Notes Bridge legislative supremacy with constitutional avoidance Keep note of how the purposivists view Congress as generating imperfect work product

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Legislation and the Regulatory State

Professor Adam Samaha

Spring 2015

Grade: A-


Bridge legislative supremacy with constitutional avoidance

Keep note of how the purposivists view Congress as generating imperfect work product

  • Explain your answer to him

  • Grades the exams as a whole (can cross reference)

  • Read with extraordinary care and then organize answers

Legislation & The Regulatory State Outline

  1. Legislation

  1. Interpretation and Beyond

  1. Methods of Interpretation

    1. Intentionalism

      1. When confronted with ambiguity or a troubling outcome, the judge tries to figure out what the legislature would have specifically intended if it had confronted the particular interpretive question. Would look to transcripts before a law is enacted.

      2. How the legislature would have responded to the precise question at issue

    2. Purposivism

      1. Congress adopts legislation for a reason and courts should read specific statutory provisions to advance the legislation’s purpose or general aims, as derived from a variety of sources, including the context of enactment.

    3. Textualism

      1. Interpretation should strive to discern how reasonable people would understand the semantic import or usage of the precise statutory language and the structure of the statute.

      2. Going beyond the text to further some notion of Congressional intent or purpose is both illegitimate and unworkable in practice

    4. “No vehicles in the park” illustration

      1. intentionalist would look to a sponsor’s assurance of a worried colleague that the bill wasn’t intended to exclude bikes

      2. a purposivist would be more interested in what inspired enactment of the bill. If the legislature had been principally concerned with noise and pollution, a purposivist would be inclined to allow bicycles

      3. a textualist would look to how people ordinarily use the word “vehicle”, to the dictionary and to legal parlance

    5. Legislative Supremacy

      1. Each interpretative model is grounded in the principle of legislative supremacy—acts of Congress enjoy primacy as long as they are within constitutional bounds, and that judges must act as faithful agents

      2. Each method is concerned with “legislative intent” though they understand the phrase differently. Each is trying to enforce a decisions that they think is legitimately attributable to the legislature.

  2. The Judge’s Role in Relation to Congress

    1. Independent – check & balance Congress

    2. Partner – collaborate with Congress to further the public good

    3. Faithful agent – follow Congress as its faithful agent

    4. “I believe banning strollers is a bad idea”

      1. independent

      2. partnership if it furthers the public good

      3. subordinate if the legislature gave the directive that judges decide what “vehicle” means in marginal cases

    5. Federalist 78 combines all three

      1. The essay is a defense of what would become Article III, Section I.

      2. Independent: checking the limitations of the CNSTN so that the legislature does not abuse its power, deterring Congress from passing unjust laws by mitigating their effects. Tenure and salary protection to ensure degree of independence.

      3. Partner: Not checking the power of Congress to pass the law directly but mitigating the effects of existing laws for the public good. Relies on assumption that judges can discern what is an unjust or partial law.

      4. Faithful agent: no active resolution whatsoever. No force or will.

    6. Marshall (The LSD Case)(7th Cir. 1990)

      1. Q: Does weight of the carrier (blotting paper) factor in the weights listed in the statute, which trigger statutory minimum sentencing?

      2. Held: Yes, because

        1. (1) Against using the weight of pure LSD only

          1. “Substance or mixture” must have some meaning; “detectable amount” is the opposite of “pure”; structural argument (PCP provision would have surplus if “mixture or substance” meant pure); Congress intended that “mixture” not be converted into an equivalent amount of pure LSD

        2. (2) For weight of LSD plus paper as a “mixture or substance”

          1. Ordinary meaning of “substance” and “mixture” combined with specialized usage in chemistry, colloquial meaning, LH, precedent

        3. “Odd results may occur”

      3. Dissenting, Posner assumes more of an independent or partner role

        1. The minima would be triggered by one dose in a glass of OJ but not by one dose in an empty glass

        2. Disproportionate to other, more serious drugs.

        3. Acknowledges that “substance and mixture” would have no referent under his analysis

        4. Independent

          1. “Well, what if anything can we judges do about this mess?”

          2. Moderating an unjust law

        5. Partner

          1. Contextual argument: Congress didn’t know that LSD is sold by the dose not by weight.

          2. Congress makes some mistakes and the judge is a partner who works with Congress to ensure that the result is not embarrassing for either Congress or the court

          3. Doesn’t say he would disregard a congressional mandate stipulating the use of the weight of the blotting paper

          4. A bridge between partnership model and purposivism

        6. Subordinate

          1. Just trying to carry out congress’ overall purpose despite being a little careless drafting the statute

      4. Critique of the dissent’s reasoning

        1. The realties of enforcement would never involve the OJ discrepancy

        2. Perhaps this law is designed to capture the little fish and leave the big fish to be caught by another law

        3. Maybe Congress intended to target LSD harshly

  1. Letter Versus Spirit of the Law

  1. Creating the letter of the law—the legislative process

    1. Article 1, Section 7: Bicameralism and Presentment

      1. “Before a bill can become law, it must pass both the House and the Senate (bicameralism) and sent to the president to sign or veto (presentment)”

        1. Involves different institutions with different election cycles, different constituencies and small state power

          1. Represented by the decision to give equal weight to all states irrespective of population size

      2. If president vetoes, must be supported by 2/3 supermajority of each house

      3. Justifications/Critiques

        1. Checks and balances

          1. Preventing either branch from abusing its power

          2. Encouraging abuse of power in blocking legislation

        2. Deliberation and “cooling off”

          1. Facilitates potential for public participation

    2. Congressional Rules of Procedure: Constitution dictates that each house can determine its own Rules of Proceeding

      1. Introduction of bills and referral to committees

      2. Committee consideration, conference committees

      3. Floor debate, voting including Senate filibusters and cloture rules and amendment, adjournment

      4. Reconciliation

    3. Effect: Statutes are hard to “make”  status quo bias

  2. Classic Approach—spirit over letter: Purposivism

    1. As with the LSD OJ hypothetical, troubling consequences of the law generate challenges to textualism and sometimes the challenge happens within the subordinate model, by invoking the legislature’s intent or purpose

    2. Why might statutory text and purpose ever be at odds?

      1. Imperfect legislation at T1

        1. Mistake

        2. Information imbalance

        3. Time constraints

        4. Unforeseeable circumstances

      2. Imperfect amendment at T2

      3. Court’s imperfect interpretation of T1 text and purpose at T2 (hindsight bias)

        1. One way to legitimize the potential trade-offs inherent in this conundrum (cf. Riggs dissent) is to include the troubling results apparent at T2 or to simply accept an open partnership model of judiciary involvement

    3. Riggs (NY 1889)(The Murderer Inheritance Case)

      1. Q: Can murderer inherit from the will?

      2. The words of a statutes give the property to the murderer, but the purpose of the statute is to effect the final wishes of the testator

      3. Held: Murderer cannot inherit. The intention of the lawmakers could not have been to grant a murderer donee beneficiary rights. “If such a case had been present to their minds…”

      4. Intentionalist & Purposivist

      5. Philosophy: A thing within the intention of the statute is as much contained in the law as if it were in the letter. A thing in the letter but not in the intention is not contained in the law

      6. Dissent: Not within the power of the court to go beyond confines of statute, which does explicitly delineate when a will can be altered or revoked (fraud, duress or incapacity at the time the will was made  expressio). Consistent conformity of judicial performance required for the law to be legitimate and the legislature may have intended this.

    4. Church of the Holy Trinity (1892)(The Christian Nation Case)

      1. Q: Does the (foreign) Labor Act prohibit a contract made between an English rector and US corporation (church)?

      2. The Court starts with the “letter” of the act, which clearly prohibits the contract: “It shall be unlawful… for any … corporation… in any way assist or encourage the importation or migration of any aliens in the US… under contract of agreement… to perform labor or service of any kind in the US”

        1. Specific exceptions listed which do not include religious workers (expressio)

      3. Held: the contract is not in violation of the Act as Congress did not intend to preclude this type of contract

        1. Legal Process: judge assumes the legislature is made up of reasonable persons pursuing reasonable purposes reasonably

      4. Rational conjecture given drafting imperfections

      5. Relies on the title of the Act and the common understanding of “labor” to decide that “labor” applies to manual labor

      6. Contextual argument: enacted in response to the collapse of the manual labor market, “the mischief” to be avoided

        1. As ascertained by common knowledge, current events, LH and another judicial opinion

      7. LH: senate committee report (unlike Riggs which did not look to LH)

        1. Not representative to the views of the whole legislature but speaks to the issue at hand; an answer to the Legal Process inquiry

        2. “The current language should be read as manual labor”

      8. Societal Values

        1. “this is a religious people”

        2. Assumes judges can discern broad, deep values of American public

        3. And that legislators do not act contrary to them

      9. Words are instruments to convey a purpose to which the court must be loyal its interpretation

        1. American Trucking: “Even when plain meaning id not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole” this Court has followed that purpose, rather than the literal words”

      10. Faithful agent under purposivism but functionally similar to partnership model

        1. “This is not the substitution of the will of the judge” just that the words are an imperfect representation of the will of the legislator

        2. Conceptually different from partnership model

      11. If general purpose governs, how much guidance for judges?

        1. What if someone murdered not the testator but primary heir?

        2. What if there are multiple purposes at conflict with each other?

    5. Would open partnership or reliance on formal amendment be preferable?

      1. If judges confined interpretation to the terms of the statute it would incentivize amendment and clearer drafting

      2. Or just accept an open partnership

  3. Textualism Rises

    1. Casey (1991)(The Expert Fees Case)

      1. Q: Can expert testimony fees be shifted to the losing party pursuant to statute which permits the award of “reasonable attorney’s fees”?

      2. Held: No. The best evidence of the legislature’s purpose is the text itself and the text is CLEAR, given statutory and judicial usage, and does not envelope expert fees in reasonable attorney’s fees.

        1. Statutory usage: treated as distinct in other statutes—if “attorney’s fees” included both then this would create a redundancy in those statutes

        2. While courts may have relied on equitable doctrines to shift not only attorney’s fees but also expert fees, they never did so because they saw the latter as part of the former

        3. Other sources of evidence may be used but only when there is ambiguity in the text.

      3. Unambiguous meaning cannot be manipulated by legislative history

        1. Despite there being legislative history to show that this statute was enacted to reverse Alyeska and to encourage plaintiffs to bring civil rights claims, the best evidence of a statutes purpose is the text itself

        2. Unambiguous text cannot be expanded or contracted by the statements of individual legislators of committees during the court of the enactment process

      4. It is not the judge’s role to smooth over inconsistencies in policy

      5. Incentivizing consistency in the law

      6. Dissenting, Stevens

        1. Purpose of bill is to return courts to Pre-Aleyska practice of shifting fees in civil rights cases, including expert fees

        2. Congress is the master but we do the country a disservice when he needlessly ignore persuasive evidence of Congress’ actual purpose and require it to go back and do better whenever its work product suffers from an omission or inadvertent error

      7. Both subscribe to legislative supremacy but disagree about how to best be a faithful agent to Congress

    2. Different views of or focuses on the legislative process that accounts for inconsistency between plain meaning and intended purpose

      1. Purposivist – inadvertent legislative omission or failure of foresight

      2. Textualist – result of a process that necessarily involves compromises which must be preserved

    3. A statute has many layers of purpose and is therefore vulnerable to abstraction

    4. Scrivener’s Errors: Amalgamated Transit Union (9th Cir. 2006)(The Less is More Case)

      1. Mistakes in transcription: The statute created a waiting of period of 7 days before you could file an appeal without providing a maximum: “not less than 7 days”. Arguably meant to have been a deadline: “not more than 7 days”

      2. Judges are hesitant to apply the doctrine

      3. Intentionalism [?//]

      4. Purposivists:

        1. Legislative history indicates it was designed as a limit of within which an appeal could be filed

        2. “No logical purpose” to have a minimum but not maximum [debateable]

        3. Presence of other scrivener errors (or same error repeated)

        4. “no rational basis” for omitting a single day (Stevens)

      5. Textualists

        1. Legislative history cannot be used to directly contradict words of statute when unambiguous. It may be used to clarify ambiguous text.

        2. Litigators and lawyers have to be able to rely on the actual text

        3. Absurd results mitigated by FRCP

        4. Scalia: The scrivener’s error must be “clear to the reader” and “it will usually be pretty clear that the result produced by the error could not possibly be chalked up to a compromise”, i.e. the error must result to nonsense or meaninglessness. Easterbrook did not find nonsense present in Less Is More Case.

      6. Should it matter than Congress eventually amended to “not more than”?

        1. Sitting legislature is not necessarily the enacting legislature

      7. Is it disrespectful to Congress to keep holding their feet to the fire in reading scrivener’s errors literally when the cases get reserved?

        1. Not every policy gets Congressional attention

        2. Textualists may not care about flipping or being disrespectful—care about making the text reliable

      8. Textualism and the Independent Model

        1. If you’re going to hold congress’ feet to the fire, are you really being a subordinate?

        2. Judges imposing their idea of how they want to read statutes and how reliable statutes should be

    5. Textualism on the Rise

      1. (1) Respect difficult legislative process over judicial policymaking

        1. Normative claim that judges should be faithful agents not partners or independents

        2. Our democratic process depends on respecting the reality of policymaking

        3. Don’t want judges upsetting the bargaining process under the mistaken impression that the process is principled

      2. (2) Respect statutory text over legislative history

        1. The latter is unreliable as indicative of what the legislature really wanted

      3. (3) Arbitrary or interest group deal making often drives the process [HOW DOES THIS FIT IN?]

        1. Clear disconnect between 1 and 3

          1. Why do you want article III judges enforcing an arbitrary or behind closed doors system dominated by interest groups?

    6. Models for Politics [HOW DOES THIS FIT IN? A theory on there being or not being collective intent has to be in reference to a political model]

      1. Trustee – member deliberation and acting on conscience (e.g., war)

      2. Interest group – organizational power per capita (e.g., tariffs)

        1. Organizations have more power than individuals

        2. States, corporations, consumers, unions

        3. Mainstream voter probably doesn’t know how tariffs will affect them but companies and unions do and if mainstream voter knew, they probably would vote against while the organizations are voting for

      3. Median voter (e.g., flag burning)

        1. Mainstream preferences/values to the extent that they exist

      4. Party polarization – unified v. divide gov’t (e.g., health care)

        1. Avalanche of legislative activity when there is unified government

        2. When government is divided likely to see gridlock

        3. Hasn’t been worked in to statutory interpretation

    7. Absurdity Problems

      1. Absurdity Doctrine: Do not interpret statutes to yield absurd results.

      2. Kirby (1868)(The Arrested Mailman Case)

        1. Sheriff and posse, pursuant to a bench warrant, arrest mailman

        2. Q: Did said sheriff and posse, in effectuating the arrest, obstruct the mail in violation of the Act prohibiting knowing or willful obstruction of the mail or a mail carrier

        3. Held: No, when the results would be absurd then “the reason of the law in such cases should prevail over its letter”

        4. ∆’s did not intend to obstruct the mail or its carrier within the meaning of the statute

          1. A Textualist could arrive at the same result on a reading of “knowingly and willfully”

        5. To hold otherwise would be absurd since the ∆’s were acting lawfully and common sense dictates that the public inconvenience resulting from delayed mail is nothing compared to the “inconvenience” that would result if we allowed mail carriers to be immune from arrest for murder while on the job

      3. Even Textualists draw the line somewhere

        1. Legislative compromise may result in “awkward” consequences but they don’t totally reject the absurdity doctrine, confine it to political absurdity.

      4. How are judges supposed to test to absurdity?

        1. Standard: Common sense, “all laws should receive a sensible construction” given context

          1. Blood in the streets example

        2. Under the faithful agent model, a judge has to find absurdity in a political not a normative sense. Absurd that the legislature would produce an absurd result.

      5. How might models for politics affect the doctrine and examples?

        1. Interest group model of politics can yield weird results, so under this model a subordinate model judge would be unlikely to find political absurdity under this model

          1. Some weird interest group might want to protect federal servants from state prosecution while on the job

          2. Really hard to know what is absurd

        2. Median voter position: easy to see under this model that application of the statute as written would yield a politically absurd result

      6. Absurd consequences are unstable over time

        1. The barber opening the veins of a person having a fit to remove ill humors

      7. Incentivizing amendment

  4. Purposivism Survives: Textually Constrained Purposivism or “The New Purposivism”

    1. Purposivism survives and coexists with textualism help resolve ambiguity. Purpose can be found in many sources (see General Dynamics)

    2. Identifying Statutory Goals: General Dynamics (2004)(The Age Discrimination Case)

      1. Using an understanding of legislative purpose to defend a relatively narrow interpretation of statutory text

      2. Facts: petitioner eliminated health benefits but made an exception for then-current workers who were 50 or older. Respondents were at least 40 (covered by Act) but under 50 (lost their benefits)

      3. Q: Does the Age Discrimination Act forbid favoring the old over the young? Held: No.

        1. Text: Discriminate against “any individual…because of such individual’s age”

      4. Majority relies on purpose + text

      5. (1) Purpose arguments for limiting “age” to “old age”

        1. Semi-conflicted LH

          1. Agency report, hearings, etc. v. a floor colloquy (Latter rejected in face of rest of evidence relied on by majority)

          2. Testimony focused on stereotypes about older people; why sometimes it might be legitimate to fire or decide not to hire an older person

        2. Social History

          1. actual practices engaged in out there in society

          2. the “mischief” – the social problems

          3. Congress was aware of fact that people talking about and experiences age discrimination as discrimination against the old in favor of the young

        3. Text itself: enumerated purposes, age minimum of the protected class, contrast with Title VII [Congress wanted this act to be treated differently than Title VII]

      6. (2) Textual arguments – whether “age” is clearly “number of years”

        1. Dictionary usage – includes both, though old age is secondary

        2. Colloquial usage – competing illustrations

        3. Consistent use – indicates BFOQ defense would be incoherent

          1. If true, outcome driven by purposivism reason trumping text

        4. Surround words – contexts of “discriminate” v. “qualification”

      7. Dissenting, Thomas (Samaha loves this dissent)

        1. Clear meaning does not restrict only to discrimination against older people

        2. Consistent use  majority’s meaning of “age” would render one of the statute’s affirmative defense incoherent

          1. You discriminated against me because I’m old

          2. Defense: old age is a bona fide occupational qualification

          3. Makes no sense – you will never need the defense

            1. A surplus

            2. Leaves the defense with no application

          4. Devastating under the consistent use canon

        3. Majority response: age has multiple meanings and can mean different things within the statute based on surrounding words

      8. Contrast with Holy Trinity and Casey dissent (the Old Purposivism)

        1. HT: both rely on purpose but the courts describe what they are doing incredibly differently

          1. Holy Trinity “spirit trumps text”

          2. Here, locates textual ambiguity  then goes in purpose

        2. Casey dissent: Both looking for general purpose but different conceptions of why

          1. Stevens: congress isn’t always careful and we will disrespect them if we don’t look for their general policy and tidy up inconsistencies with it

          2. In no place does Souter imply that Congress was careless

          3. Rather, relies on an underlying coherence in policy

    3. Why might both purposivism and textualism survive?

      1. Different opinions on the bench

      2. Strong form of textualism can build reliance on the US Code without having to rely on other sources

      3. On the flipside, you end with some absurd or indefensible results which serves as a check on textualism

      4. The quandary then becomes how to determine what is an absurd or indefensible result and the resulting question of how many mistakes the judiciary is going to make and how is it going to effect the democratic process

    4. Purposivism survives – coexisting with textualism

      1. Purpose used to help resolve ambiguity

      2. Purpose may be found in many sources, see General Dynamics

      3. Judges then must decide how far to pursie these purposes…

    5. Making statutes work
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