LegReg Section 2 Phillips

The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them

Bill to Act to Slip Law
Slip law becomes a statute or a statute at large
A statute becomes a part of the USC

Federal Register to the code of federal regulations. Agencies promulgate the regulations.

U.S. Constitution
Federal Legislation
Federal Case Law
Federal Regulations
State Constitution
State Legislation
State Case Law
State Regulations

Executive: Ensure faithful execution of the laws
Legislature: Congress has the power to make laws
Judiciary: decides cases and controversies by applying the laws to a given case; interpret laws

Emphasizes the need to maintain the distinctness of the three branches of government

Emphasizes the need for flexibility in modern government and balance when functions overlap

Unless defined by statute or understood to have a technical or peculiar meaning in the law, words must be interpreted according to their usual, natural, plain, ordinary meaning.

They use their own understanding of the word and look to dictionaries to aid their memory.

A word or phrase that has acquired a technical or particular meaning in a particular context has that meaning if it is used in that context.
(1)Are the surrounding words technical?
(2)Was the law directed at a technical audience?

In a series of items, if each is set off by a comma, then each item should be viewed as independent of the others.

"rendering each to his own"
Appropriate when a complex sentence has multiple subjects and has either multiple verbs or objects that are incorrectly placed.

When a modifier is set off from a series of antecedents by a comma, the modifier should be interpreted to apply to all of the antecedents. If the modifier is not set off by a comma, it applies to the immediately preceding antecedent (the last antecedent)

Textualism based on the plain meaning canon: instructs that the ordinary meaning be given to words of the statute.
Intrinsic sources: text, grammar, punctuation, the act as a whole, linguistic canons, and text of other statutes.
Dictionaries
Examines the fewest sources
Judge must be faithful to Constitution.
Must find ambiguity or absurdity to look beyond the plain/ordinary meaning

Purposivism: statute's purpose gives meaning
Start with language of the statute
Focus on the statutory purpose
Focus on the broad goals of the statute
Focus on the problem the legislature meant to address by passing the statute
Find meaning even if not intended by legislature if the meaning furthers the purpose of the statute
Whether or not the law is ambiguous or absurd, will look to other sources for meaning
Offers flexibility

Intentionalism: enacting legislature's intent guides interpretation
Start with language of the statute
Also seek to discern meaning from the author's intent whether or not the law is ambiguous or absurd
Look at extrinsic sources such as legislative history
Give statute the meaning most intended by the people who wrote and approved it - that specific legislature

When there is more than one equally plausible meanings

When there are two reasonable interpretations (ambiguous) of statutory language, one which raises a constitutional issue and one which does not, the statute should be interpreted in a way that does not raise the constitutional issue.

Allows you to reject the ordinary meaning you found when applying the Plain Meaning Canon.

When the plain meaning leads to an absurd result, then the courts must go beyond the plain meaning to see if the other sources demonstrate that the absurd but plain meaning was intended.
Absurd result is an outcome so contrary to perceived social values that Congress could not have intended it or frustrates the purpose of the act.

Specific absurdity: statute is absurd only in a specific situation
General absurdity: statute is absurd regardless of the situation

Exception to the Plain Meaning Rule
Legislative error when drafting or amending a statute
Obvious clerical error or typo
Plain meaning rule permits judges "to correct" the error, exception is limited.
Only fix obvious drafting errors.

"Part of the same material"
Statutory language should be looked at within the entire textual context, not in isolation.
Identifies the legal material that may be considered

The Whole Act Rule
Words must be construed in the context of the act and statute as a whole
The Whole Code Rule
New statutes should be interpreted harmoniously with existing statutes concerning the same subject

When a word is used in another part of the same act, the legislature intended the word to have the same meaning in both places.

"It is known from its associates."
The meaning of words that are placed together in a statute should be determined in light of the words with which they are associated.
Meaning within context

Two elements
A word is known by its textual context
Words grouped in a list should be given related meanings

Tip: Noscitur a Sociis entails looking at words from the same section that is in question.

"Of the same kind, class, or nature"
Subset of noscitur a sociis but with a general catchall

Every word matters
Statute ought, upon the whole, be construed so that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.
Every word must be given meaning.
Different words in the same statute, particularly those in a list, cannot mean precisely the same thing.

When the legislature expressed one thing and not another, the assumption is that the other was intentionally not included.
Enumeration of specific items implies exclusion of all others.

Bill Headings, Title, enacting and resolving clauses, short titles, preambles, purpose clauses, definitions, the purview, operative provisions, exceptions and provisos, administration and enforcement provisions, closing sections: effective dates, savings and grandfather clauses, sunset provisions,

The severability canon provides that a section of an act is severable if (1) the legislature would have enacted the remaining provisions of the act without the invalid provisions, and (2) the remaining provisions of the act can function independently of the invalid section.

An inseverability provision establishes a presumption of non-severability only. It is not conclusive.

When there are two conflicting statutes that apply in a case, the judge will first see if the conflict between the two can be reconciled, because the judge will assume that the legislature, when it passed the second act, did not intend to interfere with or abrogate any existing laws relating to the same topic. This policy of reconciling first is based on the assumptions that the enacting legislature (1) knew of all relevant acts when it enacted the new one, (2) would have expressly repealed or amended an existing act had the legislature wanted the new act to replace the existing one, and (3) failed to repeal the existing act because the legislature intended for both acts to exist in harmony.

Judges apply the following canons to reconcile the conflict: (1) harmonize if possible, if not, (2) specific statutes control general statutes, (3) later enacted statutes control earlier enacted statutes, and (4) unless the earlier statute is more specific, repeal by implication is disfavored. Stated simply:

Canon: Pursuant to the conflicting statutes canon, judges resolve conflict among statutes by first attempting to harmonize them, then by applying the specific statute, and last by applying the later enacted statute.

Repeal by implication is disfavored, especially when the repealing act is in an appropriations act. If a legislature intends to repeal another law, the legislature should say so expressly.

Conflict across jurisdictions
Federal laws have priority over conflicting state laws
Preemption can be express or implied
Field preemption: implied when Congress legislates so comprehensively that federal law occupies an entire field of law and leaves no room for state law
Conflict preemption: implied when federal law conflicts with state law.

courts presume that when a jurisdiction models one act on another act, the legislature intended the existing act together with its case law to provide guidance on the interpretation of the modeled act.

courts presume that when one jurisdiction borrows another jurisdiction's act, the borrowing legislature also intended to borrow the existing judicial interpretations of the borrowed act.

First, try to harmonize statutes
If can't, then specific controls over general
If both specific or both general, then later enacted controls

In interpretation, contextualism is the process of using context to help determine why a legislature enacted an act. Knowing why the act was passed informs meaning.

Social context, historical context, political context, legal context, economic context

Courts are less likely to use legislative history to resolve ambiguous and absurd text.
Sometimes, courts will consider legislative history to confirm the meaning of clear text.
Often, courts will use legislative history to defeat the meaning of clear text.

To identify the unexpressed statutory purpose or legislative goal
To shed light on the specific intent of the enacting legislature regarding the precise issue before the court

From most authoritative to least authoritative: committee reports, sponsor statements, colloquy on floor or in hearings, rejected proposals, nonlegislator proponents or drafters

Mischief Rule
Identify the law as it existed prior to enactment of the statute
Identify the "mischief" the legislature sought to remedy by enacting the statute
Determine the remedy selected by the legislature to fix the identified problem
Construe the act in a way that suppresses the mischief and advances the remedy

This is the term used to describe the heightened stare decisis effect given to judicial opinions interpreting statutory language.
Note that this applies to the interpretation of a statute from the HIGHEST court in the jurisdiction.
Only the legislature should then make any corrections. Courts should rarely overrule the decision.

Occurs when a legislature does not respond to a judicial interpretation of an act. Courts then presume that the legislature agrees with, or acquiesced to, the prior judicial interpretation.
Does silence mean agreement?
Does silence mean we have other things more important to work on?
Because of super strong stare decisis, some courts believe silence means agreement.

When a legislature comments on an existing act while enacting a new one
Should be irrelevant
Do not reflect what the enacting legislature intended
Exception might be if the acts were passed very close together

When a legislature recodifies a code, a court presumes the legislature did not intend to make substantive changes absent a clear statement that substantive changes were intended.

Least relevant
Only one understanding
Created after the legislative process concludes
Pits rivals against each other

The retroactivity canon presumes that civil legislation applies prospectively rather than retroactively unless Congress provides clear statement to the contrary.

An ex post facto law is a criminal law that changes the legal consequences of an action after the action occurred. An ex post facto law is unconstitutional if it disadvantages a criminal defendant.

Preemption is the displacing effect the federal law has on conflicting or inconsistent state law.

Clear statements are required when Congress impacts American Indian Treaty Rights by Diminishing native lands.
Diminishing is the process by which Congress can legally reduce the size of an American Indian reservation.

The doctrine that a sovereign, like the United States, cannot be sued absent its consent.

Derogation: An act is in derogation of the common law when the act partially repeals or abolished existing common law rights or otherwise limits the scope, utility, or force of that common law right.
Acts strictly (narrowly) interpreted because of separation of powers
Because there is limited federal common law, these canons typically are seen in state decisions.

Remedial acts create new rights or expand existing remedies
Interpreted liberally (broadly)

Each authority of the Government of the United States ... not including Congress, the courts, state governments, etc."
Includes: administrations, commissions, corporations, boards, departments, divisions, and agencies.
Given authority through the administrative procedure act (APA)

Independent regulatory agencies (about 15)
Members serve fixed, staggered terms
President can remove for cause only
Generally run by multi-member boards or commissions
No more than a simple majority may come from one party
So less under the influence of the President

Subject to the direction and control of the President as head of the Executive Branch
Heads appointed by President, confirmed by the Senate, and can be fired at the will of the President
Department headed by a Secretary (Attorney General for the Department of Justice)
May have subdivisions of department such as the National Highway Safety Transportation Administration within the Department of Transportation

Regulates by promulgating rules and issuing orders
Advantages
Flexibility to act more quickly
Act with more detail and expertise

Congress creates an agencies through an enabling act, enabling statute, or organic statute.
Congress delegates power to act to agencies
Agencies promulgate regulations.
Agencies act like legislatures when they make rules, like courts when they adjudicate, and like the police when they investigate.

Rulemaking: agency process for formulating, amending, or repealing a rule.

Rule: an agency statement of general . . . Applicability and future effect designed to implement, interpret, or prescribe law or policy.
2 type of rule making: legislative & non-legislative

Legal effect of their own. They are law.
Formal rulemaking
Resembles formal agency adjudication—administrative hearing with trial-like procedures
End of formal rulemaking process—agency promulgates a regulation that applies broadly

Rarely used today.
Rules of evidence do not apply.ALJ compiles the record.
ALJ makes an initial decision or recommendation to the agency head. Agency head either adopts the ALJ's decision or issues a final decision. That decision is subject to judicial review.
APA: Use only whenrules are required by statute to be made on the record after opportunity for an agency hearing.
Congress must be explicit in requiring formal rulemaking.—hearing and that the proceeding be on the record

Informal rulemaking
APA, executive orders, and statutes require procedures to be followed in the process.

least formal
Requires agencies to publish notice of rules only:
rules relating to military and foreign affairs; rules relating to agency management and personnel;
rules relating to public property, loans, grants, benefits and contracts;
rules for which the agency has "good cause" reason to avoid notice and comment rulemaking; and
rules of agency organization, procedure, and practice.

Do not have independent legal effect (guidance)
--Less formal
1. Interpretative Rule: Responding to request for an interpretation of regulation
--APA: publish the rule in the Federal Register or otherwise make it available to the public
2. General Statement of Policy: announce new duties the agency plans to adopt by future adjudication or rulemaking.

Agency process for issuing an "order"(final disposition other than rulemaking)
Formal, judicial-type hearing
independent ALJ
rules of evidence do not apply
APA and other statutes give procedure
Decisions must include a statement of findings and conclusions and the reasons
Generally appealed within the agency, typically at least one level, sometimes two
Final decision has precedential effect within the agency

ALJs are not Article III judges (not confirmed by the senate)
Technically employee of the agency but has considerable independence
Must be neutral and impartial
Hiring process through Office of Personnel Management—rigorous selection process
May be removed only for good cause

Powers are comparable to a trial judge
Issue subpoenas
Rule on proffers of evidence
Make decisions and/or recommendations applicable to the parties

Congress may grant agencies investigative powers.

--Under this power, determine whether a regulated entity is violating a regulation or statute.
--Some agencies can compel regulated entities to turn over information.
--Some agencies have the power to inspect.

-applies to conclusions of fact made by a jury
-court will only overturn the conclusion of fact if the court finds no "reasonable" trier of fact could have made the conclusion based on the evidence it saw.

-applies to a conclusion of fact made by a judge
-court will only overturn the conclusion if the court finds it clearly wrong
-slightly higher than the Reasonableness Standard

-applies to questions of law
-allows a court to take a fresh look without giving deference to the lower court

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 of the question

Courts defer to an agency's interpretation of its own regulation unless the interpretation is plainly erroneous or inconsistent with the regulation.

Court uses this framework when reviewing an agency's interpretation of a statute where the agency acted with the force-of-law and Congress delegated the specific issue to the agency.

1. What did the agency interpret?
a. Applies only when interpreting a statute
b. Chevron: The Clean Air Act (federal statute)
2. Which agency interpreted the statute? (must be same agency)
a. Agency must administer the statute interpreted
b. Chevron: EPA
3. How did the agency interpret the statute?
a. Formality of the procedure used to reach the interpretation
b. Must be a formal action of the agency (formal adjudication, formal legislative rulemaking, informal legislative rulemaking - notice and comment)
4. Can the agency interpret the statute?
a. Congress did not intend to delegate

1. Whether Congress has directly spoken to the precise question at issue?
a. No deference to agency on this step. Court uses tools of statutory construction to determine if there is ambiguity or gap.

1. If Congress has not spoken, then a court must accept any "reasonable" agency interpretation.
a. Court must accept agency's reasonable interpretation even if the court believes another meaning would be better. High deference to agency's interpretation.