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Legislative and Administrative Process
Southern Illinois University School of Law
Macias, Steven J.

MACIAS – LAP – SPRING 2012
 
OVERALL ISSUE:
·         [Name] arguably falls within protection of Act because they are a person who (has __/engaged in ___) and has been noticed/filed complaint, etc.
 
ISSUES: are whether Act applies to____ and ____. Must have ___ and ___ to have benefit of Act.
Cardinal rule of statutory interpretation is to ascertain and give effect to legislative intent
·         Rule is consistent with separation of powers because
o    role of legislature is make policy with laws
o    role of courts is to interpret statutes, not make laws
·         Primary means of giving effect to legislative intent is through Plain Meaning Rule
o    Under Plain Meaning Rule, if language is clear, apply and do nothing more, with certain exceptions
o    Clarity can be found by the common and ordinary meaning.
o    Plain Meaning Rule recognizes best evidence of legislature’s intent is the actual language passed by both houses and signed by executive
o    Analysis- Here, PMR appears to only apply to ___ but some ambiguity because ____ so issue might apply
§  Court may use dictionary, custom and trade practices, and other aides to assist in determining the plain, where there is no statutory definition (and no regulatory definition/case law)
ú   Analysis- Here, dictionary/custom/etc. defines/holds ____
·         Both sides can go dictionary/people shopping
§  Possible absurd exception if present
§  Regulatory Definition- If a statute provides a regulatory definition, an analysis of the Agency and of the Chevron standard must be done to assess the validity of the definition
ú   Agency- grounds for setting aside a regulation on Administrative review
·         Rule promulgated -Is the agency properly promulgated through an enabling act, or else would be ultra vires
·         Procedure- Did Agency follow proper procedure in passing rule
o    Propose Rule- publish in Federal Register
o    Notice-
§  Statement of time, nature of public rule-making proceedings (and opportunity for comment)
§  Reference to legal authority under which rule is proposed
§  Terms or substance of the proposed rule or description of the subects, issues involved
o    Comment Opportunity- may include submission of written or oral argument/presentations
o    Notice and Comment Period- A 30 day period for anyone to comment on the proposed rule- Emergency exception allows to wash away 30 day period
§  The agency must read and consider all comments and give a statement responding to comments, explaining agency decision
o    Publish in Code Federal Register-  becomes law 30 days after being published in CFR
·         Constitutional- Agencies are constitutional because
ú   Chevron- Step 0- Agency acting within its powers, if not this would be an ultra vires action. An enabling act/implied power confirms this.
·         Then move to 2 step Chevron Analysis
ú   Step 1- Did Congress speak directly to the issue in the statute?
·         If yes, then they provided the plain meaning already. No means move to step 2
ú   Step 2- Is agency’s interpretation of the statute permissible?
·         Within this step it must be asked whether the statute explicitly or implicitly granted authority to agency to make definition
·         Explicit- If explicit, the court must give controlling weight to the agency because of the agency’s expertise
o    The exception is if the definition is arbitrary capricious or manifestly against intent of legislature for the statute
·         Implicit- If Congress’s grant of authority was implicit, the court must not substitute their interpretation for a reasonable definition by agency
o    The agency’s expertise should be granted deference unless unreasonable
o    Also, Congress can change the statute if they don’t like the interpretation
 
When meaning is not clear, courts may use aids to interpret statutes. If clear the aids strengthen the interpretation of the statute.
 
Textual Canon- Some textual canons may be helpful.
·         Analysis- When a string of terms is used, the legislature must have meant something special, or it just would have said ____
o    Last antecedent- relative or more qualifying words or phrases in a statute serve only to modify words of phrases which are immediately preceded
§  Analysis- Here, ____ only modifies ____
·         Overall analysis- A statute’s punctuation and grammar, while not necessarily controlling in determining legislative intent, may be considered unless inconsistent with intent
Criticism- Assumes legislature understands grammar, a possible stretch
·         Expressio unius- Is the expression of one is to the exclusion of another
o    Analysis- Statute specifies (list present) but silent on (issue) even though (issue) was known and common when statute enacted in year (and amended).
o    Conclusion-Strong argument that legislature meant to include/exclude (issue)
·         Ejusdem Generis- When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors should be restricted to the same class if any of the specific words precede them (other, like, similar, such)
o    Analysis- Because the (specific word) is present, the statute is restricted to these general descriptors which do/don’t imply the use of (issue)
·         Noscitur a sociis- The word is known by the company it keeps
o    Analysis- Here, the ambiguous word is surround by (words in statute) which have a meaning of ____ and do/don’t imply the use of (issue)
 
Purposive Canon- Textual analysis is made (stronger/weaker) when supported by arg

tect their citizens
·         Remedial- A statute to cure a defect in a prior law should be interpreted liberally
o    Analysis- Here, the problem of (issue) was present so the cure should be interpreted liberally
·         Rule of Lenity- The rule of lenity holds that criminal statutes should be narrowly construed
o    Analysis- The policy is a person’s due process rights involve being able to have notice to defend
o    Analysis- Here, since the statute is criminal the (ambiguous word) should be construed narrowly
·         Stare Decisis- Court should narrowly follow previous decision.
o    Analysis- Here, the court has previously ruled (issue) as ___ and therefore (issue) should continue to be found as to include/exclude benefit to (person effected)
 
CONCLUSION
 
Overall Issue: Is X in violation of the statute when he [insert behavior]?
Overall Rule: Identify ambiguous words/phrases that are relevant for analysis and default rule (courts must ascertain and give effect to the true intent and meaning of the legislature. The language of the statute is the most reliable indicator of the legislature’s objectives in enacting the law. Unless otherwise specified, courts must give this language its plain and ordinary meaning). Today, most of federal law emerges from implementation or interpretation of the statutes that Congress enacts. This implementation and interpretation is principally the work of courts and regulatory agencies. Identify two principle methods of statutory interpretation (text and purposivists) considered in analysis. Both proceed on the assumption that judges must act as Congress’s faithful agent.
Overall Analysis:
Whether X would be in violation of statute when he [insert behavior] under a textualist approach?
·         Textualist rules, new textualism rules.
·         Apply to facts
·         Conclusion
Whether X would be in violation of statute when he [insert behavior] under a purposivist approach?
·         Purposivism rules, new purposivism rules
·         Apply to facts
·         Conclusion
[Consideration of judicial correction of legislative error, canons, dynamic interpretation, pragmatism (whatever is relevant)] Overall Conclusion: What a court would likely conclude based on arguments.