Epistemological problem (Chada): Nothing short of a new statute should count (Scalia/Thomas)
  • Ratification (stronger): Congress passes statute tracking or incorporating court interpretation (Bob Jones)

Stare Decisis in Statutory Interpretation:

  • Statutory decisions get strongest stare decisis (legislature can always override)
  • Constitutional decisions get weakest (hard to override)
  • Harper (1993): Changes in law must apply retroactively to all cases in pipeline (civil and criminal)

V. Agency Deference

Chevron v. NRDC (1984) — Two-Step Framework:

  1. Step One: Has Congress spoken to the precise question at issue? (Look at text, LH, purpose)
    • If yes, that’s the law, no deference to agency
    • If no (ambiguous), move to step two
  2. Step Two: Was the agency’s interpretation reasonable?
    • Court defers to any reasonable agency interpretation
    • First time Court acknowledged that statutory interpretation is policy-making

Mead / Christensen:

  • Chevron applies when agency is empowered to act with the force of law (formal rulemaking, formal adjudication)
  • Tariff rulings, informal guidance → Skidmore deference only (persuasive authority based on reasoning and expertise)

Brand X: Agency interpretations can displace prior judicial interpretations of ambiguous statutes (if court said statute was ambiguous, agency wins; if court said unambiguous, Chevron deference doesn’t apply)

City of Arlington v. FCC (2013):

  • Chevron applies even to agency’s interpretation of the scope of its own jurisdiction
  • Scalia: Separation of powers question, not federalism question (whether FCC or courts construe statute)
  • Roberts dissent: Need to confirm agency has force-of-law authority over that particular issue (Mead)

Skidmore Deference: Persuasive authority based on agency’s reasoning, expertise, and consistency; no binding deference

Merrill’s Transition Rule: Old judicial interpretations under pre-Chevron law are all Step One issues; if court found statute ambiguous, agency wins; if court found it unambiguous, courts don’t defer.

VI. Preemption

Express Preemption:

  • Congress expressly states when state law is displaced; also common to have savings clauses
  • Riegel v. Medtronic: PMA-approved device preempts state tort law (pre-market approval process intensive enough to preempt)
  • Medtronic v. Lohr: 510K equivalence process NOT intensive enough to preempt
  • Key: What does “requirement” or “standard” in preemption clause mean? (Include or exclude state tort law?)
  • Agency’s views on preemption: Skidmore deference (Wyeth v. Levine); some argue Chevron applies

Implied Preemption — Three Categories:

  1. Conflict preemption: Federal law says X; state law says not X; mutual exclusivity
  2. Obstacle/Frustration preemption: State law frustrates purposes of federal law
    • Geier v. Honda: NHTSA’s phased-in airbag regulation preempts state tort suit seeking airbags (frustrates agency’s intent to let market respond gradually)
    • Textualists uncomfortable: seems anchored in purposivist theory; what counts as purpose?
  3. Field preemption: Federal law so comprehensive that state law is implicitly displaced

Perez v. Campbell: Federal bankruptcy code preempts Arizona statute that prevented discharge of auto accident tort debt (state statute frustrated fresh-start purpose of bankruptcy)

Federalism Presumption: In areas of traditional state concern (family law, property, police power), strong presumption against preemption; in areas of traditional federal concern (foreign commerce, bankruptcy, IP), weaker presumption

VII. In Pari Materia; Presumption Against Implied Repeal

In pari materia: Statutes with same purpose should be construed consistently

  • Smith v. City of Jackson: Title VII and ADEA construed in pari materia → disparate impact cognizable under ADEA
  • Wachovia Bank v. Schmidt: State-chartered and federal-chartered bank citizenship harmonized despite different statutory contexts

Presumption Against Implied Repeal:

  • If two statutes can be read consistently, do not read later statute to repeal the earlier
  • Morton v. Mancari: Title VII 1972 amendments don’t impliedly repeal Native American employment preferences because three reasons support non-repeal
  • Later-in-time rule: if statutes truly inconsistent, later statute prevails

Key Doctrines

Key Cases

Exam Approach

Step 1: Identify Interpretive Issue

What is the ambiguity? Is the text clear or unclear? What policy consequences follow from each reading?

Step 2: Choose Interpretive Framework

FrameworkSourcesLeading Cases
TextualismText, dictionaries, textual canons, related statutesScalia opinions; Locke; Muscarello
PurposivismText + purpose + legislative historyHoly Trinity; Weber; Stevens opinions
IntentionalismText + specific intent + LHImaginative reconstruction
DynamicBest answer; pragmatic; coherenceRare; more academic

Step 3: Apply Linguistic Canons (if textualist)

  • Noscitur a sociis: List of companions limits broader term (Gustafson)
  • Ejusdem generis: Catch-all terms limited by preceding specific terms (Yates fish ≠ “tangible object”)
  • Expressio unius: Express inclusion implies exclusion of others (Lindh; Landgraf)
  • Anti-surplusage: Don’t render provisions redundant (Gustafson; Sweet Home)
  • Consistent usage: Same word = same meaning across statute (Gen. Dynamics — except when it doesn’t)

Step 4: Apply Normative Canons (if ambiguity remains)

  • Lenity (criminal statute): Tie-breaker (Breyer) or clear statement (Scalia)? Note that other canons may resolve before reaching lenity (Muscarello)
  • Retroactivity: Is there new legal consequence to completed past conduct? Stevens: clear intent needed; Scalia: clear statement needed (Landgraf)
  • Extraterritoriality: Does statute apply abroad? Need clear statement (Kiobel; ARAMCO)
  • Federalism: Does statute displace traditional state functions? Clear statement required (Gregory)
  • Constitutional avoidance: If one reading is constitutional and another is not → choose constitutional (NLRB v. Catholic Bishop; Sebelius)

Step 5: Check Legislative History

  • Strong (committee reports, sponsor statements, prior vetoed versions) may displace linguistic canons
  • Weak (floor statements, conference reports) → less weight
  • Merrill: LH occupies “strong” level when clear and dispositive; “middling” when ambiguous
  • Scalia: Never reliable; don’t consult

Step 6: Agency Deference (if regulation involved)

  1. Does agency have force-of-law authority over this issue? → Chevron (rulemaking, formal adjudication) OR Skidmore (informal guidance)
  2. Step 1: Congress spoken precisely? → No deference, statute controls
  3. Step 2: Agency interpretation reasonable? → Defer to agency
  4. Prior court interpretation? → Brand X: If court said ambiguous, agency can overrule; if court said unambiguous, court controls

Step 7: Preemption (if state law conflict)

  1. Express preemption clause? → Construe preemption clause; does it reach state law at issue?
    • Savings clause? → May preserve state law
    • Agency view? → Skidmore deference (Wyeth)
  2. Implied preemption?
    • Conflict (mutual exclusivity)?
    • Obstacle (frustration of purposes)?
    • Field (comprehensive scheme)?
  3. Federalism presumption? → Traditional state concern → presume against preemption

Graph View

Backlinks