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

Legislative and Administrative Processes
Southern Illinois University Carbondale
Fall 2013
1)      Statutory Interpretation:
i)        While process is never relevant to common law interpretation, process is often relevant to statutory interpretation.
b)      Why Law Works Well Most of the Time:
i)        Statutes are understandable both b/c they conform much of the time to societal expectations, but also b/c they have a familiar format.
ii)       When statutes do not conform to societal expectations or do not define conduct in expected ways, individuals and their lawyers fight back by holding the legislature to the precise words it used.
c)       Separation of Powers:
i)        Concept that powers of gov’t should be split between 2 or more independent groups so that (no one group or person can gain too much power).
ii)       Marbury v. Madison (U.S., 1803):
(1)    It is emphatically the province and duty of the judicial dep’t to say what the law is.
iii)     In the 19th Century, legislators worked mostly part-time, and were considered to be uneducated, unsophisticated, and subject to political pressure.
(1)    Thus, statutes were viewed with hostility and suspicion in early American history.
iv)     Today, legislation is pervasive and detailed. The Jellum book uses the example of the Sherman Act of 1890 compared with the Patient Protection and Affordable Care Act enacted in 2010 (also known as “Obamacare” or the “Health Care Act”).
(1)    Sherman Act fit within a single page, leaving room for judicial development.
(a)    Wide open spaces in statutes interpreted as implicit delegations of authority to the courts to fill in gaps through case-by-case adjudication.
(2)    The Affordable Care Act spans 906 pages, leaving little room for judicial development.
v)      As legislators became more skilled at their jobs, distrust of legislators started to fade.
(1)    During the 20th Century, regulatory agencies proliferated.
vi)     Every case requires judge to adopt one meaning, and reject at least one other meaning.
(1)    Judges do not just interpret law, but act in concert with legislatures to develop it.
vii)   Legislative supremacy is essential:
(1)    At one end of the continuum is the view that only enacted text of a statute is relevant to interpretation.
(a)    This view elevates judges at the expense of the judiciary.
(2)    At the other end of the continuum:
(a)    View that statutory purpose or legislative intent is most relevant.
d)      A Note About Civil Law Systems:
i)        Common Law Systems:
(1)    Generally, U.S. legal system is understood to be part of the common law tradition.
(a)    In common law systems, judicial opinions are controlling.
(b)   Opinions of appellate courts usually bind lower courts in its jurisdiction.
ii)       Civil Law Systems:
(1)    Civil law systems usually start w/more abstract principles, which legislatures enact as a code of laws.
(2)    Civil law judges may have more latitude w/interpretation of a statute than common law judges b/c precedents may be non-binding.
(3)    Statutes are the starting point and center of a civil system, rather than case law.
e)      Constitutional Interpretation Distinguished:
i)        Many theories of constitutional interpretation including Textualism, originalism, strict constructionism, functionalism, doctrinalism, developmentalism, contextualism, and structuralism.
ii)       Two types for now:
(1)    Originalist theories:
(a)    Focus on finding the subjective intentions of the drafters of particular constitutional provisions.
(2)    Textualists and Strict Constructionalists:
(a)    Focus on the literal meaning of a constitutional provision and reject claims that the text can mean more or less than what it expressly says.
(b)    “Congress shall make no law … abridging the freedom of speech.” Fmr. Sup. CT Justice Hugo Black.
(i)      “No law” meant absolutely no law.
iii)     Constitution was not drafted at one point in time, but over 200 years.
2)      Art of Statutory Interpretation:
i)        Enacting legislature that has the constitutional authority to make law.
ii)       Unified “meeting of the minds” is nonsense.
iii)     Some judges will not look at legislative history or social context for meaning unless the text of the statute is unclear.
(1)    When arguing in front of one of these judges, one must explain why it is necessary to go beyond the text for meaning.
b)      Evidentiary Sources of Meaning (3):
i)        Intrinsic Sources:
(1)    Part of the official act being interpreted. The words of the statute are most important.
(2)    Can include grammar, punctuation, purpose and findings clauses, titles, and definition sections.
ii)       Extrinsic Sources:
(1)    Outside the official act but w/in legislative process that created it.
(2)    Can include legislative history, legislative acquiescence, borrowed-statutes rules, and agency interpretations.
(3)    What are borrowed-statutes rules?
(a)    Presumption that the legislature intended, when it borrowed another state’s statute, to adopt its judicial opinions as well.
(4)    Deference to agency interpretations is relatively non-controversial.
(5)    Legislative history is quite controversial.
(6)    Judges turned more to extrinsic sources after the New Deal.
iii)     Policy-Based Sources:
(1)    Separate from the statutory act and the legislative process.
(2)    Can include:
(a)    Constitutional Avoidance Doctrine
(b)   Rule of Lenity
(c)    Remedial and Derogation Canons:
(i)      Rule that statutes that take away or diminish the common law should be strictly construed, while remedial statutes should be broadly construed.
(d)   Clear Statement Rules:
(i)      Presumption that in some situations, Congress would not intentionally alter the status quo absent a clear statement to that effect.
c)       Theories of Interpretation:
(1)    American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.
ii)       Textualism:
(1)    The Theory:
(a)    Textualism is sometimes called the “plain meaning theory of interpretation.”
(i)      Based on the plain meaning canon of interpretation.
(b)   Faithful to the Constitution by protecting the power distribution identified within that document.
(c)    For enactment of statutes, Constitution requires a specific process: bicameral passage and executive approval. To do otherwise would permit Congress to legislate without completing the required process for enactment of legislation.
(d)   Textualists look for the public meaning of the words used in statutes at the time statute was drafted.
(i)      Done in a relatively linear fashion; from one source

nerally prevailing policies of law unless the statute includes a clear statement to that effect.
4.       Became popular shortly after WWII, during optimism about government’s ability to foster economic growth.
5.       Famous proponents of Purposivism:
a.       Fmr. Justice Stevens
b.      Justice Breyer
6.       To most judges, Purposivism has little application in a world in which complex statutes are the norm.
7.       View themselves as faithful agents of a well-functioning regulatory regime.
8.       However, even if a purpose is discernible, there may be competing ideas of how to further that purpose.
a.       Another criticism: Statutes have more than one purpose.
9.       Purposivism in the States:
a.       Not a commonly chosen approach in the states. Most states have chosen Textualism.
b.      State judges are often more restrained in their approach to interpretation.
(2)    Dynamic Statutory Interpretation:
(a)    Even though no linguistic change had occurred since the Act’s passage, the societal values of the interpreters and society has changed.
(b)   Allows judges to work in concert w/the legislature to accomplish its goals as times and value change.
iv)     Alaska’s Sliding Scale Approach:
(1)    Alaska rejected all the approaches, including strict Textualism.
(2)    Sliding Scale Approach blends Textualism, Intentionalism, and Purposivism.
(a)    All evidence of meaning is relevant.
(b)   However, the clearer the statutory language, the more convincing the evidence of a contrary legislative purpose or intent must be.
(c)    This approach allows a little or a lot of contrary evidence of meaning to flow into the analysis.
(i)      The clearer the text, the smaller the opening.
(d)   Legislative history can be considered b/c it might reveal an ambiguity not apparent on the face of the statute.
(e)   No other state has adopted this approach.
v)      Legislative Process Theories:
(1)    Pluralist Theories (“pluralism”) focus on the role special interest groups play in setting legislative policy.
(a)    Pluralism is the spreading of political power across multiple political actors.
(b)   Bargaining Theory:
(i)      Proposes that statutes are a compromise between various interest groups.
(ii)    Judges should focus on furthering the compromises that produced the necessary votes for passage of the compromise legislation.
(c)    Public Choice Theory:
(i)      Rely on economics to explain legislators’ behavior.
(ii)    Legislative compromises come about a result of private interest groups bargaining.
(iii)   Business interests tend to be overrepresented, while broad public interest and the less advantaged tend to be underrepresented.