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

Legislative and Administrative Process


Fall 2016

(1.) Introduce the Problem: The issue is…

Ex. “Our client owns and operates a mechanical pony in front of her store. She has asked us to determine whether or not she requires a license for the pony as required by Illisota Rev. Stat. § 41.”

(2.) Explain the Issue and Consequences: If interpreted (A) then …., if interpreted (B) then….

“If the pony qualifies as a ‘common show’ within the meaning of § 40, then our client requires a license under § 41 to comply with the statute.”

(3.) Summarize Your Conclusion (not too conclusive)

“It is/is not likely that our client will require a license to operate the pony because …”

Nondelegation Doctrine. The principle in administrative law that congress cannot delegate its legislative powers to agencies. Rather, when it instructs agencies to regulate, it must give them an “intelligible principle” on which to base their regulations.

The Chevron Test

Step 0: Did Congress delegate authority to the agency to makes rules carrying the force of law? And was the agency interpretation claiming deference promulgated in the exercise of that authority?

If no: Courts give agency rule “some deference (respect)” if argument is persuasive to the courts

If yes: Then Chevron Step 1.

Step 1: Has Congress spoken directly on the issue?

If yes: Congress’s interpretation governs

If no: Then Chevron Step 2.

Step 2: Whether the agency’s interpretation was reasonable and permissible?

Has Congress “spoken to the precise question at issue”?

If “yes,” “that is the end of the matter.”

If “no,” “the court does not simply impose its own construction on the statute.”

If “no,” “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Has Congress clearly defined “stationary source”?

This is a legal question resolved through “traditional tools of statutory construction.”

the text is ambiguous

thus, the answer is, no, Congress has not spoken to the precise question at issue

proceed to step 2

Is the bubble concept “a reasonable interpretation” of “stationary source”?

Legislative History

silence as to the bubble concept

House Report: shows one purpose was to protect economic interests

Senate Report: largely unhelpful

Agency explanation

justified on the record with supporting studies

implied congressional acquiescence

(4.) Definitional Section Text:

Ordinary Meaning – Words are to be understood in their ordinary, everyday meanings-unless the context indicates that they bear a technical sense.

Semantic Meaning – The meaning within the context of the relevant socio-linguistic community of interpreters. It is not “plain meaning” or “literal meaning.” (“attorney’s fee” can include paralegals, law clerks, secretaries, messengers, librarians, janitors, etc.)

Dictionary Meanings –

When to use:

To clarify the plain meaning of a word
To prove ambiguity

(5.) Apply Cannons:


Surplusage Canon – If possible, every word and every provision should be given effect.

None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.

Imputed Common-Law Meaning – A statute that uses a common-law term, without defining it, adopts its common-law meaning.

Expressio Unis (Negative Implication Canon) – the expression of one thing implies the exclusion of others

“No shoes, no shirt, no service”

Noscitur a sociis (Associated-Words Canon) – Words grouped in a list should be given related meanings. To apply, the terms must have some quality in common. The common quality should be its most general quality relevant to the context.

Eiusdem Generis (of the same kind) – Where a rule applies to A, B, C, and all other X, the category of X is limited by the meanings of A, B, and C.

Rule of the Last Antecedent – A qualifying word or phrase modifies only the last antecedent unless the modifier is

ify the remedy the legislature intended to cure the mischief.
Consider the rationale given for the remedy, i.e., how was the remedy supposed to cure the mischief?
Construe the statute to (a) suppress the mischief, (b) advance the remedy, (c) “suppress subtle inventions and evasions for continuance of the mischief.”

Prior Law, Mischief, Remedy, Rationale, Construe to: Suppress & Advance (Poor Mark’s Rail Road Couldn’t Service All)


titles, section headings, etc.
Legislative history
Prior case law

(8.) Legislative History

primarily to confirm textual interpretation
or for resolving textual ambiguities

Hierarchy of Sources for Legislative History

Committee Reports

conference reports
House/Senate committee reports

Statements of legislators

sponsors’ statements
individual statements (on floor/at hearing)

Rejected proposals (or drafting changes)


Outside Proponents/Drafters

Subsequent legislative action

Substantive (Policy-Based): can only be overcome with a clear statement that Congress intended to …

Clear statement rule: requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.

A clear statement is required before a court will construe a federal statute as interfering with fundamental aspects of state sovereignty.

Constitutional Avoidance (Constitutional-Doubt Canon) – A statute should be interpreted in a way that avoids placing its constitutionality in doubt.

judicial self-restraint (a separation-of-powers concern)