LEGISLATION OUTLINE The Legislative Process The Constitution a.

All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a Senate and House of Representatives. Art.I1 b. Laws must be approved by two legislative chambers thereof (the bicameralism requirement) and the chief executive (presentment requirement). If the President signs it, the bill is law, if he returns it without signature it is not law unless two thirds majorities of each override his veto. If the president does not sign or return within ten days and the congress remains in session, the bill becomes law as though he signed it. If congress adjourns during the ten day period, the bill does not become law, and the President has pocket vetoed the proposal. II. Other rules a. Each house has a series of formal rules that bind it until they are changed by a vote of that house. b. Rules affecting legislation, including committee consideration, scheduling procedures, and senate rules allowing filibusters. c. If the house or senate violates the rules, there is often no effective enforcement mechanism to void the action. Courts are reluctant tot enforce congressional rules when they are ignored, holding that rulemaking and enforcement are committed by the Constitution to the discretion of each house. III. How a Bill becomes law a. Chart page 25 of text b. Omnibus legislation- legislation that addresses numerous and not necessarily related subjects, issues, and programs, and therefore is usually highly complex and log. c. Introduction of Billsi. Only legislators can introduce bills d. Committee Consideration i. Bills are routinely referred to standing committees by the presiding officer of the legislative chamber. ii. In the House, the Speaker refers bills to the committee having subject matter jurisdiction. iii. In the Senate goes to the appropriate committee iv. Committees have the power of negation- the vast majority of bills never emerge from committee. The Chair of the committee is the key player. If the chair refuses to schedule hearings for a bill or refer the bill to a subcommittee, the bill will usually die. House and Senate rules permit a majority of the committee to compel the chair to place a bill on the agenda, a maneuver that is rarely threatened or attempted. v. The majority of the house can bypass a committee by filing a discharge petition calling for a measure to be brought to the floor. When half of

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e.

f. g.

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the house members have signed the petition, the bill is taken away from the committee and brought to the full house. vi. Committee can iron out difficulties and build a consensus in favor of a bill. Hearings. vii. Committees can serve as a tool to the majority party. Majority committee members can exclude members from the other party from decision-making. viii. Once a committee marks up the bill to its satisfaction and votes to send it out to the full legislative chamber, the committee staff drafts a report on the bill that will be circulated to other legislators. Scheduling Legislative Consideration i. Bills reported by committee are place on a calendar of a legislative chamber ii. House 1. Union Calendar 2. House Calendar 3. Private Calendar 4. Consent Calendar 5. Discharge calendar 6. Suspension of the rules- allows the house with the consent of the speaker, to consider a bill in an expedited fashion with no amendments or motions, but requires that the bill be passed by a 2/3 vote. iii. Senate 1. General orders 2. Executive calendar iv. Rules committee 1. Housea. Decides whether to propose a rile for the bill- open rule (permitting amendments), closed rule (prohibiting all floor amendments), or a modified closed rule (permitting specified floor amendments and structuring the order of their introduction). v. Senate 1. No rules committee 2. Expedited consideration is accomplished by a unanimous consent agreement. 3. Must be accepted by all senators Floor consideration: debate, amendment, voting Reconciliation process: conference committee i. Must be a meeting of the minds between the house and the senate ii. After both chambers have voted themselves into a state of disagreement, the last chamber to disagree may request a conference. Any compromise adopted in conference must be approved by a majority of the conferees from each chamber. Presentment

Griggs v. Duke Power (page 42)- Companies like Griggs faced with complying with the new civil rights act. The company had past practices of discrimination in employment and promotion practices. The Court looked to the legislative history in the debate and amendment and find the Senator Tower Amendment (general intelligence and ability tests, if fairly administered and acted upon, were not invalidated by the Civil Rights Act of 1964). The standards must be job-related. I. Statutory Implementation (page 80)- players in the legislative process not only act in response to the anticipated preference of one another, but they also anticipate and consider the preferences of subsequent implementers and interpreters of the statute. a. Agencies and courts consider the preferences and possible responses of other political actors before they choose a course of action. b. After Congress and the President enact a law, agencies, more or less under the control of the President, implement it. c. Judges oversee the implementation by requiring fidelity between execution and their interpretation of the statutes requirements. Interpretive Issues and Political Theories (page 82)a. Supreme Court overruled Griggs and found that facially neutral employment practice that was not demonstrably discriminatory in purpose was nonetheless unlawful if it had the effect of excluding a group on the basis of race and without a strict showing of business necessity. b. Sometimes the translation of the statute moves away from the actual text. In other words, an interpretation that departs from the terms of the deal, as reflected in the text of the statute, is actually more faithful to legislative intent than a more literal interpretation. Places a great deal of discretionary power in the unelected judiciary. c. Courts may be more strongly influenced by the preferences of members of a current congress than they are by the preferences of the enacting congress.

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United Steel Workers v. Weber (page 88) - Kaiser Steel set up an affirmative action program to integrate its workforce. Previously, they only hired craft workers w/ previous craft experience; now, they set up a program to train new craft workers, w/ 50% of the slots for blacks. A white guy sued under Title VII of the Civil Rights Act of 1964 that prohibited racial discrimination in employment. Brennan majority institutional (historical) argument - cites Holy Trinity and cites the legislative history to show that ORIGINAL Congress did not intend to ban affirmative action plans. Blackmun dissent contextual argument - says that the current situation must be taken into account, not just that of the time when the bill was passed. Arguable violation theory (J. Wisdom)private entities should be allowed to use affirmative action to remedy a past arguable violation of Title VII. Rehnquist dissent institutional (historical) argument - in his dissent says that you should look at the legislative intent of a statute, which he says is for Weber.

TEXTUAL BATTLE: Kaiser wants to use 703(a)1 or 703(d) b/c the word discriminate is used and thus it provides some wiggle room, b/c it is not defined. Weber wants to use 703(a)2 b/c discriminate is not used and thus the language must be interpreted more strictly. Johnson v. Transportation Agency, Santa Clara County (page 104)- Case posed two important questions: (1) does Title VII allow affirmative action plans at all; and (2) If affirmative action plans dont violate Title VII, which ones are allowed. Brennan majority follows stare decisis and says affirmative action plans are allowed. He develops a 2 part inquiry: (1) is there a manifest imbalance that reflected underrepresented women and minorities; and (2) does the plan unnecessarily trammel the rights of non-minority males. The plan here was justified because composition of the workforce was primarily males with higher paying jobs and the plan didnt go too far because gender was merely a plus factor and was not the sole or primary criteria. Stevens Concurs- says that affirmative action plans are legal because Bakke and Weber control and are good law. Also says the program is justified because employers dont have to point to past discrimination. OConnor Concurrence- Title VII does not ban all affirmative action plans, but the employer has to have some firm basis for implementing the plan: past discrimination, Scalia Dissent- the plain text of Title VII does not allow affirmative action. Weber should be overturned. what about congressional acquiescence? Brennan says inaction isnt always probative but, Weber was a highly publicized decision and no one passed or even proposed a bill. Scalia says congressional inaction can mean one of several things: approval, doesnt approve but cant agree on alternative, isnt aware, indifferent, or doesnt have the courage to change. Ricci v. Stefano (supplement)- Test results would decrease minorities. Was walking a tightrope in whether to keep the test of discard it. Keeping it would bring title VII claims from black, if discarded its discrimination against whites. Kennedy majority- should not have discarded the test. Need a strong basis in evidence that they would have been liable under Title VII to scrap results. Not a strong enough basis that they would be liable to minority firefighters. Ginsburg dissent- this is a business necessity. Businesses need to have some discretion in limiting past discrimination. STRUCTURES OF CAMPAIGN FINANCEa. Tillman Act of 1907- prohibited all corporations and national banks from making money contributions in connection with federal elections. The prohibition was extended to all contributions by the Corrupt Practices Act of the Smith-Connally Act, and then the Taft-Hartley Act prohibited unions from making contributions in connection with federal elections. Laws were too vague, thus corporations and unions were able to make contributions virtually at will.

b. The Federal Election Campaign Act of 1971 created a new loophole by amending 610 to give explicit approval to the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization c. The Federal Election Campaign Act Amendments of 1974 sets limits on campaign contributions and expenditures in presidential and congressional election campaigns and established the Federal Election Commission (FEC) to administer and enforce the law. d. Constitutional Framework for Campaign FinanceBuckley v. Valeo (page 237)- Supreme Court addressed the constitutionality of the Federal Election Campaign Act as amended in 1974. The Act was challenged under Freedom of Speech. The Court held that it has never afforded that Free Speech is afforded absolute protection, but the government must show a compelling state interest narrowly tailored to the regulation of political speech. Limitations on political contributions- prohibited most groups from contributing more than $1,000 per candidate for each runoff or general election. In addition, individuals could not contribute more than a total of $25,000 per year. Certain political committees could contribute up to $5,000 to any candidate for federal office. The court upheld these provisions. The purpose of limiting the actuality and appearance of corruption resulting from large financial contributions was a sufficiently important governmental interest. Limitations on political expenditures- the act limited expenditures by individuals and groups relative to a clearly identified candidate during a calendar year to $1,000. Other provisions limited spending by candidates from their personal or family funds and limited overall expenditures by candidates to differing amounts depending upon the federal office sought. The court struck down these provisions. These restrictions operated as a substantial restriction on first amendment freedoms because a restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression and the size of the audience reached. Differ from contributions because contributions serve as a general expression of support for the candidate, but do not communicate the underlying basis for support. Do not substantially serve the governmental interest in stemming actual or apparent corruption. Equalizing the playing field is not a sufficient justification. Reporting and disclosure requirements- FECA required political candidates to keep records of contributions and expenditures, including the names and addresses of contributors who gave them more than $10. The Court upheld these provisions. While compelled disclosure can seriously infringe on privacy of association and belief, the governmental interests sought to be advanced by the required disclosures were sufficiently important to outweigh the possibility of infringement of 1st Amendment rights. Eliminates the appearance of corruption. Public financing of election campaigns- taxpayers could authorize payments to a presidential election campaign fund for one dollar of their tax liability in the case of an individual return and two dollars in the case of a joint return. The court upheld the constitutionality of this system of partial public

financing. The important public interest in limiting corruption outweighed first amendment concerns. Corruption1. Quid pro quo- a system dominated by large contributions from wealthy individuals and interest groups clearly seeking influence, access, and favorable legislation appears to be corrupt to ordinary voters. Activity that appears virtually indistinguishable from bribery. Austin v. Michigan Chamber of Commerce (page 246)- Michigan campaign finance act prohibited corporations from making contributions or independent expenditures in connection with any state candidate elections. Michigan Chamber of Commerce was a nonprofit corporation. Used its general treasury funds to place an advertisement in a local paper supporting a candidate. The majority applied strict scrutiny to the regulation as required by Buckley. The Court acknowledged that, though corporations could spend money from special segregated funds, the prohibition on the use of general treasury funds and the requirements surrounding the segregated funds were burdens on political speech. The Court looked for a compelling state interest to justify the burden. There are many state created advantages for corporations which give them a political advantage. The amassed wealth of corporations is not a reflection of the political idea, but instead economically motivated decisions from customers and investors. This is not quid pro quo corruption, but the corrosive and distorted effect of immense aggregations of wealth that are accumulated with the help of the corporate form. The act does not equalize, but ensures that expenditures reflect actual public support for the political ideas espoused by corporations. Scalia dissent- said this is Orwellian censorshiptoo much speech is an evil that democratic majority can proscribe. The act was not narrowly tailored to reach wealthy corporations. Justice Kennedy dissent- 2 censorships of speech: (1) content based and (2) a censorship scheme created by the court that permits some non-profit corporate groups but not others to engage in political speech. THE BIPARTISAN CAMPAIGN REFORM ACT AND McCONNELL v. FEDERAL ELECTION COMMISSION a. Federal Campaign Finance Issues after Buckleyi. Political Action Committees (PACs)- A PAC is a political committee other than a political party, that receives contributions from more than 50 people and makes contributions to at least five candidates for federal office. PACs are required to register and report with the FEC. 1976 amendments limited PAC contributions to $5,000 per candidate per election and $15,00 to a national committee of a political party. FECA encouraged the formation of PACs. After Buckley PACs became the primary focus of reformers. ii. Bundling- individual contributions are presented as a group to a candidate in a way that makes it clear that the contributions were organized through a collective effort. Because the contributions are individual, the bundles of money dont count against the PAC

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contribution limit. Each check cannot exceed the individual contribution limit. The Honest Leadership and Open Government Act of 2007 required that federal candidates disclose the name of any lobbyist providing bundled contributions exceeding $15,000 in any six month period. iii. 527 Organizations- political entrepreneurs began using tax-exempt organizations to evade campaign finance disclosure laws and contributions limitations. In 2000, president Clinton signed a bill requiring 527s to disclose their donors and expenditures. iv. Soft Money- money spent in connection with federal candidates and regulated by FECA is hard money. Soft money is money unregulated by FECA. Soft money is spent on activities to benefit state candidates, to build infrastructure, and to fund voter mobilization programs including direct mail campaigns. Political parties also use soft money to fund issue ads that do not expressly advocate the election or defeat a particular candidate. v. Issue Advocacy- the court in Buckley upheld disclosure requirements on independent expenditures that are used for communication which expressly advocate the election or defeat of a clearly identified federal candidate. Words like: vote for, elect, support, cast your ballot for, Smith for congress, vote against, defeat, or reject (magic words). Explosion of issue advocacy, unregulated but effective. vi. Disclosure provisions- disclosure appears to be the least problematic form of regulation. Combats the concerns of corruption The Bipartisan Campaign Reform Act of 2002 Ban on soft money- the national committees of a political party can neither receive nor spend soft money. BCRA also prohibits federal-candidatecontrolled PACs from raising or spending soft money. Local and state committees of political parties cannot spend soft money on federal election activities. Federal Election Activity is defined to include voter registration drives within 120 days of an election, get out and vote drives conducted in connection with a federal election, any work by state or local campaign employees who spend more than 25% of their time on federal election activities, and advertisements for specific federal candidates. State and local party committees can use soft money to fund generic voter registration and get out the vote drives related to federal elections, but they are limited to using contributions of no more than $10,000 per source. Ban on candidate solicitation of soft money- federal office seekers and office holders and their agents can neither solicit nor spend soft money. May engage in soft money fundraising efforts by nonprofit organizations for voter registration and get out the vote drives, but may only solicit up to $20,000 per individual and only from individuals. Provisions affecting hard money- aggregate limit for an individuals contribution to candidates was raised from $25,000 to $37,500 per election cycle. Individuals can contribute $25,000 per year per national party committee, with an aggregate contribution limit for donations to all national

party committees of $20,000 to $57,500 per election cycle depending on how much is contributed to PACs. Individuals contribution limits to federal candidates doubled to $2,000. Limitations on Expenditures for Electioneering communicationsElectioneering communication includes: broadcast, cable, or satellite advertisements that refer to a clearly identifiable candidate; that are run within 30 days of a primary election and 60 days of a general election; and that are targeted in that they can be received by 50,000 or more persons in a congressional district or state where the election is being held. Political parties and candidates may only spend hard money to fund the advertisements. Corporations and unions are prohibited from funding such communication directly, instead they must fund the broadcasts through PACs that raise and use regulated hard money. Individuals and unincorporated entities can fund electioneering communications directly, but they must disclose within 24 hours the sources of their contributions of $1,00 or more once an aggregate of $10,000 has been spent. McConnell v. FEC (page 261)- This part of the opinion is relatively short within the majority opinion. Since Buckley, most observers thought that the magic words requirement was a constitutional standard. In other words, the Court in Buckley limited the speech that can be regulated to the magic words because if you regulate any more than that, you would be infringing upon the First Amendment. But this case says that the magic words rule was a matter of statutory interpretation rather than constitutional interpretation. Because there is a new, clearer statute, you dont need the magic words anymore and theres no First Amendment problem. The Court says that you cant meaningfully distinguish between express advocacy and issue advocacy. How come? The Court finds that the distinction has become meaningless in practice. An ad that gives a powerful statement about someones views on an issue doesnt need the words vote for so-and-so to be effective. In fact, such ads might be more effective without the magic words. Justice OConnor joined Scalia and Kennedy in dissent in Austin, but now writes for the majority. OConnor had opposed any broader form of corruption than the magic words. Her turn changed the whole dynamic of the court. Perhaps her change in opinion reflected changed realities. Everyone who argued for the BCRA in court argued that the soft money and electioneering communications provisions should be seen as an integrated whole. Buckley, by contrast, sort of split the baby and produced a statute that Congress hadnt really written. It ended up only regulating contributions but not expenditures. standard of review: expenditures- strict scrutiny; contributions-closely drawn
to sufficiently important government interest. FECA 323(a)- Close the loophole-- was upheld as constitutional--dissent says this favors incumbents because they raise more hard money 323(b)--Plugging a loophole they anticipate arising after 323(a);Closely drawn? Yes reasonable response 323(d)--Plugging a loophole around 323(a) and 323(b)--Prevent non-profits from becoming a conduit, Yes- constitutional- prevents candidates from using nonprofits as soft money surrogates.

323(e)-Prevents solicitation ;Cutting off direct link between federal candidates and soft money, Constitutional BCRA 201--Going after the meaningless distinction between express advocacy and issue advocacy; Dissent-restricting attack ads favors incumbents; Requiring major funders to identify themselves 203--Banned corps and unions from using general funds for electioneering ads; Compelling governmental interest expenditurenarrowly tailored; This meets that standard; Austin- wealth accumulated by corporation has no correlation to political views; Dissent not narrowly tailored corps. Do have first amendment rights and these segregated funds muffle their voice to burdensome to segregate funds 204--Requires non profits to segregate as well but did not exclude corporations that do not accept profits from for profit corporations. Court reads in an exemption for Post McConnell- clarifies that the standard of review for restrictions on campaign contributions is less rigorous than strict scrutiny and is less stringent than that of expenditure limitations. Continues the notion of corruption. Created a shift back to hard money. Surge of 527sas long as they do not engage in express advocacy and do not directly contribute to federal campaigns, they can raise unlimited amounts of soft money. More bundling. III. Current Law under Roberts court

Wisconsin Right to Life (page 14 Supp.)- Supreme court became much more conservative; Senators filibustering George W. Bushs federal judicial nominees; Wanted to air ads telling senators to stop filibustering nominees; Express advocacy-Accepted contributions from for-profit corporations, Why does the law distinguish between issue ads and express advocacy? Every indication is that they are essentially focusing on an issue and not on appeal to vote for or against a specific candidate; When does an issue ad become functional equivalent of an express advocacy ad? Testno reasonable interpretation other than as an appeal to vote for or against a specific candidate After Wisconsin Right to Life can push the line on issue ads and express advocacy can fund with corporate contributions if non-profit without having to segregate Citizens United (page 15)- Hillary the movie Non-profit accepting corporate money; Paid from general funds; Within 30 days of primary; Mentioned candidate/electioneering; Clearly advocating against Hillary; Has to segregate money to pay for it. Does not fall under an exemption; BCRA 203 amended 441(b); 441(b) makes it a felony unless they segregate their funds; Struck down 203 and 441(b) Kennedy- Objects to how the FEC implemented; Complexity of regulatory schemes and obscurity of understanding where their speech fallsprior

restraint on speech; PAcs arent sufficient alternatives-expensive, burdensome, corporation not speaking; Issue of stare decisis; Cannot engage in content or viewpoint discrimination; Focuses on rationale behind Austin and McConnell; Egalitarian/equality/ant distortion rationale; Buckley only recognized anticorruption and this anti-equality rationale is wrong; Stevens dissent; Decision overbroad; Citizens brought as applied challenge, but court turned it into a facial challenge; Disrespect of congress- congress wrote BCRA and constructed based on what it thought was good law (Austin); Applies to non-profits and for profits; Conceit that corporations be treated as equal to individuals corporations are not individuals. Is 441(b) a ban on speech?- Yes Requiring segregation of funds is compulsory ventriloquism, Hurdles are effectively a ban; No- can still go through a PAC and speak, This isnt a ban because they can still speak, just have to segregate. Avoid being an electioneering ad: 61 days before election, 31 days before primary, Issue ads, Individuals can speak; What interests can the government assert after citizen united? Anticorruption- Seems to require almost concrete evidence of quid pro quo corruption. Can a corporation blog about candidates and issues before elections? Would this be banned by BCRA? Before citizens- yes Now- citizens seems to protect Citizens United Aftermath 527s became more popular and appealingexpenditure only not contributing to candidates. Raise and spend unlimited amount of soft money and do not disclose. Cannot advocate for or against candidates WRTL allows them to push the boundaries; SuperPACs- have to disclose donors. Can raise and spend unlimited amount as long as they dont directly contribute to the candidate. Can advocate for or against candidates. Legislative responses: Shareholders rights act and Disclose act- Neither act went anywhere ; Categories matter but hard to enforce these categories BRIBERYanti-bribery statutes might serve three different purposes: (1) to protect the integrity of the public servants decisionmaking process, so that decisions are made to advance the public interest and not the decisionmakers private agenda; (2) to avoid the appearance of unfairness and abuse of office; (3) to assure equal access of all citizens to the services of public servants. Federal Bribery Statute, 18 USC 201(b)-(c)- Page 303 Public official is defined as any member of congress, delegate, or resident commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the US, or any department agency or branch of government thereof, including the District of Columbia, in any official function, under or by the authority of any such department, agency, or branch of government, or juror.

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official act is defined as any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such officials official capacity, or in such officials place of trust or profit. Bribery- a public official (1) obtains anything of value (2) in return for performing an official act, committing fraud on the US or violating a lawful duty, and (3) the defendant public official or private person acted with corrupt intent. (The last element is the primary distinction between bribery and unlawful gratuity offenses). Unlawful Gratuity- Payments to a public official for acts that would have occurred in any event are in most circumstances probably unlawful gratuities, not bribes. Unlawful gratuities also only cover official acts whereas bribery is much broader in scope and includes the violation of a lawful duty of the official. People Ex Rel Dickinson v. Van De Carr (page 305)- City alderman offering to give city of street cleaning more horses and money if he hires a man back. Illustrates that bribery is a lot more than simply giving someone money---very broad. Wisconsin Outlaws logrolling- Ill agree to vote on one thing if you vote on another. Trading votes. EXTORTIONconsists of a public officials use of official position to exact money or other benefits from private persons. An abuse of public justice, which consists in an officers unlawfully taking, by colour of his office, from any one, any money or thing of value, that is not due to him or more than is due to him, or before it is due. Federal Hobbs Act, 18 USC 1951- page 310 criminalizes extortion The Supreme Court has interpreted the Hobbs Act to require a quid pro quo by a public official who receives money from someone under his jurisdiction; a politician cannot be convicted of Hobbs Act extortion unless there is an explicit exchange of money for an official act. CONFLICTS OF INTERESTResponses to the overall problem of conflicted interest have been twofold- the disinfectant of full disclosure of financial interests and the adoption of prophylactic rules to prevent even the potential for certain types of financial incentives to slant public deliberations.

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 Gifts are severely limited- Ethics Reform Act of 1989 prohibits members of congress from seeking or accepting anything of value from any person whose interests may be substantially affected by the performance or nonperformance of the officials duties. No member, employee, or officer of the House of Representatives or the Senate may accept gifts or meals from lobbyists unless they fit into certain exceptions, such as food, other than a meal that is served at a reception or at a widely attended event. Restrictions on the kinds of travel reimbursements. Lobbyists must disclose that no one covered in their disclosure filings has provided gifts or offered travel to senators or representatives that would violate the rules. Outside earned income is limited- Ethics Reform Act provides that congressmembers can have outside earned income no greater than 15% of level II of the executive pay schedule for each calendar year. Members may not serve in firms providing professional services with a fiduciary duty, receive compensation for practicing such profession, serve on corporate boards of directors, or be paid for teaching (without the consent of the ethics body). Post-Employment Lobbying Restricted-The Ethics Reform Act prohibits member of the House within a year of leaving office, from lobbying to current members or employees of either house. The Honest Leadership and Open Government Act extended the ban on lobbying that applies to former senators to two years. This is enforceable through criminal sanctions. No activity inconsistent with representational duties can be conducted- No member can engage in any outside business or professional activity or employment for compensation which is inconsistent or in conflict with the conscientious performance of official duties. House rules provide that a member may not receive compensation for affiliating with or being employed by a firm, partnership, association, corporation, or other entity that provides professional services involving fiduciary relationship except for the practice of medicine. The senate does not have an exception to the rule that would allow senators to practice medicine while in office. Honoraria are banned- the Ethics reform Act prohibits members of congress from receiving honoraria US v. National Treasury Employees Union (page 314)Honorarium- compensation for appearance, speech or article; Lower level federal employees argue this restricts 1st amendment right; Ban unconstitutional; Did not have anything to do with their position in the governmentnot worried about corruption; If they wouldnt get compensated they wouldnt do them because burdensome; Power is negligible low level employees

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LOBBYING (page 318)Almost all organized lobbying before Congress is aimed at getting the groups point of view across to the legislators and influencing legislative decisions. Direct Lobbying- the direct presentation of a groups point of view to the legislator or staff. Testimony at legislative hearings, calling up legislators or writing them directly, presenting research results, submitting drafts of proposed legislation, and making contributions to legislators reelection campaigns. Indirect Lobbying- more circuitous way of influencing lawmakers and involves efforts by interest groups and their lobbyists to stir up outside forces, primarily constituents, to bring pressure to bear. Stealth campaigns with other organizations. Federal Lobbying Disclosure Act (page 335) Lobbying Contacts and Lobbying Activities- The Acts requirements are triggered when somebody makes lobbying contact, which is a certain kind of communication to a covered official. Once that conduct has occurred, the individual must report her lobbying activities. An individual who makes such conduct is considered a lobbyist unless her lobbying activities constitute less than 20% of the services she provides a client during a three month period. Lobbying Contact- Four categories of exceptions: (1) ministerial or de minimis activities ( request for a meeting as long as there is no attempt to influence a covered official); (2) information that other laws require people to disclose; (3) contacts that are required by other law or court order (subpoena); (4) hardship cases (disclosure protected under the whistleblower protection act). Limitations in the information disclosed- 2007 amendments required Congress to make the information disclosed by lobbyists available on the internet in a searchable, sortable and downloadable format. The Honest Leadership and Open Government Act of 2007 closed or reduced some of the loopholes in the LDAs coverage, but did not eliminate all gaps. Lowered LDAs threshold for reporting and required quarterly rather than semi-annual reports. Now, lobbyists must disclose income from each client in increments of $10,000. Persons must semiannually report their campaign contributions exceeding $200. Gaps- still does not require disclosure for grassroots lobbying efforts, reports do not include much detail about the lobbyists contacts

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Enforcement- Before the 2007 amendments the LDA was enforced through civil fines up to $50,000 and penalites were not pursued often. HLOGA increased the possible civil fines to $200,000 and authorized criminal prosecutions for knowing and corrupt violations of the Act.

DUE PROCESS OF LAWMAKING (page 409) Structural Due ProcessConstitutional Requirements- Bicameralism and Presentment; Bills for raising revenue shall originate in the house of representatives. This is because these representatives are closest to the people and bear responsibility for initiating measures (taxes) which have the greatest potential for oppressing citizenry. US v. Munoz-Florez (page 416)- challenged his convictions and fines on the ground that the statute had not originated in the House. The Court held that 3013 did not violate the origination clause. Any revenue generated by 3013 is incidental to the regulatory purpose of the statute. Requiring Lawmaking By the Most Institutionally Competent Branch of Governmentthe structures of lawmaking put in place by constitutions, statutes, and legislative rules are designed to ensure that legislatures discharge their responsibilities as the most democratically accountable governance entities in a rational and transparent way. Hampton v. Mow Sun Wong (page 421)- Civil service commission rule; Civil service was promulgating a regulation that raised constitutional questions; Justifications given were not related to issues the civil service should be worried about not within jurisdiction and constitutional authority; Boils down to accountability- no one in the commission is elected; Congress or the president has to make this decision Immediately after the decision the President issued an executive order to keep the practice of barring noncitizens from employment with the federal civil service. The executive order was drafted and given to the President by the Civil Service Commission. THE DEVELOPMENT OF THE MODERN CONGRESSIONAL BUDGET PROCESS (447) The Constitution places the power of the purse in Congress domain, specifying in Article I, 9, cl. 7 that No money shall be drawn from the Treasury, but in consequence of appropriations made by law. Placed this power in the most politically accountable branch. Congress sets not only the amount of money appropriated to executive branch agencies or other project, but it also directs how that total is to be spent by enacting instructions in appropriations bills.

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Discretionary Spending- Congress exercises its discretion every year in deciding whether to continue the funding. About 1/3 of all federal spending is categorized as discretionary appropriations, which includes most defense spending and spending on many domestic programs like education, government operations, and law enforcement. Subject to annual appropriations. Mandatory/Direct Spending- Direct spending is spending pursuant to binding legal obligations to pay, including, for example, interest on the national debt. The largest component of direct spending goes to entitlement programs, like Social Security, Medicare and Medicaid, veterans pensions, and food stamps. Not subject to annual appropriations but is instead determined by legislation that establishes the rules for eligibility and the formulas for payment. Tax Subsidy- If a lawmaker wants to encourage home ownership, or something similar, she has several options: create an annual appropriations program, create an entitlement program, or provide all tax payers a deduction for the interest they pay. These are considered tax expenditures because they reflect revenue that is lost as a provision of federal law. Federal Budget Deficit- When government outlays exceed receipts, the difference is a deficit. If receipts exceed outlays, the result is a surplus. Both of these measure cash flow figures. Budget experts simply total everything that the government spends in 12 months and everything that it takes in in 12 months and compare the two numbers. The figures do not take into account the need to fund obligations in the future. Federal Debt- when the government runs a deficit, it has to find money to pay its bills. The government finances a deficit largely by borrowing money. Congress controls the amount of debt that the government can issue by enacting a debt ceiling. The federal debt is the accumulation of annual deficits. Executive Branch Budgeting- The Budget and Accounting Act of 1921, which with some amendments, continues to govern the presidential budgeting process. The Act requires that the President develop and publish an annual budget. The Executive Budget is merely a recommendation to congress; pursuant to constitutional provisions, Congress has to enact its provisions before it becomes effective and congress has the power to change the Presidents proposal however it pleases. The presidential budget sets the agenda for congressional deliberation and decisionmaking. The office of management and budget works to coordinate executive branch activities and to ensure that all agents of the president work to further his agenda, rather than their own objectives.

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The 1974 Budget Act- the enactment of the Congressional Budget and Impoundment Control Act of 1974 was meant to create coordination of the dozens of committees and subcommittees involved in spending or raising money. In absence of coordination, most lawmakers would not resist the temptation to spend. The Budget act included provisions to formalized the impoundment process and to clarify that Congress retains a firm grasp on the power of the purse. Under its provisions, the President can propose to withhold spending (a rescission) or to delay spending (a deferral), although a deferral cannot serve policy reasons but can be used only to reflect efficiencies. Before rescission can go into effect, both houses must approve it; a deferral can take effect without congressional action, but it cannot last longer than the end of the fiscal year. By requiring congressional approval for rescissions, the Act makes impoundments much less likely. Also created the Congressional Budget Office. The CBO helps congress formulate a budget plan, helps it stay within the plan, helps it assess the impact of federal mandates, and helps it consider issues related to the budget and to economic policies. CBO director is appointed by the Speaker of the House. Time consideration of the bill on the senate floor is strictly limited; when 20 hours expire the senate must vote on all pending amendments and then on the underlying bill. In other words, the reconciliation bill cannot be debated to death by the senate by filibuster. Amendments cannot include things that are not budget related (Byrd Rule) and encourages logrolling. Budget Committees- Primary responsibility is drafting and managing the concurrent budget resolution. Stopgap continuing resolutions- Provide that funding for agencies and federal projects will continue until final appropriations bills are enacted. Used when Congress misses a deadline to pass all appropriations bills. Concurrent Budget Resolution- before any spending bills or revenue legislation can be considered, Congress must pass a concurrent budget resolution setting out the macrobudgetary goals for the next five fiscal years. Sets spending limits for discretionary programs, determines the amount of revenue that should be raised in taxes every year, reveals congressional priorities by dividing resources among various budget functions and provides the debt limit. Gramm-Rudman-Hollings- designed to force Congress to meet a series of deficit targets through draconian spending cuts so that the deficit would be eliminated in five years. If congress did not adopt legislation implementing policy changes sufficient to meet deficit targets, then the Act required automatic and uniform reductions in government programs. This pro rata reduction in spending is a kind of impoundment called a sequester. In other

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words, the GRH acted as a precommitment device, binding congress in the future to reduce the federal deficit, either by rearranging priorities, trimming and eliminating some federal programs, and increasing government revenues; or by deploying an automatic process of sequester that would require deep and uniform cuts from all federal discretionary programs. Entitlement spending was exempted. Budget Enforcement Act of 1990 (page 464)- Lawmakers set macrobudgetary spending or revenue goals for packages and make tradeoffs among the programs within the budget packages. The budget is split into three arenas: (1) discretionary spending programs that receive periodic, usually annual, appropriations; (2) direct spending programs and revenue provisions that typically remain in effect until repealed; and (3) Social Security. Rules Affecting the Discretionary Spending PackageThe Package of Entitlements and Revenue Provisions- PAYGO- direct spending and revenue legislation that increases the deficit in any fiscal year must be offset by legislation reducing spending or increasing revenues so that the net deficit is not increased (expired in 2002). Paygo was adopted as part of internal rules in 2007.

LEGISPRUDENCE AND STATUTORY DOCTRINE: VERTICAL VERSUS HORIZONTAL COHERENCE IN STATUTORY LAW Vertical Coherence- Traditional American Law emphasized vertical coherence in statutory interpretation. That is, the statutory interpreter demonstrates that her interpretation is coherent with authoritative sources situated in the past: original intent of the acting legislature, previous administrative or judicial precedents interpreting the statute, and traditional customary norms. Important to Formalism. Horizontal Coherence- Legal realists suggested that statutory interpretation depends more on consistency with the rest of the law today. The statutory interpreter demonstrates that her interpretation is coherent with the authorities or norms located in the present: the statutes contemporary purposes, other statutes now in effect and their statutory policies, and current values, perhaps even the judges personal values. Legal Process Resolution- The formalists were right that law should be predictable and the citizenry ought to be able to rely on it, but the realists were right that the public interest could override private reliance on traditional legal rules. Stare Decisis and Statutory Precedents (page 631)

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Under common law formalist theory, the role of courts is to declare the law and not to change it. The doctrine of stare decisis requires that courts treat prior decisions as presumptively correct. Flood v. Kuhn (page 632)- Challenged under the Sherman Act. Federal baseball
club precedent baseball not subject to the Sherman Act. Congress committee report on reserve clause: baseball needs a reserve clause. Several chances to revisit and the court continued to reaffirm: Toolson- congress acquiesced to this; major league baseball relied on it; would apply retroactively to contracts already signed; congress rather than the court is the appropriate institution to change. Court decisions upholding antitrust applies to other sports activity. Court asks congress to change. Blackmun says the court realizes baseball is a business and the case law is wrong, but it is the law. Congress has been asked repeatedly to change and never has. Burger concurrence: Shouldnt read too much into congressional silence or inaction, but it is the least undesirable course at this point. Douglas Dissent: Congress has considered legislation that would exempt all sports but refused. Marshall dissent: Make the change prospective only (extraordinary compromise because judiciary does not make law but interprets) When is it appropriate to overrule statutory precedent?- The Supreme Court will not routinely overrule a prior interpretation of a statute. Many state courts are even more emphatic that statutory precedents should rarely, or never, be overruled since the legislature can change the statute. Clearly Erroneous Precedent- Statutory decisions should only be overruled if it appears beyond doubt from the legislative history of the statute that the court misapprehended the meaning of the provision. Congressional Nonaquiescence- When congress enacts another statute indicating the opposite. The Requirements of a Dynamic Statutory Scheme- The law recognizes the necessity of change, lest rules simply persist from blind imitation of the past. In Payne v. Tennessee ( a constitutional criminal procedure case) the court held that it was not bounds by precedents that are unworkable and badly reasoned and that stare decisis is most constraining in cases involving property and contract rights, where reliance interests are involved, but the opposite is true in cases involving procedural and evidentiary rules protecting constitutional and civil rights. Patterson v. McLean Credit Union (page 646)- What are three grounds that

could overcome a prior precedent? (1) There could be intervening developments in the law. There could be a long time between Court decisions. There could be intervening statutes or judicial decisions. (2) Upholding a precedent could create incoherence and inconsistency in the law. (3) A precedent might become inconsistent with the larger societys sense of justice. 18

Degrees of Stare Decisis (1)- Overruling Common Law- apply normal stare decisis. Presumption of correctness. (2)- Overruling statutory interpretation precedents- exceptional adherence to stare decisis. Super strong presumption of correctness. Congress is a more legitimate body to change. Prospective Judicial Decisions (page 649) The technique of prospective overruling enables courts to solve the retroactive hardship dilemma by changing bad law without upsetting the reasonable expectations of those who relied on it. James v. US (page 650)- Taxes james didnt pay on money. Was james willfully evading paying tax on money embezzled? Tension between horizontal coherence and vertical coherence. Overturned conviction. Would be hard to demonstrate heightened intent in light of Wilcox. If relying on Supreme Court precedent then willful intent cant be shown. Issue of notice and reliance. Overruled Wilcox but only applied it prospectively given the reliance interest on it. Legal realist holding. Prospective Overrulings in Statutory Cases- James seemed to support that sometimes overrulings in statutory cases can be prospective, but the prospective ruling received little support, even from those on the court. Prospective Overrulings in Constitutional Criminal Cases- Linkletter v. Walker which declined to apply retroactively the Courts earlier extension of the 4th amendment exclusionary rule to the states. The decision was based on the purpose of the new constitutional rule, the reliance placed on the previous state of the law, and the practical effects on the administration of justice if the new rule were applied retroactively. Prospective overrulings in constitutional civil cases- In Chevron Oil v. Huson, the supreme court articulated three factors to determine whether its overruling of prior precedents should only apply prospectively: (1) the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) it has to be stressed that we must weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further retard its operation; (3) weigh the inequity imposed by retroactive application, where a decision of this court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding injustice or hardship by a holding of nonretroactivity. Alternatives to Pure Retroactivity or Pure Prospectivity-

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Prospective application, except as to the prevailing party. New rule applies to the parties of the case, but not to any other pending case. Retroactively limited to prevailing party and pending cases. Applies to all cases that have not reached final judgment. Delayed Prospectivity- postponing the effect of the decision. James B. Beam Distilling v. Georgia (Page 655)- State tax that exempted locally made liquor but not out of state. Dormant commerce . Courts mean well when they apply prospectively but it allows them to act too much like legislators and it violates stare decisis, and courts shouldnt be picking who gets the benefit of the new rule. White says purely prospective should follow the huron test. Scalia et al. say a prospective decision is unconstitutional under Article II. Harper v. Virginia Dept of Taxation (page 656)- State tax- taxed only retirement benefits of federal employees. 89 supreme court rules a similar tax in Davis unconstitutional. Applied chevron oil and held ok not to apply the decision to taxes imposed before davis. Thomas rejected this argument: Relied on Beam- Beam governs: once a court announces a new rule and applies it to a party then later courts must apply it to all cases and retroactively. Any litigants whose case is not final on direct review it is binding in that case. Scalia writes separately to emphasize that prospective decisions looks too much like what the legislature does. OConnor dissentalready have a framework for deciding these cases. We are ignoring chevron and ignoring stare decisis. Constitutional Tolerance for Retroactive Statutes in the Regulatory State (page 669) The most fundamental reason why retroactive legislation is suspect stems from the principle that a person should be able to plan his conduct with reasonable certainty of the legal consequences. To the extent that statutory law should serve as a guide to individual conduct, this purpose is thwarted by retroactive enactments. Factors Supporting RetroactivityEmergency Situation- unforeseen urgent crisis situations often call forth decisive legislative responses. Wider constitutional latitude is given when the situation calls for strong measures. Strong public interest requiring retroactivity- if retroactivity is necessary to the success of a statutory regime aimed at some important social policy, it will typically be accepted. Compensating miners who have black lung disease. Limited abrogation of the preenactment right- the more limited the legislative alteration of the legal incidents of a claim arising from a preenactment transaction, the stronger the case for the validity of retroactive legislation.

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Reasonable expectation of regulation- fairness concerns are greatly attenuated when the persons retroactively deprived of contractual or property rights had no reasonable expectation that they would be able to keep them. In other words, retroactivity can be justified to prevent windfalls. Lack of Process corruption- the court may look askance at retroactive legislation when there is self-dealing. For example, when a state tries to void or substantially alter its own contractual obligations. Revival of constitutional limits on retroactivity- The supreme court in Eastern Enterprises v. Apfel held that a statute regulating economic relations was impermissibly retroactive, but could not agree on why. Landgraf v. USI Film Products (page 672)- Sexually harassed by employee. Filed a hostile work environment claim in EEOC- lost. Filed claim in federal court-lost-appealed. New provision-civil rights act of 1991: 102Introduces jury trial, Provides compensatory and punitive damages, Before this act could only claim equitable relief like backpay. New provisions would have given P a chance to recover some damages where before she could not recover any damages because she wasnt fired. Case was pending when the act was passed (timing issuedoes she get the benefit). Ps argument: 402(a) first five words mean that congress intended that in some cases that it should be applied retroactively, 402(b), 109(c), Negative inference other sections of the act apply to pending cases unless congress says they dont. Canons of statutory construction: If a court has a choice between two interpretations and if one renders provisions redundant or superfluous then congress should choose the other interpretation. The expression of one thing excludes other things not mentioned. Court considers legislative history for 1990 and 1991 acts: 1990 included section 15 applied certain sections of the act retroactively. Applied new provisions for damages to retroactive cases expressly. Bill did not pass- and did not pass in part because of the retroactive provisions. All of this suggests that congress knows how to make an act provisions retroactive when it wants to. 1991: No similar provision in the bill that became law. Was something similar, but congress took it out. Replaced section 15 with 402(a), 402(b), and 109(c). Would mean that congress did not want retroactive or could mean congress couldnt decide so left it to courts. Interpretive memo saying shouldnt apply retro. Another says up to courts. What standard? Bowen v. Bradley line of cases : Bowen rule- statutes should apply prospectively only; statute must clearly call for retroactive effect. Congress has to be clear; Bradley- Courts should decide the case with the law in effect at the time it renders the decision even if the conduct occurred before its enactment. Exceptions-manifest injustice, or congress provided otherwise. Is this case primary or secondary conduct (ancillary procedural matters): 102(c) is clearly procedural, but depends on (a) and (b) because only get a jury trial if asking for punitive or compensatory damages, 102(a)- discrimination already outlawed this just offers more damages. (should not apply to past conduct), 102(b)

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sanction so worried about constitutional ex post facto. Retroactivity- requires some new legal consequences to be retroactive not new conduct. New damages create new legal consequences for the conduct. Even though harassment was already illegal- it now gives rise to new damages. DissentBlackmun-says presumption against retroactive should not apply to conduct that was already illegal. Scalia concurrence- issue with the procedural vs substantive distinction the court makes. Rivers v. Roadway Express, Inc. (page 685)- 101 of 1991 overturned Patterson decision. Prohibited discrimination in terminating contracts as well as making them. Section 101 focuses on the underlying conduct while section 102 was just creating damages for conduct already illegal. P says section 101 is a restorative statute trying to restore the law before Patterson. Court says should not apply retro given the presumption against and the requirement that congress be explicit

Theories of Statutory Interpretation(page 689) I. Three different norms for interpretation: A. the rule of law idea that statutory meaning should be relatively predictable and accessible to the citizenry and should be neutrally applied to everyone B. the democratic legitimacy idea that interpreters ought to defer to decisions made by the popularly elected legislators who enact statutes (as opposed to lifetenured judges) C. the pragmatic idea that interpreters have an obligation to contribute productively to the statutory scheme and, perhaps ultimately, to the common good (i.e., justice) Eclectic Approach- 1798-1938- Early courts employed a grab bag variety of approaches. Courts would declare their fidelity to legislative intent, but would consider as evidence of such intent the statutes text, canons of statutory construction, the common law, the circumstances of enactment, principles of equity, and so forth. A. Holy Trinity Church (page 695) the immigration act says that you cant bring foreigners to the U.S. to labor. The ct says the D, a minister, is technically covered by the words of this statute but a thing may be within the letter of the statute and yet not w/in the statute, b/c not within its spirit, nor w/in the intention of its makers. This case used an eclectic approach. Here, the spirit trumped plain meaning. 1. Brewers ecletic approach; he looked to the: a. title, evil to be redressed,chosen remedy, leg history, spirit b. two main arguments a. Mischief Rule (purpose) i. Protect labor ii. Discourage poor from immigrating

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b. Spirit (purpose) trumps plain meaning/avoid absurd result which was a Christian nation would never pass a statute meant to prohibit ministers 2. Canons supporting/opposing the majority a. supporting: avoid constitutional questions, interpret criminal statutes narrowly, avoid absurd results b. opposing: exclusio unius [why werent ministers included in the exceptions?], noscitur a sociis [unlike actor, other people covered, a minister is a permanent employee] Embracing the Plain MeaningCaminetti v. US (page 703)- Man brought woman to Nevada to become
mistress and concubine . What should a court do when a statute covers the conduct, but evidence shows congress did not intend to cover. Textualism- The majority found that the conduct in question was for an immoral purpose and held that caminetti violated the statute.

II. Intentionalism pg 14-15 notes identifying legislative intent is the goal of statutory interpretation A. Specific Intenthow the legislators actually decided a particular issue of statutory scope or application 1. Roscoe Pound in Spurious Interpretation. Pound says that the point of genuine interpretation is to discover the rule which the lawmaker intended to establish; to discover the intention which the lawmaker made the rule. On the other hand, spurious interpretation is to make, unmake, or remake, and not merely to discover. NOTE he assumes that the words have no plain meaning, but must be interpreted to get any meaning. 2. BUT, Max Radin. That the intention of the legislature is UNDISCOVERABLE in any real sense is almost an immediate inference from a statement of the proposition. What can we know of the intent of a group of hundreds? Legislatures exist to pass statutes, not to impose their will on the citizenry. 3. Critics of Holy Trinity and Weber argue that those decisions were contrary to the specific intent of the Congresses that enacted the Alien Contract Law of 1885 and the Civil Rights Act of 1964, respectively. a. Holy Trinityan opponent of the bill derided it for arbitrarily applying to professionals like lawyers, sculptors, etc., and arbitrarily exempting artists and lecturers; a supporter countered that perhaps the bill should be amended, but it never was. This shows the specific legislative intent of Congress that importing ANY alien was illegal (unless there was a specific exemption). b. WeberRehnquist, in his dissent, cited speeches from supporters of the bill assuring opponents that that there could be no hiring or

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firing based on race whatsoever (thus barring affirmative action programs) 4. Negative consequences of violating specific intent a. it is undemocratic and lawless for cts not to follow the legislatures intent b. If this happened often, Congress might be reluctant to cut the deals needed to pass needed legislation, b/c the deals would not be reliably enforced c. Disrespect for the rule of law might allow people to believe that they can get away w/ shirking their legal responsibilities. 5. Problems w/ specific intent a. Problem of Attribution. Whose intent do we use? Is the proponent who gave a speech in Weber a reliable indicator of the intent of both houses of Congress and the Pres? b. Problem of Aggregation did majority actually formulate the same intent across both houses? Pg 216 supp. c. Thus, committee reports are used, which might be manipulated. d. Positive political theorists say that we should look towards the intent of pivotal legislators, but it may be hard to figure out who these are. e. There might be different interpretations of specific intent; in Holy Trinity, the opponent promised to make exceptions to the law, but did not actually get around to doing that. f. In Weber, the ct explicitly allows cts to make affirmative action plans; it is unclear whether the legislators actually considered affirmative action for people like Weber. g. maybe a whole legislature has no intent h. a legislature is there to pass laws, not impose its will on the people B. Imaginative Reconstructionput yourself in the position of the legislature surroundings and what mischief did they want to cure and ask what was his intention with respect to the particular controversy. Pg 218 supp. 1. Weber dissentthe sponsors (eastern liberals) and the pivotal voters (Midwest conservatives) agreed to prohibit racial quotas to enact the Civil Rights Act over southern opposition, and their consensus included at least an implicit concession to the conservatives that quotas would neither be allowed or required. 2. Concerns a. Whose intent should be reconstructed? The pivotal voter? Is this the 51 vote for passage or the 67th vote to stop a veto? b. maybe more imaginative than Reconstructive c. Framing the question can bias the answer. i. Rehnquist would ask the Midwest conservatives in Weber if you want to allow voluntary quotas in hiring? {Theyd say No.}

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ii. Brennan would ask Would you allow voluntary preferences if it could be shown that after ten years an employer had less than 2% blacks in its craft force, and that the disparity was likely the result of the continuing effects of past discrimination? {Theyd say Yes} iii. Alternatively, maybe the conservatives would have asked do you think that businesses ought to have flexibility to comply with the law in various practical ways, including hiring blacks in order to avoid possible liability? {Theyd say Yes} d. Still have Problems of Aggregation and Attribution. C. General Intent, or Purposewhat the aim of the legislation was (the majority opinion in Weber, and also Holy Trinity; Blackmun dissent in Bock Laundry). This is the Legal Process Theory that the Supreme Court followed for decades. 1. Purposivism attempts to achieve the democratic legitimacy of other intentionalist theories while rendering statutory interpretation adaptable to new circumstances. 2. However, what is the purpose of a complex bill? a. The majority in Weber would say the goal was workforce integration, while the dissent would say that that the central purpose was to make employment decisions colorblind (thus, equality of opportunity, not equality of result). b. but even if you accept one of these purposes, you could argue either way in Weber (one could argue that there is no equality of opportunity if there are structural impediments preventing minorities from working; or, even if workforce integration in the goal maybe affirmative action is not a good way to get it, b/c companies will avoid black areas where they are compelled to have such a program). 3. Under this theory, it is okay to correct the legislatures mistakes Implications of and Debates Within Legal Process Theory (page 721) Legal Process=Purposivism- There is 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 the 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 courts 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. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear to be on superficial examination. Correcting Legislative Mistakes: Shine v. Shine (page 723) [unless Congress is clear, family obligations should not be dischargeable]. The couple is married, they separate in

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73, a ct orders support of $250/month for the wife, in 75 they divorce and the ct does not mention support. The guy goes to bankruptcy ct; can his obligation to his wife be discharged? The ct says yes. 1. in 1978 they amended the statute, and deleted (accidentally?) the section that exempted such property settlements from bankruptcy ct. In 84 they corrected the mistake, the ct cites this to show that it was a mistake, although the amendment technically is not binding b/c it happened after this case started. 2. long standing policy that such a debt could not be discharged 3. here, the purposive argument wins, but there are ways to make this look more mainstream (EX: the ct clearly has the rt to fix statutory omissions as drafting mistakes) 4. Typo issue on * 705 go back to 703 or under a property settlement these words are in the original but not when reported out! So you could have argued that this was a mistake and as a typo error it shouldnt be enforced. There is no proof that it is butAs a judge you can say I dont have to enforce this and its totally sensible that this is what happened. This is a narrower theory and its much more likely a court would be willing to grab this ball and run with it rather than the one that the court used in Shine. BUT, Locke (page 728) difficult textual problem in Fs mind Holders of certain mining permits must file certain documents prior to Dec. 31; the guy did it on Dec. 31 and his land was taken away, even though officials had told him it would be okay. They ct ruled that there is a special status for deadlines, and that the ct did not have the authority to change them. Marshall said that there is a difference between filling a gap left by Congresss silence and rewriting rules that Congress specifically enacted. In the dissent, Brennan/Stevens said that this was a drafting error, and that there was no purpose to have the date on Dec 30 instead of Dec 31. Purpose and Social Change Jacob (page 732) 2 Couples: a cohabitating unmarried hetro couple, and a cohabitating lesbian couple, both trying to adopt. For a hetro couple: law says that if the man adopts, the woman will lose her parental rights. lesbians: the text is gendered. the ct say that gay adoptions are allowed. there is no purpose that is served by these rules, so the ct chooses the interpretation which is more just. purpose of adoption legislation is vague: put kids in good homes. a. Concept vs. Conception Enacting legislature had no conception of lesbians adopting so this isnt helpful. Current society deeply divided on issue so you cant use it either to argue current conception works b. No scriviners error or legislative intent to support lesbians either. c. The court must find a conflict between different sources of law so it can resolve them in the way it wants! Otherwise the case would be a naked power grab. d. So the court argues: i. long standing policy that family law is designed to support the best interest of the child (pro lesbian adoption)

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ii. does the text support this policy no use cannon to trump: iii. avoid constitutional problem cannon also use of the cannon allows the court to give statute language a reading it will not bear. iv. therefore, second parent adoptions are ok. Li (page 737) great concept vs. conception case This case changed the law from contributory to comparative negligence. The CA legislature codified the common law in 1872, which at the time had a contributory negl rule. Can the cts now change by common law techniques what is now a statute? The ct says yes; language is ambiguous and open to both interpretations, that conception of the codification should not stifle the evolution of the law. pg 715 1. evolutive or dynamic statutory interpretation Coherence with Public Norms Public Citizen v. US Dept of Justice (page 743)Pontiac Trans Am (page 744) Here the ct declining to apply a forfeiture law against a car that was driven by a son, and used to commit a crime. Even though the statute is pretty clear so the judge flees to a avoiding constitutional issues cannon - The ct said that such seizure would be unconstitutional, and thus the purpose of Congress must have been for the law not to apply. Note: 1. cannot use evolutive interpretation because society hasnt changed; 2. cant use plain meaning because the statutory text is pretty clear; 3. purpose is iffy because its goal would be to increase supervision but the law is so harsh due to strict liability.

(purposive approach/legal process theory) A. A ct should do the following in interpreting a statute: 1. decide what purpose should be attributed to the statute, and then 2. interpret the words of the statute so as to carry out the purpose as best as possible, but: a. dont give the words either a meaning they will not bear, or b. a meaning which would violate any established policy of clear statement. 3. Approach: a. text b. purpose c. policy d. leg intent 4. STEPS: a. Plausible meaning from text; only a meaning that the words can bear, and must be in step w/ public policy b. make a textual conclusion c. look to the leg history for a little extra help, but dont let it create meaning B. The meaning the words will bear: okay to narrow what the legislators did, but not to expand. EX: finding a clever tax loophole is okay.

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C. Policies of clear statement: occasionally a clear statement will defeat the actual, conscious intentions of particular legislators. 1. words that mark the boundary between criminal and non-criminal conduct should speak w/ more than ordinary clearness. 2. the ct cannot understand the legislature from departing from a generally prevailing policy or principle unless it does so clearly. D. Purposethe cts should assume that the legislature is made up of reasonable persons acting reasonably. Critique of Legal Process Theory 1. it is unrealistic to think that a legislature has a discernible purpose when it passes a bill. 2. purpose can be so indeterminant as in Weber, so picking the purpose by a judge can lead to judicial activism. 3. Isnt it more important for the judge to have a solid understanding of the real world consequences of different interpretations, as opposed to trying to tease out the legislatures purpose from a statute. 4. Formalism (textualism) is better a. it is more consistent w/ the structure of the Constitution, which creates formal barriers to lawmaking that are disregarded when cts make new law. b. applying plain meaning may be more within judicial competence than making policy or finding out what the purpose of a bill is. c. the ordinary meaning of statutory language is the common understanding of what the rule of law is d. Policy is better left to the legislature Revival of the Plain Meaning Rule: TVA v. Hill (page 752)- the ct ruled that the plain meaning (supports intent of Congress) of the Endangered Species Act mandated the halting of the construction of a $100 million dam to save an endangered snail. Congress immediately passed an exemption for this dam. [This DOES look at committee reports, though, as does Griffin.] Griffin (page 755) Here, a ship delayed paying approx. $400 wages to a seaman; when he sues later, he demands the two days wages for every day the wages were late, as the statute requires. The ct agrees, saying that this is the plain meaning of the statute, and that only Congress can change it. here there is no abusurd result and legislative history doesnt really help either side too much. Rehnquist majority legislative history does show a pattern of continual decrease in judicial discretion on awarding damages so that supports his plain meaning argument. Dissent the outcome of the case is absurd and we need a way to avoid the outcome. Amendments might have taken out the 10 day limits and what not but they didnt take out judicial discretion. Use Dog Didnt Bark shows how the statute can have two differing meanings depending on how you look at it one that represents an unremarkable change and one that is drastic and dramatic. Unremarkable removal of 10 day limit, but judge gets to fix amount of damages; crazy result no judicial discretion. The fact that nobody in congress got upset about the issue means its more likely the first unremarkable result.

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III. Textualismthe actual text is either the best evidence of legislative intent or the only authoritative basis for interpretation. A. The soft plain meaning rulethe text is the best (but not necessarily sole) evidence of legislative intent; the text creates a strong presumption of meaning that can be overcome by legislative history [or absurd result]. Goal of the Inquiry is still intentionalism with text being the best evidence. Lord Blackburns golden rulefollow the plain meaning of a statue unless there is an inconsistency or an absurdity. 1. Justifications a. Purposive absurd results are excludable b/c all law is supposed to be functional. Absurd result just dont make sense because you never get there. b. Intentionalist one shouldnt attribute an intent to create an absurd result to Congress c. Scalia its been around for a long time and its well grounded so its a well accepted cannon. He uses it in bock laundry. And it increases predictability to use it. small number of rules will allow use to do what needs to be done but in a predicable manner. 2. Benefits a. Descriptively, the plain meaning rule will solve most statutory questions. b. Prescripitvely, relying on plain meaning is logical b/c it is the most likely reading that the average citizen will have and thus it supports the rule of law; it is also probably what the legislature meant, and it is likely to provide an acceptable resolution to controversy. 3. Disadvantage a. it is unlikely to be helpful in the hard cases like Weber and Holy Trinity. b. Plain meaning is a tacit admission that legislative intent is the goal, b/c anybody who shouts drop everything and come here does not want you to drop a baby and go running over. A. Plain meaning is the presumptive answer, but it can be overridden by strong contrary legislative intent. Thus, Rehnquist in Weber consults the legislative history to show how it supports his plain meaning argument. The simple adherence to the statutory text may be incompatible w/ the interpreters faithfulness to the lawgiver and to the enterprise of governing a complex society. B. An Absurd Result can be used to avoid plain meaning also. C. WeberRehnquist interprets the word discriminate to have the plain meaning of differentiate, but many would argue that in Weber it really means an invidious differentiation.

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The New Textualism (page 765) the only object of statutory interpretation is to determine the meaning of the text and the only legitimate sources for this inquiry are textbased or text-linked sources. 1. Sources besides the text may be consulted, such as dictionaries, other provisions of the statute, and how similar provisions in related/borrowed statutes have been interpreted. 2. BenefitsIt may be a. Limits Judicial Discretion the methodology most consistent w/ the rule of law and the separation of judicial and legislative powers and it avoids the corruption of the judiciary, where willful judges substitute their political preferences for those legitimately adopted by the legislature b. Predictability Increases the rule of law requires a set of rules that are predictably applied to everybody. c. Efficiency a lot of time and $ could be saved by abandoning the consultation on legislative history d. it avoids the corrupt use of legislative history which can be used to look over the heads of the crowd and pick out your friends. Judge A. Raymond Randolph Footnote O 771. 3. Disadvantages a. one could argue that if the ct must consider legislative history, as well as the text, canons of construction, and statutory precedent, the ct actually has less judicial freedom. b. In Holy Trinity, the text is not as clear as Scalia says it is. Labor may have meant only bodily exertion, not the brain toiling of a minister (1st definition of a contemporaneous dictionary); service may have meant the occupation of a servant (1st defn. of contemporaneous dictionary). Thus, maybe the minister is not performing labor or service of any kind. c. Canons in Holy Trinity go both ways. i. rule of lenity says to let the D go, b/c the statute is ambiguous. ii. inclusio unius est exclusion alterious suggests that the list of exemptions is complete. d. it may sever the connection between democracy and the rule of law; the law was passed by willful legislators, not a drunken mob. e. law w/out mind f. dictionary shopping can lead to lots of leeway also. 4. Alternativeif you dont like legislative history too much, you could use it only to choose between several possible purposes or to ensure that you didnt miss a plausible purpose Green v. Bock Laundry Machine Co.(page 766)Federal Rule of Evidence 609(a)(1) allowed a witness credibility to be attacked by a prior criminal conviction, but only if the crime was a serious one AND the ct determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant. This is fine in criminal cases, where the D has lots of special protections, but not in civil cases b/c it would be too

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biased against the P. ALL the justices agreed that this was absurd, and the majority rewrote the rule to apply only when a criminal Ds credibility is attacked and to admit prior convictions of other witnesses. [Stevens intentionalist approach, using imaginitve reconstruction.] a. not only was this absurd, but it was probably unconstitutional and a scriveners error. The probability that it was a scriveners error made the judiciarys rewrite much more defensible. b. Blackmun advocates a Hart/Sacks purposivist approach and says the purpose is to prevent predjudice against a party b/c of prior convictions, so you should apply the rule to all parties. He would rather expand the protection of this rule than constrict it. c. Scalia, concurring in the judgment, argued that you should rewrite the statute in a way that does least violence to the text. BUT i. why should a textualist ever rewrite a statute? If it is unconstitutional, then it should be struck down on those grounds. ii. if the text is contaminated, why should we do the least violence to it? iii. this is a vague question, and undermines predictability and certainty. 3. BUT, in Public Citizen, Kennedy in his concurrence warns about overuse of the absurd result canon. Chisom (page 781)The Voting Rights Act covers representatives; is an elected judge a representative for the purposes of this act? Stevens majority opinion says yes b/c it serves the purpose of the statute (to rid the country of racial discrimination in voting). a. Scalias dissent says that the ordinary meaning of the word judge does not include representative. This ordinary meaning (60%-40%) is less strong than a plain meaning (90%-10%). 8. MarshallIn the majority, Easterbrook textualist argues that LSD saturated in paper is a mixture under the relevant statute, and thus the weight of the carrier must be included in deciding what the sentence should be. Argues that PCP is excluded from the statute and since LSD isnt in the list of exclusions it must have been included (used exclusio unias) a. Benefits of this approach: i. textualist approach is consistent w/ rule of law, separation of powers, and the prohibition on delegation to legislative subgroups (committees) in Article 1, Section 7 ii. Cts will enhance democracy and legislative accountability; the legislature should change the law if it doesnt like it c. BUT, 1. if you look at the actual defn. for mixture and substance they arent really very helpful in resolving the issue. 2. sweaty towel that dries 775 we dont call this a mixture so ordinary usage probably wouldnt really see the blotter and LSD as a mixture.

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d. Posner dissent says that a purposivist approach is more here, b/c otherwise the sentence would be too harsh (almost absurd). He says that by applying the literal meaning of Congress that Congress is actually embarrassed, not honored. He is worried that legislation will be deterred b/c the legislature will lose faith in the cts ability to interpret laws fairly. Casey (page 790) issue does 1988 on recovery of attorneys fees include recovery of expert witness fees also. Scalia majority starts with text but its not too helpful so he turns to other statutes that have language about expert fees. S argues they explicitly have language that applies to expert fees and since 1988 doesnt then including it in reasonable attorneys fees would make the other language explicitly regarding expert fees superfulous (cannon avoid redundancy). Stevens dissent purpose of 1988 is defeated if expert fees are not included. Zuni Public School (page 795)- Ambiguity- how to calculate outliers for federal
funding purposes. Impact aid act: Exception allowed states to equalize funding calculations. Calculating the top 95th percentile and the bottom 5th percentile. Breyer: History- looks at legislative history 1st. Language came from the department of education itself and congress simply wanted codified the departments approach which was to calculate on the basis of population not the # of districts. No indication congress meant something else. Purposeremove statistical outliers to get more accurate understanding Text- isnt inconsistent with departments methods. Stevens: Also starts with the legislative history. History is obvious that even if they butchered the statute the history would trump. Scalia- Rely only on the text.

Where is the Court Now? Pragmatic and Critical Theories of Statutory Interpretation (page 830) Pragmatic theoryour intellectual framework is not single-minded, but consists of a web of beliefs, interconnected but reflecting different values. We generally consider several values, and the strength of each in the context at hand, before reaching a decision. Reasoning is more often a cable than a chain.

1. Eskridge/Frickey Funnel

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Most Abstract Inquiry Most Concrete Inquiry

Current Values Evolution of Statute Legislative Purpose Imaginative Reconstruction Specific Legislative Intent Statutory Text

Here, concrete considerations (like text) outweigh more abstract ones (like best answer). a. Holy TrinityBrewer structured his opinion on these lines. While he conceded that the text was for the prosecution, he found that it was outweighed by specific legislative intent, the purpose of the goal to prevent a flood of cheap imported labor, and the nations values of being a Christian Nation. b. Weber (Blackmun concurrence)he conceded that the text and the imaginative reconstruction was on Rehnquists side, but he thought that the integrative purpose of Title VII, the evolution of the statute, and the best answer (in light of the nations historical racism) pointed towards the majority. Critical Theoriesthis is typically deconstructive, but can be reconstructive as well. This shows how particular readings are often ideologically based, instead of objectively based. 1. Desconstuction opens up interpretive possibilities in statutory texts, the opposite agenda of textualist theories. a. WeberWhy should a provision put in to placate white conservatives not be read from the perspective of blacks? Moreover, one can note that Weber would not have even been eligible for the craft program if it had not been set up by affirmative action. b. The common idea that law is a set of rules is false; the perspective of the interpreter often matters more than what the text says, and thus his ideology controls the text. 2. Recontructioncritical theory can suggest positive moves that interpreters can make in the face of pervasive indeterminacy. a. Weberask whether it was discrimination to help blacks, and whether their lack of qualification was the result of previous racebased policies. b. Holy Trinitythis interpretation effectively created an exception for wealthy, upper-class individuals (ministers), and thus squashed political resistance to a xenophophic/racist law. b. BUT i. this undermines the rule of law 33

ii. this undermines the democratic process iii. there is a normative arrogance here D. Ex Ante Economic Approach Critical Race and Feminist Theories and Statutory Interpretation (page 842)- the possible effect of a law or of an interpretation on women or racial minorities. Critical theory would insist that the law take into account these perspectives and cannot be considered neutral and surely not universal if it is not responsive to a variety of perspectives. Review of Theories of Statutory Interpretation(page 842) TEXTUAL AND PRECEDENTIAL CANONS Policy Concerns regarding Textual Canons 1) How accurately do they identify ordinary textual meaning? 2) Does the legislature draft statutes w/ these canons in mind? 3) Should they be given rule-like quality or merely serve as a checklist of potential textual meanings that might otherwise be overlooked? How can cannons be used: 1. basis for strict or liberal construction example rule of lenity means ambiguous criminal statutes should be construed narrowly. This shows how the particular cannon is used to narrow. But some could also be used to expand. 2. tiebreaker do everything first that you usually do in statutory analysis and then if its even at the end, use the cannon to tip the other way. Rule of lenity can be used in this way also. 3. presumption at the beginning example with the rule of lenity prosecution at the onset has burden of proof to overcome in regards to statute. 4. clear statement rule congressional intent must be clear in some respect. One example, if congressional intent on the subject is clear then you lop off the analysis there and the agency must follow (Chevron). Or Indian tribal treaties there is a presumption that congress will not abrogate. If congress wants to abrogate, then congress must make a clear statement that they know what they are doing and they want to do it. Sources for Discerning Plain Meaning Ordinary Meaning Canons (page 849)- typically courts will assume that the legislature uses words in their ordinary sense: What would these words convey to the ordinary or reasonable reader? To figure this out courts may consult dictionaries, but they will often just rely on their own linguistic experience or intuition to decide the most reasonable meaning of the words, given the context in which they are being used and applied. Ordinary meaning should be distinguished from literal meaning or strict construction: the latter connotes a narrow understanding of words used, while the former connotes everyday understanding.

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Nix v. Heddon (page 851)the Sup Ct ruled that it in the common usage of the people tomatoes are a vegetable that was covered by a tariff on vegetables, even though they are technically a fruit. a. BUT, is there any substantive reason for treating tomatoes as vegetables and not fruits? 2. DictionariesCts often use these, as in Nix, as aids to the memory and understanding of the court. a. BUT, which dictionary should be used? Casual v. formal, contemporaneous v. modern 3. Grammar books, surveys of linguistic practice, judges own idea Canons of Word Association (page 852) [based on the idea that we should not interpret broad categories w/out clear indication from the legislature] Noscitur a Sociisa thing shall be known by its associates. - interpret words in light of the surrounding words. When two or more words are grouped together, and ordinarily have a similar meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word. Ejusdem Generis (page 853)of the same kind. specific informs general - Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. Heathman v. Giles (page 853) Specific, specific, general. Canons of Negative Implication(page 854) Expressio Unius (est exclusio alterius)the inclusion (expression) of one thing suggest the exclusion of all others. a. BUT, people dont necessarily allow their lists of prohibited activities to be inclusive (dont hit Tommy doesnt mean you can kick him) Grammar and Punctuation Rules (page 856)Courts presume that the legislature expects its statutes to be read according to the ordinary rules of grammar and punctuation. Punctuation canon has assumed three forms: (1) adhering to the strict English Rule that punctuation forms no part of the statute; (2) allowing punctuation as an aid in statutory construction; (3) looking on punctuation as a less desirable last ditch alternative aid in statutory construction. Rule of the Last Antecedent(page 857)referential and qualifying words refer only to the last antecedent, unless contrary to the statutes punctuation or policy. a. Commonwealth v. Kellythe law prohibited the sale of alcohol between 11 at night and six in the morning; or during the Lords day, except that [an innholder] may supply such liquor to guests. The innholder argued that he could sell alcohol at night as well as on Sunday, but the ct disagreed. The proviso only modified during the Lords day. 3. De Morgans Rule a. NOT (A and B) means Not A or Not B b. NOT (A or B) means Not A and Not B 35

Exceptions to Ordinary Grammar Rules (Man includes Woman, Singular includes Plural). These exceptions are often codified. Avoiding Absurd Results and Scriveners Errors (page 860)cts will read-or even rewritestatutes to avoid absurd results or correct scriveners errors 1. Holy TrinityBrewer thought that a law that would have intended to exclude Christian ministers from this country would have been absurd; Scalia disagrees w/ this application of the cannon. Whole Act Rule (page 862)a provision that might seem ambiguous in isolation is often clarified by the remainder of the scheme. This is a whole act rule [policy reasonsconsistency, rule against surplusage] BUT, the assumption of a single-minded and omniscent legislature is at odds w/ reality, so this rule has less normative justification than the plain meaning cannons. Thus, intentionalism provides little justification for this cannon (but rule of law values do provide justification). Rule of law justification tend to work better for intratextual arguments (within a statute) than intertextual arguments (between statutes in a whole code). Presumption of Statutory Consistency 1. Sweet HomeScalia showed how the use of the word take in other parts of the statute was inconsistent w/ harm. He also cited how the word was used in other statutes and treaties. 2. West Virginia University Hospitals v. Casey the question was whether a P who can recover a reasonable attorneys fee under a statute may recover expert fees. Scalia, WHOLE CODE TEXTUALISM - in the majority, denied recovery b/c fee-shifting provisions in other statutes specifically include expert fees. Rule Against Interpreting a Provision in derogation of other provisions. Sweet Home (page 868) dueling cannons. Stevens Majority - use of nocitur a sociis reads harm out of the statute. So dont use it. Scalia Dissent used this to restrict the word harm all the other words around it have an element of direct contact so harm should be interpreted the same way. b. POLICY i. this probably reflects our intuition about legislators linguistic decisions, b/c people use lists to link similar concepts and to illustrate coherent patterns. ii. broad regulatory duties or deregulatory exemptions should not be inferred w/out a relatively clear indication from the legislature Scalia argues in his dissent that since Congress specifically [7(a)(2)] prohibits federal programs that result in the destruction or adverse modification of habitat, the lack of such a prohibition in 9 on private individuals shows that Congress implicitly allowed such destruction. The Rule Against Surplusagethe presumption that every statutory term adds something to a laws regulatory impact.

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1. Sweet HomeStevens argued that unless harm included indirect as well as direct harms than it would have been merely duplicative in meaning to the other words. a. Scalia disagrees, saying that feeding an animal poison is an example of a harm that was not covered by the other words. 2. BUT, legislators might want to be redundant; this is seen as a DISFAVORED CANON by Frickey (along w/ expresio unius) Statutory Amendment and Evolution 1. Sweet Home--The Interior Dept. had broadly construed the term harm since 1975, and landowner complained. Thus, in 1982 Congress allowed landowner to apply for a waiver if the taking was incidental to a lawful activity. Stevens said that this amendment was a confirmation by Congress of the broad definition by the dept. a. Scalia argues that this amendment was consistent w/ a narrow interpretation of taking, such as a waiver to take protected fish while fishing for legal fish. Statutory Structurethe classic holistic argument is that one interpretation better fits the structure of the statute than another. 1. WeberRehnquist dissent ould have (but didnt) argued that his position was more consistent w/ the overall statute. His broad construction of Title VII to ban discrimination b/c of race is consistent w/ the statute, b/c clear exceptions are made under the law but not for private sector affirmative action for blacks (EX: an exception for employers near Indian reservations to prefer hiring Indians) 2. Sweet HomeScalia vigorously argues that 9 was to prohibit people from taking animals, and that 5 deals with protecting habitat by allowing Congress to buy it. Other Parts of the Statute: Preambles, Titles, Provisos 1. Preambles--Generally, the preamble cannot control the enacting part of the statute in cases where the enacting part is unambiguously clear, but it may be resorted to to help discover discover the intention of the law maker. a. EX: Sutton, ADEA preamble mentioned 43 million people are disabled, so the statute must not cover people w/ glasses b/c there are 80 million such people. 2. Titles--Similarly, the Title can be consulted to resolve uncertainty in the body or correct obvious errors. 3. ProvisosThese are authoritative commands, typically restricting or creating exceptions to primary commands. They should be given legal effect, but they are generally narrowly construed. SUBSTANTIVE CANONS OF STATUTORY INTERPRETATION (page 880) Overview of the Substantive CanonsThese canons are more controversial than the textual ones b/c they are rooted in broader policy or value judgments. They seek to harmonize statutory meaning w/ policies rooted in the common law, other statutes, or the Constitution. They often mandate that a statute be read liberally or strictly, or

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operate as presumptions/default rules, or even amount to clear statement rules that mandate an interpretive conclusion unless clear statutory text dictates that opposite interpretation. Decide which way to use: (1) clear statement, (2) rebuttable presumption, and (3) tie breaker. Liberal v. Strict ConstructionChange v. Continuity in Legal Regimes. The oldest such canons are (1) remedial statutes are to be broadly construed and (2) statutes in derogation of the common law are to be narrowly construed. Both cannons are not used very often anymore because so many statutes change the common law. If youre going to use, come up with a strong policy reason that informs why the cannon is applicable. 1. Broad/Narrow construction often turns on the extent of reliable political support for a change in the status quo and the extent that the judiciary intuits that a shift in societal values has rendered common law principles obsolete. Thus, the tension between continuity/change in law can be resolved only in context, not by global rules. a. Weber (Liberal Construction)In this case, the judges might have understood the Herculean efforts required to pass the Civil Rights Act, and also recognized that the legislative branch was now working in harmony with the judiciarys attempts at integration shown in Brown v. Board of Education. Thus, the ct could throw out the old common law presumption of employer autonomy as no longer consistent w/ contemporary values, and apply the law broadly. b. Medical Malpractice Reform (Strict Construction)The judge might think that a small, powerful group (doctors) passed this law at the expense of the uninformed, diffuse public (Public Choice Theory). Also, the judge might think this legislation an excessively dramatic departure from the common law. Thus, the judge might decide to construe it strictly. c. Smith v. Wade - 1983 allows for recovery for violations of federal civil rights. What damages are included? Its not spelled out in the statute or legislative history. 1983 had a common law background unlike Title VII and other strictly legislative statutes so there are more gaps that its trying to fill from the CL. Baseline would be common law tort damages in 1871 or should we use damages available today. 2. Public Grants are construed strictly. However, if a statute/grant is tailored to a private interest, but it clearly promotes a public value, the Court may refuse to apply a strict construction. 3. Sovereign Immunity Canonstatutes waiving sovereign immunity are read strictly. a. United States v. Nordic VillageScalias majority opinion said that the traditional principle [is that the] Governments consent to be sued must be construed strictly in favor of the sovereign, and no enlargedbeyond what the language requires. This is a very righteous use of the canon.

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Presumption or Clear Statement Rules. These Presumption canons embody presumptions of policies that the legislature intends to promote through its statutes. The difference between at strict/liberal construction canon and a presumption is often more form than substance. Here are the three different Procedural Effects of Canons: 1) TiebreakersThese are the weakest kind of substantive canon. It operates merely as a tiebreaker at the end of the interpretive process. 2) Rebuttable PresumptionsThese effect interpretation at the outset, as opposed to merely at the end of analysis. A court following this approach begins by presuming that the legislature intended a certain meaning (e.g., not to waive sovereign immunity) and places the burden of overcoming this presumption on the other side. 3) Clear statement rulesUnless a statute says X, we will conclude not-X. This is essentially a rule of law, telling judges that they must interpret a statute a certain way unless there is clear statutory text for an alternative meaning. a. EX: Nordic Village. Scalias majority opinion demanded a clear statement to overcome sovereign immunity. Policies Served by Substantive Canons 1. Efficiencythese rules may provide a predictable interpretive regime that embodies gap-filling rules accessible to the legislature and the bar. a. BUT, this justification is undermined when the canons evolve (e.g., when the sovereign immunity canon switched from a presumption to a clear statement canon). b. ALSO, the legislature might not draft its bills carefully enough to consider these canons, and thus the Ct is allowed to impose its own values on the law in the guise of interpretation. 2. Valuesthe values in the canons are normatively attractive, b/c they have been around a long while; they are not just the judges values. Also, they may reflect the basic values in our Constitution, the common law, or longstanding public policies. a. BUT, it is unlikely that Congress/ the public would support the rule of lenity, in order to give criminals a break In some sense, the canons are couter majoritarian. 3. They correct legislative failure and promote legislative deliberation the court might narrow the law in order to avoid throwing it out as unconstitutional. (E.g., the rule of lenity allows the cts to narrow a law so that it comports w/ due process as opposed to throwing it out). Important Substantive Canons Constitutional Avoidance (page 907)Courts should decide constitutional issues only when necessary. Brandeis wrote that the Court would decide a constitutional question only if there was no other way to decide the case. 1. Pros a. The legislature is free to return to the issue.

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b. The legislature might more carefully consider the constitutional implications of the bill upon reconsideration. c. This narrowing interpretation puts up legislative vetogates for those who might try to trammel Constitutional values. 2. Cons a. When the canon is invoked, the best interpretation is jettisoned in favor of any alternative that is fairly possible; this might allow willful judges to give a statute an implausible meaning. b. You must actually do some preliminary determination of whether the statute is constitutional in order to apply this canon. c. The ct might do a slipshod job of interpreting the Constitutional issues b/c it is supposed to be avoiding them. d. Posnersome constitutional questions will be avoided even though there is no constitutional problem. e. This will result in suboptimal interpretations. US v. Witkovich (page 907)- Immigration and deportation statute . Makes it a crime for deportation immigrants who have failed to deport after 6 months for refusing to answer questions. Do we read the language literally giving attorney general free rain or do the questions have to be relevant to deportation. Constitutional question- freedom of association. Not acting unconstitutionally but saying you are not acting within the bounds of the statute. Presume that statutes are constitutional. NLRB v. Catholic Bishops of Chicago (page 911)[Are teachers at a parochial school employees under the NLRA] NLRB argued plain meaning and exclusio unias because none of the exceptions listed in the statute included parochial schools. Majority formulation of cannon first, are there serious constitutional questions. Secondly, if there are, then is there a affirmative intention of congress clearly expressed that the problematic formulation of the statute be given. (so you need magic words by congresscant use imaginative reconstruction. In this case there were serious issues (unexplored), so the court looked for congressional intent. None in text itself so then they went to legislative history and other statutes. Since these didnt clearly show that religious was supposed to be included. So Majority said avoid the question and dont include it. This conceptualization of the cannon is actually determinative in this case because from the briefs Burger knows there is no leg. history to support the statute and the text of the NLRB has a good argument. So by formulating the cannon in this way, he reaches the outcome he wants. Brennan Dissent formulates cannon as first, is there a serious issue of constitutionality, if so, then avoid it if there is a construction of a statute is fairly possible by which the question may be avoided. With this formulation, you have to do the hard work first on the constitutional issue to make sure the question is serious. If it is, then you do the funnel to see if there is an alternative plausible reading to save the statute. 4. Kent v. Dulles (1950)Congress had given almost limitless power to mark somebody as a subversive and reject their passport. The Sup Ct said

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that b/c of the serious Constitutional questions involved, the Ct would assume that the Congress did not intend to assign so much power to the State Department. Thus, the inertia falls on Congress to make explicit its intention to delegate so much power to the State Dept.; b/c of vetogates, it never does. The Federalism Canons (page 922) Liability of States--Congress may abrogate the States constitutionality secured immunity from suit in federal ct only by making its intention unmistakably clear in the language of the statute. Core State Functions pg 49-50 notes Congress must express itself clearly if it wishes to impose regulations on states regarding their core state functions. Gregory v. Ashcroft (page 923)[super strong clear statement rule] Can a state require its judges to retire at age seventy? The question is whether they are covered by the Age Discrimination in Employment Act. It is ambiguous whether judges were appointees on the policymaking level exempted by the act. The Court says yet, and that any federal law that intrudes on state governmental functions would be subjected to this canon. This is a very broad use, and another part of the opinion has a better, more limiting use that it applies only to decisions of the most fundamental sort for a sovereign entity. i. BUT, in BFP v. Resolution Trust Corp, Scalias majority opinion cites Gregory in support of the position that a clear statement was needed in order for federal law to trump state law concerning private rights (not just core state functions). b. 4 formulations of this cannon i. If Congress intends to alter the usual Const balance, then the intent to do so must be unmistakably clear in the language of the statute ii. If state governmental functions are intruded on, the intent to do so must be unambiguous. iii. If a law intrudes on traditional state authority, then there is a presumption against finding it constitutional iv. If it is one of the most fundamental decisions of a sovereign, then it must be plain to anyone reading the act that it counts judges. c. AtascaderoYou can violate state tort immunity only w/ super strong statement Three Characteristics of the Federalism Canons a. Gregory shows that canonical evolution can amount to a bait and switch; Congress might have legislated under one legislative scheme, and then realize that it has to pass new legislation to affect the same result b/c the of canonical evolution.

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b. Federalism canons are driven in large part by the Justices own values that Congress can intrude upon Congress only if it deliberates carefully and is clear about it. c. The evolution of a set of canons can have a gravitational pull, altering other canons that come in contact with it. The Rule of Lenity(page 884)ambiguities in criminal statutes should be construed to the benefit of the defendant. Criminals are less likely to benefit from this canon when their crimes are malum prohibitum as opposed to when they are malum in se. However, this canon can be unpredictable. Today, it is most often used as a tiebreaker. Statutes try to abolish this, but judges often say it is a due process issue. 1. Purpose a. Provides cts a way to limit prosecutorial discretion by thwarting arbitrary or discriminatory applications of a criminal statute. b. It promotes fair notice to the citizenry over what is criminal c. Libertarian bias of freedom v. regulation d. Seperation of powersthe legislature alone has the authority to define crimes, so the cts should not define them beyond the clear meaning given by the legislature. 2. Cons a. Why give the criminals a break? b. unpredictable and erratic in application Conclusions About the Canons A. Application of canons must depend on context. B. Be wary for Judges that hide their normative positions in the rule-like faade of the cannons. C. Textualists (Scalia) worry that these canons are trouble b/c they increase the unpredictability of judicial decisions. 1. BUT, Scalia also said that the goal of interpretation should be: a. First, find ordinary meaning b. Then, use the established canons to ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. c. If not, apply the ordinary meaning. D. Canon Concerns 1. Do the canons contribute to greater legal certainty? 2. If so, does the value of certainty justify using the canons even when textual integrity is sacrificed. 3. If not, do the canons contribute some other, quasi-constitutional value worth preserving in our system? (EX: rule of lenity w/ due process; federalism canons) 4. Can they be defended as part of a judicially constructed and enforced due-process-of-lawmaking principle

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5. Or, are the canons based on debateable values and too erratically applied to subserve any noncontroversial value? EXTRINSIC SOURCES FOR STATUTORY INTERPRETATION Reasoning from Extrinsic Sources asks what the statutory command means, in light of sources of legal understandings found outside of the four corners of the statute and conventions of linguistics. Such extrinsic sources include the common law, legislative history, and agency interpretations. I. Justifications for using extrinsic sources a. Rule of Lawextrinsic sources make statutory law more determinate, transparent, and objective for the citizenry. If everyone knows what sources will be consulted to fill gaps in the law, then the law is clearer for everybody. b. Democratic LegitimacyIf the legislators are aware how the statutes will be interpreted, they can better predict how the statutes will be applied. If these sources are accurate and not abused, then the intent of legislators can be more faithfully enacted. c. Practical Efficacyextrinsic sources may help the citizenry understand how the statute is supposed to operate. d. Efficiency Perspectiveextrinsic sources are good if they decrease error costs more than they increase decision costs. Legislative History (page 971)the record of deliberations surrounding, and generally prior to, the laws enactment. Most legislative history is created at one of the chief vetogates through which bills must pass to become law. Committee Reports (page 981)- should be considered as authoritative legislative history and should be given great weight. Most legislation is written in committee and any statements made by the members of the committee will represent the best-informed thought about what the proposed legislation is doing. Blanchard v. Bergeron(page983)- The word reasonable is not selfexplanatory here. What is the Courts initial reliance upon? They invoke the Senate committee report that cites Johnson v. Georgia Highway Express, Inc. and some factors they look at. But there is a conflict. Why does the majority doubt that Congress subscribed to that particular part of Johnson? Does the Court say that contingent fees are just a factor, or more than just a factor? There isnt any explicit reference to contingent fees being not a ceiling, but there are favorable references to several cases. None of the factors is targeted as being dispositive. Scalia attacks committee reports! Does it matter what page something is written on? How noticeable is legislative history? Shorter reports are probably a better bet than tomes. Say we have a string cite instead of a parenthetical explanation. What if there was criticism of the majoritys citation of a certain case? Would that make the report more or less reliable? Courts frequently cite cases without explanation as a shorthand way to inform litigants about the contents of some shorthand rule. Scalia says its not the job of Congress to do

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that. Congress shouldnt abrogate its duty to the courts. But whats the problem in concluding that Congress cant or wont understand references to case law? Arent you saying that theyre dumb or inattentive? But Scalia isnt prepared to embrace that in other circumstances. Scalia imputes knowledge to them of canons of construction and stuff like that. In Re: Sinclair (page 991) 957 [whether farmers can get a certain type of bankruptcy protection prospectively or for debts already had] Here Easterbrook says that leg history can only confirm an objective meaning that one could get by looking at the statute. Thus, here, when the statute says one thing and the leg history says another, he goes w/ the leg history. BUT, in this case it looks like the statute was a drafting error and those the leg history was right. 9. Perez v. Wyeth Labs (page 814) Norplant case. issue should plaintiff have been warned by the drug companies directly. State statute says an adequate warning needs to be giving and refers one to the legislative history. The legislative history says that only the doctor needs to be given the warning and then the statute says the statute must be construed in light of the legislative history. From a textualist and rule of law standpoint this case is cut and dry against plaintiff. Majority just refuses to follow this because they see a concentrated benefit (to drug companies) but a distributed cost (consumers)so they just ignore the direct command to look at legislative history. Statements by Sponsors and Drafters (page 1000)- next to committee reports, the most persuasive legislative materials are explanations of statutory meanings, and compromises reached to achieve enactment, by the sponsors and floor managers of the legislation. Kosak v. US (page 1014)-Customs service confiscated art. Although the art was returned, Kosak claimed some of the objects were damaged and filed suit pursuant to the Federal Tort Claims Act. The act exempts claims arising out of the detention of goods by any officer of customs. The plaintiff wanted the language to only be construed for damage caused by the detention itself, and not for the negligent destruction of the property while it is in the possession of the customs service. Court starts with the language of the statute. The court then looks to the statements of one of the developers of the act that would have barred this type of suit. The court also looks at committee reports and the purpose of the statute and affirms the court of appeals decision that this is not covered by the act, Legislative Deliberation: Hearings, Floor Debate, Rejected Proposals, and Dogs that Didnt Bark (page 1020)- compared to statements in committee reports, statements made during committee hearings and floor debates have traditionally received less weight. FDA v. Brown & Williamson Tobacco (page 820) Here, the plain meaning of the statute seems to allow the FDA to regulate tobacco as a drug, b/c it intends to affect[the bodys] structure[and] function. However, OConnors majority denies regulatory authority to the FDA.

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d. The Majority (including Scalia) reasoned that there was a longstanding equilibrium: a. public understanding, agency interpretation, private reliance, congressional acquiesance b. O sets up an absurd result if we read the statute literally itd cover enormous amounts of productsso thats obviously not what congress wanted. c. Then she looks at legislative history and finds nothing about tobacco and then she pulls out dog didnt bark to say that if such a major industry was to be regulated it would have barked. e. The Dissent (Stevens/Breyer/Ginsburg/Souter) argued for the plain meaning approach. This is supported by the purposive and legislative inaction approaches. Post-Enactment Legislative History(1035) Montana Wilderness Act (I/II) 1027 Does the RR have access over public lands in AL, or nationwide? 1st, Judge Norris says that the textual meaning of it being only in AL is more natural, b/c of the title of the act and the in pari material rule that 2 subsections be read the same way. However, he checks the leg history and finds nothing especially persuasive to the contrary. In the retrial, subsequent leg history that shows that the Congress relied on the nationwide interpretation causes the judge to overrule. Montana Wilderness Analysis A. statutory text analysis 1. Whole Act analysispoints to this only applying in AL 2. Rule Against Surplusage--1110(b) already provides access in AL, so why is 1323(a) there? 3. Title is Alaska Lands Actthis implies that it should apply to Alaska 4. ORDER OF ANALYSISstart w/ 1323(a), then got to the section and title, then go to surrounding sections (in pari material), then the title (e.g., Title VII) or portion of statute, then the whole statute, when statutes in pari material (whole code), then the whole code. B. J. Norris could have stuck w/ the analysis in the 1st case by stating the public grant cannon, which says that grants to public rights to private interest will be construed narrowly. C. Colorado Lands Act as subsequent legislative history that convinces Norris that he was tricked by Udall, and he issues the 2nd opinion. 1. Norris is being the faithful agent of the enacting legislature

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1. Some Leg History is unreliable b/c it is generate early in the legislative process, before the deals are made. 2. Some Leg History is unreliable b/c it reflects the views of legislative outliers, and not the whole body. 3. After Holy Trinity, some Member might try to use Legislative History to skew a bill. 4. There may be a tradeoff between reliability and usefulness; reports that confirm the plain meaning of the text are the most reliable, but they are the least useful b/c they only confirm the obvious. 5. Leg History is more likely to yield reliable evidence of statutory purpose [general intent] b/c purpose is at a higher level of generality than specific intent and there is likely to be agreement within the enacting coalition. Hierarchy of Legislative History Sources 1. Committee reports are the most useful legislative history, for they talk of the purpose of a statute and analysis of all the provisions (specific intent). a. They may not always be reliable, b/c committee members may be outliers, or rent seeking. BUT, they are closely monitored by the whole chamber and as repeat players they have an incentive to be honest. b. Holy Trinity used Committee Reports 2. Sponsors Explanatory Statements or floor managers are also very useful b/c overstatements will be objected to by opponents or allies, and as repeat players they will be honest. Rehnquists Weber dissent made effective use of Senate and House Sponsors. In North Haven, the majority used sponsors statements as persuasive proof. 3. Colloquy on floor or in hearings statements by supporters not given much weight because supports do not have the institution role of sponsor to control their statements nor do they have a leadership role in the enacting coalition. Opponents Explanatory Statements are rarely used b/c they are seen as having every incentive to misstate the bills effect. However, both majority and dissent in Weber used minor supporters statements. 4. rejected proposals (drafting and deliberation history) changes to a bill based on prior presidential veto or evidence that proposed amendments where rejected (and are now being advanced as the meaning of the statute) have been important to the court in showing what was. Landgraf 5. statements by non-legislative drafters - not usually given much weight due to the high chance of exaggeration or misrepresentation, inaccessibility, and its not necessarily reflective of the views of the enacting coalition. 6. Subsequent legislative history disfavored under rule of law and policy reasons. Prone to insincerity and misleading. Montana Wilderness Judge Norris reverses because subsequent legislative

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history on another statute showed that Congress had a particular meaning in mind on the issue the Judge was faced with (Alaska act) accordingly he relied on the history because it showed Congress had built on a certain construction of federal law when enacting a subsequent statute. In this case, promotion of coherence and reconcilation of the two statutes overcame presumption against subsequent leg. history. 7. Presidential Signing Statements (page 1043) are usually considered to be subsequent legislative history also they are seen has having incentives to misrepresent without congressional ability to respond. However, president is a repeat player. Statements should be treated with caution. 8. Legislative Inaction the dog didnt bark (page 1047) Bob Jones University (page 1050)- The IRS provides an exemption to religious/nonprofit groups. It revoked exempt status to Bob Jones University b/c it discriminated in admissions on race. The Ct said the statutory provision codified the common law exemption that charitable trust be given special privileges, and since those common law trusts were not permitted to act against public policy, neither should the new statutory exempt organizations. Main objections 1. text grants a clear, without limit, exemption to educational institutions, 2. otherwise qualified organizations are not within the section so the congressional list of exemptions is exhaustive inclusio unias, 3. negative implication argument when congress amended in 1976 to exclude social clubs that discriminate based on race, they could have also prohibited the others but did not, a. After the IRS amends its interpretation, Congress has no incentive to make a legislative change. b. BUT, expresio unius c. REASONS THIS WAS RIGHT DECISION: i. involves all branches of govt ii. involves agency deference iii. congress had clear oppty to change back (leg acquiesacne) iv. 10 yrs of equilibrium v. public/private reliance vi. failed proposals to modify vii. whole code (civil rights act, other statutes are against discrimination) Interpretation in light of other statutes Similar Statutes (the In Pari Materia Rule) Cartledge v. Miller (page 1066) ERISA case, ERISA which prohibits the assignment of an employees pension benefits. Is there an exception for spousal/child support? The ct looks at other statutes, such as the Social Security Act, the Veterans Benefit Act, etc., and says that since they all had exceptions that shows congress wants an exception here. Easy case purpose is clear and so are other statutes.

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Lorillard v. Pons (1070) Is there a right to a jury trial for private civil actions under the Age Discrimination in Employment Act (ADEA)? The ct looks at the Fair Labor Standard Act (FLSA), b/c the ADEA is supposed to be enforces in accordance w/ the procedures of the FLSA. Since there is a jury trial in the FLSA, there is a jury trial for the ADEA. If Scalia was on the court and we wanted to make a more textual argument wed say Model or Borrowed Statute Rule The Modeled or Borrowed Statute Rule - when congress legislates against the backdrop of other statutes, congress is on notice that courts will use their prior holdings to interpret the new statute. Zerbe v. State (page 1077) Here, a guy wants to sue the AL govt for negligence in falsely arresting him. Under the Alaska Statute he is prevented for suing the govt in an action for false imprisonment, but is not prevented from suing in an action for negligence. Which is this? The ct looks at the Federal Tort Claims Act, which the AL statute was borrowed from, and looks at how cts have interpreted it. It thus chooses to allow the suit.

Administrative Interpretations (page 1194)The Ct has long said that when faced w/ a problem of statutory interpretation, the Ct shows great deference to the interpretation given the statute by the agency administering it. BUT, agencies may give greater weight to policy and statutory purpose, and thus they may be more likely than the cts to bend the text. Skidmore v. Swift (page 1194) Largely the standard courts used for
about 40 years until Chevron; Is still alive and well; The weight accorded to an administrative judgment will depend upon the thoroughness of the evidence it considered, the validity of its reasoning, its consistency, and all those factors which give it power to persuade; Basically a rule should be upheld if courts agree with it; Face value interpretations

Gilbert(page 1195) Here, the ct says that various factors determine how much weight should be given to the agency interpretation. The benefit of this approach is that it promotes stability, certainty. a. was the agency given rulemaking authority by Congress? b. how soon after the statute were the regs issued? c. how much thought went into them? d. how longstanding was the interpretation? e. whether the interpretation involves a technical/complex subject f. whether Congress was aware of the reg and failed to change it Chevron v. Natural Resources Defense Council (page 1197) Here, the Carter EPA issued a strict environmental regulation regarding the interpretation of the Clear Air Amendments of 1977. The Reagan EPA took reversed the interpretation. The Supreme Ct ruled that the EPA had the power to do this. The Ct said that if the statute did not address the question, then it would defer to the agency interpretation if it is a permissible construction. Thus, there is a 2 step test: (1) decide if the 48

statute clearly answers the inquiry; if so, apply this answer [use text + leg history (not purpose)] (2) If not, defer to the agency unless the interpretation is unreasonable. Reasons that the majority gave for this dynamic agency interpretation: 1. Congress gave the EPA the formal power in fill in the details of the statutory scheme. This is a rule of law justification. 2. Agencies will bring special expertise to bear on regulatory issues. This will find the best answer. 3. Democratic legitimacythe agencies are closer and more accountable to the people than life-tenured judges are. C. Scope/Details of the Agency Deference Doctrine 1. What if the agency is not operating in an area of clearly delegated authority? a. What if Congress has not delegated substantial rulemaking authority to the agency? Rule of Thumbif the Ct is pretty sure (say, 80%) that traditional statutory materials contradict the agency, then the Ct will overrule the agency. But, if the traditional materials indicate an ambiguous meaning that is somewhat for the agency (40%) then the Ct will defer to the agency interpretation if it is exercising its delegated rulemaking authority (Chevron) BUT NOT if the agency is acting informally (Gilbert). b. Is deference required to agency litigating positions? No. (EX: the Justice Department decided to prosecute the church in Holy Trinity. c. Is deference required when the agency is defining its own jurisdiction? No, but the difference between substance/jurisdiction may be illusory. 2. What can the Ct look at to decide if the statute is unclear, and thus decide whether agency deference should be shown? Usually, text + leg history, but some on the Ct disagree. a. City of Chicago v. Environmental Defense FundHere, the Scalia majority only looked at the statutory text, and declared the statute unambiguous and then sided with EDF even though there was contrary leg history. 3. When is an agency interpretation reasonable? D. Critique of Strong Judicial Deference to Agency Interpretations 1. It allows the Exec Department to announce major shifts in public policy against the will of the people/Congress, and it allows Departments to abrogate the rule of law and constitutional values. 2. Rust v. SullivanHere, the Reagan Health and Human Services Dept. put out new regulations prohibiting counseling concerning use of abortion in Title X programs. This was against the will of Congress, but they couldnt change anything b/c the President vetoed their attempted override. The Ct ruled that deference should be showed to the agency, even though there were important constitutional questions there. 3. agency capture

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BUT, agencies are EXPERTS. US v. Mead Corp. (page 1213) Customs dispute, Definitions of productdifference is import tax or no tax; Explained in ruling letter. Mead challenges the ruling letter. Was it ok for the federal circuit not to grant any deference Mead becomes preliminary inquiry: Should the court use chevron deference or skidmore When does chevron apply: Does this interpretation have the force of law 1. If so, chevron deference 2. If not, skidmore or some other deference scheme Is the agency interpretation intended to have the force of law -How carefully did the agency consider -Where is the interpretation located- CFR, guidance, rule letter -Is it formal adjudication -Did congress intend for the agency interpretation to have the force of law When the agency isnt speaking with the force of law no chevron deference; More informal, less deference. Customs letter- No indication that congress wanted customs to have rulemaking authority: No notice and comment, no lengthy consideration, Ruling letters are not binding on third parties only on the party its directed toward, not all agency interpretations are treated equally Scalia says unworkable

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