STATUTORY INTERPRETATIONIntroduction to Statutory Interpretation A. B. Law - Most of federal law emerges from implementation or interpretation of the statutes that Congress enacts. This is principally the work of courts and agencies. Tools of the Court in Statutory Interpretation i. Text - the starting point for analysis is the actual text ii. Intent - Legislative history - the likely intent of the law's primary drafters iii. Purpose of the statute as a whole - what was the goal/motive/intent? iv. Avoiding absurdity - Under what circumstances is the Court justified in deviating from a statute's ordinary meaning in order to avoid absurd results? Cases: i. TVA v. Hill 1. ESA's language "admits of no exceptions" and to sustain the position that it would not apply to projects that commenced prior to its enactment would require ignoring the "ordinary meaning of plain language." 2. Literal reading is the job of the Court - no more, no less. TEXTUALISM. C. Statutory Interpretation: Text v. Purpose I. Approaches to Statutory Interpretation (mix and match) A. 3 approaches i. Textualism = interpreters should strive to discern how reasonable people would understand the semantic import or usage of the precise statutory language that Congress adopted. ii. Intent = What would the legislature have intended if confronted with the particular interpretative question before the Court iii. Purposivism = more general than intent; what was the legislature trying to accomplish broadly? Courts should read specific statutory provisions to advance the purpose or general aims of the legislation, as derived from a variety of sources B. Objectives i. "Faithful agent" - All 3 approaches are grounded in legislative supremacy, which is the idea that in the US system, acts of Congress enjoy primacy as long as they remain within Constitutional bounds, and that judges must act at Congress's faithful agents. ii. Avoid absurdity - should courts avoid absurd results in the letter of the law by deferring to the spirit of the law? C. Purposivism Cases i. Riggs v. Palmer - grandson murders grandfather to inherit his estate (absurd result doctrine) 1. Majority - court rules that despite black letter of law, grandson should not receive inheritance because no legislature would have intended that result. 2. Dissent: "the matter does not lie within the domain of conscience. We are bound by the rigid rules of law." ii. Holy Trinity v. US - High water mark of purposivism. Issue: Was church in violation of statute that nobody shall assist the importation of alien? 1. Based on textual interpretation of statute, Warren is not covered by exception. 2. Majority: purpose of act was to keep out "manual" laborers, not clergymen. The words of the law don't matter as much as the spirit of the law. ("Christian nation") II. New Textualism: A. Introduction: Near the close of the 20th century, a group of self-described "textualist" judges (Scalia, Thomas) emerged and challenged many of the key assumptions defining traditional purposivism. They didn't necessarily reject legislative history as a tool of interpretation, but rather built on the premise of legislative supremacy to argue that judges must stay close to the meaning of a clear statutory text even when the result contradicts the statute's apparent purpose. B. Principals: i. rough-and-tumble of political compromise must be respected in interpreting statutes ii. emphasize that statutes embody choices about both an ends and means to meet a purpose (whereas purposivism usually stresses the ends) iii. criticize the notion that a judge can discern the single statutory "purpose." The purpose can be framed in lots of levels of generality iv. The onus is on Congress to draft clear rules or risk having to go back to amend them. C. Cases i. WVU Hospitals v. Hill 1. Majority (Scalia): flatly rejects legislative history, imaginative reconstruction of statutes, and purpose over text, and if you do those things, you are usurping Congress' role. Don't just look at what the statute changes, but also look at what it leaves alone - don't enlarge the statute. 2. Dissent (Stevens): It may be more faithful to Congress to look at underlying intent. Stevens talks a lot about the empirical evidence that the Court is usually overturned when they apply a textualist interpretation. We should care about economic efficiency, and it is not economically efficient for Congress to backtrack. specific statutory directive. Textually Constrained Purposivism . IF AND ONLY IF the language is ambiguous (don't use vague here). but we've seen the emergence of TCP. Should courts feel bound by the intentions of the enacting legislature when faced with circumstances that the legislature could not have foreseen? Prof Eskridge says no. Cline: i. "Faithful agent" . General Dynamic Land Systems v. Extols the ability of judges to interpret statutes freely. vi. Judges may not be all that good at figuring out when new developments justify deviation from a clear. 2. but is that a good thing?? 3. Different from traditional purposivism or just a change in rhetoric? C. May undermine the interest in legal stability and predictability.' and then 'must figure out how the statute can best meet its goal(s) in a world that is not the world of its framers. the court can depart from text and look to other sources. PROS 1.keeps the law nimble enough to accommodate unforeseen circumstances. TCP analyzes a statute's language to see if it there is ambiguity. Some statutes are very specific in their language and others are more open-ended and goal-oriented. Issue: Does the ADEA prohibit age discrimination in favor of old workers? ii. CONS 1. Avoids statutory irrelevance .he uses this as his license to get into a more purposivist construction. ii. Souter defends use of purposivism by pointed out that "age" is ambiguous in the text . D.Dynamic Statutory Interpretation A. v. Maybe it doesn't adequately respect all the safeguards built into lawmaking that make it such a slow and cumbersome job to make a law? This dynamic approach to interpretation facilitates more rapid and flexible legal change. including its purpose. Introduction: Holy Trinity type Purposivism has been largely rejected (not cited in a SCOTUS opinion in 20 years). Dynamic Statutory Interpretation (Eskridge) i."must first understand the assumptions underlying the original directive. Definition of the word "age" is the key consideration. Maybe the dynamic approach is okay for the latter. B. . A return to Holy Trinity. iii.III." iv. When appropriate? Maybe for more open-ended statutes.it could mean the years of someone's life or it could mean "old age" . without hesitation. literal interpretations which "lead to injustice. But the Court ruled differently. He says the statute is drafted poorly in several ways. Cases: 1. United States v. "scrivener's error" . He reasons that there are a lot of ambiguities in the deadlines imposed." which would extend the Act to any group of two or more persons from which the President or an Executive Agency seeks advice." B. "we are convinced that Congress did not intend that result. US v.IV. but isn't absurdity as well? 2. Locke. Kirby . Absurd Result Doctrine i. ." injustice and oppression are too open-ended. saying that "prior to Dec 31" provided clear instructions. 2. Stevens thinks it is obviously from the context and purpose and intent of the statute that it is. that all mankind would. Sheriff indicted for "obstructing delivery of mail. ii. describes advisory committees as any group that the executive branch "utilizes. CONS: 1. the risks of "false positives" (finding absurdity where there is none) are significantly greater than the risks of "false negatives" (failing to prohibit an absurd application). Public Citizen v. iv. whereas a blatantly absurd interpretation that nobody agrees with would probably be overturned. read literally. Really broad application of "absurdity doctrine" .the mailman indicted for murder." . "ABSURD RESULT" .statute. a.one principle of statutory interpretation holds that statutes should not be construed to create absurd results. Judicial Correction of Legislative Mistakes A. PROF: this doctrine has been narrowed overtime to just include "absurd result. how do courts go about distinguishing outcome that are truly absurd from outcomes that are merely unlikely? 2. Definition of Absurd Result: the judicial obligation to enforce statutory text abates when "the absurdity and injustice of applying the provision to the case. Brennan says. would be so monstrous. Cases 1.application of absurd result doctrine. debate over whether "prior to December 31" is a Scrivener's error." (Justice Marshall) iii. Scrivener's Error i. unite in rejecting the application.an obvious mistake in the transcription of the legislature's policies into words ii. A false positive might go uncorrected bc legislators and interest groups who favor the court's interpretation may be able to block corrective legislation. oppression. Stevens dissents. arrested by sheriff. or an absurd consequence" should be avoided. US Dept of Justice a. scientific meaning. cannot conclusively answer questions of statutory construction and could be misleading. US (legal terms of art) 1. though increasingly common. they must be read with the mind of an ordinary person if to specialists. or something else? B. What is the Text? A. Hedden (ordinary v. do you give them ordinary meaning. then read with the mind of a specialist.V. Dissent: objects to using the "ordinary" meaning of "falsely made" when there is a clear legal definition that recognized "falsely made" as an element of forgery.legal term or art meaning or ordinary meaning? Majority again adopts the ordinary meaning 2. When the same word or phrase has different meanings. Smith v. Majority: "use" of firearm . Is a tomato a fruit or veggie? consider WHO the legislature is addressing if to ordinary people. specialized meaning?) 1. though helpful. the best one can do it attribute to Congress the meaning that a reasonable legislator conversant with applicable social and linguistic conventions would have understood the text to mean. ii. 3. Dissent (Scalia and Stevens): "The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used. Battle of the Dictionaries . Majority: "falsely made" ." . Nix v. D. dictionary meaning?) 1. Moskal v. judges need some way of determining which meaning was intended or understood by the legislators who enacted the word into law C. Textualism seems like the easiest approach. US (colloquial v. but it raises a very important question: When you are reading words in a statutory provision. colloquial meaning.The court's practice of using dictionaries. The "reasonable user of language" canon recognizes that b/c it is impossible to ascertain subjective legislative intent on almost any hard interpretative question. iii. The court resolved Nix by applying the presumption that that Congress uses words in their ordinary sense. 2. is controversial even the strictest textualist would agree that dictionaries. Cases i.adopted the expansive meaning of "use" to encompass the type of use that the defendant perpetrated 2. they are busy people. Used a variety of leg history. it is the Congress who passed the bill whose intent we care about . In other words. Some states are still not allowed to cite or quote leg history . . because inaction could just be the result of the heavy burdens of the legislative process.The Court has described the views of sponsors as weighty. which at least require negotiation of different interests? iii. 3. sometimes even what they specifically understood words and phrases to mean. thereby giving them implicit authority to explain the bill. Floor statements in general . Sponsors' statements .reports prepared by House and Senate committees that accompany bills and the conference committee report which accompany the reconciled version of the bills. "Successive drafts are not stages in development. Congressional action or inaction in response to judicial interpretation 1. which could be motivated by hundreds of variables. Dissent: said that neither text NOR leg history supported majority interpretation C. Argument against: It is impossible to know what is in the minds of several hundred men. then to disregard such evidence would be illadvised. Legislative History A. 2." and a court can discern a reason for the change that makes sense of the enacted text. a. Also. the court's official position is that floor statements are not to be used. Majority: interpreted "person" broadly to include employees. 3.and what they rejected . Introduction: i. He took the lead in framing the legislation and is most likely to know what the legislation is about and therefore Members are likely to pay attention to what he says.not later Congresses. Changes and amendments to a bill . Counter-argument in favor of reports: it is the lesser of two evils (the court deriving meaning solely from the text and conjecture as to what the text means or actually attempting to understand the meaning ) ii.in settling upon the language ultimately enacted. Committee Reports ("the gold standard of leg history") . A big problem with floor statements is that they are not all spoken . Committee report that explains why the committee members framed the bill the way they did. Legislative history remains one of the most controversial sources of statutory interpretation 1. Legislative History was not initially popular (rejected until the 40s .some are just inserted as "bullets" into the record after the fact.although it is not unheard of to use floor statements. Types of Legislative History: i. What happens if a court adopts a view of a statute and then Congress doesn't do anything? Are they telling the court that they approve of the interpretation? Maybe but not necessarily .they might be too busy. b. New Haven i. Statements of Individual Legislators 1. But Learned Hand once argued: "if a bill is changed in a most significant way. iii.may reveal what legislators considered . 2.Georgia is one of those states. but separate things of which we can say only that they followed each other in a definite sequence and one was not the other. members could be said to "defer" to sponsors. or even authoritative. 2. Successive Versions of a Statute 1.Legislative History and its Critics. 2. iv." 2. Statements made during hearings -Also a deep skepticism from the court about the value of statements made during hearings. what they sought to achieve. Legislative History includes: 1. Action should be weighed heavier than inaction. But then again aren't the sponsors' statements even more susceptible to opportunistic manipulation than committee reports. BUT all of that is likely to be heavily stacked in favor of bill's proponents and therefore maybe not very reliable after all. The benefits: hearing transcripts disclose a lot of information and the political dynamics leading up to the proposal of a bill. The only gesture we have from those men is a gesture of acquiescence when they vote. even supporters of a bill might attach different meanings. b. Equitable Interpretation I. 3. iii. Most commentators argue that changes to draft bills should carry no weight. 1.does it include employees? ii. Debates on the floor of house and senate (bear in mind that these are not necessarily spoken) B. In addition. they also contain the expressed views of key legislators who framed the legislation.pragmatic response to New Deal statutes passed between 1933 and 1940 that were more open-ended that statutes traditionally had been) ii. a. Congress doing nothing isn't all that persuasive . Issue: Title IX definition of "no person" . ii. Textualist Critique of Legislative History (led by Scalia and Easterbrook) A. . Section 7 process Judicial Activism Argument i. then. is because it is too costly to do the research and litigation relating to leg history. Scalia and Thomas (and possibly Alito) will not join an opinion that uses legislative history. Legislative history lacks legitimacy because it hasn't gone through the constitutionally mandatory processes of bicameral passage by the House and Senate and presentment to the President for approval or veto. Perhaps the principal concern with leg history isn't so much that it is not enacted law but that legislators and public interest groups may deliberately use leg history as a way to circumvent the Article I. E." iii.II. a secondary source iii. They might concur in result. the legislative history is extensive. no need to consult extrinsic sources.if the text is clear. and there is something for everybody.if a statute is ambiguous. So textualists DO use extrinsic sources such as dictionaries. rather than the judge's own conception of which interpretation better completes the statutory scheme? The Economic Argument i. Exxon Mobile . Scalia: "in any piece of major legislation. Reminds the court to devote more time to analyzing statutory texts ii. ii.majority refuses to look to leg history because the statute is not ambiguous C. Framework for Textualists . doesn't a court's ability to consult leg history ensure that some form of legislative signal will resolve the ambiguity. judges using an overly loose and undisciplined form of "interpretation" to implement their own views of public policy. BUT what if "statute is the only law" misses the point? Judge Breyer says you cannot interpret words of an ambiguous statute without looking beyond its words. Inspires the court to be more critical of the leg history it does decide to use New Synthesis i. but will not join an opinion. D. So the reason to get rid of leg history. There is a new school of thought that says it is simply impossible to tell whether judicial reliance averts more errors than it causes or vice versa. at best. So if the question is "is the text clear?" what is the threshold? At what point of vagueness are they allowed to move onto leg history? ii. F. Eskridge counters: legislative history does more to constrain judges than to liberate judges . Reminds the courts that leg history is. New Textualism Has It's Benefits no matter what (Eskridge admits) i. Legislative History is Not Law Argument i. B. which are also not "enacted by law" as well as other un-enacted "sources" (p 171 iii. Marshall (LSD case) i. In Marshall. rooted in English traditions that the founders would have been very familiar with where exceptions dictated by sound policy were written by judges. j. Specialized Meanings and the Problem of Multiple Audiences p 200 i. PROF is skeptical about whether these are really alternative uses of leg history. But what if the enacting Congress intended for the meaning to be more elastic? E. For example. Junior Partner . The Semantic Meaning of Statutory Text p 212 1.such as the Internal Revenue Code . What is Judge's role? P 214 1. There are different kinds of statutes." . Semantic meaning vs. judicial willfulness. Faithful agent . "Junior Partner" (minority) i.there is also the "junior partner" model that allows "equitable interpretation" 1. Which audience do we consult for "meaning" ii. and situations were brought within the reach of a statute that were otherwise outside of their limits. but rather a way to get around the fact that leg history is being used to divine legislative intent. Social and political climate ii. B. United States v. 1. Textualist interpretation is more appropriate 2. "working conditions" would be common parlance for one audience and a term of art for another audience D. Leg History to understand the Enacting Congress p 197 i. Terms of art that might have had multiple meanings iii. Posner's approach "buys justice in the individual case at the price of considerable uncertainty and. Statutes adopting common law . Must we only apply the meaning at time of enactment. Legislative History is not used solely to discern congressional intent. We usually take the original meaning of enacting legislature. and purpose advocates proceed on the assumption that judges must act as Congress' faithful agent.III. Micromanager statutes . there could be disagreement over meaning of "mixture or substance" ii.the legislature enacts a new policy but does so in vague. imprecise language and trusts the courts to answer questions as they arise in light of the legislative objective that the statute is trying to achieve.thorough and tries to address every question that might arise.some statutes are just codification of the common law and should not alter the further development of law by courts. Easterbrook' s approach "buys political neutrality and a type of objectivity at the price of justice. F.this falls somewhere between "micromanager statute" and "delegating statute" . others for a more "junior partner" type interpretation. i. not infrequently. Delegating Statutes i. Some might call for textualist interpretations.text. technical meaning. Changes in Specialized Meaning over time p 201 i. iii. "Faithful Agent" (majority) v. or can we consider the meaning at time of enforcement? iii. Any given act might be addressed to multiple audiences. It can be used for other important things. Context of the particular Act. a more sensible reading. What about changes in word meaning/usage over time? ii. intent. The court has a more dynamic function her. Commonplace meaning vs. Other Uses for Legislative History A. C. "Junior Partner" is more appropriate. ii. New Policy Statutes ." 2. Canons of construction are interpretive principles or presumptions that judges use in interpretation a.how the English language is conventionally used and understood 1.the residual term is read more narrowly so that it encompasses only things that are similar to the items already listed. or any other self-propelled vehicle not designed for running on rails" 2. A list of specific terms followed by a more open-ended residual term at the end . c. This canon makes a lot of intuitive sense in most contexts. not inadvertence.'" So here.when a statute includes some things. Ejusdem Generis a.is an airplane a "vehicle" as defined by the statute? 1. F. Expressio Unius: "The statute does not say expressly that only a legal or beneficial owner is entitled to sue. McBoyle v. and this is problematic. Kennedy used the words around it to decipher meaning C. there is no hierarchy of canons. ." p 232 B. II.or narrowly . Canons conflict with one another. Alloyd . Gustafson v. Purport to be neutral to outcomes b. c. Substantive canons . So direct contradiction. automobile wagon. motor cycle. Ejusdem generis and noscitur a sociis ."identical words used in different parts of the act are intended to have same meaning.a word is known by the company it keeps a.expression of one thing implies exclusion of others. Canon against redundancy (every word has a meaning) a. b.any type of communication . it impliedly excludes other things. you are essentially saying that the word is not necessary. Semantic canons . US ." E. the judge thinks that that because all of the specific terms are vehicles that stay grounded.Canons of Construction I.only public communication. But the canon against redundancy says that EVERY word has meaning. Expressio Unius . Favor a certain outcome Semantic Canons A. Introduction A.If you narrow the meaning of a word by the words around it. Expressio Unius . it has force only when the items expressed are members of an 'associated group or series. Textualists use these canons to establish that the text is clear so that they can avoid leg history. Sometimes hard to call. the statute excluded aircraft. What's the point of semantic canons? a.definition of "communication"? Could be read broadly . The presumption against superfluous statutory language canon . Dissent: majority obviously found the statute ambiguous because it needed to invoke a canon (expressio unius) but it should have first looked to the intent of Congress via leg history. The difference is that Ejusdem Generis is usually invoked for a residual term at the end of a list of terms D.a judicial presumption in favor of a particular outcome (lenity rule. But you must figure out what common characteristics of the specific terms are relevant and what common characteristics are not relevant. Silvers v. SCOTUS on Expressio Unius: "The canon expressio unius does not apply to every statutory listing or grouping. Consistent Usage of Words a. for example) 1.copyright statute 1. b. Sony Pictures . The presumption of consistent usage . "the term motor vehicle shall include an automobile.' justifying the inference that items not mentioned were excluded by deliberate choice. b. Noscitur a Sociis . But isn't redundancy quite common in language? Is redundancy more or less likely to appear in legislation? b. The general word "vehicle" is at the end of a long list of more specific terms that "provide guidance regarding the proper construction of the more general word 'vehicle. a.closely related and often conflated. Contradicts noscitur a sociis and ejusdem generis . Also. but Congress' explicit listing of who may sue should be understood as an exclusion of others " 2. So the fact that aircraft is excluded is probative. automobile truck.judges should construe statutes so that every word has meaning if possible. Both involve "narrowing" the range of meaning by reading a term in context of related terms. Purposivists would argue that the mere invocation of a canon suggests that there is unavoidable ambiguity. III. Rule 4: if a case can be decided on either of two grounds. . one involving a constitutional question and the other a question of statutory construction. A prudential tool of judicial restraint p 282 . 3. d. g. Canon of Constitutional Avoidance a. c. Empowers Judges . it would need to provide a "clear expression" of it's "affirmative intent" to do so. But there is very little evidence on the record that Congress is all that adverse to enacting legislation that raises difficult C questions 2. Protecting constitutional values p 285 . Principal: the judicial power includes the power to rule on the constitutionality of legislation. one of which leads to constitutional problems and the alternative construction is at least "fairly possible.the canon enables Burger in this case to make a ruling on thinly veiled reasoning. Substantive Canons A. NLRB v. b. Catholic Bishop of Chicago 1.fosters careful deliberation in congress on issues that are constitutionally problematic.if Congress wanted a general statute to confront constitutionality problems. including: 1. Majority: "we decline to construe the act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the 1st amendment" p 275 2. and the statute is capable of two or more constructions. e. Congress tries to respect Constitutional limits and therefore it is a good indication of Congressional intent to assume a construction that does not violate C. P 278 Clear Statement Rule . An empirical claim about likely congressional intent. the court will decide only the latter 2.a lot of interest in avoiding unnecessary adjudication of C issues. Dissent: Although constitutional questions are difficult. they shouldn't be avoided to the point of disingenuous evasion. How serious must the constitutional problem be? At what point is it serious enough to "trigger" this canon? What is the justification for the avoidance canon? 1. SCOTUS has expressed a STRONG presumption in favor of upholding statutes as constitutional Justice Brandeis articulated all the ways the avoidance doctrine worked. and even if serious doubt of constitutionality is raised." court will adopt the latter. f. Rule 7: when the constitutionality of an act of congress is drawn in question. Congress must make its intent to do so crystal clear. Are canons used consistently/predictably enough to really have an impact? c. The canon is intended to protect core governmental functions or operations. 2. So not every conflict btwn a state statute and a federal statute implicates this canon.expansive reading of 10th amendment b. 3. If congress is going to interfere in core gov't functions or operations. d. San Antonio Metro Authority . Justification for Clear Statement Rule: improves the legislative drafting process and encourages the resolution of clear conflicts. Interpretations of 10th Amendment a. Today's Rule: so long as congress has some constitutionally vested authority. a. What about statutes that were enacted before a canon became popular? Should canons just be applied prospectively? Doesn't usually happen that way Rule #2 to invoke Federalism Canon: Core Government Functions or Operations Rule (a nod to the Supremacy Clause): 1. b. the 10th amendment doesn't impose substantive limit on their powers to legislate. 2. then Congress must put forth a plain statement of intent to do so. Does a mandatory retirement age for judges (Gregory v. A number of provisions promote federalism. . Garcia v.overruled national league c. Rule #1 to invoke Federalism Canon: Clear Statement Rule: 1. So the built-in protection to avoid subverting the Supremacy Clause in all cases maybe isn't all that effective . Rationale: Our federal gov't allocates powers/authorities to federal gov't and state gov't. The canon of federalism is a clear statement rule that before a statute will be read to interfere with a core state governmental operation.states will argue that EVERYTHING is core to their functions and operations. Aschcroft) fall into the category of core gov't functions or operations? No clue how is this defined? 4. National League of Cities v. So a natural tension between Supremacy Clause and 10th Amendment 1. c. 10th Amendment is one. does not come into play anytime there is a plain vanilla conflict between federal law/state law it only comes into play when there is a serious challenge to a core governmental function or operation. Principal: promote state autonomy and freedom from federal regulation of state governmental practice. Are congressmen really preoccupied with canons of construction? b.B. Usury . Canon of Federalism a. So the question becomes: Did Congress intend for the administrative agencies to have this power and HOW is it to be exercised? B. we need regulation in response to market failure. Delegation and Theories of Regulation A. Why? a. Exceptions: there are instances when congress will write a micro-managing statute with very detailed specifications. . they aren't always taken care of by "collective action" and you need regulation.e. Good example: healthcare reform bill falls into micromanagement category. BUT he points out that a paradox of the regulatory state is that these efforts often have a backlash. Cass Sunstein . pollution) 4. Congress simply does not have time to study and address all of the issues that arise with respect to even a moderately complex statute 3.private conduct with external costs. he doesn't weigh it in his analysis of whether he should engage in that conduct or not (i. The legislative process is slow and cumbersome. such as the environment. and this power to enact regulations is intended to achieve the broad goals that Congress lays out. Congress frequently enacts statutes that delegate to administrative agencies the power to enact regulations.agencies only have the authority that Congress grants them and congress can exert other forms of oversight as well 4. What? a. Externality . how do you actually coordinate those actors to do the right thing? 3.ADMINISTRATIVE AGENCIES AND THE REGULATORY PROCESS I. In other words. and the constitutional restraints on the exercise of that power is limited. Social subordination values anti-discrimination laws markets don't have a lot of incentive to eliminate discrimination.Why do we need regulation? Because we cannot rely on actors in industry to do the right thing. Admin agencies have expertise that makes them more effective policymakers especially in complex fields like environmental protections or securities regulations 2. b. 2. The pressures of day-to-day partisan politics may inhibit pragmatic application of the best available info to the problem at hand b. Isn't there something inherently anti-democratic about insulating regulatory policy decisions from the political process? 3. Redistribution of resources (taxing is one example). Arguments against? 1. part of the executive branch. Example: endangered species act. Since the New Deal (1930s) it is accepted that administrative agencies. Fancy talk for short-term thinking at the expense of long-term thinking. so there isn't much nimbleness to react to new information or circumstances 4. Collective action problem (b/c resources are public. Arguments for? 1. 5. 1. 6.even if people could agree on how to manage or regulate public goods. wield substantial power. but because it doesn't affect the actor. We have seen so many broad statutes with open-ended goals and purposes the delegation to an administrative agency is intended to achieve some of those goals. so you need regulation response to that. c. Keep in mind that they aren't entirely immune from democratic constraints . Does the delegation of public policy decisions allow legislators to evade accountability? C. As a response to Irreversibility. He lists the kinds of market failures that give rise to the need for regulation: 1. Coordination Problem . Theories of Regulation a. Heads of Agencies are often executive branch political appointments (NOT elected) 2. Posner imagines 3 kinds of regulatory systems Entrepreneurial . The Capture Theory a. Regulation is subject to supply-demand. This is a scary thought. So the revolving door presents a huge conflict of interests and removes objectivity. Assumes that industries that are being regulated are "hijacking" the regulatory process because they are appointed from industry and go back to industry. Public interest theory . a.favorable regulations is "sold" to the industries who value it y the most. So Posner asks: Why doesn't it work better? And he has a theory 2.so Agriculture. it takes the average administrative agency 3-5 years to publish regulations. The one thing Posner adds to the discussion is something that has puzzled people for generations . The possibility that these agencies will be "captured" by the market actors that they are supposed to regulate is very high. Richard Posner 1. The Capture Theory is the dark-side of regulation . Just like goods and products.agencies are not neutral and not nonpolitical and sometimes not very expert.favorable regulation goes to the industries who voters y support . those types of industries Posner sees the US as a combination of Entrepreneurial and Democratic y Systems c. Labor. ii. Coercive system . . supplydemand for regulations regulations will be supplied to those who value it the most.if this notion of correcting market failure is so obvious needed. why are the results of regulation oftentimes so disappointing? Criticism of administrative action is that it is slow. Congress' oversight of agencies is weak and ineffective.favorable regulation goes to the industries that can cause y the most trouble (ie France) Democratic System .b. Posner's criticisms of Capture Theory arrive at a Political Economy of Regulation i. b.an early version of Sunstein's market failure approach (see above). and then publishes final draft of rule. Procedures can slow down the process enough for Congress to have oversight 3. Distinguishing Rulemaking (Rules) from Adjudication (Orders) 1.rules apply prospectively b. and this is where courts have to get involved in interpretation a. Formal Adjudication is governed by Section 556 and 557 of APA 5. b. Agency reviews comments and. admin procedures facilitate broad public participation in decision-making. Formal Rulemaking is governed by Sections 556 and 557 and involves adversarial hearings at which the proponent of the rule (the agency) carries the burden of the proof on contested issues and must show that the proposed rule is supported by "reliable. if the agency decides to publish the rule. Section 553 states that rulemaking is governed by the formal procedures if the agency rule in question "is required by statute to be made on the record after opportunity for an agency hearing. b. But sometimes the statutes are not very clear . First.analogy to lawmaking . Concerns about Lobbyists interest groups can concentrate their influence on agencies .rulemaking prospectively (law-making) Formal hearing (as required by statute) .while avoiding the perceived danger of arbitrary. saying that the former invokes Due Process requirements and the latter does not.indeed. Informal Rulemaking is governed by Section 553 of the APA a. but some generic APA provisions apply to all agency actions.enforcement/application of rules in the form of orders "Rules" . probative.appropriate when a small group is exceptionally impacted by outcome "orders/adjudications" applying rules NOT COVERING NOT COVERING Informal "notice-and-comment" agency drafts rule and the rule is disclosed in registry . The Goal: to reap the perceived benefits of broad delegations . ambiguous . expert decision making insulated from partisan politics . Majority: a statute must be CRYSTAL CLEAR in requiring formal rule-making. alleviating or compensating for the lack of democratic process 2. SCOTUS has distinguished between rules/orders that impact a few people (Londoner) and those that impact a broad class (Bi-Metallic). The two major types of agency action are defined as "rules" and "orders" (or "adjudications") each is divided into two subcategories of "formal" or "informal" 2. d. makes revisions. The APA talks about two main forms of administrative action: a. Florida East Coast Railway Company p 588 i. an agency that proposes to make a rule through this progress must give public notice by publishing the notice in the Federal Register c." 2. abusive gov't by unelected ppl. How? Procedural requirements 1.analogy to judicial . Basics of the Regulatory Process A. Due Process and the Interpretation of Administrative Statutes a. BUT procedures can be costly and cumbersome B. Widely known as "notice-and-comment" rulemaking b." 3. Passed in 1946. When must an agency use formal procedures? 1. the agency must provide the public with an opportunity to comment on the agency's proposal. and substantial evidence. ii. including these c. Third. Informal Adjudication . which provide more speed and flexibility. Second.public is given time to respond and make comments. Statutory Framework: The Administrative Procedure Act (APA) a.II. Overview a. or the default is for informal rule-making. it must publish an explanation of the rule 4. establishes the basic default rules of procedures for federal agencies to use when creating and enforcing regulations. United States v.on whether formal procedure is required.flexible. e. d. Rules . Forms of Administrative Action under the APA 1. Orders . Dissent: this is a violation of due process 3.no section governing. in response to concerns about the "capture" of admin agencies by special interest groups. Judge Leventhal's original formulation of "hard look" review referred to the agency's obligation to take a "hard look" at the relevant factors. costly 3. B. Judicial Regulation of Regulation and Procedures a. It narrows the "arbitrary and capricious" standard in the APA d.courts don t have that authority. For the first two decades. the court would consider: 1. an abuse of discretion. Substantive Element: AND whether there was a clear error of judgment. and conclusions? 1. the ultimate standard of review was narrow. meaning that the advantages of informal rulemaking (notice-and-comment) are lost.SCOTUS weighed in with a decision in 1971 and laid out general principals to make a finding that an agency action was arbitrary and capricious. c. We will focus on (a) arbitrary and capricious. the process becomes unpredictable. History of judicial review after enactment of APA a. C. Vermont Yankee and the Over-Proceduralization Concern (p750) a.III. very little b. . State Farm. Not so. Overton Park . many thought the courts would be more deferential in their review of agency actions. Vermont Yankee held that courts may not impose procedural requirements that go beyond those mandated by statute. i. Procedural Element: Whether the decision was based on a consideration of the relevant factors 2. constitution. timely. The next case. Rationale: courts give deference to an agency to create procedures because: 1. 4. agencies are experts 2. findings. Late 1960s. overproceduralized. D. Questions: How do judges effectively enforce admin procedures? How much substance is there in judicial review? What is the appropriate balance of power between judicial system and agencies? b. or agency's own regulations. agencies. APA (p 718): When can a court set aside agency action. This case is often associated with establishing a limited role for judicial review. would always use formal rulemaking. worried about being reversed. b. the courts adopted a more aggressive approach c. No "federal common law" for admin procedures . 1. Judicial Review of Agency Rules . Over time the phrase has come to connote the court's "hard look" at the agency's reasoning. and the court is not empowered to substitute its judgment for the agency's. After Vermont Yankee. seems to reaffirm and even expand on Overton Park's endorsement of "hard look" review. procedural impositions could be used as a cover for disapproval of a substantive decision Modern Hard Look Review (SEE NEXT PAGE) a."Arbitrary and Capricious" A. or otherwise not in accordance with law but (a) is only one of the standards. if the courts had the authority to require additional procedures. Hard Look Review applies to ALL agency actions. b. Or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. mitigates the ability of special interest groups to exert undue influence iv. Delegation to agencies is controversial in part because it threatens to undermine democratic accountability. What is wrong with an agency changing its mind (rescission)? Well. are part of the executive branch under the control of the President. After Vermont Yankee. VICES: i. VY is more about procedural reviews. State Farm dissent points out that the agency's change in position was due to a new President (Reagan) . The next case. Vices and Virtues of Hard Look Review p 775 1. Not so. 0. State Farm. Facilitates meaningful citizen participation in agency decisions by giving agencies a greater incentive to take public comments seriously and by forcing agencies to present their analyses and conclusions in a form that courts and the general public can understand. though not themselves elected. VY indicates a much more narrow and deferential approach to procedural review. 4. 3. 4. Producing the types of records necessary to survive hard look review is costly and time consuming d. unless there is new data. One response to that concern is to emphasize that agency officials. seems to reaffirm and even expand on Overton Park's endorsement of "hard look" review.was a good enough reason.perhaps subconsciously .voted on by the people . Has relied on factors which Congress has not intended it to consider ii. several things: if the relevant data substantiated the rule in the first place. 2. creates incentives for thoughtful and careful agency consideration of all significant aspects iii. findings.E. Agency action is arbitrary and capricious if: i. VIRTUES: i. Judge Leventhal's original formulation of "hard look" review referred to the agency's obligation to take a "hard look" at the relevant factors.formal and informal rulemaking and formal and informal adjudication are all included. Rehnquist thought that the change in political priorities . c. Should there be a presumption towards the status quo? Once an agency goes down one path ("path dependence") doesn't a presumption towards status quo mean that the agency is stuck? Doesn't that inhibit the agency's flexibility? e. Judges do not have the necessary technical background to evaluate evidence or arguments proffered by agency ii. Offered an explanation for its decision that runs counter to the evidence before the agency iv. The Role of Politics in Administrative Decision Making p 787 1. many thought the courts would be more deferential in their review of agency actions. Section 706(2)(a) instructs reviewing courts to set aside arbitrary and capricious "agency action" and Section 551(13) defines "agency action" as including "failure to act. Hard look review might lead judges . conclusions (APA) .but does not overrule it. who was more skeptical of government regulations. On the other hand. The essence of the losing argument in State Farm was that a decision to rescind a regulation should be treated the same as a decision not to enact a regulation in the first place. How to reconcile with Vermont Yankee? 1. This case indicates a broader approach to substantive review based on the above definition of "arbitrary and capricious." . This is unlike Vermont Yankee . 2. aren't agencies supposed to provide technocratic decision-making that is at least partially insulated from day-to-day partisan politics?? f. Modern Hard Look Review . 2.to "substitute their judgment for that of the agency" iii. then how do they justify a change? 5. State Farm: The Hard Look Review p 769 1. Entirely failed to consider an important aspect of the problem iii. 2. constrain administrative arbitrariness ii. 3. SCOTUS disagreed. Most courts have held that judicial review of an agency's decision not to initiate rule-making proceedings is more deferential than review of an agency's decision to adopt a new rule. Over time the phrase has come to connote the court's "hard look" at the agency's reasoning. Judicial Review of an Agency's Rescission of an Existing Rule 1. 3." 2. Much agency action turns on the agency's interpretation of the Congressional statute giving the agency authority to act. Conclusion: Leading scholars have viewed this pre-Chevron standard-of-review as puzzling. E. 4. Later cases (Packard. court says it will "respect" opinion of agencies. and unpredictable. Mixed question of law and fact . the Court dramatically altered the doctrinal framework in its Chevron decision.no deference owed to agency . 3. During Carter administration. What is the mixed question here? Whether THESE newsvendors should qualify as employees c. Questions: When should a court independently and without deference apply its own standards of statutory construction? And where is it appropriate for courts to defer to an agency's construction of a statute? Pre-Chevron Judicial Review A. Pure question of law: de novo (Hearst) b. Skidmore Test (least deference) a. II. but just that it depends on circumstances. If the agency's interpretation is consistent over time. if the agency's interpretation is consistent with congressional intent.STATUTORY INTERPRETATION IN THE ADMINISTRATIVE STATE Judicial Review of Agency Statutory Interpretation I. leg history. Chevron A. Background of the Case a. Roberts' dissenting view: 1. and purpose are silent/ambiguous to the question at hand. 1. The new approach allowed all buildings within a plant to be under the same "bubble" for the purpose of regulating emissions. Now we turn to a judicial review of an agency's interpretation of statutes that the agency is charged with administering. He would not defer on any issues of LAW . Chevron Step 2: EPA's interpretation is reasonable. The court points out that the NLRB has been inconsistent about whether foremen are "employees. that the greater the need for agency expertise. no deference. Hearst Test (most deference) a. b. so it should be upheld i. c. Skidmore doesn't say it will NEVER defer. Perhaps in response to this set of concerns.He would defer for questions of pure fact ONLY 2. 1. 2." No.high level of deference to agency. Packard Test (middle deference) a. Introduction / Integration: above we are looking at judicial review under the arbitrary and capricious standard. Similar to Hearst except that the mixed question of law and fact in the previous case (re: newsvendors) is presented as a pure question of law here (re: foremen). Pure question of law . Very broad delegation by Congress to EPA to craft regulations that would fulfill very broad objectives. 1. the greater the deference. If the agency's interpretation is inconsistent with the plain meeting of the statute.so for the mixed questions. Third category: Pure Fact . Conclusion: The EPA s definition of the term source is a permissible construction of the statute which seeks to accommodate progress in reducing air pollution with economic growth. 2. Issue: whether "stationary source" could encompass an entire plant under Act." C. . D. Does it matter what interpretive process the agency used to ascertain meaning of "stationary source. the greater the deference. Evolution of Judicial Review of Agency Statutory Interpretation A. but claims greater judicial power to review decisions. Pre-Chevron Doctrine Summarized: a. Agency's construction will be upheld if warranted in the record and there is a "reasonable basis in law". Skidmore) suggest: 1. the EPA implemented a "point source" approach and each smokestack counted as it's own "stationary source" and had to go through all of the regulatory/permitting requirements. B. he would review de novo. d. If mixed question of law and fact: upheld if reasonable (Hearst) c. B. What is the pure question here? The definition of employee under the Act b. the greater the deference. Chevron Step 1: Text. III.de novo review. incoherent. Chevron Deference (even more deference than Hearst): a. When a court reviews an agency's construction of the statute which it administers. where agencies are more expert? .B. Is this not the exact opposite of a rational system? Would one not expect courts to conduct a stricter review of matters of law. that it the end of the matter and the court and the agency must give effect to the unambiguously expressed intent of Congress 2. such as whether the agency's interpretation was longstanding and consistent. C. contains an important anomaly. aka State Farm. the question for the court is whether the agency's answer is based on a permissible / reasonable construction of the statute. If the court determines Congress has not directly addressed the precise question at issue. If the intent of Congress is clear. whether it was issued contemporaneously with the enactment of the statute. court MUST defer even if they don't agree with the interpretation. aka Chevron but 2) it also suggests the courts conduct independent "in-depth" reviews of agency judgments about matters of policy. where courts are more expert. and whether it was a highly technical issue deserving of deference due to agency's supposed expertise. the heart of administrative law. D. c. If it is. Chevron did not make any mention of considerations that had previously been used in judicial review of agency's statutory interpretation. The law 1) requires courts to defer to agency judgments about matters of law. Justice Breyer had this to say about the contrast between the 2 approaches to judicial review: "The present law of judicial review of administrative decision-making. it is confronted with 2 questions: 1. Chevron even directly conflicted the consistency consideration." Chevron and State Farm (Hard Look Review) a. stating that "an initial agency interpretation is not instantly carved in stone. Chevron appears to be the highest level of deference of all of the cases b. but more lenient reviews of matters of policy. whether Congress had acquiesced in the agency's interpretation. Whether congress has directly spoken to the precise question at issue. Reconciling Chevron with Pre-Chevron a. is it any more likely that Congress will arrive at the "right" interpretation than the agency? Aren't they then just substituting their own judgment? . expert decision-making. harm.IV. or collect. What constitutes ambiguity? a. So we have come full circle back to statutory interpretation (first part of course) 2. c. and nationwide legal uniformity. provide NO ANSWER whatsoever to the interpretive question that would make the Chevron doctrine meaningless. intricate analysis? b. But Chevron can't possibly mean that the court may defer to the agency only when the traditional tools of stat. Chevron Step 1 is where all the action is that is. statutory flexibility. Section 9 of ESA defines take as "harass. In addition. AT&T: Scalia uses dictionaries to define "modify" a. trap. kill. Chevron and Textual Interpretation A. The majority pointed out that the question in Sweet Home was NOT whether the agency's interpretation of "take" was correct. C. capture.how strenuously should reviewing courts try to resolve such ambiguity? Should courts defer only after exhaustive efforts to resolve a surface ambiguity has left lingering doubt? Or should a court defer whenever the resolution of a surface ambiguity would require close. const." a. Chevron must instead mean that a reviewing court should defer to the agency if the application of the traditional tools of statutory construction fails to supply a SUFFICIENTLY CLEAR answer to the interpretive question? D. Scalia's approach undermines deference to the agency. at least at the margins . All language has some ambiguity. but whether it was sufficiently "reasonable" to merit deference under Chevron (skipped to Step 2 of Chevron) b. B. pursue. who defends Chevron doctrine but rarely defers to agency interpretation b/c he thinks the text is clear E. Bottom line: If you can find a "clear meaning" in any statute. 1. whether or not "Congress has directly spoken to the precise question at issue. Competing Semantic Canons: 1. Textualists are more likely to discern a "clear" statutory meaning and therefore. The majority on the other hand emphasizes the presumption against repetition to defend the broader interpretation. Chevron courts say that courts should employ the "traditional tools of statutory construction" to do this. Textualists and Chevron Deference a. True with Scalia. less likely to defer under Chevron 1. Some would argue that when judges exhaustively try to resolve ambiguity with all of the tools of statutory interpretation. they undermine the values of the Chevron doctrine . hunt. wound. or to attempt to engage in any such conduct" a. shoot. The dissent uses noscitur a sociis to say that "harm" should be given the narrower definition because the other words in the definition were narrow 2. Sweet Home: "take" is a term of art at dispute.democratic accountability. you will never get past Step 1 of Chevron. 3. the statutory language is ambiguous and therefore. b. Secondly. Agency construction of a statute that would normally be afforded Chevron deference. proceed to Step 2 of Chevron 2. But for the federalism canon. 5. Constitutional Avoidance Canon: a. 3. DeBartolo: 1. Chevron and Substantive Canons A.V. Resulting RULE: when an otherwise reasonable agency interpretation would raise a serious constitutional question. And you need to know what the considerations would be on both sides when there are competing canons. which canon should win? In DeBartolo. In Rust. Federalism Canon a. SWANCC can be read as standing for the proposition that Chevron deference yields to federalism canons . Conflicting Canons a. D. But it raises first amendment issues. SWANCC: 1. Sullivan: 1. the court should reject the agency's interpretation in favor of a reasonable alternative construction that does not raise the question. So is this an easy way to get around Chevron? Just find a constitutional issue? b. "the broad language of Title X plainly allows the Secretary's construction of the statute" 3. What is the trigger? c. Clearly the justices have the ability to use substantive canons to trump Chevron or not. And in SWANCC. Normally you would think that Chevron is pretty strong and would win most of the time. Very subtle interplay between the canons. You need to know what the triggers are for each canon 2. federalism wins. there is not a clear line." 4. the regulations do not raise the sort of "grave and doubtful constitutional questions" that would lead us to assume Congress did not intend to authorize their issuance. Chevron wins.agencies can only encroach on traditional state authority if the statute clearly authorizes them to do so. So constitutional avoidance canon is invoked. you need to look at other substantive canons to make sure there is not a conflict 1. So it has to be a SERIOUS constitutional issue to ignore Chevron? C. d. 4. . e. CHEVRON IS ITSELF a substantive canon: where a statute is silent or ambiguous. constitutional avoidance wins. Does the constitutional issue have to be "serious" or "grave and doubtful"? It appears so. we will defer to agency's interpretation if it is not unreasonable. 2. B. but not in this set of cases f. In cases of conflict. So if you have a case where is seems obvious that Chevron applies. b. increases in formal rulemaking The Importance of Procedural Formality: a. Chevron deference might not be appropriate. The Limits of Chevron's Domain: Chevron Step 0 A. Does procedural formality result in better interpretations? Probably. Chevron Step 0: Are there certain cases where Chevron deference should not apply at all? a. customs changed the classification of duty letters to a category that was subject to a tariff. it shouldn't matter if the agency's interpretation is the result of an informal/formal process.a much weaker form of deference. C. b. Chevron deference does not apply. Remanded. . Dissent (Scalia): As long as there has been some delegation by congress to the agency. When the interpretation was produced through a highly informal procedure." B. b. Issue: through a ruling letter. Majority: NO. But what about when it drops below that threshold? Just depends Mead: a. Almost everything could be "reasonable. the less likely that congress intended for agency interpretations to have the force of law. it might be accorded Skidmore "respect" . Even though it is not entitled to Chevron. Formal processes (notice and comment rulemaking) will almost always be given Chevron deference c. Mead decision will lead to unpredictability for agencies. It only applies when it appears that Congress has delegated to the agency the authority to make "force of law" rulings. The less procedural formality. c. 1.VI. Also. there would be due process concerns if we allowed agencies to make thousands of informal rulings with no judicial check other than last-ditch safeguard of chevron step 2 (is it reasonable?). Is this ruling entitled to Chevron deference.