Administrative and Regulatory State (ars) Outline – Rascoff, Spring 2009 – Jason Hardy



Download 262.98 Kb.
Page2/5
Date conversion14.04.2018
Size262.98 Kb.
1   2   3   4   5

A. Basic Legislative Process

(see above)


B. Bicameralism and Presentment

  • Legislative Veto (see Cases chart #s C1 & C2 and Chadha and Clinton above).


C. Main Schools of Statutory Interpretation

  • 1. Intentionalism, Purposivism, and Legal Process

    • Definitions

      • Intentionalism – statutory interpretive process by which the interpreter identifies and follows the original intent of the statute’s drafters.

      • Purposivism – statutory interpretive process by which the interpreter chooses the interpretation that best carries out the statute’s purpose by deducing the mischief the statute was enacted to correct.

        • Golden Rule: “There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient, in and of themselves, to determine the purpose of the legislation. In such cases, we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole,’ this Court has followed that purpose, rather than the literal words.” Solicitor Gen. Reed’s argument in U.S. v. Am. Trucking Ass’ns (722).

      • Textualism – statutory interpretive process by which the interpreter follows the “plain meaning” of the statute’s text.
      • Eclecticism – statutory interpretive framework by which cases are decided individually and inductively (inferring general principles from specific instances) rather than by per se rules and deductively (the conclusion is of no greater generality than the premises).


    • (a) Intentionalism

      • Roscoe Pound (704) contrast of genuine interpretation to spurious interpretation:

        • Genuine interpretation –

          • (i) a narrow, technical, and sincere investigation of the law-maker’s actual (specific) intent “by assuming his position, in the surroundings in which he acted, and endeavoring to gather from the mischiefs he had to meet and the remedy by which he sought to meet them, his intention with respect to the particular point in controversy” or

          • (ii) a more flexible approach of asking what a reasonable legislator in such a situation would have done (aka “imaginative reconstruction”).

        • Spurious interpretation - Like a legislator, a judge who conducts this type of statutory interpretation is making or re-making law post hoc to fit his conception of what the outcome should be. Pound says such judges indirectly try to discover the law-maker’s intent by assuming he thought “as [they] do on general questions of morals and policy and fair dealing” and assuming that “of several possible interpretations the one which appeals most to [the judges’] sense of right and justice for the time being is most likely to give the meaning of those who framed the rule.” Spurious interpretation of intent presents the following problems:

          • It “tends to bring law into disrepute,”

          • “subjects the courts to political pressure,” and

          • “reintroduces the personal element into judicial administration.”

      • Critiques of Intentionalism (also under Policy issues of Textualism)
        • Oliver Wendell Holmes – “Ours is a government of laws, not of men.” “[W]e ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.”


        • Max Radin (708) – Two descriptive critiques (1)&(2) and one normative (3). Determining the intent of the legislature is an “absurd fiction” b/c:

          • (1) Intent is undiscoverable/unknowable (epistemological observation)

            • Fool’s errand to try to get to the heart of the intent

            • Interpreting a statute by applying it to specific facts cannot be done until after the statute is enacted; thus, the judiciary must perform this role. “[O]nce the words are out, recorded, engrossed, registered, proclaimed, inscribed in bronze, they in turn become instrumentalities which administrators and courts must use in performing their own specialized functions.”

          • (2) There’s no such thing as Congressional intent (metaphysical point)

            • Congress is a plurality, not a single person. “The chances that several hundred men each will have exactly the same determinate situations in mind as possible reductions of a given [statutory issue], are infinitesimally small.”

          • (3) Even if intent existed and were knowable, nevertheless it should not bind us

            • The function of legislature is to pass laws, not to impose its will upon the public.

            • We are a nation “of laws and not of men”: Impersonality of the law is by design

              • It is not meant to be what the legislators always meant the law to be

              • We don’t want the judicial system to merely psychologize.

        • Kenneth Shepsle – “Congress is a They, not and It.”

      • Examples of Intentionalism:

        • [Stevens] in Bock Laundry (C6)

        • [Rehnquist] in Weber (C3½)
      • [Law-and-Economics Intentionalism (William Landes and Richard Posner, 799)]


        • Ex ante perspective – Evaluate a decision or rule based on whether it provides proper incentives for the average case and guides citizens in their daily affairs, as opposed to an ex post perspective of evaluating a rule based upon how a particular case will turn out.

        • Judges should enforce the intent of legislators, as best ascertained by legislative history or other sources.

        • [Posner]’s “Flexible Pragmatic” approach in Marshall (see Cases chart #C8):

          • (Contrary to the Holmes/positivist approach, which views statutes as objective expressions “at the price of substantive injustice [in particular cases]...” Positivism also claims that fact is independent of value and interpretation is independent of norms (747n2))

          • Cardozo/pragmatic approach allows judges to “enrich positive law with the moral values and practical concerns of civilized society...” leading to “justice in the individual case at the price of considerable uncertainty and, not infrequently, judicial willfulness.”

          • Would overturn U.S. v. Rose, which Posner wrote but now believes was wrong.

          • Exclusion of the carrier weight adheres to a statutory interpretation against a background of:

            • a constitutional norm of equal treatment,

            • a constitutional commitment to rationality,

            • and evident failure by both Congress and the Sentencing Commission to consider how LSD is actually produced, distributed, and sold, and

            • an evident failure by Congress and the Sentencing Commission to consider the interaction between heavy mandatory minimum sentences the guidelines.

          • “We should not make Congress’s handiwork an embarrassment to the members of Congress and to us.”
    • (b) Purposivism


      • The Mischief Rule, Lord Coke - Heydon’s Case, Eng. 1584:

        • Courts should consider the following factors to interpret statutes:

          • 1. What was the common law prior to the statute?

          • 2. What was the mischief and defect for which the common law did not provide (necessitating a statute)?

          • 3. What remedy has the legislature implemented to cure the disease of the commonwealth?

          • 4. “The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo [(for private benefit)], and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico” [(for the public good)].

      • The Golden Rule (judicial re-writing to avoid absurd consequences) – Lord Blackburn – River Wear Comm’rs v. Adamson, Eng. (1877):

        • Give effect to the literally expressed intent of the Legislature by

        • construing the words of the statute with their ordinary meaning,

        • unless doing so would produce an inconsistency, absurdity (contrary to the purpose of the statute), or “inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification,” and, if such is the case, apply an alternative, plausible meaning.

      • Examples:
        • [Brennan] in United Steelworkers v. Weber, U.S. (1979), 88 (refer to Cases chart #C3½), where a literal interpretation of a statute was not allowed to produce a result that contradicted the clearly intended purpose of the statute, as determined by legislative history and the historical context from which the Act arose.


        • [Brewer] in Rector, Holy Trinity Church v. United States, U.S. (1892), 695 (refer to Cases chart #C3¾).

        • [Blackmun] in Bock Laundry (#C6).

      • Critique:

        • Closer to a rule of men, perhaps, than a rule of law b/c statutes depend on what any given judge takes the law to be or to mean. Can be highly subjective and dependent on the circumstances of the case.

    • (c) Legal Process theory (normative New Deal era response to Legal Realism)

    • (d) Other approaches:

      • [Eclecticism: [Marshall] used an eclectic approach – considering the text, purpose, and prior precedent in Ex parte Bollman (692-93).]

      • The Common Sense Rule (Pragmatic approach):

        • Francis Lieber (1880): “Men have at length found out that little or nothing is gained by attempting to speak with absolute clearness and endless specifications, but that human speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith.”

      • 1938 – New Deal: Legal Realists

        • Karl Llewellyn’s debunking of the formalist’s Canons of Statutory Construction (941)

  • 2. Textualism (“New Textualism” or “Plain Meaning Rule”) (1980s to present)

    • Policy issues:
      • Rule of law, not of men. Legislative intent is illusory. “We do not inquire what the legislature meant; we ask only what the statute means.” (Oliver Wendell Holmes, 993z).


      • Laws should be understandable by all, not the special interpretative province of lawyers and judges.

      • Why look to legislative history (the “recipe”) when you have the text (the “food”)?

      • (The judge in this model is a faithful agent of the text of a statute. S/he is also a linguist or grammarian.)

      • A strength of textualism is that it is objective and transparent; it is democratic in that it allows the people to understand the laws.

      • Critiques of Textualism:

        • Language is ambiguous.

        • Textualism can be blind to its own subjectivity.

        • Textualism can seem cruelly detached from the consequences of its opinions (see, eg, Easterbrook in the LSD case).

        • “Professor James Brudney argues from the nature and structure of the politics of legislation that Congress cannot enact statutes with the degree of specification Justice Scalia [or Judge Keen in the Speluncean Explorers] would require.” (811n2).

    • History:

      • The Literal Rule

        • Lord Atkinson, Vacher & Sons (1913): When a statute’s language is plain and unambiguous, it should be applied literally, regardless of the consequences. “[Y]our Lordships’ House sitting judicially is not concerned with the question whether the policy it embodies is wise or unwise, or whether it leads to consequences just or unjust, beneficial or mischevious.”

        • Lord Bramwell, Hill v. E.&W. India Dock (1884): “It is to be remembered that what seems absurd to one man does not seem absurd to another…” If absurdity or injustice results, the legislature should “set it right.”
        • When the language expresses a “plain meaning,” no need exists to consider other evidence, such as the title of the act (“White Slave Traffic Act”) or legislative history (which suggested the purpose of the statute was only to reach “commercialized vice”) [Day]’s Reasoning in Caminetti v. U.S., U.S. (1917):


          • Facts/Proc: Caminetti brought a woman from Sacramento to Reno to “become his mistress and concubine.” A federal statute criminalized the transportation of woman or girls across state lines “for the purpose of prostitution or debauchery, or for any other immoral purpose…”

          • Holding: Since D’s conduct was for the purpose of immoral behavior, he literally violated the law.

          • Dissent [McKenna]: Just as in Holy Trinity, the literal meaning should not prevent the court from construing the words of the statute in light of the statute’s purpose, common sense, and the goal of avoiding absurd results.

    • Formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources.

      • Legislative history may be consulted, but it should not be used to determine a meaning in opposition to the plain meaning of the text. Contrast to old textualism (Caminetti) where legislative hxy would not be considered if the statutory text had a “plain meaning” or TVA v. Hill approach where legislative hxy could trump an unambiguous meaning.

    • Scalia’s approach to “plain meaning” is “the best textual understanding that emerges from close analysis of statutory provisions that, at the outset, may have seemed ambiguous, confusing, or at least complicated” (793).

      • “’A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means’” (779).
      • In regard to using legislative history to interpret statutes. “It is neither compatible with our judicial responsibility of assuring reasoned, consistent, and effective application of the statutes of the United States, nor conducive to a genuine effectuation of congressional intent to give legislative force to each snippet of analysis, and even every case citation, in committee reports that are increasingly unreliable evidence of what the voting Members of Congress actually had in mind” (987’2b).


      • In a footnote to an opinion (Hirschey v. FERC, 987n1) that set forth Scalia’s views on committee reports, he detailed an exchange between Senators Armstrong and Dole where Sen. Armstrong points out that the report “is not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.” Moreover, statutory text has gone through the formal requirements of Art. I §7 (bicameralism and presentment), unlike legislative history, which thereby has no authority as law (989n2).

      • Text should be interpreted to mean that which is:

        • “(1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and

        • (2) most compatible with the surrounding body of law into which the provision must be integrated ... not permit[ing] any of the historical and legislative material discussed by the Court, or all of it combined, to lead ... to a result different...” Bock Laundry (Scalia concurring), see Cases chart #C6.

    • Frank Easterbrook:

      • “’Imagine how we would react to a bill that said, “From today forward, the result in any opinion poll among members of Congress shall have the effect of law.” We would think the law a joke at best, unconstitutional at worst. This silly “law” comes uncomfortably close, however, to the method by which courts deduce the content of legislation when they look to the subjective intent.’” (779n(f)).
      • “Desires become rules only after clearing procedural hurdles, designed to encourage deliberation and expose proposals (and arguments) to public view and recorded vote. Resort to ‘intent’ as a device to short-circuit these has no more force than the opinion poll – less, because the legislative history is written by the staff of a single committee and not subject to a vote or veto. ... It would demean the constitutionally prescribed method of legislating to suppose that its elaborate apparatus for deliberation on, amending, and approving a text is just a way to create some evidence about the law, while the real source of legal rules is the mental processes of legislators.” In re Sinclair (994’2m & C14).


      • See also Marshall, Cases chart #C8.

  • 3. Dynamic Statutory Interpretation (cf. with Purposivism/Intentionalism) (729):

    • Practical accommodation of the statutory directive in response to

      • changes in the social context,

      • new legal rules and procedures, or

      • new meta-policies (endogenous or exogenous).

    • Like a story, a statute “is not something that is, but something that becomes; it is not a hard chunk of reality, but a fluid process, which is as much directed by men’s creative impulses, by their conception of the story as it ought to be, as it is by the original event which unlocked those impulses.” This dynamicism helps the law to maintain its relevancy and its respect among citizens. Lon Fuller (“Theory of the Repeatedly Retold Anectdote,” 747n2). Otherwise, statutory law will become stale.

      • Legislative Inertia: Guido Calabresi, “A Common Law for the Age of Statutes” (618):

        • Due to “a perceived need for laws that are either more structured or more immediate than could be afforded by judicial decisions ... [which are] slow, unsystematic, and organic ...[,]we have become a nation governed by written laws.” In other words, the legislature is seen to be more responsive to the immediate needs of the majority.
        • However, “getting a statute enacted is much easier than getting it revised [or repealed].” This causes a dilemma for common law courts. “Judge have been taught to honor legislative supremacy and to leave untouched all constitutionally valid statutes, but they have also been trained to think of the law as functional, as responsive to current needs and current majorities, and as abhorring discriminations, special treatments, and inconsistencies not required by current majorities.”


        • Proposed new approach: In cases of legislative inertia, courts should treat statutes that have lost their majoritarian support the same as they treat the common law and alter or even abandoning prior doctrine – or, at least, to threaten such change in order to motivate legislatures to take action.

        • In general, courts should have a “retentionist bias” unless a statute is clearly out-of-sync with other sources of law and majoritarian support, as determined by

          • the age of the statute,

          • how specifically-oriented to a particular problem the statute is, and

          • the level of constitutional doubts that exist about the statute.

        • Justification:

          • Courts are loyal to principles over politics.

          • The legislature remains formally supreme and can reenact invalidated statutes if need be. Also, elected representatives appoint judges, so judges are somewhat democratically accountable.

          • Jurisprudential antecedents:

            • The Pomeroy Precept and the Restaters

            • Equity of the Statute

            • The Legal Process School – “Judicial manipulation through interpretation and strained constitutional doctrine is less desirable than more candid approaches because the former delays real and decisive change and creates precedents which can be misunderstood or overgeneralized by uncomprehending lower court judges.”

      • Critique:

        • A judge “legislating from the bench” violates the separation of powers principle.

        • In order to update a statute according to the contemporary context, a judge has to know “the pulse on the street” despite his relative seclusion in his chamber.

    • Case study: The Foreign Intelligence Surveillance Act and domestic spying
      • Background: Statute outlines the conditions in which the government can spy on people inside the United States. It was enacted after the Nixon wiretapping-abuse (Watergate) scandal.


      • Definitions:

        • Agent of Foreign Powers (AFP):

          • (b) (1) someone who is not a US person and who is a member of Foreign Power; e.g. spies, diplomats, people who work for companies that are owned by foreign companies

          • (b)(2) American citizen or permanent resident who is spying for another country or engaged in terrorism.

      • Process:

        • Gov’t has to go to the secret FIS Court and get a warrant. The government must submit an application, generally prepared by the FBI and signed by the AG, asserting that the target is an “agent of a foreign power.” The gov’t must provide enough evidence to meet a probably cause standard.

        • (The government almost never loses. Why? Govt claims it is because it only brings good cases to the court. Others accused the court of being captured and just rubber stamping requests.)

      • The Terrorist Surveillance Program (TSP): The Bush administration decided to bypass the FISA process and allow the NSA to spy on Americans within the U.S.

        • Bush admin lawyers argued it was not pragmatic to follow the FISA. The changed circumstances after 9/11 required a more nimble process.

        • In any case, bypassing the court is allowed by statute:

          • (1) In times of war, for 15 calendar days; or

          • (2) “except as authorized by statute”, per § 1809(1)

      • Issue: What does “except as authorized by statute” mean? As authorized by FISA? As authorized by any statute?
        • The Exec. argued that the AUMF gave the President wide power to use all necessary means to fight a war against al Qaeda, etc. The argument is that surveillance is part of the set of tools that the President can rely on to legitimately prosecute a war.


        • Arguments against authorization:

          • The AUMF doesn’t authorize surveillance on its own terms

          • The FISA statute includes a provision that allows for the government to spy without FISA warrants for the first 15 days after the start of a war or emergency. Congress contemplated the possibility of emergency or war and provided specific rules for such circumstances. Therefore, FISA provides explicit rules for surveillance in times of war which trump any implicit guidelines.

          • Domestic surveillance is not a traditional war power, and thus is not authorized by FISA

          • (Whole Act canon) Sen Daschle said that the purpose of the AUMF was to protect Americans (see preamble of AUMF). It is counter to that intent to allow surveillance of Americans, and

          • Daschle also says that his recollection from the passage of the AUMF was that the President tried to have Congress insert the words “inside the United States” to the AUMF, and congressional leadership refused. Thus, he suggests that congressional intent was to exclude domestic programs like surveillance.

            • Counter: Daschle’s opinion of the intent of Congress is not dispositive – he’s only one vote among 100.

      • Subsequent history of the NSA program

        • After the program was revealed in the media, the government decided to ask for authority for the program from the FISA court itself. FISA court said no.

        • Then, the Administration went to Congress to ask for authorization, which it granted.

        • Question: why didn’t the President go to Congress in the first place?
          • The Administration wanted to prove the point that they did not need Congress’s authorization of the program. They asserted that the President had unitary power to create and implement the NSA program. They had a fundamental objection to seeking Congress’s stamp of approval.




1   2   3   4   5


The database is protected by copyright ©hestories.info 2017
send message

    Main page