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Introduction
How a Bill Becomes a Law
In the House of Representatives 1. Group like legislative staff or interest group drafts a bill or resolution 2. Bill is introducted by Congressman. 3. Bill is reffered to standing committee 4. Committee acts: a. can be referred to subcommittee b. hearings are held on some major bills c. committee can resolve to: i. take no action, ii. defeat the bill, iii. accept or iv. amend and report the bill the full House 5. Discussion of the bill is placed on one of the major calendars: a. Union (for appropriations and review) b. House (public) c. Discharge (when bills must be extracted from committee) 6. The Rules Committee may have to discuss the bill in a closed session 7. Floor action, which results in either: a. passage which sends the bill to the Senate b. defeat your life and your quest end here, bill. In the Senate 1. The bill is referred to a standing committee 2. The Committee takes actions like the House committee 3. There is floor action like in the House 4. If the House and Senate pass differing versions of a bill, a conference committee can be created with members from each house; each House must agree to the conference report. 5. The bill is signed by the Speaker of the House and the President President 1. The bill is then presented to the president, who may: a. sign the bill b. veto the bill c. allow the bill to become law without his or her signature OR d. use a pocket veto after adjournment. Parliamentarians nonpartisan Congressional employee who determines which committee has the most compatible jurisdiction over an issue to consider a bill, using a weight of the bill test. power of negation power to kill a bill in committee, usually held by the chair of the congressional committee which has jurisdiction over the bill. discharge petition way to get a bill out of committee and before the full house for a vote.
suspension of the rule allows the House to consider a bill without amendment or motions; requires the consent of the Speaker and the House to pass the bill with a 2/3rds majority.
Theories of Legislation
All the theories of the legislative process can trace their origins back to Madison. Specifically, his thoughts laid out in Federalist Nos. 10 & 51.
Federalist No. 10
Legislation regulates the conflicting interests of different segments of the population.
Federalist No. 51
The federal legislative process is a way for a diverse coalition of self-interested minorities to regulate, which prevents a single majority interest from controlling the nation.
2. Interest group politics result in an additional check on the government by distilling expertise and engagement in a non-government organization. 3. Politics can be conceptualized as the process by which conflicting interest-group desires are resolved. PROBLEM: The rational response for an individual is to free-ride on the political actions of others, since individuals cannot effectively influence policy decisions. Therefore, individuals are not likely to join interest groups until that individual has a large enough interest, often due to a personal stake in the legislation. Small groups are more successful than large ones, because members can more easily police the activity of other members. Consequently, small interest groups often dictate policy to the majority, contradicting Madisons conception of the majority controlling policy at the expense of minority groups. BUT it is often large political groups that are funding these small, successful political groups. Large groups form successfully often because they offer a selective benefit (like AARP discounts) a purported benefits (like Sierra Club calendars), or a solidarity benefit (like PBS tote bags).
like anti-pollution laws or employment laws bills that result in regulations are often from this category III. Concentrated benefits/distributed costs like bills that result from a single interest group IV. Concentrated benefits/concentrated costs like bills that result from special interest groups on both sides Critique of Pubic Choice: Role of interest groups is too complex to be easily modeled. Legislators are not just motivated by reelection Empirical evidence suggests that ideology is a better predictor of how politicians vote than prospects for reelection. Ergo, you can use an economic model to explain how politicians behave, but that model does not predict well.
Republicanism
It is the rule by many (as opposed to despotism), which results in compromise Republican values: deliberative bodies, like legislature, which, through deliberating, can reach ideas that result in a public good an informed constituancy
Court remains independent by upholding the legislative deal rather than creating public policy themselves. Judges do this because it is too costly for them to create public policy out of whole cloth. Referendum Politics special interest groups still affect the outcome How do courts interpret public policy decisions that result from referrendums?
also, where specific words follow general words, the doctrine restricts application of the general term to things that are similar to those enumerated. Expresso Unius Expressio unius est exclusio alterius the expression of one thing indicates exclusion of the other. also works for the inclusion of one thing indicates the exclusion of the other. This cannon is very troublesome, and rarely results in the correct outcome. For it to be true, it would require that the drafters of legislation to think about all the possible outcomes of the statutory language. This just is not the case most legislatures write what they can in the time they have, leaving it up to the courts to fill in the gaps.
Grammar Cannons
The legislature is presumed to know and follow these basic conventions of grammar and syntax. Punctuation Rules Three possible rules: 1. punctuation forms NO part of the statute 2. punctuation is an aid in statutory construction 3. punctuation is an undesirable, last-ditch alternative aid in statutory construction. MAJORITY RULE: The last one. Referential and Qualifying Words: The last Antecedent Rule Referential and qualifying words or phrases refer ONLY to the last antecedent, unless contrary to the apparent legislative intent derived from the sense of the entire enactment. (XX????XXX) UNLESS: A comma proceeds the qualifying or referential phrase OR the statutory context negates it. Conjunctive versus Disjunctive Connectors: And vs. Or Terms connected in the disjunctive are often read to have different meanings and significance from one another. Mandatory versus Discretionary Language: May vs. Shall When statutes use mandatory language, courts often interpret the statute to exclude discretion to consider equitable or policy consideration. Singular and Plural Numbers, Male and Female Pronouns Unless otherwise stipulated, singular words refer to plurals as well, vice versa, and he and she are interchangeable. Most states have statutes that say this (and most lawyers include this when drafting interrogatories!) The Golden Rule (Against Absurdity) Golden Rule statutory interpreters should adhere to the ordinary meaning of the words used, and the grammatical construction, unless that would lead to a manifest repugnance, in which case the language may e varied or modified, so as to avoid such a result. Its an absurd results exception to the plain meaning rule. Courts reverse scriveners errors in this manner.
The Whole Act Rule is the most realistic in view of the fact that a legislature passes judgment upon the act as an entity, not giving one portion of the act any greater authority than another. Therefore, interpreting any part of an Act in isolation is a violation of legislative intent. SCOTUS follows the WAcR. WAcR assumes coherence the interpreter presumes that the legislature drafted the statute as a document that is internally consistent in its use of language and in the way its provisions work together. HOWEVER, statutes are usually cobbled together over time. Titles are considered when interpreting Acts, but they do not control over the plain words of the statute. Preambles have no greater interpretary weight than any other part of the statute. If there is doubt about the meaning of Privisos, they are to be narrowly construed. The Rule to Avoid Redundancy The presumption is that every words and phrase adds something to a statute. Therefore, no word should be construed to be redundant or to make other provisions redundant. HOWEVER, as a practical matter, legislatures add redundant language to statutes all the time. So, the RtAR is not in accord with most legislative intent. For this reason, SCOTUS refused to follow the rule in Gutiterrez v. Ada (2000). Presumption of Consistent Usage and Meaningful Variation It is reasonable to assume that the same meaning is implied by the use of the same expression in every part of the Act. Plus expressio unis = where Congress includes particular language in one section of a statute but omits it in another it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. Keene Corp. v. U.S. (SCOTUS 1993). EXCEPT, in the application of the negative implication, where there is a reasonable explination for the varation in language. Field v. Mans (SCOTUS 1995). Rule Against Interpreting Provisions in Derogation of Other Provisions Ways that two provisions could conflict: operational conflict direct conflict between the way two provision operate philosophical tension assumptions behind provisions conflict structural derogation - a given provisions interpretation might be at odds with the overall structure of the statute. Political Equilibrium Not a textual cannon, but a substantive cannon through which courts give deference to the legislature or other political body (like a regulatory association) which passed the statute in question.
1. the estimated preferences of the drafters are unclear 2. there are significant differential odds of the legislature redrafting the statute given the different readings 3. any interim costs from lower immediate expected political satisfaction are acceptable. Types of preference-eliciting cannons: ejusdem generis experssio unis plain meaning Preference-Estimating Cannons The traditional use of cannons. Used when the drafters intent is clear and/or there is significant information available to estimate the intent of the drafters. Examples of preference-estimating cannons: The opposite cannons to the three listed above.
Substantive Cannons
Cannons whose applications are NOT policy neutral. Today, statutes that deal with certain subjects (like civil rights, securities, and antitrust) are usually liberally interpreted. Whereas statutes that impose criminal penalties are usually strictly construed. There is also a whole list of specific areas where statutes are strictly construed (like in public grants) and where they are liberally construed (like in ?). Presumption of Rules of Thumb Derived from the Constitution, federal statutes, and the common law, courts will presume that congress intended to incorporate a given exception in to statutes in a given situation. These presumptions are rebuttable. Like the presumption that Congress does not intend to violate international law. Clear Statement Rules Presumptions that can only be rebutted by clear language in the text of the statute. SCOTUS uses this to express quasi-constitutional values. Substantive Cannons may be used as: 1. merely a tie-breaker 2. presumptions that set up an outcome which can be overcome by persuasive support for the counter position 3. clear statement rules which compel a certain outcome unless there is a clear statement to the contrary contained in the statute. a. The text calls rules that require a clear statement in the text of the statute superstrong clear statement rules Rule of Lenity Criminal laws must be construed strictly. Embedded in American law by the Marshall court. Justifications: Notice Mens rea requirement Separation of powers (non-delegation) - the creation of crimes is the role of the legislature, not the judiciary
This rules is most appropriately applied to criminal laws that are bad by edict rather than bad by their very nature. Constitutional Avoidance If a statute is ambiguous and one possible interpretation raises an issue that might be unconstitutional, the court should avoid this issue by choosing the interpretations that do NOT raise the possible unconstitutional issue. Restated: "Do not impose a decision that causes constitutional problems unless Congress has explicitly stated that it wants to tackle the constitutional problem." Examples: In US v. Witkovich (SCOTUS 1957), the court avoided the constitutional issue by reading the "reasonableness" requirement from the fourth clause of the statute in question into the third clause, which was the clause at issue. In Dept. of Commerce v. U.S. House of Representatives (SCOTUS 1999), the Court interpreted the statutory amendment at issue to be consistent with an existing part of the statute which prohibited the use of sampling in the census, thus avoiding the issue of the constitutionality of sampling in the census. New Federalism Cannons The Rehnquist court developed a doctrine which requires clear statement interpretation of statutes in order to reflect that constitutional reference of all non-delegated powers are reserved to the state. Gregory v. Ashcroft is the ur example. This case was a reaction to the Garcia decision which overturned the rule that reserved certain exemptions for the state government from federal employment laws. Justice OConner held that Congress must clearly state that it intends to impign on a state power.
Legisprudence and Statutory Doctrine: Vertical versus Horizontal Coherence in Statutory Law
Vertical Coherence statutory interpretation that is coherent with past authoritative sources. important to formalists Horizontal Coherence when a statute is consistent with the rest of the present existing law a favorite of legal realists (realists consider laws legitimacy to be grounded on present policy needs) Legal Process Theory, based on these two principles, suggests that the public interest relies upon existing legal rules.
settled right provided correction can be had by legislation. But for cases involving the Federal Constitution where correction through legislation is virtually impossible. Burnet v. Coronado Oil (1932) (Brandies, J dissenting). SCOTUS has overruled a statutory precedent when: a prior decision held that congress impliedly precluded municipal corporations from the definition of persons in the Civil Rights Act (based on the fact that the House of Reps rejected a proposed provision doing just that). Note that the court reasoned that judicial intervention was necessary in spite of past affirmance and because of Congressional inaction. Monell v. Department of Social Services (1978) (overturning Monroe v. Pape (1961)). The reasoning in this case, however, is based more on respondeat superior rather than statutory interpretation, but the opinion does justify this statutory interpretation using legislative history. Statutory precedents are subject to normal stare decisis rules (as opposed to the lenient rules applied to constitutional precedents). Patterson v. McLean Credit Union (SCOTUS 1984) (overruling Runyon v. McCrary (1976) (holding that the Civil Rights Act created a cause of action for racial discrimination against private parties). NOTE: A decision made by the new Rehnquist court. Traditional justifications for overturning precedent, according to the Patterson court: Intervening development of the law through the growth of a judicial doctrine or action by Congress the precedent is a detriment to coherence and consistency in the law due to confusion created by an unworkable decision or the decision itself is an obstacle to the realization of objectives embodied in other laws. the precedent proves to be outdated after being tested by experience and is found to be inconsistent with justice or social welfare Congressional Ratification when Congress acts in a way that judges interpret to mean they are confirming a judicial interpretation of federal legislation. A concurrence in Patterson claims that congress ratified SCOTUSs decision in Runyon by: failing to overturn Runyon after it was decided, reject an amendment to the Civil Rights Act that was inconsistent with Runyon, and relying on Runyon when passing legislation related to the Civil Rights Act.
From Chevron Oil v. Huson (1971), three reasons that overruling prior precedents should only apply prospectively: the decision establishes a new principle of law if retrospective operation of the current precedent will further or retard the operation of the rule in question if the Courts decision could produce substantial inequitable results if applied retroactively. Alternatives to pure retroactivity or pure prospectively: prospective application, except as to prevailing party the new rule is applied to the appellant, but not to other pending cases. Used in Miranda. retroactivity limited to prevailing party and pending cases the new rule is applied to all cases that have not yet reached a final judgment. delayed prospectively (aka prospective prospective ruiling) the new rule comes into affect at some future date (like upon the next regular session of the Minnesota Legislature in Spanel v. Mounds View Sch. Dist (Minn. 1962)). Constitutional Considerations Prospective application, except as to the prevailing party might violate the equal protection of the law guaranteed by 14th Amend. Prospective application, even as to the prevailing party might violate the due process guarantees of the 5th Amend. In James B. Beam v. Georgia (1991), Scalia writes in a concurrence (in a fractured opinion) that the Marbury premise of saying what the law is precludes prospective ruilings, because, while judges do make law, they can only do it be finding what the law currently is, not by determining what the law should be and will in the future. This preclusion also serves as a check to keep the judiciary from making new law. In Harper v. Virginia Dept. of Taxation (1993), SCOTUS held that, when the Court reserves the question of whether a rule of law is prospective in order to make that happen. Scalia points out, in a concurrence, that when a judge makes a decision against the prevailing law, the judge says that this law is NOT law, not that it is BAD law. OConner responds, in a dissent, that Court has long recognized that saying what the law is is a legal fiction. Constitutional Problems with Retroactive Statutes If the legislature replaces an old statute with a new one, and the court then strikes down the new statute, does the old one come back into effect? Unless the statute provides otherwise, the CL rule is that the old statute is revived and in effect if the new statute is struck down. works the same way with a statute that derogates the CL if the stat goes down, CL is back The Constitutions prohibition against ex post facto laws keeps legislatures from repealing statutes which limit criminal liability retroactively to reach acts done while the statute was in effect. Considerations that support the constitutionality of retroactive legislation: an emergency situation (see Home Building and Loan v. Blaisdell (1934)) strong public interest requiring retroactivity retroactivity is necessary for the success of a statutory regime aimed at an important social policy (see Usery v. Turner
Elkhorn Mining (1976) (court upheld statute that required employers to compensate miners for black lung disease, even if the miners were not employed after the effective date). limited abrogation of the preenactment right the less the statute impacts a claim arising before it was enacted, the stronger the case for the retroactivity of the statute. reasonable expectations of regulations if someone knew that their gain of a contractual or property right was inherently unfair, it would be reasonable to make the revocation of these windfalls retroactive. lack of process corruption if there is self-dealing, the statute is not going to be retroactive. Like, if a state passes a statute removing the public employee unions bargaining rights retroactively and then lowers the employees wages or benefits.
So long as the ordinary interpretation of a statute leads to a satisfactory result, stop there. But if the result in unsatisfactory, a judge must look beyond the text to the meaning and intention of the lawmaker, with an assumption that the lawmaker thinks as the judge does on general questions of morals and policy and fair dealing. But we shouldnt use this second step without the first step because that would not make this genuine interpretation. Genuine Interpretation ascertaining the meaning a speaker intended to convey when uttering a statement. Spurious interpretation an interpretation not meant to uncover the intent of the legislature, but to make, unmake, or remake, and not merely to discover. Three bad sides to spurious interpretation: it tends to bring law into disrepute it subjects the courts to political discourse it reintroduces the personal element into judicial administration But, it allows judges to make statutes accord with modern sensibilities when the transaction costs surrounding amendment are so high. Imaginative Reconstruction when a judge attempts interpretation by placing themselves in the shoes of the lawmaker at the time the statute was passed. Learned Hand was a big fan and practitioner. (What was Fishgold v. Sullivan Dry Dock all about? The reasoning about legislative intent is just dicta, right?)
o The ordinary meaning of statutes should be the privileged interpretative stance, because the plain language of statutes is what citizens rely on to be what the law is. Doctrine Disfavoring Repeals by Implication announced in Posadas v. National City Bank (1936) and applied in TVA v. Hill (1978) to save the snail darter from a federal dam that was started before the Endangered Species Act was passed. o The Court reasoned that this doctrine applies more so when the impliedly repealing legislation comes from an Appropriation bill.
Three doctrines relating to congressional inaction: The Acquiescence Rule If Congress does not amend a statute in reaction to an agency or judicial interpretation of said statute, Congress is assumed to have acquiesced. The Reenactment Rule If Congress reenacts a statute w/o changes, courts presume congress endorses the existing interpretation. o SCOTUS stated this rule in Lorillard v. Pons (XXXX), saying Congress is presumed to be aware of agency/judicial interpretations. o Reenactment R is more likely to be invoked if interpretation is authoritative comes from SCOTUS, etc. o How did Scalia rule in Farragher v. City of Boca Raton (1998)? What was his response to Souters embrace of the reenactment rule when Congress overruled several judicial interpretations of a statute, but left the Meritor (1986)? The Rejected Proposal Rule if the legislature rejects specific language, the Court has been reluctant to read similar language into an enacted statute.