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Constitutional Law and the Regulatory State OutlineProfessor Chen

Constitutional Law and the Regulatory State Outline

Statutory Interpretation

Textual Analysis (Rules for understanding words of the text. Requires reader to use clues to interpret the meaning or scope of a particular word or phrase)

I. Ordinary Meaning/Plain Meaning Analysisa. What does the statute say?b. What does the dictionary say?c. Textualism Argument—Congress chose the words of the text. An analysis should

not go broader and consider other indication of congressional intent. d. Specialized Meaning Within Legal System

i. Has the statute been interpreted by the court?ii. Has the court considered alternative interpretations?

e. Prototypical v. Extensive Meaningsi. Prototypical Meaning—the best exampleii. Extensive Meaning—all examples

II. Textual Canons a. Purpose of this analysis is to interpret the statutory language based on

surrounding text; courts generally move from the narrow meaning to the broad meaning.

b. Linguistic Cannons/ Intrinsic Cannonsi. Noscitur a Socis- “it is known from their associates”

1. When two things are grouped together and ordinarily have a similar meaning, but are not equally comprehensive, the general word will be limited and qualified by the special word.

a. i.e., Whatever word we are unsure of, we can look at the other ones; A word is known by the company it keeps.

2. E.g., “No guns, knives, prostitutes, or drugs allowed on the premises” – drugs means illegal or dangerous drugs, not prescription drugs.

3. Defense: Not every list has commonality and are a grab bag of unrelated terms and you cannot draw a meaning from their associates.

ii. Ejusdem Generis – “of the same kind, class, or nature”1. When specific and general words are connected in a list, the

general words is limited by the specific one.2. E.g., “No cars, motorcycles, bicycles, skateboards, rollerblades,

or other vehicles are allowed in the park” – “or other vehicles” not interpreted to included horses since common denominator of prohibited vehicles are wheels

3. Defense – Cannon assumes that the legislature thinks through statutory language carefully considering every variation.

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iii. Expressio (inclusion) Unius - Expression or inclusion of one thing is the exclusion of others.

1. Mention one thing means the exclusion of others; or2. Inclusion of one thing indicates the exclusion of others.3. E.g., “No guns, knives, prostitutes, or drugs allowed on the

premises” – Interpreted impliedly not to exclude a legal internet gambling site.

4. Defense – Cannon assumes that the legislature thinks through statutory language carefully considering every variation.

c. Punctuationi. Congress is presumed to follow accepted punctuation standards, so

that placements of commas and other punctuation are assumed to be MEANINGFUL

d. Last Antecedenti. Referential and qualifying words or phrases refer only to the last

antecedent unless such a reading contrary to apparent legislative intent. (Do Not Apply this Rule if Not Practical)

ii. E.g., firemen, policemen, and doctors in a hospital.e. May/Shall

i. May Permissive/ discretionary (but can be mandatory if context/intent dictates)

ii. Shall Instructive/ requiredf. Conjunctive v. Disjunctive: the “And/or” rule:

i. Terms connected by a disjunctive should be given separate meanings unless the context suggests otherwise.

ii. And/or usually means “or”; they must have SEPARATE and DISTINCT meanings

g. Golden Rule: Absurdityi. “The interpreters should adhere to the ordinary meaning of the words

used, and to the grammatical construction, unless that leads to manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further.”

III. Structural Canons (Look at different parts of the statute; Section, Provisions, or whole code) **SKIDMORE CASE**a. Whole Act Cannons: Don’t look at just the immediate provision look at

the rest of the statute:i. Rule: The whole act instructs courts to view statutory terms as part of

the entire legislation in which they were enacted. The court wants to look at the statute in connection w/ the whole statute. The whole act rule presumes that Congress views each statute as a whole, intending words to have the same meaning throughout and individual provisions to work together, thus creating coherence and avoiding redundancy.

ii. Identical Words: consistent meaning; identical words and phrases within the same statute should normally be given the same meaning.

iii. Rule of Surplusage:

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1. Under this principal, a court will avoid an interpretation of a provision that renders any other provision of the same act redundant or “Surplusage”

2. Every word is scared and has a meaning. It is a cardinal principal of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence or word shall be superfluous, void or insignificant.

iv. Titles, Provisos: Courts can occasionally make reference to titles and provisos; however, courts generally do not give them any “controlling weight”

1. Titles: Can be evidence, but “title alone is not controlling”a. Should be used only to help clarify an ambiguous word

or phrase – issue of how to decide when a word or phrase has crossed that threshold of ambiguity.

b. Doesn’t have controlling weight2. Provisos (... provided that ...) : Clauses that state exceptions

to or limitations on the application of a statute.a. Must determine whether it except only the immediate

preceding clause or if it applies more broadly – often it can apply more broadly

b. Doesn’t have controlling weight3. In pari material (upon the same matter or subject) – Statutes

passed at different times, words should be interpreted similarly and make sure there is not superflage. When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter. Courts must determine if the other statute addresses the same “subject matter”

b. Whole Codei. Reconciling the text of the one statute w/ the text of another statute or

statutes in light of others in the code; generally consulted last; more meaningful when the statutes are related.

1. In pari material – statutes addressing the same subject matter generally should be read as if they’re one law (“Code of a feather flock together”)

2. Inference across statutes – court may interpret statutes together, even when they are sufficiently related to construe them in pari material “If this statute means it one way, this one probably does too”

3. Repeals by implication – when a statute would implicitly repeal another statute; “repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest”

c. Other (related) Statutes

Scalia Approach:1. Look at the text and determine plain meaning

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2. Apply the canons of statutory interpretation and see if there is some reason to disregard the plain meaning (Does the plain meaning lead to absurdity?) (No room for legislative history; doesn’t like to read into silence)

3. Look to see if there could be a contrary meaning.4. If not, apply the plain meaning

Intent Analysis Per the ___, it is clear that the legislature had ____ in mind. This language shows the Congress intended. What was the motive of the legislature?

I. Legislative History – Legislative history (the literal language shouldn’t be King if Congress did not intend it to be): Intent of the Legislatureo Prior statements, Recordso Committee Reports:

Most valued form of legislative intent; Written by those charged w/ the bill and have the mot knowledge about the bill

Author or Sponsor statements about Bill Statements of other members of Congress Hearing Records: debates about the bill in either House or Senate Legislature that was passed during, before, or after the current bill that was

passed Presidential and Agency statements: President signs the bill and the

agency is usually involved in its writing Legislative silence can also be used as evidence

II. Subjective Intent/ Motivea. Expressed evidence of what the drafters did want

III. Administrative Lawa. Chevron Analysis or Mead/ Skidmore Analysis (Spotted Owls)

i. Inquiry into the Law; Standard of Review is De Novo “Anew”ii. Chevron

1. Defer to the interpretation made by the gov’t agencies in charge of enforcing the statute.

2. No Admin. Regulation is given any weight or credit if the interpretation is contrary to the words of the doctrine.

b. State Farm Analysisi. Inquiry into fact; Standard of Review is Clearly Erroneous

IV. Words/ Phrases to use:a. Per the ___, it is clear that the legislature had ___ in mind.b. The motives of the legislature was ____c. This language shows that Congress intended.

Purpose Analysis

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“It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because it is not within the spirit, nor within the intention of its makers.” –Justice Brewer.

More general view of Congressional intent as purpose

I. Choose the interpretation that best carries out the statute’s purposea. Objective, inferred evidence of what the law should achieveb. Address the evil at which the statute was aimedc. Title of the statute

II. Hart & Sacks Analysis:a. The function of the court is to decide what meaning ought to be given to the

direction of the statute.i. Start w/ Text

ii. Consider history – Relation to previous legislation and relationship to subsequent legislation

iii. A court should try to put itself in the position of the legislature which enacted the measure

III. Common Law/ Constitutional Law/ Stare Decisesa. The court’s own prior interpretations of a statute in related to applications should

be accepted, on the principle of stare decis, unless they are manifesting out of accord w/ other indications of purpose.

IV. Extrinsic Sources of Congressional Intenta. Legislative history – Results are clearly not intended by Congress. The Problem

that the Legislature sought to Address

Substantive CanonsI. Rule of Lenity – In construing an ambiguous criminal statute, a court should resolve

the ambiguity in favor of the defendant.a. Can use Lenity one of two ways:

i. As a Baseline – Lenity is a given, and you have to prove why it is notii. As a tie breaker – If all of the evidence points to the other way, you can

say “In light of the evidence, the rule of lenity does nothing.”b. “The rule of lenity applies only if after seizing everything from which aid can be

derived . . . we can make no more than a guess as to what Congress intended” Muscarello (Justice Breyer pg. 504).

c. “Where text, structure, and history fail to establish that the Gov’ts position is unambiguously correct – we establish that the Gov’ts position is unambiguously correct – we apply the rule of lenity and resolve the ambiguity in the ∆’s favor. Id. (Dissent – RBG pg. 508)

d. Words to Say:i. Because grievous ambiguity still exists after consulting all other venues,

the statute should be determined in the ∆’s favor.II. Avoidance of Constitutional Doubt

a. In the event of statutory ambiguity, the court should adopt the interpretation that will spare it from having to resolve a question about the constitutionality of the statute.

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b. Requirement:i. Ambiguous statute

ii. Constitution questionc. MUST AVOID statute interpretations that would make a statute unconstitutional

or that would raise serious constitutional difficulties.d. Case e.g., NFIB v. Sebelius

III. Clear Statementa. The court will not rule on something unless the court has expressly stated it. This

canon says to Congress that it is up to them to make clear what they want. Generally, there is implied preemption, but specific clear/plain statements are required to protect federalism.

IV. Federalisma. Prohibits the court from construing a statute to interfere w/ state sovereignty

absent express language indicating that congress intended that result (fed. Gov’t uses this rule to respect federalism: dual sovereignty to the fed. And the states)

b. Places the burden on Congress and gives the state the chance to respondc. If Congress intends to alter the federal-state balance, it must do so expressly in the

statute (Gregory v. Aschcroft)d. If Congress means something, they would explicitly state it that way. They

wouldn’t leave it ambiguous and up to the States to decide.i. E.g., Gregory – If Congress meant for the ADEA to exempt State judges,

they would explicitly say this.V. Remedial Purpose

a. If a statute has a specific remedial purpose, it should be interpreted broadly to protect that purpose.

VI. Presumption Against Preemptiona. Congress dos not normally preempt state law. Even when Congress includes a

preemption clause, Congress can still protect against it but construing the clause narrowly.

b. Questions often arise as to whether a federal statutes, regulations, and common law rules. In such cases, courts often apply presumption against preemption. It can apply n two circumstances: (a) when a federal statute contains an express preemption provision and (b) when it does not. It is done narrowly. It is a mess.

VII. Presumption Against Retroactivity a. Generally, statutes don’t apply retroactively

VIII. Presumption Against Extraterritorial Activitya. Laws only for US territory, not other jurisdictions

IX. Absurdity (Scrivener’s Error and Avoiding Absurd Results)a. If interpreting a term in a certain way results in an absurd interpretation, then

don’t interpret the statute in that way.b. Only invoked if result is really CRAZY, Nonsensical. Looks to the purpose for

the statute. The legislature did not intend an absurd or manifestly unjust result.c. Do not give the words a meaning they cannot bear

X. Interpretation in Light of Fundamental Valuesa. Statute does not violate fundamental societal values. See, e.g., Holy Trinity

Church v. United States, 143 U.S. 457 (1892)

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Purposivism

Intentionalism

Textualism

Locke – Jan 30th case (Holy Trinity) pg. 305 (Speluncean Explorers) pg. 318 (Hart & Sacks) pg. 325 Text (Casey; TVA v. Hill) pg. 353

Overview of Cases & Interpretation Marshall (majority—EB) (TIP) Marshall Posner (PIT) TVA v. Hill E (TIP) Holy Trinity E (PIT) Hart & Sacks (PIT) Zuni (Intent)

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