LEGISLATION GELBACH SPRING 2015
INTRODUCTION
Civil Rights Act of 1964
Most legislation, 90% of bills, fail the legislative process. Whatever comes through is the exceptional case.
There are multiple “vetogates” that a bill must pass in order to become law, and the CRA passed them in uncommon ways. For example, this bill bypassed one committees censorship function by being placed in a more favorable committee.
Partisanship, ideology, and sectionalism each played an unconventional role in the passage of the bill.
Theories of Legislation
Pluralism
Legislation is the result of competition between interest groups. This may concentrate power or diffuse costs across a wide group.
Interpretation Issue – should we enforce the deals of interest groups and Congressmen?
Proceduralist
Skill of Congressmen in navigating the rules of Congress are what makes legislation pass.
Positive Political
Statutory meaning is created when first used. This means that agencies, Congress, executive, or the judicial branch may give meaning to a statute.
Interpretation Issue – who gets to interpret the statute and tell us the meaning?
Griggs v. Duke Power
Facts – Power company only employed blacks in the labor department pre-1955. Post-1955 instituted a high school degree for other departments or promotion.
Interpretational Tools
History of 703(h) – The “Tower Amendment” was passed to allow tests to determine trainability or suitability for a particular position. However, this was added only after filibuster and cloture, so difficult to determine whether Congressmen cared.
Clark-Case Memo – as long as it is a bona fide test, disparate impact does not matter.
Holding – No discrimination as long as it is a bona fide test.
Sobeloff Dissent
Holding – Disparate impact is still discrimination. A neutral criteria now may still support a finding of discrimination.
Interpretational Tools – Agency Deference – deference should be paid to EEOC determination that disparate impact is discriminatory.
US Steelworkers v. Weber
Facts – Mutual agreement between union and Kaiser to reserve 50% of spots for training program for blacks.
Interpretational Tools – Legislative history (Congress majority leaders, Amendments), purpose, and to some extent, spirit (if not considered as purpose)
Brennan Majority
Legislative History
Main focus of this law is to get more and better jobs for blacks
Law should not require, but not impede, voluntary affirmative action programs
Intent/Purpose
Literal reading may undo the law, must go to purpose
Does not make requirement to use quotas, but does not bar affirmative action
CRA is focused on helping racial minorities
Blackmun Concurrence
Private employers need not prove in court that they discriminated in the past to use a racially motivated plan to atone for past discrimination.
Rehnquist Dissent
Legislative History
Celler comments
Senate and House majority that just trying to give equal rights to all, w/out quotas or affirmative action
Intent/Purpose
703(j) was meant to ensure that there no affirmative action and no quotas. This was based on a reading of Title VII that was race-neutral.
If we look at spirit, which we should not, it was meant to enforce colorblindness.
Take-Aways
None of the justices uses leg. hist. correctly – in a way that has a rational relation to what happened in Congress.
To use leg. hist. correctly requires the court to go from the end back to the front.
Johnson
Facts – Gov’t agency wanted to put more women in craft jobs. Allowed gender to be used as one of the factors in making the decision.
Interpretational Tools – Congressional Intent (from subsequent legislation), intent (statute meant to help atone for past wrongs), plain-meaning (no discrimination means no discrimination)
Brennan Majority
Disparate impact means no need to show intent to discriminate. Must just not unnecessarily harm other groups.
Congressional silence on Weber means agreement
Stevens Concurrence
Although dissenting before, supports here b/c of stare decisis and stability.
Congressional intent was really to atone for past wrongs, not to prevent future harms.
O’Connor Concurrence
Title VII is equivalent to EPC.
Finds statistical disparity. From that, allows future hiring to atone for past acts.
Scalia Dissent
Agrees w/ Rehnquist dissent of Weber b/c plain-meaning means no discrimination, either way
Disagrees w/ Brennan use of no bill as evidence of endorsement of judicial opinion. Many vetogates in getting bill passed means that no intent could actually be ascribed to that “act,” more like an omission.
Take-Aways
Plain meaning argument is unreliable here b/c discrimination is not defined by the statute and depends heavily on context.
Discrimination may mean racial minorities, prejudice, or just generally preferring one thing over another.
This word is filled w/ normative values.
HISTORY OF INTERPRETATION
19th Century/Eclecticism
The Mischief Rule
This is based on Heydon’s Case. The case sets down four steps to interpret a statute.
What was the law before the act?
What was the “mischief” that the common law did not address?
What remedy did the legislature use to fix this?
Adopt a reading of the statute that adopts this remedy and closes any loopholes.
The “Golden” Rule
This is based in River Wear Comm’rs v. Adamson. The case sets down four steps to interpret a statute.
Read the whole act together.
Give words their ordinary meaning.
Only change words if they produce an absurdity that could not possibly be the intention of the legislature.
The Literal Rule
This is based in Vacher & Sons, Ltd. v. London Soc’y of Compositers. The case sets down one, simple rule:
If the statute may only have one meaning, this meaning must be enforced even if it leads to absurd or mischievous results.
Absurdity
Do not interpret a statute in a way that would lead to absurd results.
Rector, Holy Trinity Church v. United States
Facts – Statute prohibits bringing in a foreigner to the US via contract. Church made contract with Rev. Warner, an Englishman, to come and preach in the US and paid for his passage.
Interpretational Tools
Letter v. Spirit – divines purpose of act as different than letter of act.
Heydon’s Case – finds intent was to stop importation of manual laborers.
Legislative History – Committee report shows they thought of ministers, but could not pass b/c of vacation.
Title – title of act may be used to divine intent or purpose.
Christian Nation – US is a Christian nati
Judge Handy
Embodies pragmatism and realism
Judges should act as the good administrator
Law requires flexibility, b/c statutes are enacted for social purposes and should serve that social purpose.
Debates in Legal Process Theory Cases
Shine v. Shine
Facts – Mr. and Mrs. Shine are divorced. Mr. Shine stops alimony payments when he goes into bankruptcy. One rule says debt to spouse may not be discharged, but bankruptcy law generally presumes discharge.
Interpretational Tools
Plain Meaning – Use the reasonable person or reasonable expert in order to interpret the meaning of a statute
Faithful Agent – May use imaginative reconstruction, purpose, or current principle to try to be a faithful agent and enact what you think the legislature wanted
Legislative Partner – Make the statute the best that it can be, as we assume that is what the legislature would want
Holding – Court finds that rule of no discharge should also apply to a court separation order, even though explicitly says only divorce decree, separation agreement, or property settlement agreement.
US v. Locke
Facts – Law says you must renew claim prior to December 31. Tried to renew on December 31, denied.
Interpretational Tools – Plain meaning
Holding – Denial upheld b/c the plain meaning of the statute says prior to De 31.
Bob Jones University
Facts – Bob Jones does not admit black students. IRS re-interpreted 501(c)(3) organizations and Bob Jones sued b/c they wanted to remain tax-exempt
Interpretational Tools – Public Policy, Similar Meanings, Common Law, Whole Code, Legislative Inaction
Burger Majority
Finds that IRS interpretation is lawful b/c what Bob Jones did was contrary to public policy
Must go beyond plain meaning if contrary to purpose
Uses another section w/ same list to give meaning to 501(c)(3)
Uses common law to say that charitable status is only given when it furthers public policy
Public policy against discrimination is in Brown precedent and CRA of 1964
Congressional inaction to overturn IRS ruling means acquiescence to it
TVA v. Hill
Facts – Endangered Species Act of 1973. Building a dam threatens to destroy the habitat of the snail darter.
Interpretational Tools – Plain meaning (gov’t agents may not jeopardize the existence of endangered species), canon of legality? (Congress would not appropriate money to an illegal use)
Holding – Dam construction must be stopped, even though millions sunk into it, b/c it endangers the snail darter. Based upon a plain meaning reading of the statute, no gov’t agency may endanger a species.
Take-Away – Example of old textualism.
Griffin v. Oceanic
