LEGISLATION & REGULATION: Professor Manning, Fall 2011

LEGISLATION & REGULATION: Professor Manning, Fall 2011

PART 1: LEGISLATIVE POWER AND INTERPRETATION OF STATUTES

Introduction to Legislation and Statutory Interpretation

TVA v. Hill: Endangered Species Act passed during dam construction; Secretary of Interior finds ESA binding on TVA, private party sues to enjoin opening of dam (threatens snail darters)

Text: majority found plain meaning (text prohibits opening of dam)
Text of ESA: “All departments and agencies shall take necessary action to ensure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered and threatened species or result in the destruction or modification of their habitat.”
Court lays language is plain and clear
Congress’ plain intent was to halt and reverse the trend toward species extinction, whatever the cost
Inclusion of “authorized funded, and carried” out covers everything – past and present
Overall purpose of statute – highly protective; dangerous to reason from overall purpose to specific statutes
Legislative History: current version of ESA lacked qualifiers found in earlier statutes, implying broader scope; reconciled House/Senate version supported majority; Sen. Dingell’s statement
Final version of 1973 Act omitted prior reservations in 1966 Act
1966 Act qualified obligation to preserve endangered species “insofar as is practicable and consistent with their primary purposes.”
Bills introduced in 1973 Act also had this language; omission shows intent
Senator Dingell’s explanation as to why language was removed (reliable?)
Whooping cranes were being threatened by air Force bombing activities in Texas; implied that Secretary of Defense would be required to “take proper steps” once legislation was enacted to eliminate the threat to the endangered species
Floor statements are at the low end of legislative history; not necessarily representative of all of Congress
Separation of powers – if Congress wanted this, it is not the judiciary’s place to change that
Substantive Canons: implied repeals are disfavored
Retroactivity canon
Clear statement rule: Congress cannot alter substantive law through appropriations measures; would have to explicitly state in bill that TVA is exempt (appropriations canon?)
Dissent: absurd consequence; says there are many federal projects and potentially billions of dollars in jeopardy
Costs are huge and benefits are small; no reasonable member of Congress would have supported this
Absurdity doctrine is about intent; looking at consequences and reading backwards to figure out intent

Letter of the Law vs. Spirit of the Law

Rules embedded in a statutory text – letter of the law
General background purpose of the statue – spirit of the law
Enforcing spirit of the law better approximates what the legislator would have done had he or she expressly dealt with the case at hand

Riggs v. Palmer (1889): grandson poisoned grandfather, would inherit under statute literally construed

Will was technically valid and enforceable; made according to the requisite procedures
Only things that would invalidate will were fraud, duress, or incapacity
Court says Elmer collecting inheritance would be an absurd result
Cites common law maxim: you cannot profit by your own wrongdoing

Statues in conflict with common law should be narrowly construed
Rational interpretation: the writers of laws do not always express their intention perfectly, but either exceed I or fall short of it, so that judges are to collect it from probable or rational conjectures only
To ascertain legislative intent: suppose the lawmaker present and that you could ask what intent was
Reasonable person constructs pervade the law; if this amendment had come across the floor, legislators would have supported it
Rules v. standards
Rules – sharp-edges statements of policy; eliminate value judgments and fact determinations from courts
Standards – involve more value judgments and fact determinations

Dissent: “The matter does not lie within the domain of conscience. We are bound by the rigid rules of law”
Legislature has prescribed exactly when and how wills may be made, altered, and revoked
Have left no room for the exercise of an equitable jurisdiction by courts over such matters
Rules are rules; some value in valuing predictability/certainty
Rational for legislators to value this

Church of Holy Trinity v. United States: church made contract with pastor to bring him from England to New York. US claimed K was forbidden by Alien Contract Labor Act, which made it illegal to bring foreigners to the US “to perform labor or service of any kind”

Text: to discern what this encompasses, court looks at other statutes, media, dictionary
Labor is defined as “work, toil, expenditure of muscular force”
Service – “performance of labor for benefit of another; act of serving another”
Makes exceptions for actors, artists, singers, lecturers, domestic servants
Court’s arguments lead to counter-textual conclusions
Not intended to apply to brain-toilers
Could not have been intended to apply to a minister; US is a Christian nation
Can’t know why they chose “labor or service of any kind”
May be overinclusive for a reason
Maybe they misspoke
Mischief Rule: to discover purpose, look at specific evil legislature was trying to remedy when it enacted the statute
Companies were in-sourcing labor, mainly from southern and eastern Europe
Knights of labor – members were being undercut by this influx; mainly in factories and iron/coal mines; this group lobbied for this act
Letter of the law gives way to the spirit
Looks at intent; general purpose of statute is to minimize influx of immigrant laborers
Look at initial petitions for bill (who was pushing for it)
Look at committee reports (education and labor)
Senate committee explicitly said it was to address manual labor and manual service
Canons: superfluity canon: read language in a statute not to be superfluous; legislators are rational, would not include extra words
Evidence that inclusion of word “service” was not an oversight
Drafters made Act comprehensive to avoid disputes about what is considered manual labor
Rules are broad, inclusive; take away need to make borderline decisions
Conflict between title and text: one is broader than the other; read text with respect to title
Purpose of title is to convey purpose of bill; almost like a preamble
Rule: title is relevant to interpretation of an operative provision if the operative provision is ambiguous; cannot contradict
Title is a general statement of purpose; specific governs the general
Individual provisions fulfill purpose of title
Title is part of cumulative evidence that shows purpose is narrower than language in section
Expressiouniusest exclusion alterius: inclusion of some things is to exclude others
By enumerating exceptions, Congress impliedly includes everything else
Legislative History: can’t argue that “Congress didn’t anticipate it” argument
Act passed during following session; could have easily added “manual”; didn’t’ because they didn’t think it would get passed
Why didn’t Congress explicitly mention ministers?
Violation of separation of church and state
People tried to add other exceptions but sponsors rejected them; could have raised more questions; led to bargaining
Could have been debate about what religions to include
Bargaining process is more difficult than explaining principles
Absurdity doctrine in this case: Can you imagine a legislator voting for this outcome?
In Riggs, clear idea of injustice if Elmer got money
Here, it’s possible that a legislator could have voted for it
Argument: Court spared Congress’ burden that they should have had to bear without this legislation
Ugly piece of legislation
Directed toward low-wage workers from Southern Europe
By making it broad, it doesn’t make it look as ugly; seems to encompass everyone

Modern Incarnation of Holy Trinity: US v. American Trucking Associations (1940)

“No more persuasive evidence to purpose of a statute than the text..”
Questions turn on reading the text
Court once behaved as if texts had intrinsic meanings
Would say when text is plain, no need for interpretation
No one believes this position today
Must always read language in context
Important to investigate words and figure out how they’re used in the appropriate communities

III. The New Textualism

Built on premises of legislative supremacy
Requires courts to enforce clear import of enacted text
Emphasizes that judges must respect the legislative compromise embedded in the statutory text
Criticism of purposivism: statutes embody legislative compromises, so a statute may not have a single coherent “purpose” – emphasizes respecting the compromise
Inconsistencies reflect inevitable conflict of Congressmen

West Virginia Hospitals v. Casey(1991): federal statute allows for fee shifting of “a reasonable attorney’s fee” Does this include an expert’s fee?

Looks at record of statutory usage: many statutes explicitly shift both expert fees and attorney’s fees
These statutes would be redundant if both were included in attorney’s fee
WVUH wants to use mischief rule
Statute was designed to overturn Alyeska and to allow civil rights plaintiffs to recover all fees
Court rejects – employs a textualist interpretation
Scalia says: court’s job to create a rational semantic regime; should be able to use language to make precise judgments about what should and should not be excluded
Court now says Congress must say what it means and mean what it says
Making language a currency to interpret Congress’ purpose
Legislative History proves an arbitrary line born of politics was drawn
If they had included expert fees, other members would not have approved it

IV. The New Purposivism: Textually Constrained Purposivism

General Dynamics Land Systems, Inc. v. Cline (SC, 2004): GD made it so that people under 50 would not get the same benefits as people over 50? Does ADEA protect younger workers from age discrimination?

“Age” has 2 meanings: number of years since birth and old age
Bonafide Occupational Qualifications - legal to differential based on prohibitive characteristic
BFOQ: if age means old age, then old age is a BFOQ; even if you’ve discriminated against someone who is younger, you’re excused because its allowed in the statute
Look at statements of purpose and findings
Stress impediments suffered by older workers/incidence of unemployment among older workers
Objects were “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; and to help employers and workers find ways of meeting problems arising from the impact of age on employment”
“Statutory language must be read in context since a phrase ‘gathers meaning from the words around it”
Social History – connotation that surrounds age discrimination is discrimination against older people
Record is devoid of any evidence that younger workers were suffering at the expense of their elders
Legislative History – testimony at hearings was all about older people
Yarborough’s sponsor statement indicating that the statute is meant to protect the old as well as the young is a single outlying statement that cannot stand against a tide of context and history
Evidence that this colloquy was pre-planned to get into the record
Wanted to show constituents that it protected the young too

Judicial Correction of Legislative Mistakes: Absurdity

US v. Kirby (Supreme Court, 1868): Kirby arrests murderous mail carrier and is indicted for obstructing/retarding the passage of mail.

Text of statute: “knowingly and willfully obstruct or retard the passage of the mail”
Knowingly and willfully implies consciously stopping the mail
Under this definition, Kirby committed the crime
Had the discretion not to; consciously did it when mail as being delivered
Willfully has the connotation of a bad intent/strong will
Court holds: spirit of the law prevails over the letter
If action is lawful arrest and mail interruption was incidental, it was not a crime
Letting a murderer roam free is a greater inconvenience to society than interrupting mail delivery
Guiding principle: general terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence
Court is assuming that Congress has not adopted an unreasonable result
Court can make this assumption if:
There’s ambiguity/vagueness in the language
It imposes a reasonableness: court has some authority to impose a reasonable result even if it can’t be inferred from language
Whenever an agency writes a governing text, it must write it in general terms so that it can e read to include reasonable exceptions
Court acts as a faithful agent to Congress
Asks – what would Congress have decided?
Mala prohibita v. mala in se
Mala prohibita – regulatory offenses; something that is banned because costs outweigh benefits
Mala in se – something that’s intrinsically bad
Bolognian and Plowdien laws (surgeon and prisoner examples) are not direct authority, but they demonstrate why an absurdity doctrine is necessary
Give examples so horrifying we can deduce that no reasonable legislator would have intended this consequence
What if Kirby had been delivering a subpoena for divorce proceedings?
Would have committed a crime – public servants are exempt from arrest for civil crimes
Gray area: misdemeanor; committing crimes, posing an immediate threat
Doctrine of necessity: you can do something that’s a crime if the purpose is to prevent something that’s a much larger crime

Public Citizen v. United States Department of Justice(Supreme Court, 1989): DOJ regularly seeks advice from ABA’s Standing Committee on Federal Judiciary in making judicial nominations. Is it “utilized” by the President such that it constitutes an “advisory committee” under the Federal Advisory Committee Act? N.

Absurdity Doctrine: Congress could not have intended this; would discourage candid discussion, as the advisory committees must publish transcripts of proceedings & go out of business after 2 years
Committee is an advisory committee according to the plain sense of the word
Court says it’s a “wooly word” – can encompass almost anything
Utilization connotes a more formal arrangement – not just getting advice in an incidental way
Reasons why a rational policy maker would want ABA committee to be included exist
No transparency in the process; imaginable that a rational legislator would want this
However, taking away confidentiality would be detrimental
Definition: if you can conceive of a rational justification for it, its not absurd
Hard to identify a genuine political absurdity; legislative process is chaotic
Important questions:
Can you conceive of a reasonable legislator adopting the policy?
Can it be explained by political compromise?
Today’s absurdity doctrine: If something is absurd but can be attributed to political compromise, it can be sustained
Preserves absurdity doctrine but adds an exception to account for political compromise
Concurrence: Sees absurdity doctrine as a legitimate tool of the Judiciary but only as long as the Court acts with self-discipline by limiting the exception to situations where the result of applying the plain language would be, in a genuine sense, absurd (94)
Court’s loose invocation of the “absurd result” canon creates too great a risk that the court is exercising its own will of judgment & substituting its own pleasure to that of the legislative body

Barnhart v. Sigmon Coal (2002)

Issue: Should the tax set up under the coal industry retiree health benefitact be upheld given a clearly absurd application?

Holding: YES. Respect the bargaining and compromise process, can see arational process justification

Facts: Congress set up a tax on coal companies to fuel pensions. Fundrequired contributions from coal companies(signatory operators) &other firms ( related persons) who had signed any of the collectivebargaining agreements.

Absurdity

Clear anomaly- the act required contributions from a company that was a successor in interest to a related person but not to a signatoryoperator. i.e. If a coal company & dairy farm each sold theirinterest, the successor of the dairy farm would pay but not the coal company successor
Class example: Acne mining owns a bakery and the bakery sells itsassets it has to ay for the pensions of the mining company but thecompany that bought the mining company does not.

Holding: “its delicate crafting reflected a compromise of highly interestedparties attempting to pull the provisions in different directions. Assuch, a change in any individual provision could have unraveled thewhole”

→ quite possible that a bill that assigned liability to successors of signatory operators would not have survived the legislative process

Takeaway: Sustain statute despite absurdity because we can think of a rationalreason why the legislative process would yield such a result

Two questions: (1) would a reasonable legislator adopt it, (2) Can you attribute it to legislative compromise

Reflects new textualist view of legislative history- the drafting question is more complicated than the underlying policy question-large majority may want to alter or change but the legislative

bargaining necessary may prevent it.

Brings up underlying questions of absurdity: under this doctrine do we relieve legislators of pinning down what they really mean; do we upseta political compromise- all they could agree on was X language.

NOTE: this new approach would change holy trinity, public citizen

Judicial Correction of Legislative Mistakes: Scrivener’s Error

United States v. Locke(Supreme Court, 1985): mineral claims must be filed prior to Dec. 31…scrivener’s error?

“Prior to” by definition means preceding or before
Scrivener’s error usually involves punctuation or inclusion/omission of word “not”
Typos in text
Legislature does not know what “prior to” meant; finds it odd that they would change their language
Must have genuine confidence that its not the result of a compromise
Difference between scrivener’s error and absurdity
Can it be attributed to a compromise?
Is this the type of thing where people make typos?
Is there a substantive reason for Congress to pick the day it picked?
For it not to be absurd, it has to be imaginable
Key Q: can you conceive of a reason why they would have written it this way?
Use rubric of scrivener’s error rather than absurdity when you can
Framing issue = absurdity = harder sell
Clue to scrivener’s error: there’s something senseless about it and I think I know what happened
Absurdity: senseless and I can’t imagine Congress doing this

What is “the Text?”

Nix v. Hedden(Supreme Court, 1893): is a tomato a fruit or a vegetable within the meaning of the Tariff Act of 1883?