Public Law

Semantic canons said to be neutral with respect to the outcome of the case whereas the substantive canons favor a particular outcome based on values or preventing some particular evil

of the same kind

Express mention of one thing excludes others - only the things mentioned in the list are covered by the act.

A word is known by the company it keeps

when the same word of phrase is used in the statute multiple times, the statute intends to use one meaning consistently

The other main school of thought on how to use the canons of construction. Purposivists believe statutory interpretation should seek to achieve the broader purposes of a statute. Purposivists believe the words chosen by Congress are imperfect, and if the precise words chosen don't align well with the policies, then the words should bend to the policies, not vice versa.

An approach to interpreting the Constitution that relies on a literal, "plain words" reading of the document

Textualism: focus on meaning of the words in the law / Constitution; Purposive theory: ask what are the purposes expressed in statute or Constitution. Interpret as "reasonable" member of Congress would have wanted it interpreted in light of current situation (Breyer)

Words
Context
Subject matter
Effects and consequences
Spirit of the law (reasons/the cause that moved the legislature to enact it)
Harm/mischief it intended to address
Absurdity
Societal values

A provision may be either disregarded or judicially corrected as an error (when the correction is textually simple) if failing to do so would result in a disposition that no reasonable person could approve.

A very narrow exception that a judge will invoke to correct a statute; comes up frequently when a legislature amends a statute but forgets to correct other parts that go with the statute

Textualists → likely will say to look to the ordinary meaning and the context (surrounding terms and provisions)
Purposivist → likely will argue for the definition based on the intended purpose of the statute

1st - is there ambiguity?
2nd - is there evidence that the common meaning is not wanted?
3rd - proceed to consult the legislative history

Canons of construction that put a thumb on the scale of one interpretation or another in order to serve some broad, general policy that the legal system wants to promote.

If statute interpreted to bring a result, that result should be clear from plain meaning of text.

Designed to protect state governments from federal interference

state law is supreme as long as it is constitutional and is not preempted (2 types)

a federal law or regulation that contains language explicitly displacing or superseding any contrary state or local laws

- federal statute contains some explicit provision that declares that the deferral statute preempts certain categories of state law

there is no express language in the federal statute declaring that certain categories of state law are preempted but the court can nonetheless conclude that the federal statute implicitly preempts certain state laws; 3 categories

federal statutes does not say anything explicitly about preemption, but there is an irreconcilable conflict between state and federal law such that you can't comply with both

compliance with both is technically possible, but enforcement of the state law would obstruct or frustrate the law's objectives that the federal law impliedly preempts the state law (i.e. state law gets in the way of federal law)

If Congress evidences and clear intent to preempt state law, federal law preempts state law.

the federal regulation in some substantive area is so pervasive and comprehensive that the federal government has implicitly expresses its desire to occupy that field, thus preempting the state or local regulations in that area

if there is a possible meaning that prevents deeming a statute unconstitutional, use it

A substantive canon that tells us that if a criminal statute is ambiguous - if there are two possible meanings - the judge should pick the one that favors the criminal defendant, that is, the more lenient one.

ambiguities in criminal statutes are construed in favor of defendants

The retroactive application of a statute does not in and of itself violate substantive due process. Consequently, a law that is applied retroactively must merely meet the rational basis test.

Similar treatment applies to a statutory change that is remedial in nature (i.e., affects a remedy but does not create or abolish a right).

Note, however, that the extension of a criminal statute of limitations may violate the prohibition on an ex post facto law

executive, legislative, judicial, agency

Formalism: the constitution is interpreted similarly to textualism
Views the Constitution as drawing sharp lines between the power and responsibilities assigned to the different branches
It is unconstitutional for Congress to reassign a power

Functionalists: the constitution is interpreted similarly to purposivism
View the constitution as leaving a great deal undecided
The separation of powers is somewhat vague and flexible

The principle in administrative law that congress cannot delegate its legislative powers to agencies. Rather, when it instructs agencies to regulate, it must give them an "intelligible principle" on which to base their regulations.

(1) Nature of the office (legislative, adjudicative, etc.)
The less purely executive an office is, the more likely removal restrictions will be upheld.
(2) Significance of the officer's functions to the President's duty and ability faithfully to execute the laws
The more limited the nature of the officer's functions (tenure, jurisdiction, duties), the more likely removal restrictions will be upheld
I.e., removal restrictions more likely to be upheld for inferior rather than for principal officers
Conversely, the broader the officer's power (i.e., the more of the President's power the officer utilizes), the more likely removal restrictions will be struck down
(3) Propriety of the removal limitation from a public policy perspective
Removal limitations that make good policy sense more likely to be upheld
(4) Amount of control removal limitation leaves with the President
The more limiting the removal restriction, the more likely to be struck down

Executive orders do not have teeth because when he does not have direct control over an agency
Decrees and memos are used by the president to issue directives

Courts favor rule-making
Adjudication → can have both past and future consequences
Rule-making → can only have future consequences

Almost all rules are made through informal rulemaking

1) Notice

2) Comment

3) Gernal Policy Statement

Shall be published in the federal register and include
A statement of the time, place, and nature of public rulemaking procedures
Reference to the legal authority under which the law is proposed AND
Either the terms or substance of the proposed rule or a description of the subjects and issues involved

Give interested parties the opportunity to participate in the rulemaking through submission of written data, views or arguments with or without opportunity for oral presentation
Disclosure requirement
Ex: If scientific data is used to support the rule, it should be exposed to the interested parties
Limitations:
Does not apply to trade secrets or sensitive national security information
In some cases, the agency can rely on its own expertise (not research) without a need to identity and disclose all the data on which the agency's views are based
Those arguing that the agency failed to disclose important studies must also show that they could have plausibly attacked the validity of reference to those studies

After considering the comments, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose
The "concise" statement should not actually be concise
Test of adequacy of the concise and general statement: the statement enables us to see what major issues of policy were ventilated by the informal proceedings and why the agency reacted to them as it did

does not require an additional round of notice and comment even if the final rule relies on data submitted during the comment period
- does it logically outflow
- problem: what counts as logically outflowing

Administrative adjudication
Guidance documents (AKA Policy statements)
Interpretive rules

a quasi-judicial process in which a bureaucratic agency settles disputes between two parties in a manner similar to the way courts resolve disputes

Factors for determining whether an agency must resort to rulemaking or can make a determination in a case without first enacting a rule:
The case is not one which the agency would reasonably foresee
The agency does not have the experience with this subject to warrant promulgating its judgment into a hard and fast rule
The problem may be so specialized and varying in nature as to be impossible of capture within the boundaries of a general rule
In those situations→ the agency may deal with problems on a case by case basis to make the administrative process effective
Adjudication may be appropriate when working on a small, case by case basis
Limitation: the new standards cannot be arbitrary, capricious, or absurd

Rule v. Policy Statement
Rules have a future effect and are designed to implement, interpret, or prescribe law or policy or describe the organization, procedure, or practice requirements of an agency
Have a binding effect
Sets a required standard
Has an immediate or direct effect
Includes terms of command
Policy statements announce what an agency seeks to establish as a policy and its tentative intentions for the future. It indicates an upcoming rulemaking or announces the course with which the agency intends to follow in future adjudications.
It is not fully determinative
It can be challenged
It can change
Provides guidance
3 factors to distinguish a rule from a policy statement
Force of law test:
A substantive rule has the force of law → after it is published, the only question in subsequent proceedings is whether the regulated parties conformed their conduct to the rule
A policy statement declares in advance how the agency intends to exercise its discretion in the future; the agency cannot rely on the policy statement in subsequent proceedings
Scope of judicial review (practical effects)
Substantive rules → narrower scope of review; can be challenged by affected parties, but is not easy to do because it has already faced public participation through notice-and-comment
Policy statement → broader scope of review because it has not gone through notice-and-comment; it is easier to challenge
Limits on Agency Subsequent Discretion
Concerns the degree to which the agency anticipates adjusting its specific decisions to the circumstances of individual cases
It is not about how much flexibility the policy/rule provides as much as it is about the agency's intention to bind itself to a certain position

Interpretive rule: a declaration of how the agency interprets an ambiguous statute or regulation (what the agency thinks it actually means)
Lack binding legal force of a legislative rule (one cannot be held liable for "violating" an interpretive rule)
Should be flexible to a degree
Can have a numerical component as long as it isn't arbitrary (Hoctor)
Distinguishing between legislative and interpretive rules
Criteria:
Agency explicitly announces that it is issuing a legislative rule pursuant to a valid statutory grant of authority to enact such rules → the court may just treat it as such
If the agency says it is a legislative rule but it appears to be interpretive, then the court may consider:
Whether if the rule provides a basis or enforcement action or for the agency to enforce action
Whether the agency published the rule in the CFR
Whether the agency has invoked its general legislative authority
Whether the rule amends a prior legislative rule
Arbitrary Interpretive Rules
A rule may be arbitrary if it could be different without significant impairment of the regulatory purpose of the legislated rule
If an interpretive rule is arbitrary → must go through notice-and-comment

a principle of administrative law that says a court should carefully review an administrative agency decision to ensure that the agencies have genuinely engaged in reasoned decision making

Agency's rules are arbitrary and capricious if:
The agency relied on factors that congress did not intend to consider OR -- (Chevron standard fits here)
The agency entirely failed to consider an important aspect of the problem OR
The agency offered an explanation for its decision that runs counter to the evidence before the agency OR
It is so implausible that it could not be ascribed to a difference in view or the product of agency expertise

Rule: an agency's action in promulgating standards may be set aside if found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law

not expressly "after hearing on the record "

Under Chevron, judges reviewing an agency's construction of a statute must ask
(1) - whether the statute clearly precludes the agency's interpretation
Consider whether congress has directly spoken to the precise question at issue
The court should employ the traditional tools of statutory construction
COURT DETERMINES THIS ON ITS OWN
ONLY if there is ambiguity, then move to (2)
IF NOT, then (2) - whether the agency's interpretation is reasonable
AGENCY HELPS DET THIS
Give extreme deference to to the agency
Apply the arbitrary and capricious standard to the term (permissible construction of the statute)
Agency has to explain its decision in a reasonable manner
Consider legislative history, policy, etc.