Legislation & Regulation
Larsen Fall 2013
I. LEG REG Background
A. The regulatory state: Federal government institutions and laws that determine many aspects of social and economic policy; administrative agencies are chief among those institutions
B. What is an agency? An agency is a unit of government created by statute. The President will occasionally establish an agency by executive order, but Congress will usually follow up with a statute establishing the agency and delegating authority to it.
1. Agencies possess the power to issue rules/regulations; issue orders after conducting adjudications similar to trials; conduct research and educate the public; provide guidance through documents, opinion letters, internal office manuals, and more; inspect premises; etc. Agencies have the power to act with the force of law.
a. The number of regulations promulgated far exceeds the number of laws passed.
b. Statutes frequently delegate to agencies significant policymaking power.
c. Agencies adjudicate more cases than the entire federal judiciary.
2. Cabinet departments – USDA, DHS, ED, DOE, DOD, HHS, DOJ, DOL, HUD, State, Interior, Veterans Affairs, Treasury, DOT, Commerce
3. Other agencies – CIA, EPA, FDIC, FEC, EEOC, FCC, NASA, FTC, NLRB, SSA, SEC, NRC, etc.
C. Given their power, there is a continual quest for control of agency decision-making by the President, Congress, regulated parties, public interest groups, and even the courts.
II. The limitations of common law adjudication more generally
A. Retrospective v. prospective – When a court announces a new rule, it applies that rule to prior conduct (the parties to the case); the parties may therefore receive an unfair penalty or windfall. In contrast, statutes apply to post-enactment conduct.
B. Reactive v. proactive – A court can only address those issues a party brings forth. A party can only bring a case if she suffers an injury. Thus, courts cannot prevent injuries. Legislature and agencies, on the other hand, can intervene at any time.
C. Uncertainty – common law practice of transforming precedent presents uncertainty, as does narrow nature of adjudications. By contrast, legislation & regulation are generally applicable across jurisdictions.
D. Institutional competence – Judges are generalists, not experts in every field, and thus they lack the expertise needed for rulemaking. Legislatures and agencies have fact-gathering apparatuses, and agencies are particularly well-suited to technical decisions.
E. Political accountability – Judges are insulated from democratic politics, and thus are less responsive to public preferences. When setting risk-related rules (as opposed to resolving disputes over unpopular rights), the value of political insulation is less clear.
F. Parties v. interested participants – Adjudication before a court is restricted to the parties in the case. The legislative process and administrative process allow for far more input.
G. Collective action problems – Bringing suit can be prohibitively expensive, so courts don’t resolve all disputes. Class actions have helped collectivize litigation efforts, but this and other devices do not totally eliminate the obstacles to addressing risk through lawsuits.
III. From justification to legislation
A. What do legislators want? Reelection. So they protect their constituents’ interests.
B. Isn’t that what we want? Yes, but “constituents’ interests” is not what it seems.
C. To achieve reelection, the most important thing for a legislator is money, which comes from special interests.
D. So what really matters is the interests of powerful groups.
IV. BACKGROUND: STRUCTURE OF STATUTES & THINGS TO REMEMBER
A. The structure of a modern statute
1. Title – States basic purpose and function of the statute.
2. Enacting clause – Proclaims that the statute has become law; repeats its purpose.
3. Short title/popular name – What statutes are called in daily life; often acronyms.
4. Statement of purpose – More elaborate than the formal title/enacting clause contain.
5. Preamble – Contains introductory information about the statute.
6. Findings – Factual material that justifies and provides a background for the statute.
7. Definitions
a. Shorthand references to organizations – Acronyms, nicknames, or substitutes.
b. Shorthand references to repeated provisions – For descriptions of entities or processes that will be repeatedly referred to, a definition will establish a shorthand phrase to which the rest of the statute will refer.
c. Increased precision – Terms may be used in a technical or specific way.
8. Principal operative provisions – Impose prohibition or requirements on conduct, or establish incentives rather than mandating behavior. Operative provisions may also transfer resources, or dictate government behavior instead of private conduct, or both.
9. Subordinate operative provisions – There may be less central, separate operative provisions that support the goals of the main operative provision.
10. Implementation provisions – Enable the statute to do what it purports to do (define penalties, delegate enforcement authority, etc.).
11. Repeals/amendments – May be explicit or, less frequently, implied (latter are disfavored).
12. Preemption provision – Supremacy Clause gives Congress power to preempt any state law, but scope of preemption is not always clear; implicit preemption reluctantly allowed
13. Savings clause – Preserves application of state law in some respects (anti-preemption)
14. Temporary provisions – Sometimes a statute will contain a provision of limited duration
15. Expiration date – “Sunset provisions” are uncommon, but indicate that the bill will expire on a certain date if no further action is taken
16. Effective date – Generally after date of enactment; retroactive application is uncommon
B. Notes
1. The relationship between operative and implementation provisions – Sometimes these are separate, sometimes combined
2. Preemption provisions, savings clauses, and federalism issues
a. Relationship between federal and state regulatory efforts ranges from cooperative to competitive. Some statutes enlist or authorize the enlistment of state agencies for implementation. Some preclude states from exercising control over an area.
b. Preemption question is not whether Congress can preempt state law (it can), but whether Congress intended to exercise this power in the particular statute.
3. Courts are hesitant to find implied preemption because of federalism concerns.
LEGISLATIVE PROCESS OVERVIEW
House à bill into à committee/subcommittee à rules committee à floor î ç
conference PRESIDENT VETO
Senate à bill intro à committee/subcom. (à maj. leader/filibuster) à floor ì ↵
I. CREATION OF LAWS
A. Constitution requires a vote of both houses (bicameralism) & President signature (presentment).
1. 2/3 vote of full Congress to override a Presidential veto.
2. In reality, legislation requires a supermajority to be passed.
3. The obstacles involved in the legislative process may enforce deliberation, just as the Constitution contemplated. However, they also magnify the result that public choice theory predicts by giving small groups disproportionate political power.
a. “The power to prevent bad laws includes the power to prevent good laws.”
4. What the presumption against legislation does is privilege the status quo; since law is our main tool for effecting change, this presumption comes at great cost.
B. To introduce a bill
1. Introduce & try for a vote in both houses
2. Get idea drafted by a committee member
3. Offer proposal as amendment to other legislation
C. Process after intro
1. Assigned to committee (where it often dies) for hearings & markup (which become record)
a. Comm. report will say what the problem is & how to address; might include min. views
2. Rules committee determines rules for floor vote
3. Once on floor, members can make statements; amendments advanced or rejected
4. Pass one chamber à go to next; otherwise to Conference to reconcile the language.
5. President to sign or to veto
D. Process complicated to produce deliberate, slow lawmaking & preserve status quo. Too much?
(i)
II. THEORIES
A. PUBLIC CHOICE THEORY
1. Large groups, like the general public, are harder to mobilize, but a small, interested, well-funded group will be more likely to get something done.
2. Members of Congress are self-interested (generally in re-election) & small, well-organized groups can help them, while the diffuse public cannot.
3. Outcomes of elections are determined in two ways:
a. Legislators attempt to look good to constituents (self-interested)
b. Affected by interest groups/endorsements/financial backing
4. –These are most effective with small groups because bigger groups are harder to organize–
B. SOCIAL CHOICE THEORY aka “Legislative Cycling”
1. Idea that a multi-member body with 3 or more options will ‘cycle’ if voted on in pairs
a. Only way to choose is to limit the rounds; otherwise endless loop.
b. How you structure can lead to outcome you want; some
construct. BUT all start w/text & are to some degree confined.
E. Sinclair – language is clear that there’s no re-filing under Chap 12 after you’ve filed under Chap 11, so that’s what the statute means, even though the text is in conflict with the pretty clear report.
1. ‘Wishes’ of Congress are not law, even though committee rpts are generally the most reliable
IV. INTENTIONALISM/PURPOSIVISM
A. Why? Because there are always gonna be gaps in language & we don’t want to open the floodgates
B. Riggs v Palmer [1889]
1. Question is whether a grandson who poisons granddad will inherit estate under the will
2. On the text, the grandson wins; the statute carved out no exception for murderers.
3. Court says relevant issue is what a reasonable legislator would want.
a. DISSENT agrees on policy grounds but argues that according to SoP reasons, Courts should not be able to substitute their own judgment for the legislature’s
b. Also that this subverts the democratic process bc it’s like a ‘hidden rule’
4. Takeaway: Legislative intent trumped text; text is just one tool for determining intent.
a. Question remains: when is it appropriate to deviate from the plain language & ordinary meaning to honor the legislature’s intent?
C. Holy Trinity [1892]
1. Law prohibits importing foreigners for ‘labor or services.’ Question is whether minister counts.
2. Court looks at
a. Intra-textual analysis – other places where buzzwords appear
1. Title only includes labor, not ‘service’ (but other language does, trumping title)
b. General meaning preferred (as opposed to specific meaning) so civilians understand à doesn’t include preacher
c. Evil the Act is trying to remedy
1. Unskilled & cheap laborers coming from abroad
2. But exceptions show that other ‘brain toilers’ were covered/exempted
d. Legislative History
1. Committee Report says they wanted to change to ‘manual labor’ but assumed it would be interpreted as such.
2. Bill was enacted next session with no amendment to change the language
3. But report may have only represented a minority view
3. Takeaway: Court relies on title, evil intended to remedy, & legislative history to conclude that the intent was to apply to laborers only à creativity to get to what they think is proper
D. Marshall (Cummings DISSENT): legislative intent shows Congress wanted LSD measured pure
V. IMAGINATIVE RECONSTRUCTION
A. Riggs v Palmer – legislature would’ve excluded murderers if they had thought of it
B. Marshall (Posner)– legis couldn’t have possibly meant including paper; either sloppy or uninformed
C. Brogan (Stevens) – Congress wouldn’t have included exculpatory no if they had considered it
D. Bock Laundry – Congress obviously didn’t think of asymmetrical application in Civil cases, so they must have meant it only to apply to civil cases
VI. DYNAMIC INTERPRETATION
A. Two ways of interpreting:
1. Archeological: What did it mean at the time it was enacted?
2. Nautical: What does it mean now, as if it had been enacted yesterday? Why might this be good?
a. When Congress uses a word like ‘reasonable,’ everyone knows that it means ‘reasonable’ according to todays standards. This is just an expansion of that idea.
b. Society changes overtime, so it seems like they’d legislate in a way that would take that into account. IOW, if courts interpret based on ‘what it meant at the time it was written,’ they may be disserving the intent of the legislation.
c. Court is to interpret, not just reporting/restating. On this point, courts don’t adjudicate in a vacuum. Present circumstances should be part of the equation.
d. COUNTER: Judges could just interpret it to mean whatever they want.
