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


D. Statutory Interpretations Doctrine

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D. Statutory Interpretations Doctrine (Sutherland, 848, & AppB)


  • 1. Textual Canons (intrinsic aids)

    • Follow the plain meaning of the statutory text, except when doing so would require an absurd result (Golden Rule) or when there has apparently been a scrivener’s error (i.e. transcription error).

    • Inferences drawn from

      • drafter’s choice of words,

      • grammatical placement of words in the sentence, or

      • the relationship of words to others in the statute.

    • Examples:

      • Word Meaning and Association (849)

        • Ordinary meaning

          • Ordinary usage: In Weber, Brennan expressed that the ordinary understanding of “discrimination” involves some invidious intent – (you wouldn’t say you discriminate against peaches if you prefer pears). See also Nix v. Hedden (P, tomato importer, argued that his tomatoes were not subject to Customs’ vegetable tariff b/c they are fruits. The Court held that tomatoes are a vegetable. Although they are botanically fruit, the common understanding is that tomatoes are vegetables – e.g. they are eaten at dinner, not as a dessert. The evidence at trial did not indicate that “fruit” or “vegetable” had any technical meaning that would cause exception to the ordinary usage rule.).

            • Exception - Technical meaning (e.g.
              Zuni Pub. Sch. Dist., where the court deferred to the experts who had interpreted the determination of whether or not a program “equalizes expenditures.”)

          • Historical usage – consider the era, perhaps by consulting dictionaries of the time period the statute was enacted.
          • Established meaning by the courts, the Legislature, or common usage. (Rules of Construction Act, 1 USC § 1 et seq. provides default definitions.)


          • Dictionary usage – unless Congress has specified a definition, consider dictionary definitions of the era in which the statute was enacted, but do not credit nonstandard, “idiosyncratic” definitions.

        • Word association

          • Noscitur a sociis (“It is known by its associates”) – interpret a general word to be similar to more specific words immediately preceding or following it (e.g. “discovery” was not allowed to refer to the creation of a patentable product b/c w/in the context of “exploration, discovery, or prospecting” the term referred only to the limited meaning of discovery of mineral resources. Jarecki.)

          • Ejusdem generis (“Of the same kind, class, or nature”) – interpret a general word in accord with the class of objects reflected by the specific words immediately preceding or following the general word (e.g. “other material” in “dirt, rubbish, wood, timber, or other material of any kind” should not be read to include “automobiles.”), but how to define similar?

        • Expression/ inclusion of particular words indicates intended exclusion of others

          • Expressio
            [or inclusio] unius est exclusio alterius (“expression/ inclusion of one thing indicates exclusion of another”) – (e.g. a statute covering “any horse, mule, cattle, hog or goat” does not cover turkeys.

          • Examples:

            • Chan v. Korean Air Lines, where the Sup Ct. [Scalia] denied a waiver of limited liability because the relevant subsection of the Warsaw Convention did not include such a waiver as a remedy for violation while other subsections did;

            • Leo Sheep – C12.
            • Holy Trinity also referred to this canon when discussing the fact that the statute exempted some vocations specifically but did not include “rectors” in the list.


          • Problem: Legislature may assume courts will fill gaps, or legislature may not have considered all the variations of the text.

          • Contextual Caveat (inapplicable if context suggests the list is not comprehensive):

            • Where the normative context makes the terms exceptional, they are generally exclusive (Mother tells Sally she can have a cookie and ice cream but does not by that include the candy bar on the counter).

            • Where the normative context makes the terms not exceptional, the terms are not generally limited to those expressed (Mother intends to command Sally not to harm her sister in any way even though she only says “don’t hit, kick, or bite” her.)

      • Grammar (856) – The Legislature is presumed to know and follow basic conventions of grammar and syntax; thus, placements of punctuation are assumed to be meaningful.

        • Punctuation – not necessarily dispositive, but more of a “last-ditch alternative aid” (despite the strict English rule that punctuation is irrelevant to interpretation) but can trump the last antecedent rule.
        • The Last Antecedent Rule – When practical, referential and qualifying words or phrases refer only to the last antecedent, unless contrary to the apparent legislative intent derived from the sense of the whole act (e.g. Ms. Thomas sought disability benefits under the Social Security Act, which defined disability as an impairment of such severity that the person “is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial work which exists in the national economy.” The agency held that she was not disabled b/c she could still do her previous work of operating an elevator. The appeals court reasoned that the previous work had to exist “in the national economy”, but the Sup Ct held that “in the nt’l economy” only referred to its last antecedent – “any other kind of substantial work.” Barnhart v. Thomas, 858).


          • “Across the board” exception – when a clause follows several words in a statute and is applicable as much to the first word as the others in the list, the clause should be applied to all of the words which preceded it.

        • Conjunctive and Disjunctive Connectors – “And” is conjunctive, while “Or” is disjunctive and means in the alternative (e.g. a statute prohibiting assault with intent to rob “any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States” was not interpreted to be limited to mail carriers. Garcia v. U.S.). See Bob Jones (Rehnquist dissenting) – C17.

        • Mandatory (Shall) vs. Discretionary (May) Rule

        • Singular = Plural, Male pronoun = Female pronoun (unless, in some cases, equating singular and plural seems contrary to legislative intent or purpose).

        • The Golden Rule/ Absurd Result Rule

          • If an interpretation according to ordinary meaning would lead to an absurd result, the language should be interpreted only so far as to avoid such absurdity.

          • Obvious transcription errors, or scrivener’s errors, should be revised.

          • (Nietzsche rule – “Be helpful to the project rather than hypertechnical.”)
      • The Whole Act Canon (or Textual Integrity Rule) (862, AppB-21) - Interpret a section of a statute within the context of the statute as a whole, (presuming that statutes are coherent as a whole, even though they may not be). Muscarello v. U.S., 893’6 - C11 (“firearm” is defined in one provision of the statute to include rockets; thus, “carrying a firearm” must mean something other than “carry on one’s person” since rockets are not carried on your person. To “convey in a vehicle” is a more appropriate interpretation.)


        • (Posner’s criticism: this canon (a) imputes omniscience to the legislature and (b) assumes a statute is written as an internally-coherent whole, like a short story, but “a statute that is the product of compromise may contain redundant language as a by-product of the strains of the negotiating process.”)

        • Presumption of purposive enactment and amendment: Statutes and amendments are meant to have real and substantial effect.

        • Titles – do not control but may guide interpretation. (But see Holy Trinity.)

        • Preambles and Purpose Clauses – do not control when text is clear and unambiguous but may point toward intention. (e.g. Sutton v. United Airlines, Inc. involved twin sisters denied a discrimination action under the ADA because the preamble noted that 43 million Americans had disabilities, which was far too small a number to include those with correctable vision deficiencies.)

        • Provisos (conditions that restrict the effect of statutory provisions or create exceptions to general statutory rules) – generally interpreted strictly/narrowly.

        • Redundancy/Surplusage – Unless contraindicated by other evidence of statutory meaning, no provision should be construed to be entirely redundant or to render other provisions superfluous or unnecessary.

          • [Hand] and [Jackson] interpreted the word “subjects” to include intangibles in the Fair Labor Standards Act’s prohibition regarding “merchandise, and articles or subjects of commerce of any character” because the insertion of the word “subjects” into the statute would have added nothing if it was defined to include only tangible things. Western Un. Tele. Co. v. Lenroot.
          • In Circuit City Stores, Inc. v. Adams (854 & 866’1), [Kennedy] reasoned that the Fed. Arbitration Act’s limitation regarding employment contracts for “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” would have been redundant if the phrases “seamen” and “railroad employees” were subsumed withing the meaning of the “’engaged in ... commerce’ residual clause.” Thus, this clause did not exempt all employment contracts for workers engaged in interstate commerce, but only those involved in transportation, per the rule of ejusdem generis (general term following specific ones is interpreted to be of the same kind).


          • In Muscarello, a statute is interpreted such that “transport” and “carry” have different meanings (893’2).

        • Consistent usage (identical words/phrases used in different parts of a statute or in related statutes are presumed to have a consistent meaning) with Meaningful Variance (when a different word/phrase is used, it is presumed to have a different meaning, especially when Congress considered and rejected the alternate wording; exception is when a reasonable explanation exists for variation, such as that different provisions were enacted at different times).

        • In derogation – one provision should not be interpreted in such a way as to derogate from other provisions by

          • operational conflict (prov 1’s operation would conflict with that of prov 2 – e.g. a citizen could not obey prov 1 w/o violating prov 2);

          • philosophical tension (e.g. prov 2 might reflect a legislative compromise inconsistent with a broad reading of prov 1); or

          • structural derogation (e.g. provisions 2 and 3 reflect a legislative preference for administrative rather than judicial enforcement that would be undermined by a broad view of prov 1 that favored judicial enforcement).

  • 2. Substantive Canons (policy rules) and the Rule of Lenity

    • presumptions of statutory meanings based upon substantive principles or policies drawn from the common law (e.g. the rule of lenity). Intended to reflect the presumed intent of the Legislature.

    • Uses:

      • tie-breaker,

      • rebuttable presumption,

      • balancing factor, and/or

      • clear statement rule (only rebuttable by clear contrary text).
    • Liberal vs. Strict Construction


      • Certain types of statutes, such as those involving civil rights, securities, or antitrust, are usually read liberally and applied expansively to new situations.

      • Others statutes, such as those infringing upon private rights, are to be read strictly and applied stingily to new situations.

        • In Derogation of Sovereignty – A statute written in general language is to be applied only to private parties and not governments and their agencies, unless the statute clearly indicates otherwise. The doctrine of sovereign immunity holds that the State cannot be sued or otherwise regulated without its consent.

        • Public Grants to private parties – construe narrowly, in favor of the government.

        • Tax laws are generally construed narrowly against the State and in favor of the taxpayer. Presently, tax-imposing provisions are not read strictly but tax-exempting provisions are.

    • Constitution-based Canons

      • Constitutional Avoidance Canon

        • Avoid interpretations that would render a statute unconstitutional or that would raise serious constitutional difficulties (thus, raising the “temperature” of the case), unless the text is clear or the statute would clearly survive a constitutional attack. See INS v. St. Cyr, 533 U.S. 289 (e.g. DOJ argued that FISA should be interpreted according to a “fairly possible” alternative that avoids the constitutional difficulty of obstructing the President’s inherent Commander-in-Chief authority.); Lorillard v. Pons - C19.

      • Separation of Powers

        • Avoid interpretations whereby the legislature or judiciary would encroach upon executive’s inherent powers, such as making decisions on foreign affairs.
        • Regarding the President’s core executive actions, avoid review for “abuse of discretion.”


        • Where Congress appropriates money without specific textual restrictions, the executive has leeway as to its expenditure, unlimited by more informal signals.

        • Afford the President and Vice-President special privileges as litigants so as not to interfere with their official duties.

        • Avoid congressional curtailment of the judiciary’s “inherent powers” or its “equity” powers.

        • Avoid congressional expansion of Article III injury in fact to include intangible and procedural inquiries.

        • Presume that Congress does not delegate authority w/o sufficient guidelines.

        • Generally, private rights of action are not implied in federal statutes.

        • Presume that U.S. law conforms to U.S. international obligations and that the Legislature takes account of the legitimate sovereign interests of other nations when it writes American laws.

        • Avoid congressional abrogation of Indian treaty rights.

        • Presume that unconstitutional provisions may be severed from the statute w/o invalidating the statute as a whole.

      • Federalism – Federal/State separation

        • Avoid federal invasion of “core state functions.”

        • Avoid statutory interpretations that would alter the federal-state balance.

        • Avoid federal abrogation of states’ 11th Am immunity from lawsuits in federal courts (exception: municipalities and counties).

        • Avoid inferring conditions on federal grants to the states under the Spending Clause; conditions must be expressed clearly and unambiguously such that the states are reasonably on notice of conditions (e.g. an agency provides guidance to that effect.)

        • Presume against federal preemption of traditional state regulation, unless clear statutory language or the statutory purpose requires preemption.
        • Presume against federal regulation of intergovernmental taxation by the states.


        • Presume against application of federal statutes to state and local political processes, except when statutory plain meaning or other factors counsel in favor of such application.

        • Presume against congressional derogation from state’s land claims based upon its entry into Union on an “equal footing” with all other states. Presume that upon statehood, the new state acquires title to the land under navigable rivers.

        • Avoid federal habeas review of state criminal convictions unless prisoner has properly exhausted state remedies. Avoid federal habeas review of state criminal convictions supported by independent state ground.

        • Presume finality of state convictions for purposes of habeas review.

        • Narrowly construct grants of federal court jurisdiction that would siphon cases away from state courts.

        • Avoid reading an ambiguous federal statute to authorize states to engage in activities that would violate the dormant commerce clause.

        • Favor concurrent state and federal court jxn over federal claims.

        • Ensure that Indian sovereignty is limited to Indian Tribe members and designated tribal territories.

        • Presume that states can tax activities within their borders, including Indian tribal activities, but also presume that states cannot tax on Indian lands.

        • Federal equitable remedies must consider interests of state and local authorities.

        • Presume that Congress borrows state statutes of limitations for federal statutory schemes.

      • Due Process

        • Rule of Lenity (strict construction of penal statutes), 885
          • Avoid applying punitive sanctions if there is ambiguity as to the underlying criminal liability or criminal penalty, unless Congress clearly intended to criminalize the conduct in question, in order to protect individual liberty. Apply to a civil sanction that is punitive or when underlying liability is criminal. Ex: Muscarello v. United States, US (1998), 888 – C11.


          • Purpose:

            • Historically, every felony was punishable by death.

            • Provide fair notice ([Holmes] held that D did not have fair notice, so an airplane could not be considered a motor vehicle. McBoyle v. U.S.).

            • Only impose severe penalties and the condemnation of conviction for crimes that involve mental culpability (mens rea).

            • Non-delegation/Institutional Competence: Judges and prosecutors should not usurp the popularly-elected legislature’s power to define crimes. “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.” United States v. Bass (898).

          • Caveat in Muscarello (894):

            • “The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree. ‘”The rule of lenity applies only if, ‘after seizing everything from which aid can be derived,’ ... we can make ‘no more than a guess as to what Congress intended.’”’ United States v. Wells ...”

  • 3. Extrinsic Sources and Legislative History (reference canons)

    • presumptive rules informing what other materials – such as the common law, related statutes, legislative history, and agency interpretations – might be consulted to figure out what the statute means (e.g. the rule of plain meaning).

    • (a) Common Law:
      • Traditionally, statutes in derogation of the common law should be narrowly construed, “except when a statutory purpose to the contrary is evident” and the statute “obviously is of a remedial, beneficial and amendatory character.” Isbrandtsen Co. v. Johnson, 956.


      • In the current era of field occupation by statutes, the common law is seen more as an aid to clarifying ambiguity or filling gaps in statutes.

    • (b) Legislative History

      • Background: Generally referring to the internal institutional progress of a bill to enactment and the deliberation accompanying that progress.

        • Policy issues:

          • Incentivizes devious insertions into Legislative reports: Now that legislators know that courts will use committee reports and other legislative records to interpret statutes, Congresspersons sometimes insert language into such documents specifically to affect future court decisions (Antonin Scalia, A Matter of Interpretation, 780). “[I]t is often loser’s history (‘If you can’t get your proposal into the bill, at least write the legislative history to make it look as if you’d prevailed’).” [Easterbrook] in In re Sinclair (993’2d) – C14.

          • Bias: “’In any major piece of legislation, the legislative history is extensive, and there is something for everybody. As Judge Harold Leventhal used to say, the trick is to look over the heads of the crowd and pick out your friends’” (emphasize what is useful to your conclusion) (Scalia, 781).

            • But see 997n3 for a contrary argument, which states that empirical data does not support the contention that judges who rely upon legislative history are less objective and more ideological than judges who do not.
          • Unreliability: “The majority’s lengthy recounting of the legislative history of Rule 609 demonstrates why almost all that history is entitled to very little weight. Because the proposed rule changed so often – and finally was enacted as a compromise ... much of the commentary ... concerns versions different from the Rule Congress finally enacted.” Bock Laundry (Blackmun, dissenting). See also Blanchard (C13); Scalia’s hilarious recounting of a conversation with Sen. Dole about a committee report on 987.


      • General priority of types of history, per Rascoff:

        • (i) Conference Committee Reports: Most authoritative source of legislative history but still gives us pause about the validity (given all of the politicking involved) - Montana Wilderness I; Weber; In re Sinclair.

        • (ii) Sponsor statement: Still pretty good source of legislative history but not completely authoritative - Montana Wilderness I (re: Sen. Melcher’s statement).

        • (iii) History of the bill/rejected proposals: May allow us to form a more comprehensive understanding - Montana Wilderness I (re: Sen. Udall’s proposal that provision only applies to Alaska); Bob Jones.

        • (iv) Floor colloquy/debate – Weber.

        • (v) Non-legislative drafters - Montana Wilderness (re: AG seems to tacitly approve of interpretation in letter entered into congressional record).

        • (vi) Legislative Inaction: Dog that didn’t bark canon - Bob Jones.

        • (vii) Subsequent Legislative history - Montana Wilderness II (re: Committee report for another bill after the passage of the bill at issue).

    • (c) Whose Statements Count?

      • Statements by sponsors are given more deference

        • “in part because sponsors are the most knowledgeable legislators about the proposed bill and

        • in part because their representations about the purposes and effects of the proposal are relied upon by other legislators.” (1000).

        • [For a seemingly contrary deference, see 1033n1(b)].
      • Floor debate records may be doctored by using the “friendly colloquy” (1000) (a colloquy is a discussion, usually scripted in advance, between members during floor proceedings, generally to put on the record a mutual understanding about the intent of a provision or amendment).


        • Counter: Political scientists argue that sponsors who distort legislative history will not be trusted in future legislative deals. Also, judges have demonstrated their ability to analyze legislative history in a sophisticated way. (1001).

      • Non-legislative actors, including executive officials and interest group personnel – their statements are given some weight when they serve as informed commentary, especially when the actor drafted the bill. “[T]he Court will not rely on these statements as the most probative – and certainly not the only – evidence of statutory meaning.” (1019).

    • (d) Legislative deliberations

      • Committee reports carry more weight than statements made during committee hearings and floor debates, and statements made by a bill’s sponsor or an informed support of the bill carry more w eight than statements by others (1020), particularly critics of the bill (1021’3b).

        • Committee reports are considered particularly authoritative because “[m]ost legislation is essentially written in committee or subcommittee, and any collective statement by the members of that subgroup will represent the best-informed thought about what the proposed legislation is doing” (982’1b).

        • Committee reports are easily accessible, and they usually articulate the purpose of the legislation with a summary of each section.

        • Conference committee reports typically detail the different versions of provisions passed by the House and Senate, the resulting compromise, and sometimes the reasoning behind the resolution.
      • “In general, off-the-record views of congressmen are not attributed to Congress as a whole. ... This is particularly true where ... there is no indication that the House as a whole was aware of the correspondence.” 1032’2b of Montana Wilderness Ass’n v. U.S. Forest Serv. [I], 9th. (1981), 1027 – C15:


        • “The Dog that Didn’t Bark” (An expected history of commentary on a particular issue is conspicuously absent, indicating no unusual departure from the status quo): Id.

          • Notes: Scalia believes the “dog that didn’t bark” canon is highly subjective due to how one characterizes the status quo, and the canon is “contrary to Scalia’s view (e.g., Rapanos) that Congress can proceed only through positive legislation adopted under Article I, § 7, and never through inaction...” (1035n3z).

      • (e) Post-Enactment (Subsequent) Legislative History (1035)

        • Includes:

          • (1) Proposals to amend the statute or to enact a new related statute,

            • [In Montana Wilderness Ass’n v. U.S. Forest Serv. [II], 9th (1981), 1036 (& C16), the court deferred to how the Legislature itself interpreted a statute when considering a subsequent bill.]

          • (2) Oversight hearings in response to agency and/or judicial implementation of the statute,

          • (3) Effort to manipulate the interpretation of the statute.

            • In order to avoid being duped by (3), judges generally give more weight to statements that have been presented to or are related to a bill that has been considered by the entire Congress.

      • (f) Presidential Signing Statements (1043-46)

        • Sometimes issued by the President when he signs legislation.

        • Functions:
          • (1) Presidential rhetoric/public relations document: general comment on importance of bill, props to Congress on its process, etc. Not intended to carry any real legal authority – e.g. Obama’s 1st signing statement (II.D.3f(2)).


            • Uncontroversial.

          • (2) Attempt to influence legislative history: The President expresses an intent to apply a law in a particular way, based upon the Executive Dept’s interpretation of the law, in order to influence future interpretation of the law by courts.

            • Controversial and not historically used for this purpose, per Dellinger (CP77).

          • (3) Constitutional: Object to the constitutionality of a portion of a law, usually with an indication that the administration will apply the law more narrowly than it was written.

            • Focus has increased for this purpose in recent history. Dellinger (CP90) argues this use is not controversial historically (see Myers, where “[n]ot a single member of the Court suggested the president [Wilson] had acted improperly in disregarding the statute”), but G.W. Bush’s use has been controversial b/c “some of [his] constitutional views are fundamentally wrong.”

        • Re: Controversial uses (2) and (3):

          • In favor:

            • Because the President effectively sponsors much major legislation and has important bargaining power in his veto power, the Executive’s stance on legislation often provides useful policy context to legislation.

            • In the case of ambiguous statutes, signing statements give an indication of the interpretation that the President believes he is endorsing when he signs the bill into law.
            • Alito (CP71) argued that the President participates in the process of legislation by signing it, vetoing it, and sometimes even proposing or applying pressure to get it passed in Congress. This perspective views Art. I §7 as setting up a sort-of bilateral contract between the President and Congress. AG Meese arranged for the signing statements to be published alongside other legislative history.


            • In regard to the potential for “gaming the system” and inappropriately manipulating judicial interpretations, the President has political incentive to honor the deals that are struck in the legislature since s/he is a repeat player.

            • Vetoing an entire bill rather than construing a portion of it is impractical (see Dellinger, CP91).

            • The President is given authority to determine the constitutionality of a bill under the “take care” clause (Art.II §3 – “he shall take Care that the Laws be faithfully executed”) and his Oath of Affirmation (Art.II §1 – “I do solemnly swear (or affirm) that I will ... to the best of my Ability, preserve, protect and defend the Constitution of the United States”).

          • Against using:

            • Federal judges rarely point to signing statements.

            • The statements are susceptible to the same criticisms as subsequent legislative history – they are “unreliable evidence of the expectations of the enacting coalition, and there is too much opportunity for manipulation.”

            • The deliberative legislative process has ended when the President issues a signing statement. Thus, Congress is not able to respond officially to the statements.

            • Formalist – separation of powers:

              • Congress has the power to legislate, not the President, although the President has the power to veto a bill that s/he believes to be unconstitutional.

              • The President’s interpretation of a bill as unconstitutional is based upon the Executive Dept’s lawyers, but our system establishes the courts as the primary check on constitutionality of laws.

        • Veto statements

          • If overridden by Congress, an interpreter may infer that Congress rejected the President’s expressed interpretation.
          • If modified and ultimately enacted with the President’s signature, the preceding veto statement may offer information about the nature of the enacted law.


        • Example:

          • Pres. G.W. Bush’s signing statement re: HR 2863 (McCain Amendment) (CP87):

            • “The executive branch shall construe these sections [8007 et al. relating to funds for intelligence programs] in a manner consistent with the constitutional authority of the President.”

            • Re: torture section, §8104: “The executive branch shall construe section 8104 ... in a manner consistent with the President’s constitutional authority as Commander in Chief, including for the conduct of intelligence operations....” (emphasis added).

        • ABA’s Task Force recommendations (II.D.3f(2))

          • If the President believes that a bill or portion of a bill should not be enforced due to unconstitutionality or another reason, the President should:

            • (i) preview the bill and communicate concerns prior to passage by Congress,

            • (ii) veto the entire bill in accordance with Art.I, §7 (counter-arguments above), or

            • (iii) seek judicial review or litigate the issue (if Congress passes legislation enabling such review) (counter: very lengthy process).

          • Problem: If the ABA’s recommendations were followed, the President would probably just decline to enforce laws but not declare his intentions beforehand. At least under the current system, Congress and others have notice of the Pres’s intention.

      • (g) Legislative Inaction (1047):
        • (A) Acquiescence Rule: “If Congress is aware of an authoritative agency or judicial interpretation of a statute and doesn’t amend the statute, the Court has sometimes presumed that Congress has ‘acquiesced’ in the interpretation’s correctness.” [Zuni (C7)?]; Bob Jones Univ. v. U.S., US (1983), 1050 - C17; Flood v. Kuhn.


          • Counter: Congressional inaction may have many causes other than acceptance of an interpretation – e.g. political inertia or lack of congressional omniscience.

        • (B) The Reenactment Rule: “If Congress reenacts a statute without making any material changes in its wording, the Court will often presume that Congress intends to incorporate authoritative agency and judicial interpretations of that language into the reenacted statute.” The Court particularly adheres to this rule when the interpretation(s) have likely yielded private and public reliance. See Lorillard v. Pons - C19.

        • (C) The Rejected Proposal Rule: When “Congress (in conference committee) or one chamber (on the floor) considers and rejects specific statutory language, the Court has often been reluctant to interpret the statute along lines of the rejected language.”

          • Counter: A bill may be proposed or rejected for various reasons.

      • [Other Extrinsic canons:]

        • Chevron deference to agency decisions: “Reasonable” agency interpretations pursuant to congressional delegation of lawmaking authority are binding on courts unless Congress has directly addressed the issue. Particularly in situations where the agency has declined to enforce a statute.

        • Continuity in Law:

          • Presumption against hiding elephants in mouseholes – presumption that Congress does not alter the fundamental details of a regulatory scheme in vague or ancillary provisions (AppB-26).

  • 4. Statutory Canons (Interpretations in light of other statutes) (AppB-36)

    • General Canons
      • Presumption against repeals by implication (Radzanower v. Touche Ross & Co.), and that “the intention of the legislature to repeal must be clear and manifest” (Posadas v. Nt’l City Bank), unless there is a clear repugnancy between a more recent statutory scheme and an earlier one. Morton v. Mancari - C20. But see Montana Wilderness (II) – C16.


        • Problem: Assumes Congressional “omniscience.”

      • Similar statutes (In pari materia Canon) – Similar statutes should be interpreted similarly, unless legislative history or purpose suggests material differences. Montana Wilderness (I) (uses the canon for similar sections of the same statute); Cartledge v. Miller - C18 (compared statutes with a conceptual affinity since they all pertained to pensions); Lorillard v. Pons - C19 (compared statutes with a historic/genetic affinity). The Memo to Alberto Gonzales (CP93) seems to be using this canon, but it compares unrelated statutes.

        • Problems:

          • Similar statutes may have been interpreted differently.

          • Similar statutes may have different purposes (if only slightly).

      • Modeled or borrowed statute rule

  • 5. Stare Decisis and Statutory Precedents (631)

    • Like the application of stare decisis in the common law, an interpretation of a statute can usually only be changed by legislative enactment. Flood v. Kuhn – C21.

      • Legal realist theorists argued that a court should be free to re-interpret statutes if “clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions and that more good than harm would come by departing from precedent.”

      • Reliance & Institutional Competency issues – Brandeis-Levi Rule: Legal process theorists argued that statutes should receive “extra stare decisis deference” because the legislature is more competent to change statutory meaning and because public and private decision-makers rely upon statutory precedents.
        • Counter: Marshall suggests in his dissent to Flood v. Kuhn - C21 that a decision can be made “prospective” and denied full retroactive effect to address the issue of past reliance.


        • Monell v. Dept. of Social Servs., US (1978), 643, [Brennan] overturned a previous case because: (a) the previous decision misapprehended the meaning of the statute, (b) precedents argued in favor and against upholding the prior case, (c) Congress implicitly did not acquiesce to the prior understanding, and (d) it was understood that a change in the law would better serve the underlying policy goals.

        • The Rehnquist Court, in Payne v. Tennessee, held that stare decisis is most constraining “in cases involving property and contract rights, where reliance interests are involved” and less so for cases “involving procedural and evidentiary rules” protecting constitutional rights (645n3).

  • 6. Statutory Interpretation and Executive Power (OLC)

    • The Office of Legal Council (OLC) functions as a quasi-judicial body that provides council to the Executive branch about the legality of its actions.

      • The OLC considers its own prior memos as binding authority.

      • Unclear whether OLC sanction immunizes an actor from liability.

    • Jay Bybee’s Memo for Alberto Gonzales re: Standards of Conduct for Interrogation (CP93) analyzes a criminal statute, 18 USC § 2340, which makes it a crime for anyone “outside the United States [to] commit[] or attempt[] to commit torture.”

      • Torture is defined in the statute as an “act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”

      • Since the statute does not define “severe,” the memo
        • looks to the dictionary – no help;


        • considers the Whole Code

          • Analogizes from other statutes, such as one that includes “severe pain” in the definition of an emergency medical condition for the purpose of providing health benefits, and concludes “[t]hese statutes suggest that ‘severe pain’ ... must rise to a similarly high level – the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions – in order to constitute torture.”

            • (Counter: Doesn’t this basically mean you have to kill someone, or nearly kill them? Also, note that this analysis is comparing two unrelated statutes.)

            • Thus, according to this analysis, waterboarding does not necessarily constitute criminal torture under §2340.

      • The statute further defines “severe mental pain or suffering” as “prolonged mental harm,” which is not further defined.

        • The memo looks to the dictionary definition for “prolonged mental harm” and suggests that persistent mental strain or the development of a mental disorder would qualify.

        • But, by the canon of expressio unius, the harm must be caused by or result from one of the enumerated acts (e.g. intentional “infliction of severe physical pain or suffering” or “the threat of imminent death”) in order to qualify as torture.

    • Proper Role of the OLC

      • Advocate (political) or Counselor (more balanced)?
        • Former AG Dawn Johnson et al. (II.D.6(2)) suggest the OLC “should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which layers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive actions.”

        • In other words, the OLC should represent the office of the “President” rather than a particular president.

      • The President is not bound by the legal advice of the OLC.

      • Note that OLC is often the first and the last word on particular issues that are not reviewed by judges.


III. Regulation and the Administrative Process


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