Legislative and Administrative Law
Foy, Spring 2009
v Statutory Interpretation
Ø Foy Typology of Statutory Interpretation
§ Textualist Theories
· Strong Textualism (New/Hard Textualism)
¨ Generally
Ø Focus is on the plain meaning of the text; how a reasonable English person would interpret its meaning
§ “Text, the whole text, and nothing but the text”
Ø Congressional Intent is not a proper inquiry because it is impossible to identify a “collective” will of Congress
Ø Further, even if legislative intent was discernable, intent is not the law—the plain language of the text is, and this is what courts must interpret
¨ Famous Textualists
Ø Antonin Scalia
Ø Frank Easterbrook (7th Cir.)
Ø Oliver Wendall Holmes
§ “We do not inquire as to what the legislature meant; ask only what the statute means”
¨ Strong Textualism in Action
Ø Frank J. Muscarello v. United States (US, 1998)
§ Facts
· The firearms chapter of the federal criminal code imposes a 5-year mandatory prison term on any person who “uses or carries” a firearm during a drug trafficking crime
· Both petitioners were caught with firearms in their vehicle and were charged under this statute
· Issue: Whether The phrase “carries a firearm” is limited to the carrying of firearms on the person
§ Majority
· Holds not so limited and may apply to carrying guns in vehicles (see weak textualism, infra)
§ Dissent (Ginsburg, Rehnquist, Scalia & Souter)
· Term “carries” a weapon should mean “bearing them in such a manner as to be ready for use as a weapon”
· Majorities lexicological survey did not result in a single meaning of “carries a firearm”
¨ Occasionally used in newspapers as carries in a vehicle
¨ Constitution suggests means to have guns on person
¨ Bible, literature splits on definition
· Not reliable indicators of Congressional intent
¨ Looking at past statute, Congress has not used a consistent definition of “carry”
· Therefore, the statute is ambiguous (complex interpretation argument)
¨ “Rule of Lenity:” Ambiguous criminal statutes should be resolved in favor of a criminal defendant
¨ Given the seriousness of criminal penalties, legislatures rather than the courts should define criminal activity
· “Court should leave it to Congress to speak in language that is clear and definite if the legislature wishes to impose a stiffer penalty.”
Ø United States v. Stanley J. Marshall (7th Cir, 1990) (Easterbrook, J.)
§ Facts
· Defendants were convicted of distributing more than 10 grams of LSD and sentenced to mandatory five years
¨ 21 U.S.C. § 841: Mandatory five years for selling more than one gram of a “mixture or substance containing a detectable amount” of LSD
· In order to distribute LSD, it must be placed on a carrier such as paper and sold in tiny squares
· Both defendants’ convictions were based on weight of LSD AND the paper carrier medium (without the paper, they would not have met statutory minimum)
· Issue: Whether the phrase “mixture or substance…” excludes the weight of the carrier medium
§ Majority
· Cannot interpret statute to make the penalty turn on the net weight of the drug alone
¨ “detectable amount” is opposite of pure
¨ Congress distinguished “pure drug” from “mixture”
¨ Congress uses “mixture” language in reference to every other drug and carrier medium is used to determine weight
¨ Mixture occurs when drug and carrier cannot be separated
· Congress has considered stronger language, but has yet to change the statute
¨ Subsequent debates do not yet represent views of Congress and cannot be considered
¨ Weak textualist could consider this intent
· Congress had rational basis for language
§ Dissent (Posner)
· Complex interpretation opinion
· See below
· Weak Textualism (Soft/Old Textualism)
¨ Generally
Ø Primary focus is on the objective meaning of the text if clear and unambiguous
Ø However, if an ambiguity exists, courts will look to Congressional intent in order to resolve it
¨ Weak Textualism in Action
Ø TVA v. Hill (US, 1978)
§ Facts
· ESA § 7 prevented federal agencies from taking any action that would jeopardize endangered/threatened species
· TVA had almost completely finished Telico dam when a new fish species—the snail darter—was discovered in the river valley. As it was not known to exist elsewhere, damming the river would cause the darter to go extinct
· Issue: Whether the ESA trumps the $75 million spent on the dam and, if so, whether Congress impliedly repealed the ESA by continued funding of the project after the fish was discovered
§ Majority (Burger)
· Objective meaning of the language clearly prevents federal agencies from threatening the continued existence of an endangered/threatened species
¨ No exceptions!
· Plain meaning rule
¨ Only look at statutory history if text is ambiguous
· Congressional intent provides further support
¨ 1966 limited protection of species “insofar as is practicable” and only applied to federal lands
¨ Language repealed in more aggressive 1973 statute even that the “insofar as is practicable” qualification was appended to every other federal statute passed that year
¨ House conference report specifically states that provision omitted
¨ Specific exceptions are cited in act, no more catch-alls
· No implied repeal (Complex interpretation argument)
¨ Repeals by implication are not favored, except when earlier and later statutes conflict
¨ However, this cannot apply when appropriations bills conflict with earlier substantive statute because it would require exhausting review of prior statutes before authorizing appropriations
¨ Not enough to say that Congressional committee knew the bill would conflict—no evidence that entire Congress knew
§ Dissent (Powell)
· Pragmatic argument—intentionalist?
§ Dissent (Rehnquist)
· Strong textualist—if ambiguous, then Congressional intent is irrelevant
· Court has previously held that in such a situation, the DC may refuse to order a federal official to take action otherwise required by law
Ø Griffin v. Oceanic Contractors (US, 1982)
§ Facts
· The Jones act requires ER’s to pay seamen the balance of unpaid wages within a specified period after discharge. Failure to do so will obligate the ER to pay the seaman two days pay for each and every day payment is delayed beyond the respective periods
· Griffin was injured, but Oceanic refused to pay him $412, and terminated him.
· DC held that Oceanic wrongfully withheld payment and ordered it to pay double pay for the period of his unemployment and Cir. Ct. affirmed.
· P argues that he should receive double-pay for each day payment was withheld
· Issue: Whether DC had discretion to limit pay period to P’s period of unemployment
§ Majority (Rehnquist)
· Plain language
¨ Objective meaning is clear—mus
et statutes, courts need to take into consideration changes in the social or legal context that the drafters may not have anticipated
Ø Objective meaning and Congressional intent are certainly important, but there are situations where those interpretations could lead to an absurd result
¨ Complex Interpretation in Action
Ø In Re Matter of Jacob (NY, 1995)
§ Facts
· In two cases, the unmarried partner of a child’s biological mother sought to adopt that child
· Issue: Whether NY law prohibits such an adoption
§ Majority
· Court says that adoption statute must be strictly construed—taking legislative purpose into account—but must also be applied in harmony with the humanitarian principle that adoption is a means of securing best home for the child
¨ Emotional security of knowing child would be able to continue living with other parent should biological parent die
¨ SS and life insurance benefits
· Statutory language of § 110 supports standing to adopt
¨ Use of term “together” in statute does not require married couples, only that a married couple must adopt with consent of both parties—no unilateral adoption
· Legislative history of § 110 also supports standing to adopt
¨ Statutory section amended in 1951 to allow more than just married couples to adopt
¨ NY does not allow discrimination based on marital status or sexual orientation
· Legislative intent of § 117 resolves ambiguity
¨ “Where the language of a statute is susceptible of 2 constructions, the courts will adopt that which avoids injustice, hardship, etc.”
¨ Ignores express statutory language, but looks to the purpose of statutes:
¨ Purpose is welfare of the child and the furtherance of the child’s best interests.
¨ Interests of child are best served by being adopted into 2-parent home.
¨ It is appropriate for the court, when faced with this dilemma, to harmonize the provisions to support the purpose of statute: To promote interests of the child.
§ Dissent
· Weak textualist argument—amendments show true intent
¨ 1896: adopted by “an adult unmarried person or an adult husband or wife or an adult husband and his adult wife together.”
¨ 1920: removed the phrase “or an adult husband or wife or an adult husband”
¨ Thus for those who are wanting joint adoption, it must be husband and wife “together.”
Ø United States v. Stanley J. Marshall (7th Cir, 1990) (Posner, J. dissenting)
§ Facts
· Defendants were convicted of distributing more than 10 grams of LSD and sentenced to mandatory five years
¨ 21 U.S.C. § 841: Mandatory five years for selling more than one gram of a “mixture or substance containing a detectable amount” of LSD
· In order to distribute LSD, it must be placed on a carrier such as paper and sold in tiny squares
