Legislation & Regulation | Spring 2017 | Heather Elliott

CH. 1: LEG PROCESS + STATUTORY

INTERPRETATION
1. INTRO TO LEGISLATION & STATUTORY INTERPRETATION
A. [Tennessee Valley Authority (TVA) v. Hill] (SCOTUS 1978), p. 4: Dam began 1967.
Endangered Species Act passed 1973 to ensure actions authorized, funded, carried
out do not jeopardize continued existence of endangered species. Held, Stop the dam
b/c it violates text of ESA.
i. Text: not ambiguous. Court given latitude to determine reasonableness.
ii. Legislative history: Point towards strict upholding
1. Congress considered adding as far as practicable, didnt
2. Conference Committee (to resolve differences between House, Senate bills;
resolve language) considered similar situation (DoD bombing endangering
species) and went with stricter level
iii. Later in time canon: later statutes doesnt implied repeal earlier statutes unless intent to
do so is unmistakably clear
1. (Arg: Congress funding of dam after ESA implies repeal),
2. BUT not clear enough + appropriations canon trumps
iv. Appropriations canon: appropriations bills should not be read to modify substantive law
unless clear statement
1. Application: even though Congress funded Dam after ESA, doesnt imply ESA
repeal/exception
2. Rationale: We dont want people to accidentally change the law
v. Dissent: Let dam construction continue.
1. Text: action only applies to prospective action. Maj response: Uh, going ahead
w/ dam work is prospective. Dissent Response: Action is the whole dam project,
predates ESA
2. Legislative History/Legislative Intent/Absurdity: No reasonable legislator could
have envisioned this kind of outcome. We know this from absence of hearings,
testimony, outrage.
3. Canon: Rule against retroactivity: If text ambiguous, statute should not apply
retroactively. Maj response: Text is not ambiguous.
B. ESA after TVA
i. ESA Amendments of 1978: allows 7 members to allow extinction by a vote of 5 after
specific findings.. God Squad

2. LETTER OF LAW V. SPIRIT OF LAW

A. INTRO
i. Letter = statutory text
ii. Spirit = general background purposes of statute

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B. PURPOSIVISM a thing that is within the intent of the of the makers of a statute is as
much within the statue as if it were within the letter; and the thing which is within the
letter of the statute is not within the statute unless it is within the intention of the
makers
i. Riggs v. Palmer [NY 1889] p.29: Held: Owner of property who murdered testator should
not inherit.
1. Text: Statute clearly violated. Court: We should read exceptions into text when
result is absurd.
2. Canon: legislative intent, absurdity: an upright and reasonable person/legislator
could not have intended this result. Nobody thought of it.
3. Common Law + Policy: Nobody should profit by his own fraud [ dispositive
though]; dont want murderers roaming the streets.
a. Common law fills gaps in statutes
4. Dissent: Legislative duty to deal w/ wills; not about what Ct thinks is right/wrong.
Vote in new legislature if you arent satisfied with the statute of wills. Slippery
slope to claim to know intent of will writer.
a. Expresio Unius: will alterations that are enumerated are exclusive and only
options.
b. Re: Policy criminal law takes care of majoritys concern.
ii. Holy Trinity [SCOTUS 1892], p.36: [PURPOSIVISM] Statute made it unlawful to pay for
transportation of any alien to perform labor or service of any kind in the US. Exceptions
for professional actors, artists, lecturers, singer, domestic servants. Held: priest allowed
to come in b/c legislative intent aimed at brain toilers like priests
1. Text: Does a priest perform service? Argument for no: Some dictionaries say
service = domestic servant. BUT: exceptions include non-domestic=servants.
SO: statute clearly violated. [Maj. opinion concedes text applies.]
2. Title: subtitle only addresses labor No one reading such a title would suppose
that Congress had in its mind any purpose of staying the coming into this country
of ministers of the gospel of any class whose toil is that of the brain p.37
3. Mischief Rule: Asks - Does it necessarily follow that a piece of legislation is
designed to address fully the mischief that inspired its enactment in the first place,
or that the legislation is limited to only to addressing that particular mischief?
a. Harm to be addressed was flooding with cheap labor. Narrow statute to apply
to mischief they were intended to solve. BUT, OVERRULED in Brogan,
p.72.
4. Legislative History: Not dispositive. Maj: Committee thought labor + service
might be overbroad, but kept it, to speed passage. So, expressed understanding
of bills narrower purpose. Cant presume legislature selected its phraseology
with meticulous care as to every word. See LH section for rules.
5. Absurdity/Legislative Intent: (1) No reasonable legislator qould intend a priest
to be banned (2) widespread core social values (3) Nobody thought about it.
C. NEW TEXTUALISM rejected LH as tool of statutory interpretation; builds on premise
of legislative supremacy to argue judges must hew closely to meaning of clearly
statutory text even when the result contradicts the statute apparent purpose
i. WVUH v. Casey [SCOTUS 1991, Scalia maj.], p.42: 42 USC 1988 says losing party in
civil rights cases may be ordered to pay reasonable attorneys fees. Held: attorneys
fee does NOT include expert fee, EVEN THOUGH aim of legislation was to encourage
civil rights cases.
1. Text: Clearly shows expert fees not included
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a. Maybe attorneys fees = term of art, look at industry practice of billing

maybe expert fees included.
b. BUT: Congresss other fee-shifting laws distinguish b/w attorneys fees, expert
fees. Avoid surplussage. Assume Legislature purposely excluded it.
2. Mischief Rule [Aim of Statute]:
a. Overturn Alyeska [1975]: Before Alyeska, many courts awarded attorneys
AND expert fees. Alyeska said: this discretion is only allowed in X [very few,
specific cases]. Sponsor statements + chronology show that 1988 aimed to
correct some harms of Alyeska.
b. BUT: Statute is narrower than pre-Alyeska [ can only sue under X civil rights
statutes] and broader [s can now recover w/o previous requirements that
cost barrier prevents private suits; nec. To defend rights of large # of people]
no intention to completely overturn Alyeska.
3. Takeways
a. If usage-based meaning is clear, end of story. [subject to some absurdity
considerations]. If ambiguous [Nobody thought about it], then can look to
intent/mischief addressed.
i. The purpose of a statute includes not only what it sets out to change,
but also what it resolves to leave alone best evidence = statutory
text adopted by BOTH Houses.. where that contains a phrase that is
unambiguous that has a clearly accepted meaning in both legislative
and judicial practice we do not permit it to be expanded or contracted
by statements of individual legislators/committees p.48,2
b. Rationale for Textualism > Purposivism/Intent/Mischief Rule
i. Empowers Congress to precisely use different words to promote diff.
policies [b/c cant find true intent, and then what Congress wanted to
do cant get done.]
ii. ^ Promotes legislative supremacy [why it relies on Congr esss pattern
of usage in past legislation]. Cts parsing of legislation that actually
passes makes law more coherent.
iii. Acknowledges role of compromise [intent of ALL of Congress, not just
the committees]
1. Sole legislative intent hard to discern.
2. Statutes are ends and means. Statute could ask courts to interpret
legislation [means] through words like reasonable. If they dont, Cts are
replacing statutes intended means, which changes the ends.
c. What Textualists think are problems w/ Purposivism
i. Compromise results in inability to really predict the purpose from the
text, so just follow the text.
ii. Imperfection is consequence of compromise not function of the
court to upset that consequence.
iii. Structure of a bill becoming law encourages compromise inherently,
and its not up to the judiciary to change that.
1. Congress tends to produce incoherent policy but expresses itself precisely.
2. *BOTH Textualists and Purposivists think Congress doesnt act
effectively/consistently, but they just come to different conclusions.
4. Defense of Purposivism Stevens Dissent
a. Legislative intent: override Alyeska and return to trying to incentivize public
interest litigation [civil rights, environmental, etc.]
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i. Senate Committee Report: remedy gaps created by Alyeska;

private AGs; cited favorably previous cases where expert fees were
awarded. House Report talked about civil rights s.
b. Rationale #1 for Purposivism:
i. Congress rationally fulfills its goals; but language can have blanks
Purposivism helps fill those blanks.
ii. Legislative supremacy Cts should deviate from meaning of text:
Legislature cant be presumed to have selected everything with
specific care purpose is easier to figure out, and easy here. Now,
instead, Congress has to go back and fix/amend the statute even
though we knew what they meant and wanted.
c. Rationale #2 for Purposivism: Purposivist decisions dont get overruled;
Textualist decisions do.
i. Examples p.51,fn11; Lily Ledbetter Act Leg went back and changed
SOL.
ii. Sure, Congress can correct our mistakes, but thats a waste of time.
iii. BUT: (1) congress should respect wishes of enacting, not subsequent,
Congresses; (2) Congress should fix it aka textualism forces
Congress to clarify things which could be a good thi ng.
D. TEXTUALLY-CONSTRAINED PURPOSIVISM Ct interprets the text in light of the
purpose.
i. General Dynamics Land Sys. v. Cline [SCOTUS, 2004], p.61: ADEA which protects 40+,
bars discrimination based on age. Could the ADEA apply to young who are treated worse
than the old? Held: No. Since text [age] could feasibly/reasonably mean old age, then
ADEA doesnt protect young [40-50] from discrimination that favors the old over the
young.
1. Text: kind of ambiguous, age could be read two ways.
2. Structure: Act only applies to 40+; the more expansive understanding [including
the young] doesnt square with the natural reading of the whole provision.
3. Social History: emphatically reveals age discrimination = against the old;
statutory reference to age discrimination in this idiomatic sense is confirmed by
the legislative history
4. Purpose Legislative History: **Congress does a good job w/ LH; RARE case
where legislative history is dispositive.
a. Intended to correct age discrimination.
b. Testimony at hearings only about old people CAVEAT, only committee
members heard it, not given much weight.
c. Contra, Senator [sponsor] on floor said ADEA bars ANY discrimination
favoring young OR old, BUT this only 1 example sufficient
5. Purpose Preamble Like title in Holy Trinity
6. Takeaway, Textually-Limited Purposivism: if (a) semantic meaning has 2
feasible interpretations, and (b) evidence points compellingly to 1 interpretation,
you can use LH, other evidence for that interpretation.
7. Dissent:
a. Text points woards age = all age
b. Structure points towards majority, but rebuttle
c. Counter to social history:
i. Basically dissent says that majority says that If a specific form of
discrimination is goal of a statute, then the specific quality only covers
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the principla or most common form of discrimination related to the

personal quality i.e. b/c discrimination against the old is the most
common, doesnt consider any others b/c of social history.
ii. race/sex discrimination construed as both ways Civil Rights Act
doesnt allow discrimination against males; whites
1. BUT age discrimination implies old age, but sex discrimination / race
discrimination are ambiguous. See majoritys social history definition
argument.
d. Legislative History: 1 things points to dissent [Senator sponsors floor
statement.] This is the only LH speaking directly to the question.
E. LEGISLATIVE PURPOSE & DYNAMIC STATUTE INTERPRETATION
i. Key Question 1: How much authority should judges have to adapt statutes to
unforeseen/unforeseeable circumstances, even if that way of interpreting it contradicts the
original specific intent or clear text underlying original reason for enactment?
1. No authority: e.g.: Welansky [MA 1931] interpreted jury statute to exclude women.
a. Purposivist: writers of statute could never have foreseen that women would
have the right to vote, so including women, even though can constly vote now,
is not within the statutes intent & so ct is not authorized.
Statutes do not govern situations not within the reason of their
enactment dont govern situations that give rise to radically diverse
circumstances presumably not within dominating purpose of those who
framed and enacted them.
b. Imaginative Reconstruction: Cts trying to think like legislature would have at
time of enactment, including historical influences and then-current laws.
ii. Key Question 2: Why should specific intention given to Legislature by the Ct trump the
obvious general intent of the statute?
1. Eskridges Dynamic Interpretation Approach: Judges, even if embrace strong
Legislative Supremacy theory, should not only enforce specific intention/ordinary
semantic meaning of a statute. B/c statutes remain in place for long pds of time
through lots of changes in legal/factual contexts, correct analogy for judicial
interpretation = judge as a relational agent of the Legislature.
a. Judge = subordinate representative of the principal [Legislature], follows
legislative directives, creative w/ interpretation. Principal has right to control
actions of the agent. Only interactions within scope of agency relationship
affect the principals legal position.
b. Judge = agent in ongoing consensual contractual relationship whose primary
obligation is to try best to carry out general goals & specific orders of the
principal over time.
c. Agent has the power to affect the legal rights & duties of the principal
[Congress].
2. Pros & Cons of this approach:
a. Pros: Prevents re-making laws every 10 yers; allows statutes to grow/adapt to
changing times.
b. Cons: Judges arent perfect, will get it wrong, 100% of misinterpretation
eventually. Might disrespect purposely difficult statute process in Constitution,
intention to protect minorities.
F. ABSURDITY Judicial correction of legislative mistakes. Exception to plain meaning
application.
i. Rationale:
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ii. Kirby v. U.S. [SCOTUS 1868], p.78: Kirby, sheriff, obstructed mail carrier shipto make an
arrest of person who was charged w/ murder. Statute barred Knowingly and willfully
obstruct passage of the mail. HELD: ABSURD.
1. Rationale for absurdity: contradicts common sense [societys widely, deeply
held values] b/c legislators represent society. Must have been failure of
foresight. Congress = faithful agent of legislative intent. Since Congress
represents society, couldnt possibly pass law that contradicts social norms.
a. All laws should receive sensible construction general terms are limited in
their application so dont lead to injustice/oppression/absurdity.
b. Always believe Legislature intended exceptions to their language to avoid
results like this. Reason of law > Letter here.
c. Most extreme, straightforward, easy to apply form of Purposivism.
d. BUT SEE: Marshall, Posner is like absurdity is dishonest. Sometimes lets just
make the law better w/o pretending to carry out the intent of Congress
[Judicial expansion of role]
2. Modern Textualist Rationale: judges must adhere to text precisely b/c lang.
chosen is result of compromise, however awkward. SO, compromise could be
broad, or narrow & could maybe imply things inserted in between the line s
saying an absurd result intended is reading between those lines.
a. *** BUT most modern Textualists accept Kirby b/c its not reasonable that
Kirby result was from legislative compromise.
3. Elements: read exceptions into general laws; gives further definition to laws
rather than changing it; faithful agent would do it; Congress has adopted a
reasonable result; violates fundamental social values.
4. Another standard for calculating absurdity: harm of following letter of statute
>>>>> benefit of following statute.
iii. Public Citizen v. USDOJ [SCOTUS 1989], p.81: FACA imposes requirements on advisory
groups that are established or utilized by POTUS. Should FACA apply to ABA advice on
POTUS judicial nominees? HELD: FACA statute apply to this POTUS-ABA special
advisory relationship because IS ABSURD.
1. Text: Statute clearly applies.
2. Absurdity: Absurd = solely that the interpretation leads to result that
Congress did not intend. This result is not absurd on its face.
a. Abuse argument: Literal reading would catch far more groups than Congress
would have intended
3. Policy Concern: If held to apply, everything will be made public... who will want
to be considered as a judge if required to air dirty laundry? [Process already
includes lots of hurdles]
4. Concurring [Kennedy]: While FACA of its terms applies to ABA advice on judicial
nominations, that would make FACA unconstitutional via SOP, so it is invalid as
applied to judicial nominations.
a. Doctrine should be limited when a result of applying plain language would be
genuinely absurd
i. Standard: absurdity so clear its application would be patently obvious
to anyone
ii. Apply: this case is NOT absurd. Ct just doesnt like the result.
iv. Minor case - Barnhart v. Sigmund Coal [SCOTUS 2002], p.91: e.g. of limited absurdity
successors in interest to coal companies have to fund coal pension funds, but

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successors to related companies DO have to fund coal pension funds. HELD: NOT
absurd.
1. Policy absurdity: is instant result [or maybe hypothetical result[ absurd?
2. Process absurdity: could it be that way b/c of a political compromise?
v. Other Techniques to avoid absurdity
1. Congress overrules 1 argument against absurdity doctrine:
a. Ct is more likely to have false positive finding absurdity than false negative
[finding result absurd.]
b. Risks of false positives much greater: Congress would fix if false negative,
but interest groups/legislators who like the cts interpretation might block
corrective legislation to fix false positives.
2. Using narrower principles to avoid absurdity: common-law doctrine [Kirby], using
technical definitions [swordsman drew blood vs. nurse drew blood] judicial
authority to determine meaning of statutory text, not depart from the statutory text.
G. POLICY ARGUMENTS, RATIONALE, PURPOSIVISM
i. Purposivism pros:
1. Enables courts to be reasonable, fair, make body of law (clunky, imprecise
statutes) more consistent, coherent.
2. Congress rationally fulfills its goals, but language can have blanks
3. Legislative supremacy: Court is faithful agent, should deviate from meanin g from
text if it clearly furthers legislative goals. Doesnt need to divine legislatures
specific intent, only further X goal of legislation.
4. Stevens dissent in Casey: Purposivist decisions dont get overruled much,
textualist ones do. Purposivism prevents wasted time.
ii. Textualism pros:
1. Empowers Congress to precisely use different words to promote different
meanings
2. Promotes legislative supremacy; relies only on law that actually makes it through
B&P (democratic legitimacy) and Congresss pattern of usage
3. Acknowledges role of compromise. Sole legislative intent hard to discern; text of
bill is only thing that 535 people agreed on
4. Statutes are ends and means. If statute has an open-ended term like reasonable,
the means = court can interpret it. If there are no open-ended terms, the statute
is saying hey courts, dont insert your own interpretations. Legislative
supremacy
5. Predictability

3. WHAT IS THE TEXT?

Language has meaning only because it reflects practices and conventions shared by community
of speakers and listeners. Thus, meaning of words is determined by the shared understandings of
the relevant linguistic community.
A. SCIENTIFIC OR ORDINARY MEANING?
i. Meaning of words determined by the shared understandings and expectations of the
relevant linguistic community
ii. Nix v. Hedden [SCOTUS 1898], p.102: is a tomato a fruit or vegetable? HELD: tomato =
veggie b/c ordinary meaning > scientific/technical meaning but limited for Legal
Terms of Art [see Moskal]
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1. Consider: whom Legislature was addressing.

a. If ambiguous: presume ordinary meaning of statutory language = legislative
purpose. E.g. tax code construed against govt.
b. Exception: technical audience. Then look to trade usage.
2. Rationale: want adequate notice for crimes; want laws to be accessible.
B. LEGAL TERMS OF ART
i. Moskal v. U.S., [SCOTUS 1990], p.105: Is someone who received real cart certificate by
sending in fake odometer info gulty of trafficking in falsely made titles? HELD: maj.
reads operative term in criminal statute [falsely made] according to ordinary meaning
yes, criminally liable. Ordinary meaning ?>? Legal Term of Art [at least when
AMBIGUOUS term of art] NOW, Legal Terms of Art mostly prevail.
1. Text [ordinary usage]: falsely made includes genuine docs using false info.
2. Structure + Canon Against Redundancy: curb further frauds dispersed among
many states that tradlly elude states law enforcement
3. arg: common-law meaning [falsely made = forged] exonerates him:
a. Maj. Respnose 1: not universal common law.
i. Takeaway: When no one fixed usage exists at common-law, asking
which common-law meaning best serves purposes > asking
which common-law meaning prevails in largest # of court s
b. Maj. Response 2: Congresss purpose > common-law construction.
4. Scalia Dissent: criminally liable; treated it as narrow/technical legal term of art
means forged.
a. Even under ordinary meaning, Maj. interpretation is wrong:
i. Dictionary: falsely made v. false: Websters defines forge as to
make falsely
ii. Response to Maj. Redundancy Arg: Lawyers are always redundant
b. Falsely made has specialized legal meaning.
i. Blacks Law: False Making = forgery
ii. Draws on Morrissette [1952]
iii. Common law: majority of cases support Scalia [falsey made =
forgery; only a few support Maj. He thinks those cases are dumb
iv. Response to Congress Purpose > Common Law: Sure, but Congress
speak to this specific interpretation.
ii. Moskal cont. [Notes after case], p.112-114.: Rationale for Legal Terms of Art
1. Morissette, see below: When Congress borrows legal terms of art, it presumably
knows and adopts the cluster of ideas that were attached to each borrowed word
in the law, and the meaning its use will convey to the judicial mind unless
instructed. w/o instructions, defer to legal term of art.
2. Why use common-law, esp. if Congress doesnt read common-law?
a. Theory of Objective Intent Congress may not have an actual or genuine
intention re: most difficult interpretative questions, but the theoretical
requirement of legislative intent is satisfied by the plausible assumption that
legislators intend to enact a law that will be decoded according to the
interpretive conventions prevailing the relevant legal culture AKA we assume
from this that Congress intended for law to be interpreted according to
common law. They know they are making law.
i. This minimal intention is enough to preserve essential idea that
legislators have control over the law

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ii. If all attorneys understand, makes sense that the word was picked for
a reason
iii. Drafting legislation is difficult errors happen. By enforcing TOA, allow
Congress to tap into jurisprudence that Cts have already created
makes Congresss job easier.
C. COLLOQUIAL MEANING OR DICTIONARY MEANING?
i. Smith v. U.S. [SCOTUS 1993], p.115: Do higher penalties for (a) during & in relation to
any crime of.. drug trafficking, (b) uses or carries a firearm apply to who traded gun for
drugs? HELD: YES. Trading a gun for drugs IS use of gun in gun trafficking
1. Text [dictionaries]: use can mean for any purpose included in ordinary
meaning [even though may not be primary meaning]
2. Arg: Even though our interp. is broad, its sufficiently limited by in relation to a
crime such that someone using a firearm to scratch his head wouldnt be
indicted;
a. Maj. response to dissent/Smith: just b/c an intended purpose and use that
immediately comes to mind [firing a gun doesnt preclude other uses [like for
trade] from qualifying as well.
3. Structure: Looks at entire statute. Diff. section includes firearm used in trades
shows that using it in trade is a use of the gun. Unless hold that use of firearm
is different here than in another section [which is against canon], no way to let
Smith off hook.
4. Purpose: Guns are dangerous, lets limit their use in bad situations. Use
pureposivism when ordinary + dictionary meanings are open-ended.
5. Scalia Dissent: Mainly rule of lenity.
a. Maj.: Rule of lenity only applies when statute is ambiguous. Its not here.
ii. Takeaway: Small subset of cases where usage is determinative, no answer in canons.
Comes down to judges sense of how terms are used so, could go either way.

4. LEGISLATIVE HISTORY
A. Cases already ready that use LH:
i. TVA
ii. Holy Trinity [anti-immigration statute; priest;]
iii. WVUH v. Casey [Stevenss dissent]
iv. Cline [ADEA case]
v. Public Citizen v. DOJ [Fed Adv. Comm. Act]
vi. Moskal
B. In General
i. Background: disfavored until landmark American Trucking case. Began longtime of
reliance until Textualist Critique began in 1970s/1980s w/ Scalia led to reduction in usage.
ii. Legislative History Hierarchy:
committee reports > sponsor statements > committee hearings > statemts after passage
iii. Statute must be ambiguous.
iv. WARNING: DONT USE IF EVIDENCE OF CIRCUMVENTION OF BICAMERAL + POTUS
1. Generality shifts [Blanchard reas. Attorney fees turned into 12-factor test.
2. Unnatural readings: Ckntingental Can, substantially all = 51%
C. Policy Arguments For & Against
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i. Against:
1. LH = murky, ambiguous, contradictory, allows judges to project biases.
2. Circumvents democratic will of Congress:
a. Committees arent democratic. Special interests are overrepresented on
Committees. LH is not voted on by majority of congress [may not be read
even], has no POTUS veto.
b. Committee members or lobbyists manipulate LH to achieve results they
couldnt pass through full Congress process.
3. Impermissible shift of interpretation authority from Cts Congress. [conflicets
slightly w/ point 1..]
a. Statutes are ends and means. If Congress uses term of art its using its
words to signal what interpretation it wants Ct to use. If Congress uses vague
word like reasonable its signaling that it wants the court to have discretion
using common-law. [creates a standard for Cts to interpret] Blanchard
b. Congress created a standard w/ their vague language, delegating interpretive
power to the Ct. then sponsors try to sneak in a rule, narrowing the Cts
interpretative power and giving sponsor/committee interpretive power. That s
not what Congress voted for. Continental Can.
ii. For:
1. Encourages Congress to write clearer statutes.
2. Committee Reports are representative of intent: sponsors are key actors, experts,
agents of majority. Have incentives to distort meaning b/c they are r epeat
players reputation matters.
3. Who knows what the subjective intent of 535 people is? LH is as good a tool as
any to decode intent. One in the arsenal.
4. Acceptable uses as interpretive tool
a. What ills was the bill intended to address? Cline
b. Words should be interpreted as terms of art.
i. BUT, court should verify, b/c Congress cant just make up a term of art.
Blanchard.
c. Can use to back up absurdity doctrine, [verify that what seems to us
unthinkable, was actually unthought of]
iii. Train v. Colorado PIRG, [SCOTUS 1976], p.129: Whether EPA has authority under
FWPCA to regulate discharge into waterways of nuclear waste materials also subject to
regulation by another agency under AEA. Are these materials pollutants within FWPCA?
HELD: NO. Congress intended to exclude them aka intended for term to have specialized
meaning.
1. Text: Ambiguous.
2. Legislative History: Used House Committee reports; relied on Senate colloquy
b/w primary author + chairman of relevant committee; fact that House rejected an
amendment that accomplished the same thing want here; ranking member of
conference committee that reconciled H/S versions confirmed all of this.
3. Series of statutes: What happens when a later statute appears to conflict with an
earlier statute? Cardinal rule: repeals by implication are not favored. Where
there are two acts on the same subject, effect should be given to both if possible.
a. Categories of repeal by implication:
i. (1) Where provisions in the two acts are in irreconcilable conflict, the
later act to the extent of the conflict constitutes an implied repeal of
the earlier act; &
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ii. (2) If the later act covers the whole subject of the earlier act and is
clearly intended as a substitute, it will operate similarly as a repeal of
the entire earlier act.
4. Congressional Acquiescence: Recently Ct is skeptical: impossible to assert w/
any degree of assurance that congressional failure to act represents affirmative
congressional approval of the Cts statutory interpretation Patterson v. McLean
Credit Union [SCOTUS 1987] p.1443
D. TEXTUALIST CRITIQUE OF LEGISLATIVE HISTORY
i. One concern: Judicial Activism no rules giving weight to an element of legislative
history, so judges have no limits on what to rely on when or when they want to discard it
when it doesnt go with their personal beliefs. There is something for everybody to pick
and choose. p.160, n5
ii. Blanchard v. Bergeron [SCOTUS 1989] p.146: Statute said ct may award reasonable
attorneys fee. HELD: Senate Committee Report that says refer to Johnson [5th Cir] for
12 factors to determine what a reas. Attorneys fee those factors may be considered, but
are NOT binding.
1. Scalia concurrence: should ignore the look to Johnson hints; putting too much
weight to lower Cts precedents.
a. Reasonable attorneys fees are NOT term of art b/c SCOTUS has not
authoritatively inteprerteted it; theres no sufficient pattern of legal usage.
b. Congress cant create a term of art where there is none
c. Lots of common law meanings of reasonable. By using word reasonable,
legislation signals delegation to Ct statutes are ends and means, by using
reasonable, the means are court interpretation
d. Criticizes majority's reliance on legislative history:
i. the document was issued by single committee of a single house, which
the opinion of the entire Congress or represent their actions .
ii. It is neither compatible with our judicial responsibility of assuring
reasoned, consistent, and effective application of statutes, nor
conducive to a genuine effectuation of congressional intent, to give
legislative force to each snippet of analysis, in committee reports that
are increasingly unreliable evidence of what the voting Members of
Congress actually had in mind." Scalia, Blanchard, p.1482
iii. Continental Can, [7th Cir.1990], p.148: Easterbrook, J: HELD: substantially all does
NOT mean 51% just because a bill sponsor said it after the bill was passed unnatural
meaning.
1. Arg (applies to Blanchard too): Congress created a standard with their vague
language. Legislative history revisionism takes away the delegation of power to
Court by subbing in a rule. Thats not what Congress voted for.
a. Congress votes to delegate authority to interpret to the Court using open -
ended language, then sponsors try to narrow it more favorably to their side by
sneaking in legislative history.
b. Changes interpretation from Courts purview to Committees.
2. Takeaways:
a. Comments added to the Congressional Record post-passage of a statute
should not have any power as to interpreting any meaning from statute for
courts. Why? Can't be the intent of Congress if they didn't have that in
mind/were aware of that interpretation when they voted it into law.

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b. The text of the statute and not the private intent of the legislators, is the
law Only the text survived the complex process of becoming a bill law.
c. Constitution gives force only to what is enacted.
iv. New Synthesis on Use of LH
v. Further Critiques on LH

5. JUDICIAL POWER & EQUITABLE INTERPRETATION

A. U.S. v. Marshall [7th Cir.1991], p.187: LSD case. Was the LSD + paper a mixture;
did mandatory minimums kick in b/c LSD + paper weighed above a certain amount?
HELD: Yes.
i. Text: Maj. says its clear that mixture = LSD + paper but I dont think it is.
ii. Structural: other provisions distinguish pure v. mixture. So, Congress knew they were
different and chose not to make that distinction here.
iii. Posner dissent [important: junior partner theory]:
1. Judicial interpretive power means judges have authority to make law fairer [more
in accordance w/ moral, social values], more rational, make scheme more
consistent with other laws.
2. Notable b/c he doesnt even try to say faithful agent, Im furthering legislative
intent which is the majority view hes saying Congress literally never thought of
this, has no intent more honest than absurdity
3. NB: absurdity argument maybe fails, b/c you could envision (1) policy reasons
for punishing mixtures [ready doses more dangerous than pure LSD] and (2)
political compromise
4. Potential plain meaning / lenity argument for Posner? Majoritys view is
probably outside scope of plain meaning text ambiguous lenity
iv. Majority view: Ct is faithful agent [influences Purposivism, absurdity]
1. Ct should apply laws as Congress meant them [Purposivism justification]
2. Congress represents society democratic legitimacy
3. Congress represents society wouldnt pass laws that contradict universal social
values [justification for absurdity]

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CH. 2: CANONS OF CONSTRUCTION

1. CRITIQUES [P.205-206]
A. Dueling Canons

2. SEMANTIC CANONS
A. Describe how people use language, tool to understand meaning of statute.
i. Examples: ejusdem generis [of a type], expresio unius [saying one things means you are
excluding other things], noscitur a sociis [words meanings are known by context], words
are consistent throughout [Cline, although there age was not consistent throughout],
words redundant.
ii. McBoyle v. U.S. [SCOTUS 1931] p.202: Motor Vehicle Theft Act, automobile, automobile
truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for
running on rails is a plane a vehicle? HELD: No, statute evokes in common mind
picture of land vehicles.
1. Non-canon: LH; colloquial meaning v. dictionary meaning [like Nix, Smith v. US
w/ guns]
2. Semantic Canon: ejusdem generis catch-all takes on character of enumerated
terms.
a. Rationale: If enumeration were not designed to show intent of drafter [to
narrow catch-all], there would be no point might as well not even have the
specifics listed before the general catchall if the catchall isnt narrowed by
them rule against surplussage.
3. Substantive Canon: Rule of Lenity when statute is ambig., construe statute in
favor of .
a. Rationale: give potential criminals adequate notice, constitutional reasons.
iii. Silvers v. Sony Pics Entertainment [9th Cir.2005] p.208: Statute says people with 6
enumerated rights [e.g. performance rights, film rights] can sue. Silvers was given none of
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those rights, but she wants to sue. HELD: No, cannot sue expresio unius: a list that is
normally expected to be exclusive is exclusive.
1. Counter: Yes, b/c suing is incidental to enumerated rights; should not be
excluded by the list of enumerated rights.
iv. Gustafson v. Alloyd Co. [
v. People v. Smith [Mich.1975] p.250: Statute against holding dagger, dirk, stiletto, or other
dangerous weapon except hunting knives; HELD: catchall phrase was NOT to include
rifles.
1. Canon: ejusdem generis catch-all takes on character of enumerated terms
a. Rationale: Dirk, dagger, stiletto are all clearly dangerous weapons, not
borderline. Normally, youd enumerate borderline cases. Since they are not
borderline cases, their inclusion would be superfluous unless you read their
inclusion as a signal for how the catchall should be read.
vi. Circuit City v. Adams [SCOTUS 2001], p.237: FAA exemption clause: not apply to
contracts of employment of seamen, railroad employees, or any other class of workers
engaged in foreign or interstate commerce, So, Commerce as Congress in 1925
understood it or commerce = plug in whatever evolving interpretation is? HELD:
Commerce as Congress in 1925 understood it.
1. Text: in commerce = Term of Art.
a. Rationale: To say that engaged in commerce is to be interpreted depending
on the date, ignores reason why it became a term of art in the first place: its
plain meaning is narrower than more open-ended formulations [affecting
commerce and involving commerce]
2. Commerce Clause: variable standard would bring instability to statutory
interpretation. Ct declined to give significance to in commerce in the same way
that CC statutes give CC acts a wide scope of applicability, to the outer limits of
authority under CC.
a. Congress obviously knew how to create an Act that has that scope; if they had
wanted the FAA to have it, they would have used affecting commerce
3. Canon: ejusdem generis any other class of workers is limited by the
seamen, railroad employees.. if not, then what was the point of enumerating
those classes?

3. SUBSTANTIVE CANONS
A. In General
i. Reflect substantive/policy goals or values; persuasive but not dispositive;
1. Favor or disfavor certain results;
2. Put the thumb on one side of the scale;
3. Set a default presumption that must be overcome;
4. Often operate via a clear statement rule or even a super-clear statement rule
a. Assume that legislature has done x if they dont say explicitly that they really
want to do y.
ii. Examples:
1. Rule of lenity [only one thats not a clear statement rule]
2. Tax laws construed narrowly
3. Federalism Gregory v. Ashcroft
4. Canon against retroactivity TVA
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5. Presumption against implied repeal TVA

6. Appropriations bill doesnt change substantive law unless clear TVA
7. Constitutional avoidance MCI, Brown
iii. Pros: less harsh than judicial review, reflect values.
iv. Cons: hard to apply [how clear is a clear statement?], increase costs of legislation, but
this is maybe justifiable
B. Lenity
i. U.S. v. Bass [SCOTUS 1971] p.304: crime is to receive, possess, or transport gun in
interstate commerce. possessed a gun, but not in commerce. Does in commerce
apply to first 2 verbs? Nobody knows. So, rule of lenity when the statute is ambiguous.
HELD: must possess a gun in commerce to violate statute.
1. Substantive Canon: Rule of Lenity
a. Rationale: Notice fair warning to potential criminals. Criminal penalties are
serious and represent a moral judgment, so legislatures and not Cts should
define criminal activity when theres ambiguity, resolve in favor of
defendant.
2. Why is lenity good and better than, e.g., federalism clear statement rule?
a. Institutes Constitutional requirement [DP], not just Constl preference.
b. Notice value itself is clarity, not just requiring clarity to uphold other values.
c. Deeply embedded, accepted, & non-controversial value in US [contra,
federalism v. strong central govt highly debated]
d. Ambiguity would allow govt prosecutors to abuse discretion, make law.
Lenity checks potential abuse.
C. Constitutional Avoidance
i. In General
1. Where an otherwise acceptable construction/interpretation of a statute would raise
serious constitutional problems, the Court should construe the statute to avoid
such problems unless such construction is plainly contrary to the intent of
Congress.
a. Order: Courts should always try to resolve the issue first on statutory
grounds to see if they will dispose of the case before addressing const.
objections.
i. Example: if website operator convicted of violating federal anti-porn
statute, & on appeal he argues (1) material on website was not porn
within meaning of statute, and (2), that the statute is unconstitutional
interference w/ 1st Amdmt guarantee of freedom of speech, the Ct
applying the above rule would address statutory issue first.
b. If there is serious doubt about constitutionality of a fed statute, court should
see whether a construction of stat is fairly possible/reasonable that would
not raise grave or serious constitutional questions.
i. Example [cont. from above]: Ct applying this rule would see if it were
possible to interpret anti-porn statute so operator is not in violation. If
2 plausible constructions, one finding operator criminal thus implicating
conl concerns; and the other not, the Ct will adopt the last
interpretation.
ii. *If construction isnt fairly possible may be avoiding a difficulty to the
point of disingenuous evasion. [Brennan dissent, Catholic Bishop]
c. Construction does not have to be determined to be actually unconstitutional.

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2. Prudential concern that Const. issues should not be needlessly confronted

[judicial restraint.], const. decisions are a much more significant judicial restraint
on other branches of govt than are other statutory decisions.
3. Recognizes Congress is bound by/swears to uphold Const., so Ct wont lightly
assume Congress intended to infringe upon const. protected liberties or usurp
power constitutionally forbidden it.
4. Protecting const. values
5. While within judicial power to do so, counter-majoritarian difficulty in overriding the
will of the elected Congress.
a. But may lead to excessive caution, interpretations that Congress wouldnt want
b. Gravest and most delicate duty that the Ct is called upon to perform Blodgett
v. Holden [1927, Holmes, concurring].
ii. NLRB v. Catholic Bishop of Chicago [SCOTUS 1979], p.252: Whether religious schools
are employers under NLRA w/ respect to lay teachers. HELD: Not employers; Act
applicable to religious schools.
1. Clear Statement Rule: Must have an affirmative intention of the Congress clearly
expressed in order to even consider the constitutional question.
a. BUT, not decisive resolve that question as matter of formal doctrine.
b. SCOTUS + lower cts consistent.
2. Justifications/Rationale: see p. 262-267.
3. Consequence: Ct doesnt answer the constitutional question at all if it can avoid
it. Contrasts w/ Classical Approach.

4. REGULATORY PROCESS
A. APA Generally Administrative Constitution [p.893]
i. Congress must have authority to enact statute
ii. Congress must ENACT it.
iii. Agency must promulgate regulations to implement statute.
iv. Agency has to interpret regulations to apply to NEW situations.
B. 3 Big Ways to Act
i. Rule-making: quasi-legislative
1. Formal [trial-type]
2. Informal [notice-and-comment]
ii. Judicial Review of Agency Action
C. Judicial Review and Questions of Law - Chevron
i. Pre Chevron: 706(2) is standard for judicial review of agency lawmaking. There was a
patchwork of review standards, depending on question of law, fact, or mixed. Whether
agency expertise was required, whether the statute gave agency express power,
longstanding agency interpretation.
ii. [Chevron v. NRDC] (SCOTUS 1984) p. 756: Is a stationary source of air pollution a
factory system or individual smokestack? A: unclear. Text is completely indeterminable.
1. [3] Step Test:
a. Step 0: Check if Congress delegated the agency such power to decide/make a
judgment call.

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b. Step 1: If so, ask whether Congress has directly spoken to the precise
question, using all tools of statutory interpretation. If this intent is clear, then
the matter ends, and that intent is honored. If , go to
c. Step 2: Ask whether the agency's answer in question is based on a
permissible or reasonable construction. [APA & Procedure stuff]
2. Why is Chevron [deference to agency interpretation] good?
a. If statute is ambiguous about who gets the delegation of authority, Agencies,
not courts, should fill it in (implied delegation to agency). Why? Because
i. expertise
ii. agencies are more accountable b/c President is elected ( democratic
accountability) even independent agencies (intersects w/ removal)
iii. promotes uniformity in the law
b. Since authority is delegated to the agency If reasonable people differ on
interpretation of statute, its not courts role to pick which interpretation it li kes
best, as long as agency operates within zone of reasonableness.
iii. Another way to think about it:
1. Range of meanings of statute:
a. Statue can mean only X, agency must do X.
b. Statute can mean X, Y, or Z, agency may choose any of those three.
2. Court may not interfere if agency chooses X, even if court thinks Z is best.
3. P. 763 agency must go within the bracket. Agency can't choose W or Q, etc. or
anything outside the bracket.
iv. Objections to Chevron:
a. Excessive power for unelected bureaucrats?
b. Cause Congress to delegate unpopular, or politically sensitive topics to
agencies? Congress would write vague statutes to allow agencies to do
whatever they wanted, insulated from judicial review?
c. Why is Congresss silence on who gets the delegated authority =
agencies, not courts, get it?
i. Sure, there are good reasons, but can we really say Congress intended
it? Usually the record is blank.
ii. We can call this a canon of construction or clear statement rule:
value of the constitutional system is for policymaking to be done by
agencies, not jduges.
iii. Response: well, Congress can always fix it, overrule Chevron or
explicitly state the standard of review. Courts judicial review power is
determined by legislature so they can change it. Maybe Congress has
implicitly acquiesced to delegation to agencies.
D. Post-Chevron
i. Many factors that were previously relevant in deciding level of deference become
irrelevant at least when ct faced w/ rule or order produced thru proper procedures, which
are:
1. Consistency of approach
2. Closeness to time of statute's adoption
3. Complexity of question requiring expertise.
ii. Hard Look Doctrine
1. Under Chevron, Cts defer to agency's reasonable interp. of ambiguous statute,
even though ordinarily think of courts as law interpreters
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2. BUT not automatic glance without any attention. Under "hard look" doctrine -
which Chevron did not displace - courts will conduct a pretty aggressive inquiry
into how the agency produced its rule or order.
a. This is done under the State Farm standard of review: an agency's action is
arbitrary and capricious if:
i. It fails to consider an important aspect of the problem;
ii. It relies on factors Congress did not intend it to consider, and
iii. The agency has offered an explanation that runs counter to the
evidence or is so implausible that it could not be a product of a
difference of opinion or agency expertise.
b. ***Wants to be sure the AGENCY gave a hard look, Ct is not giving a hard
look to statute/rule/regulation itself. [which would go beyond scope]
iii. MCI v. AT&T [SCOTUS 1994] p.778: Statute allows FCC to modify filing requirements.
FCC decides to remove filing requirements for non-AT&T (non-dominant, remaining 40%
of market) carriers. Hard-look step 1: FCCs action was not modification. Agencys
interpretation goes beyond meaning the statute can bear no judicial deference.
1. Text: Modify doesnt mean fundamental revision (dictionary definitions). Only
exception to modify is tiny exception, expresio unius, implies that other (bigger)
exceptions allowed.
2. Purposivism: Petitioners argue that FCC regulation furthers the
Communications Acts broad purpose of promoting efficient telephone service.
We get it. But thats not what the text says; thats a matter for Congress to change
statutory authority.
3. Clear Statement of NDD: Scalia (Maj.) says if modify = fundamentally change,
then FCC would get too much authority to determine whether an industry will be
entirely/substantially rate regulated. Cant believe Congress would delegate this;
not what Congress intended under the Act MCI could have been decided on
other grounds.
a. Why is a hard-edged step 1 good? Court is worried that (unelected) agency
will depart from its mandate, functionally repeal its authorizing statute that was
a result of Congressional compromise. (Rather than just filling in gaps.)
4. Stevens Dissent: FCC's reading is not unreasonable b/c its informed by practical
understanding of the role that tariffs play in modern regulation of
telecommunications industry. FCC's use of "discretion" to modify conferred by
statute reflects "reasonable accommodation of manifestly competing interests and
is entitled to deference"
a. Thinks another way that is equally valid is the fostering competition part.
Thinks it is totally okay because it achieves the goals Congress wants to
achieve.
iv. Babbitt v. Sweet Home [SCOTUS], p.790-803: Endangered Species Act - "Take" definition
at question. Did Secretary of Interior exceed authority under Act by promulgating that
regulation?
1. W/o Chevron:
a. Dictionary
b. Legislative History
c. Semantic Canons?
d. Noscitur a sociis
i. DC Circuit used this to decide that "harm" = limited to action that
perpetrator uses to directly act upon the member of the species

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ii. Also what dissent argues.

2. Majority
a. Dictionary definition of harm supports F&WS
b. Broad purpose of ESA (using another case as basis for its purpose: TVA v.
Hill)
c. Purpose of the Act as according to the act itself: Respondents approach would
prevent liability even for intentional but indirect harm, like draining a pond
[know for a fact that if drain, willl kill all the fish/members of endangered
species. But not directly, not killing it by hitting it].
d. Surplussage Problem
e. Legislative History:
3. Is this even a Chevron case???
4. Example of Dueling Canons here
a. DC Circuit and dissent say that noscitur a sociis requires that "harm" be read
like the other words in the list - direct and intentional pps of arm.
b. So, choice b/w canons which one have more relevance/importance/rank?
c. Does Chevron suggest that, if there are dueling canons, that creates th e
space for agency discretion?
d. Still no good guidance on how to fit the statutory interpretative tools we
know with the deference and ambiguity of Chevron!

v. [FDA v. Brown & Williamson] (SCOTUS 2000) p. 803: Does FDCA give FDA authority to
regulate tobacco? Drug = articles other than food intended to affect the structure and
function of the body. Held: No, b/c Congress intended NO, intended to preclude FDA
regulation of tobacco, through FDCA overall regulatory scheme, and post-FDCA tobacco-
specific legislation. Presumption of NDD.
1. Majority arguments for hard-edged Step 1:
a. Ban argument: If tobacco is a drug (and FDA has acknowledged that its
unsafe) and FDA must ensure that drugs are safe and effective, FDA would
have to ban. Thats not relevant action here.
b. Subsequent Acts can shape or focus meaning of statute.
i. 6 acts created comprehensive regulation of tobacco
ii. FDA action would contradict, step on toes of ^ schema. FDA cant
overrule where Congress has spoken.
iii. Congress acted against backdrop of FDAs consistent, repeated
statements that it lacked authority effectively ratified FDA position
iv. NB, Congresss failure to enact bills barring FDA authority NOT
convincing
v. Criticism: Agencies should be able to modify their interpretations as
long as the new interpretations are reasonable, thats the whole point
of Chevron Step 2!! Congressional legislation was ratification of
FDA has no jurisdiction, just acknowledgment that at the time, FDA
didnt have the authority, or didnt think it did.
vi. My take: Dont use subsequent acts as evidence or ratification of
lack of jurisdiction unless theres directly contradicting legislation (e.g.
removing authority of FDA to regulate tobacco)
2. Majority backing-up NDD argument, clear statement canon:

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a. Like MCI, fear of delegation problems leads to very aggressive Chevron Step
1.
i. Tobacco = huge industry, very important to Congress. We dont want to
read in a delegation of authority to regulate such an important
industry if theres no clear statement.
3. Criticism of Brown:
a. Agencies should be able to modify their positions in Chevron type case
E. Chevron + Substantive Canons
i. Constitutional Avoidance Takeaway [DeBartolo v. Florida Gulf Coast Building]: When an
otherwise reasonable agency interpretation would raise a serious constitutional question,
the court should reject the agency's interpretation in favor of a reasonable alternative
construction that does not raise the constitutional question. But this isn't as simple as it
seems in practice b/w of how "malleable" the con'l avoidance canon is.
ii. [Rust]: Regulations did not raise the "grave and doubtful con'l questions" that would lead ct
to assume Congress did not intend to authorize their issuance by agency. So, Ct doesn't
have to invalidate the regulations to save the statute from unconstitutionality.
F. Limits of Chevron
i. Mead [SCOTUS 2001] p.??: What is Mead's 'Dayplanner' categorized as for customs
importing tax purposes? Was, at first, "other" category & not taxed. Then, defined as
"diary" & taxed. Mead protests tariffs and wants to get reimbursed. HELD: Congress
delegated authority; but beyond Chevron scope.
1. Case turns on "Step 0" Question.
a. Did Congress "delegate authority to the agency generally to make rules
carrying the force of law" YES, &
b. Was the agency interpretation claiming deference promulgated in the
exercise of that authority?" NO.
c. But why does it matter, why isn't it just Chevron deference?
i. Because it is question whether the categorization is arbitrary and just a
decision, or whether it is notice and comment rulemaking [showing
their work].
1. If notice-and-comment: deference. If not, Ct needs to look at it.
2. But where in Chevron was it worried about reliability, procedures, etc.?
3. It isn't in Chevron it is pre-Chevron: Skidmore!
2. ***Maj: doesn't think Chevron overruled Skidmore doesn't think bright line
rules are necessarily applicable here.
a. Don't just need to know whether agency had AUTHORITY to speak w/
authority of force of law, but whether they ACTUALLY EXERCISED THAT
AUTHORITY.
b. Thousands of these categories are being issued from like 46 diff offices..
Doesn't look like laws. Why?
c. Fact-specific, only applicable to Mead's dayplanner
i. E.G. if Kate Spade tried to rely on the rule, Customs would say no, not
the same so not a broad scope, this doesnt s ound much like a law.
ii. Law tends to create categories that a lot of things fall in.
3. Majority's opinion about test: "The fair measure of deference to an agency
administering its own statute has been understood to vary with consequences" i.e.
a "dial"
a. Scalia dissent: prefers on/off switch.

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ii. What does it mean for Congress to "delegate authority to the agency generally to make
rules carrying the force of law"?
1. Doesn't have to be explicit, can implicitly delegate: Indication that Congress
would EXPECT agency to apply force of law good = Congress gave agency power
to engage in adjudication or notice-and-comment rulemaking OR some other
indication of "comparable congressional intent.
a. So what can Congress do to express this comparable intent?
i. p.858, 2: assumes generally that Congress "contemplates
administrative action w/ effect of law" when it gives a relatively formal
administrative procedure "tending to foster the fairness and
deliberation that is expected to underlie a pronouncement of such
force"
ii. BUT Ct also says further down that this is not necessary for Chevron
deference b/c they have given it when no administrative formality was
found so the fact that the tariff classification here is not a result of
formal admin. Processes doesn't alone bar Chevron deference.
iii. Skidmore deference factors:
1. Thoroughness evident in its consideration;
2. Validity of its reasoning;
3. Consistency w/ earlier and later pronouncements [this is what gets Scalia so
upset]; &
4. All those factors which give it power to persuade, if lacking power to control.

POLICY ARGS
Textualism good, LH bad, purposivism bad. However, maybe court should reinforce that when
plain meaning actually has a range of meanings, or when ambiguous terms are used such as
reasonable or appropriate (creating a zone of reasonable meanings), that means
court/agency gets discretion on a case-by-case basis.

Absurdity should be limited and clarified

The Public Citizen rationale, using possibly absurd results as a way to make a more general
argument about statutory meaning should not be OK. Also, in Public Citizen, the court used the
rationale of Congress wouldnt have intended this b/c politically toxic, not offends some deeply
held value.

While the Court has taken a more limited view of absurdity in subsequent cases such as Barnhart,
which emphasize process absurdity (in addition to policy absurdity), the Public Citizen rationale
has never been overruled. We dont really know what the state of absurdity after Barnhart is.

Absurdity should be more limited, even more limited that it is now. EG Public Citizen, p. 81,
Kennedy concurrence. Notably, he says the majority arrives at absurdity loosely and uses it to
preclude a constitutional question another example of constitutional avoidance!
- It does not foster a democratic exegesis for this Court to rummage through unauthoritative
materials to consult the spirit statute with which the Court is more comfortable undermines
democratic legitimacy
- Courts loose invocation of absurdity creates too great a risk that the Court is exercising its
own WILL instead of JUDGMENT with the consequence of substituting its own pleasure to that
of the legislative body

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- The potential of this doctrine to allow judges to substitute their personal predelictions for the
will of Congress is self-evident. Cites Holy Trinity.
Perhaps it should also be limited only to when Congress clearly hasnt thought of it.
- Posners opinion in Marshall were not trying to figure out intent, Congress just literally never
came up with this question
- Scalia in Bock Laundry: use legislative history to verify that what seems to us an unthinkable
disposition was indeed unthought of, and thus to justify a departure form the ordinary meaning
of the Rule p. 18.

Why must it be so hard for Congress to make laws (under B&P)?

- This applies to NDD (its good for agencies to make laws because theyre faster and more
flexible, BUT Congress cant just abdicate responsibility and hand it over to agencies.)
- Also applies to Congressional control of agency lawmaking through veto and removal (we
acknowledge that Congress handed over power to agency b/c it was easier for agency to get
stuff done. Congress cant retain a hand, must do full B&P
- Arg: theyre politically accountable, the they have no incentive to pass any laws argument
fails
- Legislation is meant to be slow, protect against tyranny of majority
- Perhaps Congressional gridlock reflects gridlock of the nation Congresss job is to make
hard choices of social policy

Constitutional avoidance is NOT GOOD (Federalism canon, NDD, hard-edged Step 1)

Constitutional avoidance sometimes gets sold as a form of legislative supremacy court is
concerned about their lack of being elected, so theyre hesitant to overrule statutes on
constitutional grounds. While I think its OK for statutes to be construed narrowly, Courts should
not be allowed to rewrite statutes or give them unnatural meaning just to avoid a constitutional
question.
- Kennedy concurrence in Public Citizen: using the absurdity excuse too freely is not
democratic, doesnt give effect to will of Congress
- Benzene, NDD avoidance
- MCI, Scalia backs up reasoning by saying I cant imagine Congress would delegate rate-
regulation power over entire industry to MCI. Meh, not necessary argument, the text
supports him too.
Why?
- Undermines Congress should be allowed to use its words to do what it wants. So court is
actually impeding legislative supremacy
- Undermines predictability. I think we expect that laws will be interpreted in reasonable ways,
not weird ways that the Court tries to get around.
- Congress thus writes terrible legislation. Doesnt make the conscious decision to legislate
where it hasnt legislated before. Or if it does, knows that it doesnt matter
What are some arguments for avoidance?
- Judges may not be able to set a rational standard between permissible and impermissible
delegations of authority, but they can interpret statutes gives judges a finer weapon
o Response: Thats retarded. Judges are still making that judgment call, just hiding it.
- Its like a clear statement canon, thumb on the scale pressuring Congress into not
delegating inappropriately. Response: uh, Congress would also not delegate improperly if they
were going to get overruled.
- Argument against me w/r/t NDD: Some of the IPs are truly meaningless, like public
convenience or unduly complicated corporate structure. How come courts can narrow that
language but cant narrow language that raises a Constitutional question?
o Response: That language is narrowed using industry usage (eg SEC-regulated bank
might know what unduly complicated means). Theres no similar principle for

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narrowing of non-industry (constitutional-question-raising) language. Congress uses

those words in the statutes to signal to industries what it means; theres no signaling
value attached to non-industry language. (No meaning already associated; means that
the narrower meaning Court applies is not grounded in reality.)

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