LEGISLATION
SPRING 2012, HAWLEY
-There are canons of interpretations, but no formulas.
-What counts as a good interpretive argument?
-There is an informal hierarchy of tools and arguments that are continually in flux. Statutory interpretation is culturally relative.
-Focus on CB will be on chapters 1, 7, and 8
The Vetogates Model: There are numerous points within the statutory process that act as potential ‘vetoes.’ Whoever holds those ‘gates’ has a kind of ‘veto’ power.
-Our Constitution has a deliberately prominent bias AGAINST legislation.
-This is amplified by Congressional rules as well.
-Over 90% of proposed legislation never gets passed.
-Some examples of Vetogates:
a. Committee
b. Rule procedure (in House) (pre-floor debate)
c. Filibuster (in Senate)
d. The other chamber
e. Conference Committee
f. Presidential Veto
-Determined minorities at any of these levels can kill it, mame it, or extract other legislation from it.
-Super-majorities are ALWAYS required.
-Presidential involvement is very important
-The process allows opportunities for interest group to engage in ‘Rent-Seeking’
-High incumbency makes present and future gatekeepers easy to identify.
Vetogates in the Civil Rights Act of 1964
a. House Judiciary Committee and Subcommittee no. 5
b. House Rules Committee and House Rule XI meeting
c. House Floor and ‘hostile’ amendment
d. Senate Judiciary Committee
e. Filibuster
Senate Procedures – [CB] pg. 15
House Procedures [CB] pg. 12
-The Vetogates helps to focus on which gatekeepers to focus on when passing and interpreting legislation
Griggs v. Duke Power Company (4th Cir 1970):
-Two sets of African-American workers in the lower (of five) ‘Labor Division.’ One set hired before 1955 when blacks were not allowed to promoted, the second set hired after, when that policy had been abolished but a requirement remained that all candidates for promotion have a high-school diploma or equivalent.
-The question was whether the equivalency test violated § 703(h) of the Civil Rights Act of 1964 delineating to rules for discrimination of compensation by testing employees and/or by requiring diplomas.
-From the statutory ‘bona fide merit system’ to the operationalized ‘legitimate business purpose.’
-H: High school diploma requirement is valid under §703(h), BUT the testing requirement is not because it is not job-related.
-Judge Boreman looks to statutory history in coming to this conclusion about statutory intent. (What they looked at was not a part of the formal legislative history, but rather statements by the bill’s sponsors and that of a non-sponsor on the floor during debate.)
-Interestingly, the dissent came to a different conclusion from the very same source.
1/23/2012
-The essential idea of the Vetogates model is that by looking at the actors at each gate, one can understand what the legislation says.
-Committee reports go through each bill section by section. Sometimes there are majority reports AND minority reports.
-Remember that reports are drafted by staffers.
-Types of legislative history (in order of reliability in the eyes of the courts):
-Committee Reports
-Sponsor statements
-Sponsor colloquies
-Amendment drafters
-Interpretive memoranda
-The effect of pivotal or late votes on a bill
-As the judge’s debate in Griggs demonstrates, the context of the legislative ‘deal’ counts.
-The majority opinion is cocernned with the overall, big picture, purpose. It is ‘Purposivist.’
-Two approaches, Legislative Intent Approach and Purposivist Approach, (There is a third approach: Textualism)
-The EEOC is an example of one of those agencies that is maybe a little more response to the current Congress (and executive branch) rather than the enacting Congress.
1/25/12
-Upon further appellate review of Griggs, SCOTUS unanimously overturned, holding that if a practice produces a disparate/discriminatory impact, it is suspect and must be closely tied to a legitimate business interest.
United Steel Workers of America v. Weber (1979)
– Kaiser, a steel company, enacted an AA program so that their 1.83% black labor force more reflected the available labor force in each community.
– In the opinion, J. Brennan speaks of an intent in the legislation to bring about societal change, whereas Rehnquist says that if Congress were to have drafted new legislation now, they would be hard pressed to make the language more clear.
1/30/12
A few ways to tackle the statutory interpretation in Weber:
xplained change in Purposive rationale.
4. The ‘spirit’ of the legislation is invoked to ignore the plain text.
-Similarly in Johnson, O’Connor, in her concurrence, speaks of the Court following a ‘Firm Basis’ test for concluding that the action be necessary to remedy the past discrimination.
Flood v. Kuhn (1972):
-Baseball case. Mr. Flood sued after being traded to the Phillies, that the ‘reserve clause’ of his K was unenforceable under the antitrust laws.
-Every member of the Court was convinced that the controlling case, Federal Baseball (1922) was wrong in that it exempted baseball from antitrust.
-In Federal Baseball, J Holmes states that baseball is just an exhibition, that its interstate commerce element is merely incident to the activity.
-The Holding however, upholds the Federal Baseball decision for the same reasons in Toolson v. New York Yankees, Inc. (1953):
1. Reliance Interests
2. Congressional Awareness + Congressional Inaction
3. Baseball has a special status.
2/6/12
-Legisprudence
-Stare Decisis: What ARE the rules for stare decisis?
-Douglass v. Pike County ()
-Introduces a super-strong rule of stare decisis with regard to legislation. Especially when dealing with reliance interests.
-In Johnson, Scalia says: stare decisis should apply to civil rights statutes more than others. He didn’t put much stock in the reliance interests placed on the 7 year-old Weber at the time of his writing in Johnson.
Three Modern Rules or stare decisis (for Rehnquist court and current Roberts court):
-If a precedent is unworkable or badly reasoned, we’re not going by it.
-When contract, property rights are infringed (reliance interests) stare decisis is least reliable.
-Stare decisis is particularly lenient in issues of procedure
-Hence, stare decisis in legislation is/super strong presumptions is weakened a bit.
