Challenging and/or Ruling on Agency Actions

I. STANDING: Can this suit even be heard in court?

Can agency argue that entity doesnt have standing to sue them to begin with? How injury is articulated very important. I. 3 CONSTITUTIONAL REQUIREMENTS

1. Procedural injury valid and gives special right to assert claim without meet standards for redressability and immediacy. Lujan a. Injuries from abstract procedural rights dont get standing. Lujan: interagency consultation requirement which was violated. 2. If given procedural right, standing when possibility that requested relief will prompt injury-causing party to reconsider the decision that allegedly harmed litigant. Mass v. EPA (where the statute expressly authorized challenges for actions unlawfully withheld) 3. Imminence: Prospective injuries count BUT if relying on future injury must show that its an imminent harmreasonably likely, real and immediate (need that plane ticket!). Lujan a. No standing to get injunction because theres no reason to believe that he will be held in chokehold in the future. Lyons v. LA 4. Interest groups (i.e. enviro) have standing to litigate their own claims and bring claims on behalf of members (Lujan) BUT injury shared by many controversial floodgates to litigation. 5. Bar on generalized grievances: eco-system nexus theory: everything connected so everyone harmed by injury to ecosystem a. PROBLEMS: (a) floodgates (b) becomes policy question and violation of separation of powers to litigate (Scalia: Const. requires that Congress and Pres (Art. II take care) do this, otherwise Congress usurping power and giving it to court). Lujan b. Aesthetic, harms to natural resources count. Ideological interests do not. c. Gen. interests in having the government obey the law do not count. lawsuit for not using notice and comment not enough if notice and comment doesnt directly redress IDd injury i. Counter: injury was reduced odds of success because notice and comment didnt take place. 6. Special solicitude for states in in determining whether they have standing or not because of their stake in protecting quasi-sovereign interests. Mass v. EPA

Constitutional requirements for standing are derived from Art III, which restricts the judicial power of federal courts to cases and controversies that arise under the Constitution, federal laws and treaties. a. Injury: P suffered an injury in fact--invasion of a legally protected interest that is concrete and particularized and actual and imminent, not conjectural or hypothetical b. Nexus: (1) injury in fact caused by challenged action and (2) can be redressed by the relief sought i. Causation: injury has to be fairly traceable to the challenged action of D, not third party ii. Redressability: must be likely, not merely speculative, that the injury will be redressed by a favorable decision. II. 3 PRUDENTIAL (JUDGE-MADE) Prudential limitations prevent courts from deciding abstract questions of wide public significance, especially when judicial intervention may be unnecessary to protect individual rights. a. P has to assert her own legal rights or interests. b. Courts dont decide generalized grievances. c. Plaintiffs have to be within zone of interests (this reflected in APA 702) protected or regulated by the provision. i. Consider: 1. Those directly affected by regulation (e.g., car manufacturers) 2. Regulatory beneficiaries (people helped by regulation) 3. Everyone else.

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II. GENERAL FRAMEWORK FOR JUDICIAL REVIEW

I. APA 551: Definitions I. APA 706 Scope of Review a. 551(2) person includes an individual, partnership, a. 706(1): Failure to act: can compel corporation, association, or public or private agencies to act where unlawfully withheld organization other than an agency; or unreasonably delayed APA 701 Exceptions to reviewability: No judicial review b. 706(2)Will hold unlawful and set aside allowed if agency action which is a. (a)(1): statute expressly precludes review (must i. 706(2)(A) Arbitrary, capricious, abuse actual say judicial review). of power or otherwise contrary to law b. (a)(2): Agency action is committed to agency 1. **Applies to all reviewable discretion by law Governing statute so broad administrative action. that in any given case, there is no law to apply OR ii. 706(2)(B): Unconstitutionalcontrary suggests that Congress intended for the agency to to constitutional right, power, privilege, have final authority over a decision or immunity i. Presumption against review when agency iii. 706(2)(C): Inconsistent with the statuteexercises its discretion to decline to in excess of statutory prosecute or pursue enforcement action. jurisdiction/authority/limitations (Heckler v. Chaney) iv. 706(2)(D): Without observance of APA 702 Right of review: person suffering legal wrong procedures required by law (APA, Exec due to agency action, or adversely affected or aggrieved by order, statute) agency action within the meaning of a relevant statute, is v. 706(2)(E) Substantial Evidence standard: entitled to judicial review. unsupported by substantial evidence in a. Overton Park - presumption of judicial formal **applied to formal rulemaking, reviewability unless statute says outright, adjudication (trial-type hearings with legislative history, contemporary judicial ALJ) construction followed by congressional vi. 706(2)(F): Decision found to be acquiescence, inferences of intent drawn from unwarranted by the facts. Herz: almost consideration of statute as a whole. completely a dead letter. b. Use constitutional avoidance doctrine to interpret vii. Some statutes also specify their own statute in a way that would settle any standard for judicial review. constitutional concerns arising from judicial review question. c. (2) - CONFUSING, because it says that agency action committed to agency discretion not reviewable, but 706 sets aside agency decision thats abuse of discretion. APA 704 - Judicial review only available for agency action made reviewable by statute and final agency action

II.

III.

IV.

III. Constitutional Objections

Separation of powers problems with agency authority given or limited by Congress. (e.g., non-delegation) I. Executive Control: Appointment, Recess Appointment, Removal Problems? a. Appointment i. Art II. Sec. I, Clause 1: Executive power shall be vested in a President ii. Art II S2, C1: may require the opinion, in writing, of the principal Officer in each exec Depts a. Principals: high level officials in exec branch and heads of independent agencies. iii. Art II S2, C2: with the Advice and Consent of the Senate, shall appoint all other Officers of the U.Snot otherwise provided for, and which shall be established by law b. Recess Appointments (Art II)

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i. Sec. 2, Clause 3: shall have the power to fill up vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the end of their next Session. ii. Sec. 3: shall take care that the laws be faithfully executed, and shall Commission all Officers. i.e. to ensure laws properly enforced, must make sure officers are appointed to fill vacancies. iii. Senates advice and consent important. Only when Senate unable to fulfill their duty (vacancies happen during recess) can the President bypass this req. Noel Cannong v. NLRB c. Removal: Power to remove executive officers at will based on three theories i. Appointments Clause: Pres fires on advice and consent of the Senate ii. Art II President vested with power and take care power implies ability to fire. iii. Art 1, Sec 8: Congress shall have the power to make necessary and proper laws (and therefore vest removal power in President) d. Did Congress infringe on Presidents appointment or removal power? i. Cannot req Pres to obtain advice and consent of Senate before removing exec officers. Myers v. US ii. Congress may only participate in removal proceedings via impeachment. Myers v. United States iii. Can appoint inferior officers and vest appointment in Pres, Courts or Dept. heads. (Morrison, Art II) iv. Can narrow Pres removal power of independent (read quasi-judicial/legislative, Humphreys Executor) and inferior exec officers (Morrison). 1. Can narrow through restriction in statute or through qualifications (i.e. bipartisan committee). v. BUT cant impede on Pres constitutional duty by taking away power to remove high ranking exec officials (Morrison), esp. by diluting it with double for-cause protection (Free Enterprise v. PAOB) II. Congressional Control a. Did Congress exert improper control over agency actions in violation of Art I sep. of powers? i. Legislative Veto is unconstitutional, doesnt require the 2/3 votes or bicameralism/presentment to Pres required to make legislation. Cant circumvent exec authority. INS v. Chadha 1. Counterarguments a. Subpoenas also legislative in purpose and effect (i.e. alter legal rights), but theyre still allowed b. Doesnt alter legal rights since Chadhas only right was to have his case considered and be able to stay if AG approved and there was no veto. c. Functionally, not unconstitutional: no change to the status quo unless Congress and Pres agree. Chadha didnt have the necessary agreement: House wants him deported, Senate doesnt act, Pres acts through agency to keep him here. ii. Congressional Review Act is constitutional. Requires indep. and exec agencies to submit significant regs ($100m or more) to Congress. Must have joint resolution of disapproval to prevent regs from going into effect during 60 day holding period. (Pres gives agreement through agency action) iii. REINS Act is NOT law - requires joint resolution of approval, if it is ever approved. 1. Debate: Functionally equivalent to legislative veto. One house can prevent passage of the reg. BUT if regs considered proposals, then they only become effective upon agreement. b. Did Congress delegate too much authority in violation of the separation of powers? i. Non-delegation doctrine: Congress must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. ii. TEST-Intelligible principle: Congress has implied power to delegate legislative authority; not a violation of non-delegation as long as statute contains intelligible principle (policy, purpose, standard) that guides and constrains the agency. Whitman v. American Trucking 1. BUT if intelligible principle not provided in statute, Ct. cannot require agency to create one. Must be done by Congress. iii. Policy

Challenging and/or Ruling on Agency Actions

1. For a. Congress doesnt have expertise agencies have, or time. b. Modern laws will always delegate some authority given the burdens on Congress. 2. Against a. Agency may be captured by industry. b. Legislatures elected and should be held accountable for laws. c. Congress better equipped to see big picture and decide on trade-offs, consistency, coordination and prioritization among the agencies. d. Inconsistency may arise with too much delegation. iv. Supreme Ct. has not struck down statute on non-delegation grounds since 1935 BUT doctrine used to interpret a regulatory statute narrowly (nondelegation avoidance doctrine). 1. Consider: Would Congress want to delegate this authority? a. Is this something on which Congress would want to defer to agency expertise? b. OR this something we think Congress should be accountable for? c. How much detail would Congress want to delegate to agency? d. How would Congressional members benefit from delegation? e. Chevron has put Congress on notice that delegation of power will likely be interpreted in favor of executive agencys interpretation. 2. Delegating important policy? Consider canons that require an express delegation of authority to resolve important statutory issues in order to avoid coming too close to the edge of the non-delegation doctrine i. Dog that didnt bark: has Congress been silent on this issue (leg history)? Montana Wilderness I ii. Elephant in a mousehole: Does the agency read a far-reaching authority into the statute? Montana Wilderness I, FDA v. Brown & Williamson 1. Counter: People hide things in statutes to get them passed. iii. Is the action at issue impacting a central piece of the statute? MCI iv. Has Congress already created a distinct regulatory scheme? Brown & Williamson v. Would the action impact a large portion of the economy? Brown & Williamson

Major constitutional problems? Remand (with or without vacating) for further consideration by agency. If no, then proceed to Statutory Authority.

IV. STATUTORY AUTHORITY

Does the agency have statutory authority to do what its doing?
I. What type of action is it? a. 551(4): rule is agency statement designed to implement, interpret or prescribe law or policy b. 551(5): rulemaking is agency process for formulating, amending or repealing a rule. c. 551(6) Order: the whole or a part of the final disposition, whether affirmative, negative, injunctive or declaratory in form, of an agency in a matter other than rule making but including licensing d. 551(7) Adjudication: the process for formulation of an order (finding facts and applying law to those facts)
Formal Informal

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Facts: Substantial Evidence Policy: A&C Rulemaking Law: Chevron 553(c), 556-557 Trigger language: a hearing record (Note: not just a hearing) Facts: Substantial Evidence Policy: A&C Law: Chevron Adjudication 554, 556-557 Trigger language: hearing on the record

Facts: A&C Policy: A&C Law: Chevron 553 Notice & Comment *not on the record Licensing, grants, loans Facts: A&C Policy: A&C Law: Mead (Chevron/Skidmore)

II. Informal Adjudications/Exceptions to 553: Interpretive rules/Policy Statements (see outline for pros/cons) a. Some courts apply Mead to determine if Chevron or Skidmore applies i. Was there congressional intent to delegate authority to the agency to speak with the force of law? (In Mead, court says informal adjudication a sign maybe Congress didnt.) 1. Has the agency traditionally made rules with the force of law? 2. Is the rule binding on more than the parties to the matter? 3. Does the statute have formal procedural guidelines that indicate force of law? a. Publication in CFR, hearing on the record, etc. ii. Was the agency interpretation claiming deference an exercise of that authority? (Mere ambiguity no longer enough to get you Chevron consideration). b. Other courts apply Barnhart (interpretive rule later codified through notice and comment, Chevron applied) i. Power of an admin agency to administer a congressionally createdprogram necessarily requires formulation of policy. ii. Interstitial nature of legal question iii. Related expertise of agency iv. Importance of question to admin of the statute v. Complexity of that administration vi. Careful consideration agency has given to question over long period of time. c. When Chevron never applies i. Criminal statutes ii. Statutes interpreted by multiple agencies (no delegation to one agency) iii. Litigation positions iv. Guidance (no force of law) d. If Chevron doesnt apply, apply Skidmore analysis. a. Skidmore Weak Deference: Ct tries to determine what statute means, has the power to substitute its own view. Weight given to agency interpretation depends on the persuasiveness of the interpretation (as opposed to reasonable/permissible of Chevron). Factors to consider: a. Thoroughness of consideration is evident: Did agency carefully consider it at a high level? Did the process by which the agency reached its interpretation require careful consideration? b. Reasoning is valid c. Agency expertise is clear: Does it reflect specialized expertise and broader investigations than available to Ct? d. Uniqueness of facts

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e. Consistency of interpretation over time i. POLICY: If agency has flip-flopped, Skidmore recognition that agency was wrong at least one of those times. ii. Need consistency: people rely on interpretations rejection of Chevron def. to current interp. f. POLICY for providing deference: Agency rulings, interpretations and opinions constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. TO DETERMINE SKIDMORE DEFERENCE, CT. APPLIES TOOLS OF STATUTORY INTERPRETATION III. Formal Adjudications/ Informal (notice and comment) and Formal Rulemaking a. Chevron Applies: If the agency alone is responsible for administering the statute, and its a formal proceeding ((APA 554, 556, 557) or rulemaking (APA 553) in which the agency announces its interpretation in a binding/precedential decision.

b. Chevron Applied i. STEP 1: has Congress spoken to the precise question at issue? (see final sec. for canons) ii. Problems: How clear is clear? 1. Dominant reading: interpret statute as we would in any other case. If not in text and theres ambiguity, start using extratextual tools (text, purpose, history, policy) 2. Other approach: If text not clear, dont use legislative history, just go to step 2, defer to agency if its reasonable. (Very strong reading of Chevron, not normally followed.) 3. If stops at step 1, thats it; court says statute just precludes anything else. MCI iii. POLICY: If Congress wanted to constrain agency discretion by drafting precise language, then the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.

iv. STEP #2 if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. 1. Consider whether agency has come to a conclusion that is at odds with the statutes purpose or otherwise conflicts with the statutory scheme/text. 2. Dominant (policy) approach: Consider purpose, statutory scheme and whether construction is at odds with overarching policy. 3. Statute approach: Focus on using canons to determine whether statutory language supports interpretation (issue: step 1 and 2 conflict; no difference). a. POLICY: If we get to this step, conclusion that Congress did not make explicit decision on qs and/or drafted statute to provide for agency discretion. Agency makes decision. Defer to agencys expertise, for which they can be held accountable. b. Consequences of judgment

MCI o If Step 1: Given dictionary def, can be read as clear intent not to provide authority o If Step 2: agency interpretation unreasonable, contrary to purpose/statutory scheme/policy (tariffs central to Comm. Act; no indication Congress delegated/would have delegated authority to get rid of tariff for all but one company) Brown & Williamson o Major question doctrine: Congress would have to be very clear if it intended to grant such a broad authority to the agency. When the authority in question is a big one, we cannot assume delegation from silence or ambiguity.

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a. Reversal here is more constraining: binds the agency. says, according to the statute, you cant do this. b. But if Ct. finds ambiguity (neither required or prohibited), the agency free to change its interpretation later. c. Deference to agency interpretation of jurisdiction (Brown & Williamson, Mass v. EPA) a. Debatable: Can you defer to an agency about whether to defer to an agency? i. Perhaps more should be required of agencies when it comes to jurisdictional questions. Deferring to an agencys interpretation of its own jurisdiction without some clear indication from Congress that it has delegated jurisdiction-defining authority to the agency can raise the same separation-of-powers, expertise, and agency trust concerns. d. Discuss pros/cons of deferring. a. Pros i. Uniformity in federal law ii. Political accountability iii. Expertise iv. Good incentives to Congress to make wise, strategic choices in legislation. b. Cons i. Fragmented federal law. ii. No political accountability. REGARDLESS OF SKIDMORE OR CHEVRON DEFERENCE, CONTINUE WITH A&C ANALYSIS.

V. Did the agency follow the right procedures?

706(2)(D): Without observance of procedures required by law (APA, Exec order, statute) I. Guidance/Interpretive Rules a. Policy statements: intent, principles. b. Interpretive rules: explanation/clarification of substantive legal requirements; enforcement policies and priorities c. Consider: i. Is the interpretive rule a legislative rule in disguise? (Consumer Products Safety Commission) 1. Needs notice and comment if a. In the absence of rule there would be no adequate basis for enforcement b. The agency has published the rule in the Code of Fed. Regs. c. The agency has explicitly invoked its legislative authority; OR d. The rule effectively amends a prior rule. ii. Did the agency offer a justification for its change in policy and acknowledge the change? FCC v. Fox II. Procedures for Formal Adjudication Ct. cant impose procedural requirements on agency if agency meets minimum requirements in APA, statute and Constitution. Vermont Yankee v. NRDC o POLICY: (a) Ct. will invent new procedures beyond what Congress would require; with different procedures with each case. (b) As a result, agencies would add thick layer of procedures so their decisions wont get overturned. o Counter: Agencies may just not want to do the additional work. May not take initiative to improve procedures. o Mead and VY happy with APA req: VY rejects the idea of extra procedures. Mead does not require or incentivize extra procedures.

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a. b. c. d. e. Trigger for formal adjudicatory hearings must come from statute. Otherwise, agency can choose to do so. 554(b): Timely notice of nature, time and place. 554(c): Agency should try and settle it and if it cant be settled, have a hearing pursuant to 556, 557 556(c)(4): ALJ can take deposition or order one to be taken 556(d) Parties have a right to present their position by oral or documentary evidence. i. Federal civ. pro and rules of evidence dont applyif its revelant, in under APA (i.e. hearsay) f. 557(d)(1)(A) No ex parte communication g. 557(c) After hearing, decision drafted. All decisions must include a statement of findings and conclusions, and the reasons or basis thereof. i. POLICY: Better than notice and comment because considers facts of particular case, but only way to have affect before action taken (as notice and comment can) is to use injunction, cease and desist, etc. h. DUE PROCESS: IF AGENCY COMPLIED W/ STATUTE/APA, DUE PROCESS PRESUMED. III. Procedures for Informal Rulemaking a. 553(b) NPRM shall be published in federal register b. 553(b)(2) Reference to legal authority under which rule is proposed c. 553(c) Meaningful opp to comment must be provided. Agency must respond to substantial issues raised. d. 553(d) Final rule issued along with concise statement of basis and purpose, published in federal register. i. **If final rule was not a logical outgrowth of the proposal in the NPRM, must not be published without new notice and comment period. IV. See outline for pros/cons of guidance vs. informal rulemaking and adjudication vs. informal rulemaking.

VI. Has the agency made an acceptable policy determination (i.e. not A&C)?
I. Arbitrary, capricious, abuse of power or otherwise contrary to law (APA 706(2)(A)) - Even if agencys interpretation of its statutory authority is acceptable, ask whether it has made an acceptable policy determination/exercised its discretion appropriately? Apply arbitrary and capricious review unless organic statute says otherwise. a. Cant consider politics: agency action has to be justified by legal requirements or by the agencys expertise or by free-standing articulated policy justifications, NOT politics. Decisions based on politics/ WH preferences dont pass the Supreme Courts A&C test. Mass v. EPA Counter: If accountability is plus (as dissent thinks it is), then WH has to be able to influence what agency does. Then not arbitrary to heed WH pref. because it ensures greater accountability. b. Rulemaking review State Farm (agency followed procedures APA 553, but still A&C) i. A& C if 1. Agency has relied on factors Congress did not intend it to consider; 2. Entirely failed to consider an important aspect of the problem; 3. Offered an explanation for its decision that runs counter to the evidence before the agency; OR 4. It is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. ii. To avoid A&C, need rational connection between the facts found and the choice made. 1. Agency must provide explanation for revocation of a prior action; must explain why the new rule effectuates the statute as well as or better than the old rule. a. POLICY: Earlier policy embodied agencys informed judgment about the best course of action. So change must be explained.

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2. Agency must consider alternatives, including those offered by regulated entities (notice and comment)part of reasoned decision. 3. Agency must examine all relevant evidence; perform scientific analysis to address uncertainty. c. Changing guidance/policy FCC v. Fox (no heightened requirement, passes A&C) i. When changing a policy, agency must show that policy is permissible, that there are good reasons for it and that the agency believes it to be better (which the conscious change adequately demonstrates). No added burden. Agency need not demonstrate to a courts satisfaction that the reasons for the new policy are better than the reasons for the old one. ii. POLICY: Should A&C reviews be more stringent for independent agencies? 1. Are executive agencies subject to some kind of oversight and check that independent agencies are not, which in turn would justify the courts going easier on executive agencies because there is other oversight? Independent agencies subject to more Congressional control than Executive agencies. 2. What are the illegitimate influences that might color their decision making that might justify closer scrutiny? Political considerations are illegitimate influence. 3. Are political influences legitimate? Goes back to State Farm Dissent says political influences legitimate.

If not reasonable, then remand (with or without vacating) for further consideration by agency. If yes, then enforce agency interpretation.

VI. Judicial Interpretation

I. Theories of statutory interpretation a. Textualism: Text is the law. Directs courts to stop with the text of the statute. i. Discern the ordinary meaning of words in context (the whole body of law, dictionariesi.e. semantic context, not policy). Courts do not engage in broader review of legislative history, even to confirm textual reading. ii. Ex. Nix v. Hedden: ordinary vs. technical meaning of tomato b. Purposivism: Purpose controlling. Decide purpose of statute; interpret the words, meaning in that light. i. Consider the title of the act, spirit of the law. See Holy Trinity ii. Arguments for: following Congress and being faithful agents (same with intentionalism). iii. Against: same problems as with intent, legislatures may have different purposes. c. Intentionalism (**most widely followed): Directs courts to interpret word or phrase in line with intent of legislature as a whole. Look to the context, leg. history. What did Congress actually have in mind? i. See Moore v. Harris ii. Criticism 1. Find intent in leg. history and theres concern that knowing this, individual legislatures will include comments in reports that may not reflect the intent of the legislature as a whole. 2. Congress may not have had intent regarding that specific, unanticipated situation. 3. Intent of the majority cannot reflect everyone who voted or had input on the statute. 4. Confuses the intent of the lawmaker with the intent itself.

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d. Legal Process Purposivism: The purpose that a reasonable legislature would reasonably pursue. i. Policy: Assumption that Congress is made up of reasonable people, acting reasonably for reasonable purposes, so Ct attributes a purpose, rather than interprets a purpose. e. Imaginative Reconstruction: Focus on intent of the legislature with respect to an issue or aspect that it did not consider. Directs Cts to put themselves in the position of the legislature that enacted the measure and figure out what enacting Congress would have done had they thought about it. i. Ct. should assume that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably. f. Dynamic Interpretation: Interpret meaning in light of changed circumstances. Bob Jones U. v. US i. Approach Meaning of statute determined by present context, legal landscape. 1. Cts update statutes the way they update common law. 2. Ct. refuses to make search for original intent the central interpretive task 3. Value of current coherence of the law would inform Cts stance towards precedent (no presumption that precedent controls). ii. Courts should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute. Bob Jones University v. US iii. Policy: (a) Provides notice to people today. (b) Many statutes need updating and Congress cant get to all of them. Important for courts to be agents of Congress. iv. Counter: Congress amended statute (many years) after Supreme Ct. upheld Boutilier v. INS to the exclude of homosexual under Immigration and Nationality Act v. Calabrei Test: Where the constitutionality of the statute is doubtful, where the statute is out of step with current legal and social landscape and where the statute has been rarely used, statute should be considered obsolete and void. Franklin v. Hill

II. Textual Canons a. Ordinary Meaning: when words have acquired no special meaning in trade or commerce, the ordinary (popular) meaning must be used by the court. See Nix v. Hedden i. If competing ordinary meanings, Ct might look to purpose. See Muscarello v. US ii. POLICY: Why go with ordinary meaning rather than technical meaning? 1. Notice: ordinary meaning is comprehensible to regulated party. 2. Ordinary meaning will result in more uniformity and consistency. b. Ejusdem Generis: if words are of the same nature, specific words qualify gen. see Ali, Circ City, Keffeler c. Noscitur a Sociis: word defined by its associates; see Jerecki and Gregory, Dolan, Williams. d. Expressio Unius: a list implies exclusion of whatever isnt on it; see Holy Trinity dissent, Leo Sheep. e. Punctuation: less weight for language inside parenthetical; placement of punctuation relevant f. May vs. shall: When a statute uses mandatory language, it should be interpreted to exclude discretion to take into account equity and policy factors. g. Whole Act Rule: read whole act (look at design of statute as a whole, incl. objective and policy) see how one section can imply limit/scope of other; see Montana, Brown & Williamson, Witkovich h. Identical words, consistent meanings: identical words, phrases within the same statute should be given the same meaning (Lundy), BUT words may be read differently if context and intent different (Cline). i. Avoid redundancy and surpusage: No clause, sentence, or word shall be superfluous, void or insignificant; if two provisions appear to do the exact same thing, then one is being read wrong. j. Titles, provisos: titles, limitations (provided that) not controlling but provide insight. Holy Trinity k. In pari materia: Statutes addressing the same subject matter generally should be read as if they were one law. More weight if enacted by same Congress and contain same language. i. POLICY: Later act can also be read as legislative interpretation of earlier act and helps courts ascertain the meaning of words used in their contemporary setting.

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ii. Assumption that legislative body generally uses a particular word with a consistent meaning and is acting aware of previous statutes so this is applied with the greatest force when the statutes were enacted by the same legislative body at the same time. l. Inferences across statutes: words appearing in different statutes should carry same meaning- more weight if statutes have similar purposes, enacted close in time. See Moore v. Harris m. The Dog that Didnt Bark: if Congress intended to change settled law, they would indicate so clearly. n. Elephant in a mousehole: Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions. Brown & Williamson III. Substantive Canons a. Rule of lenity: Ambiguity in criminal statutes should be resolved in favor of the defendant. See Santos. BUT if Ct. finds statute is clear, even if alt. meaning exists, no lenity. Muscarello v. US b. Remedial Purposes Canon: Statutes directed at remedying a problem, i.e. reform legislation, should be read broadly to effectuate its purposes. determine if remedial THEN construe it broadly. c. Constitutional Avoidance: Req. cts to avoid interpretations that render statutes unconstitutional 2 approaches i. If interpretation raises serious doubt about statutes constitutionality, Ct. should use construction that avoids constitutionality question. Zadvydas v. Davis ii. If (only if) a statute is susceptible to more than one reasonable construction + one raises grave doubts, Ct should choose interpretation that avoids const. problems. BUT if Congress intent clear, then Ct. has to enforce intent, regardless of con. problems. Almendarez-Torres v. US d. Federalism Clear Statement Rule: Prohibits interpretation that interferes with state sovereignty, absent explicit language that Congress intended that construction. Gregory v. Ashcroft e. Presumption Against Preemption: Instructs courts to read federal laws not to interfere with state law, unless clear and manifest purpose of Congress. See Gregory f. Presumption against retroactivty: Instructs courts to decline to give retroactive effect to statutes impacting private rights unless Congress made clear its intent. IV. Other canons a. Scriveners errors: Courts will correct scriveners errors to effectuate what Congress really meant to say or what otherwise makes sense of the statute. i. POLICY: Statutes reflect human error, which may include omissions of necessary words, include extraneous words, or simply contain a phrase that makes little sense in context. b. Absurd results: Directs courts to avoid statutory interpretations that produce absurd results. i. POLICY: presumption that statutes should have sensible effects. ii. Not found in Locke because of preference for not imposing estoppel against government. V. Legislative History POLICY: Criticisms of relying on legislative history Legislative history isnt law. Law is language in statute and judges job is to apply the law. Constitutionally illegitimate to treat language in Senate report as law. II. Not reflective of Congress views: Questionable as to whether it is an accurate reflection of the members views. May not be read by all members, may be inserted by lobbyists or legislative aides. Therefore inappropriate to depend on it. III. Used strategically: You can prove whatever you want with legislative history by using pieces selectively. IV. Burdens imposed on judges, lawyers, expense for clients, challenges on laypersons if legislative history has to be consulted. Becomes expensive and burdensome relative to just reading the statute. If you cant confidently say what the law is without reading reports then law simply is not accessible the way in an ideal world it would be. I.

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a. Amendments have purpose. b. Hierarchy in use (in order) i. Conference Committee Reports 1. POLICY: Expertise, delegation, reliance. Theyre written by those most informed about the issue. Theyve been delegated the task of reviewing the report, which they do carefully and their statements are relied on. 2. Conference Committee reports emerge after reconciliation of bills from both houses (but less helpful because they only address disagreements). 3. Legislatures more likely to read Conf. Committee Rpts. ii. Committee Reports Author/sponsor statements 1. POLICY: Key decision makers are ones who voted for it. Opponents statements not given as much weight since they may be strategic (to scare people off from voting or to influence later interpreters). iii. History of the bill: includes rejected proposals in bills passage, but not subsequent enactments iv. Hearing records/Floor debates/Member statements: remarks of other members of Congress given some weight. v. Legislative inaction: (in order of persuasiveness) 1. Congress re-enacts an unchanged statute, already-interpreted statute 2. Congress acquiesces after an agency or court makes an interpretation. Moore v. Harris a. POLICY: Strong stare decisis in statutory cases. i. In common law setting, the judges are the lawmakers. No one to correct their decisions. ii. In the statutory setting, Congress is available to correct it. We dont need the Cts to correct it. Congress acquiescence lends more weight to precedent. 3. Proposal to amend the statute fails (may be implicit consent to prior statute) vi. Other legislative statements: re amendments or other legislation vii. Presidential (signing statements) and agency statements viii. Statements after passage: pretty much no weight! Unless its Montana II (wtf?)

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