Legislation and Administration Outline

Legislation and Administration

Owen

Fall 2012

I. Statutory Interpretation

A. Introduction to Statutory Interpretation; pgs 2-22

1. Tennessee Valley Authority v. Hill (Snail Darter Case, 1978) – No need to look at legislative history is statute is “not absurd”. If unambiguous/clear, courts stop analysis at statute.

· Legislative supremacy – Job of judge is to implement Congressional intent. Some judges will leave to Congress to fix mistake, some will read to avoid absurd results.

· Text was directly at issue here; literal analysis of governing statute.

· “Actions” in statute included ongoing projects. Looked to definition within statute and broader statutory content.

· No implicit repeal. Congress’s act of funding the project did not imply that they wished to repeal the ESA for this project.

· Court did not seem to agree with the decision to stop the dam, but had to base its decision on interpreting the statute.

2. The Courts Rules/Canons of Construction

i. Text – starting point

a. Always look @ definition section of statute – statutory definition trumps conventional use.

ii. Dictionary

iii. Conventional use

iv. Industry use

v. Purpose of statute as a whole

vi. Avoiding absurdity/absurd results – common sense

vii. Subsequent legislation

viii. Legislative History – story of the statute; comments, drafts, etc.

ix. Substantive Canons of Construction (Policy) –

a. Avoidance canon – avoid Constitutional issue until last. Attempt to understand statute first.

b. Clear Statement Rule – Raises the bar for Congress to be clear in legislation.

x. Semantic Canons of construction –

a. Plain meaning rule – interpret text, unless unclear.

b. Expressio unis – (“the express mention of one thing excludes all others”)

– Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as “includes” or “such as”.

c. Noscitur a Sociis- (“a word is known by the company it keeps”)

– When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

d. Esjusdem Generis – (“of the same kinds, class, or nature”)

– When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where “cars, motor bikes, motor powered vehicles” are mentioned, the word “vehicles” would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

e. Presumption against superfluous(unnecessary) language – every word is there for a reason.

B. Theories of Statutory Interpretation

· Purposivism – Views specific legislative intent. What legislators would have done if they were confronted with the exact issue before the court.

– Ambiguity unlocks to door to reviewing the legislative history/context.

– Concern with Purposivism – Even if you start with the premise that Legis. intent trumps everything else, the INTENT may not be clear!

· Textualism – Determines how a reasonable person would understand the semantic importance or usage of the language adopted by the legislature.

– Scalia

– Doesn’t look at history.

· Intentionalism – When a statute is unclear, judge should try to reconstruct the likely intent of the legislature respecting the problem.

· Judges still use Purposivism and Textualism – need to be prepared to raise both. However, these theories diverge a very small number of cases.

C. Intro to the Legislative Process and Spirit/Letter Debate

· Some Agency procedures are Constitutional, others are created by Congress.

· Article 1, Section 7 – Bicameralism and Presentment: Before a bill can become law, it must pass through the House and the Senate. Then, Congress must send it to the President to sign or veto (presentment). If vetoed, can still become a law if each House gets a 2/3 supermajority to override veto.

o Checks and balances ; Deliberation and cooling off; more deliberate process. May also delay and impede legislation.

· Church of the Holy Trinity v. U.S. (SCOTUS – 1892) – When the letter of the law and the spirit of the law conflict, the letter must yield to the spirit. Was a pastor considered a “foreigner” under an act to prohibit the importation and migration of aliens to perform labor in US via contract? Although the prosecution of the pastor fell within the letter of the law, prosecution for the contractual agreement wouldn’t have been the intent of the legislature.

o Purposivism approach – Language was not clear and produced a seemingly absurd result. Court looked to the literal interpretation, the title of the act, the historic context, etc.

o Acts list of laborers did not include religious leaders; court used rationale when there is a list of exceptions, the implication is category deliberately left out.

· West Virginia University Hospitals v. Casey (SCOTUS – 1991) – Textualism – omission from a state does not equal forgiveness. In addition, to supply omissions goes beyond the judicial function. Were “reasonable attorney’s fees” included under the a statute allowing for civil rights litigation costs to be shifted to the losing party? No. Based upon historical analysis, Congress clearly, in at least 34 other statutes explicitly differentiated between atty fees and expert witness fees. Congressional “forg