Legislation and Regulation Study

(substantive provisions) which identify the rights, duties, powers, and privileges being created.
(administrative provisions)i. which address the creation, organization, powers, and procedures of the organization

the language in the statute the parties are in dispute about.

Emphasizes the necessity of maintaining three distinct branches of government, each with delegated powers. Formalists are concerned about undue accretion of power to any one branch, no matter how small

Focuses on balancing the inevitable overlap of powers to preserve the core functions the Constitution assigns to each branch.

· Materials that are part of the official act being interpreted or are closely related (ex. Grammar and punctuation, components of the act)

Materials outside of the official act, but which are part of the legislative process (ex. Earlier drafts of the bill, legislative history, statutory purpose.)

· Generally applicable doctrines not related to the act's text or its enactment process

a normative view of how courts should interpret statues -- thus concerning the role of courts in our system of governance

- prioritize the text of the statute by looking for the ordinary, public meaning of the words in the act. If meaning is elusive, textualists look to other intrinsic sources including punctuation and grammar, linguistic canons. Divided into modern textualism (considers extrinsic sources) and strict textualism (does not consider legislative history)

Look to the specific intent of the legislature. Start with the text, but examine other sources of meaning even if the text is clear.

Focuses on the reason the legislature enacted the act. Look for the general intent or purpose. Purposivists will examine text and legislative history and other relevant sources. (State v. Courchesne)

these are instruments for ascertaining the meaning of a statute -- i.e., dictionaries in the textual sense or legislative history for purpose arguments

requires a court to resolve statutory ambiguity in favor of a criminal defendant. It is only applied when, after looking at every reasonable source, the court can only guess Congress' intent.

courts presume that words in a statute have their ordinary meaning (SMITH V. US)

"unless a word or phrase is defined in the statute or rule being construed, its meaning is determined by its context, the rules of grammar, and common usage.

general rule is that punctuation and grammar matter unless the ordinary meaning suggests that they should be ignored.

separates the second-to-last item in a list and the "and" or "or" joining it to the last item. (Oakhurst Dairy Case)

when a sentence contains several items and several consequents, the words are to be applied to the subject that seems most properly related by context and applicability. Allows readers to ignore grammar and interpret the language as intended.

when a word or phrase modifies a list of antecedents (list of things), the modifying word or phrase is presumed to modify only the thing immediately preceding it.

"may" is considered discretionary, "shall" is considered mandatory, "must" is considered mandatory when a condition precedent is present, and "should" is considered discretionary.

Ambiguity and Constitutional Avoidance Doctrine

"For statutory language to be ambiguous, it must be susceptible to more than one reasonable interpretation or more than one accepted meaning." If the language is difficult to comprehend, or lacks clearness and definiteness, an ambiguity exists. (Mayor of Lansing v. MPSC)

Classical and modern constitutional avoidance doctrine. Classical directs that when a court finds an act unconstitutional, the court should adopt an alternative interpretation that is fair and reasonable to avoid having to declare the act unconstitutional. (United States v. Marshall)

Absurdity and Scrivener's Error

When a statute should be interpreted against the literal reading to avoid absurd conclusions. If legislators had foreseen the problems raised by a specific statutory application, they could and would have revised the legislation to avoid the absurd result. (Public Citizen v. Department of Justice) (Green v. Bock Laundry)

An obvious clerical or typographical error. Allows courts to correct legislative errors in the expression of the policy. (United States v. Locke)

are presumptions about language that are useful for interpreting words as they appear in a statute. They are rebuttable, so judges can use discretion when applying these canons.

identifies the legal material that judges may legitimately consider, to discern meaning or fill gaps. Allows the court to look for meaning in language in the act beyond the actual words being interpreted.

Directs that the statute should be interpreted harmoniously with other statutes in the code about the same subject.

Presumes that although the sections of an act may not be codified together, the act's sections should be interpreted harmoniously

when a legislature uses the same word in different parts of the same act or a related act, the legislature intended those words to have the same meaning. Promotes internal consistency. (Travelscape, LLC v. SCDR)

"of the same kind" - When general words are near specific words, the general words should be limited to include only things similar to the specific words. Had the legislative body intended the general words to be used in their unrestricted and broadest sense, the listed, or specific, words would have not been included. (Yates v. United States)

"A word is known by the company it keeps" - When a word has more than one meaning, the appropriate meaning should be gleaned from the words surrounding the word being interpreted. Should apply when a judge searches for ordinary meaning regardless of ambiguity. (G.C. Timmis v. Guardian Alarm)

Provides that every word, phrase, and sentence in a statute or act must have an independent meaning. Two different words cannot have the same meaning. Presumes that the act was drafted with care, that each word resulted from thorough deliberation, and that excess words had been removed during deliberation.

"Mention of one is exclusion of another" - when a legislature includes one item, then courts can presume that the legislature intended to exclude all similar items not expressly identified.

These canons regard conflicting and borrowed acts.

two sections of an act, or more commonly, two or more different sections from different acts conflict. Steps in this order, attempt to harmonize, specific, then later enacted. (William v. Kentucky)

o Judges will first look to see if the two acts can be reconciled because the judge will assume that the legislature did not intend to interfere with or abrogate any existing laws when it passed the second act.

When the acts cannot be harmonized, the more specific act or statute should control over a general act or statute.

A newer act generally trumps the older one.

When two acts cannot be reconciled, one way to address the conflict is to conclude that the later act repealed the earlier act if not explicitly then implicitly. (Morton v. Mancari)

Judicial interpretations from other jurisdictions are merely persuasive authority, never mandatory.

Modeling occurs within a jurisdiction, intra-jurisdictionally. Borrowing occurs inter-jurisdictionally.

When an act is modeled after another act or shares similar language, courts often apply the identical words presumption to resolve interpretation issues.

Happens when a legislature copies an act. Courts assume that the borrowing legislation took not only the language of the act but also any judicial opinions interpreting that language.

Both types of acts address multijurisdictional issues. Principle difference between uniform and model acts is the importance of wide adoption and uniform interpretation of each.

§ Proposed state laws that the institutional actors, such as the Conference, draft. Principle goal of drafting a uniform act is to obtain immediate uniformity among the states on a legal subject.

The Conference chooses to draft a model act in two situations (1) when uniformity is desirable but not primary, and (2) when the purposes of an act can be substantially achieved even if the act is not adapted in its entirety.

Presumes that civil acts are prospective, unless the legislature clearly expresses its intent that the act also be retroactive. Acts may be retroactive if (1) the legislature clearly intended retroactive effect, and (2) no vested right is impaired.

The requirement of a clear, or plain, statement is based on the simple assumption that a legislature would not make major policy changes without being clear about doing so.

The requirement of a clear statement in this area respects federalism because Congress must be clear when it wishes to impact areas of traditional state power. (Florida Department of Revenue v. Piccadilly)

The displacing effect that federal law has on conflicting or inconsistent state law. Courts presume that Congress rarely intends to preempt state law when enacting a federal law; thus, Congress must clearly state its intent to preempt state law.

Can be used as a source of meaning, intent, or purpose - Contextualism is the process of using context to understand what an act means as well as why the legislature enacted an act.

Church of Scientology v. DOJ)

Identify the compromises that led to a bill's passing

The committee with jurisdiction over the bill writes the reports.

Earlier versions and rejected amendments help explain a legislature's intentions when it adopted the language enacted.

Commentary is prepared before the bill is subject to legislative manipulation.

Generally not considered as persuasive evidence of meaning because they represent one legislator's view.

encourages judges to be flexible and consider what the enacting legislature would have wanted when society's moral values change. Allows judges to work with the legislature to accomplish its goals as times and values change. A judge using this interpretive theory must identify the goals, or purposes, of the legislation. (pg. 226)

Let the decision stand; furthers certainty in the law and faith in judges and the judicial system. It appears objective; judges decide cases based on legal precedent rather than based on political leanings or personal preferences.

"Defined by what they are not"...Congress, the courts, state governments. The term "Agency" include all governmental authorities including administrations, commissions, corporations, boards, departments, divisions, and agencies.

o Agencies have the flexibility to act more quickly than either the legislature or courts
o Have specialized and relevant expertise in their area of responsibility
o More responsive to the electorate than the judiciary would be

Legislatures delegate power to agencies to regulate specific conduct or run programs. Agencies act like legislatures when they make rules.

An agency statement of general applicability and future effect designed to implement, interpret, or prescribe law or policy.

legislative rules have legal (or binding) effect. Agencies promulgate legislative rules through three processes

Which includes a hearing with trial-like procedures. Generally, formal rulemaking is only required in specific circumstances, such as certain administrative rules pertaining to ratemaking or food additives.

Requires an agency to publish notice that it will engage in a rulemaking and allow interested parties to comment. Often required of federal agencies.

Least formal process. Requires agencies publish notice of the rule only.

These rules have no legal effect on their own. Any legal effect comes from preexisting statutes or regulations.

they are rules interpreting language in a statute or regulation

statements from an agency that prospectively advise the public and agency personnel on how the agency plans to exercise discretionary power.

agency process culminating in an order. Process for formulating a decision of "particular" applicability and "present" effect. When using this method, an agency crafts an order to address a specific problem, which will apply to only specific regulated entity or entities.

Same procedures as formal rulemaking

a statutorily required decision-making process that may or may not require a hearing and is neither formal adjudication nor rulemaking.

Nondelegation Doctrine (Gundy v. United States)
Congress cannot delegate policymaking power to a federal agency because it operates within the executive branch.
The assistant can "fill up the details."

Congress may delegate policy-making power to agencies under the Necessary and Proper Clause, so long as congress provides intelligible principles or standards, to guide agencies' exercise of that delegated power.

Courts scrutinized the relevant act carefully to ensure Congress actually included limiting principles cabining an agency's policy-making authority.

courts examine the entire act to find limiting principles, generally finding that very broad delegations with minimal guidelines do not violate the nondelegation doctrine.

An enabling act is a piece of legislation by which a legislative body grants an entity which depends on it (for authorization or legitimacy) the power to take certain actions.

requires agencies to follow procedural rulemaking requirements that are greater than notice and comment but less than formal procedures.

Congress may control agency rulemaking by amending or repealing the enabling act or by enacting other acts subsequently.

An act that authorizes the government to spend money. (Tennessee Valley Authority v. Hill)

The appointment of agency heads is an important task for the president -- For structure & political reasons, it is hard to remove an agency head once the Senate has confirmed them.

Principle Officers, Inferior Officers, Employees

§ Principle officers are heads of all the executive departments and the members who head independent agencies in the executive branch -- You know someone is a principle officer when he has been appointed by the President with the advice and consent of the Senate

Someone is an inferior officer when they report directly to/are supervised by someone who has been appointed by the President with the advice and consent of the Senate
· "Significant Authority" under the laws of the United States

Nothing is said about this in the Constitution -- generally civil service employees have lots of job protection and work at the agency for life -- Under Buckley, those who do not exercise "significant authority" and "are lesser functionaries subordinate to officers of the United States"

Determined by the nature of the office from which the president is trying to remove someone and the nature of the power wielded by that person

refers to how deferential a standard (very deferential to not very deferential),

refers to the particular standard the court will use. Judicial Review depends on (1) the nature of the question being reviewed, (2) the process the agency used to resolve the question, (3) the importance of agency expertise and flexibility to the resolution.

De novo (no deference) review occurs when a court decides an issue without deference to a previous court's decision. Skidmore v. Swift creates a new standard for some deference.

Is judicial review even available? (standing, statute of limitations, exhaustion of administrative remedies) What kind of question or action is being challenged? (Law, policy) and is there an appropriate standard of review?

Remember that Chevron is applicable only when an agency interprets a specific type of legal text: statutory language in an act
§ Does the agency have authority to issue binding legal rules "use force-of-law"? If not, Chevron does not apply.
§ The question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, then that is the end (Essentially, is the statute ambiguous)
§ Is the agency's interpretation reasonable?