Legislation and Regulation in a Nutshell
Author:
Huefner, Steven
Edition:
1st
Copyright Date:
2017
24 chapters
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- Nutshell Series, In a Nutshell
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Introduction Why Study Legislation and Regulation? 8 results (showing 5 best matches)
- Reflecting this reality, in recent years an increasing number of U.S. law schools have included in their first-year curriculum a course in Legislation and Regulation, or in Legislation alone. As a result, a rich supply of new course materials on legislative processes, regulatory agencies, and statutory interpretation is now available to students and practitioners, in addition to an explosion of academic research concerning the complexities of modern American lawmaking. Upper level courses that build on these foundations also have expanded into specific areas of regulatory policy, courses in election law and the law of democracy, and clinical and experiential learning opportunities in legislative and regulatory settings.
- The Nutshell is divided into two principal but closely related parts. Part I describes the functioning of modern-day legislatures and administrative agencies. In addition to analyzing the various stages and inputs in the processes of law creation and implementation, it identifies the primary participants in these processes and discusses their motives and influences. The topics of this first part include: the sources and hierarchy of lawmaking authority (Chapter 1); theories of democratic representation (Chapter 2); rules governing the election processes that shape and populate the legislative institutions of representative democracy (Chapter 3); anti-corruption measures, including campaign financing and lobbying regulations, which further shape and influence our representative institutions (Chapter 4); the essential mechanics of how legislatures craft laws (Chapter 5); and the basic structure and function of governmental agencies, including the tools of legislative and judicial...
- This Nutshell is designed to accompany this trove of new learning, serving as an aid to law students and practicing lawyers who are seeking to refine and deepen their basic mastery of the functioning of the legislative bodies and regulatory institutions in which the vast majority of American law today is made, updated, and applied. The Nutshell discusses state as well as federal institutions and processes, addressing not only the U.S. Congress and today’s vast federal regulatory bureaucracy, but also state legislatures and administrative agencies. As part of its treatment of this subject, it considers the settled practice of delegating lawmaking authority from the legislative branch to the executive branch, and it explores the complicated relationship between these two branches. It also examines the interplay between the legislative and executive institutions that draft the text of the law, on the one hand, and the state and federal courts that frequently must serve as the... ...and...
- Furthermore, the contemporary practice of American law now takes place against a backdrop of increasingly complex interactions between the institutions of all three branches of government, namely, legislatures, executive and administrative agencies, and courts. At both the state and federal levels, legislatures enact sweeping measures that touch almost every aspect of citizens’ lives in myriad ways, from health insurance, to motor vehicle operation, to the mechanics of voting, to stimulating the economy, to the criminalization of internet piracy, to the distribution of tax burdens, to name only a few specific areas of government regulation. Administrative agencies and executive branch officials in turn must enforce many of these legislative measures through the creation of their own subsidiary regulations, as well as through their own adjudication of particular controversies. Meanwhile, citizens often turn to courts for clarification of the scope and meaning of complicated statutes...
- In addressing these essential questions about American law today, the second part of the Nutshell builds directly on the first part, illustrating that a sophisticated understanding of the challenges and problems of statutory and regulatory interpretation must be predicated on an equally nuanced understanding of the processes by which the words of the law come into being. The topics in this second part include: the challenge of textual interpretation (Chapter 7); theories of statutory interpretation (Chapter 8); canons of construction and other intrinsic tools of interpretation (Chapter 9); legislative history and other extrinsic tools of interpretation (Chapter 10); agency interpretation of legislative text (Chapter 11); and judicial review of agency interpretations (Chapter 12). An Appendix of Representative Canons of Statutory Interpretation follows.
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Chapter 5. Inside the Legislature, or How a Bill Becomes a Law 181 103 results (showing 5 best matches)
- The bulk of this chapter is a synopsis of the legislative process, from bill introduction through presentment to the President or Governor. In addition to providing an abbreviated summary of the classic process through which an idea for legislation becomes a law, the synopsis stresses the most critical steps, which have the potential to offer the greatest insight into matters of statutory interpretation. It also acknowledges that in recent years many major pieces of federal legislation have not followed the classic process. The remaining sections of the chapter then separately identify some important differences between congressional procedures and many state legislative processes; offer some special considerations concerning budget matters; provide a short overview of the structure and function of a typical statute, in terms of its organization and primary components; and address the distinctive features of direct democracy that complement the legislative processes of many states....
- After the conclusion of all the hearings and mark-up sessions, legislative committees have a third primary responsibility, discussed in the next subsection: to report back to the full body about the committee’s work on a specific piece of legislation. When a subcommittee has finished its work, it returns the measure to the parent committee, perhaps with a draft committee report for the committee to decide whether to adopt and send on to the full chamber. Occasionally (and with increasing frequency), several congressional committees will collaborate in preparing a piece of “omnibus” legislation that combines the work of these multiple committees into one bill for full chamber consideration as a whole.
- State constitutions occasionally impose additional requirements on the functioning of state legislatures. For instance, some state constitutions require that a measure address only one subject, or that a bill’s title accurately describe what the measure will do. Other state constitutions require that state legislation operate uniformly throughout the state, thus precluding legislation that expressly targets a specific business or locality. In addition to these requirements that address the substance of a bill’s text, many state constitutions impose requirements that address purely procedural matters, such as requiring three “readings” of a bill (on different days, ostensibly to promote greater collective deliberation, though actual reading of the full text is usually waived) before a vote; specifying mandatory time periods between a bill’s introduction and a vote thereon; and imposing moratoriums on any substantial alterations of the purpose of a bill between introduction and...
- can provide a means of circumventing a Senate filibuster, allowing legislation to pass with a simple majority rather than super-majority vote. Developed entirely as a matter of the internal rules by which Congress has chosen to structure its deliberations, the Reconciliation process was intended to help Congress align (“reconcile”) spending and revenue raising measures with the annual congressional budget resolution. The budget resolution typically includes an instruction to certain committees to achieve certain budget effects through development of a Reconciliation bill. The Reconciliation bill is limited in the content it can contain but receives expedited consideration under a privileged status that limits the terms of its debate and precludes the possibility of a Senate filibuster. The parliamentary details governing exactly what can be in the Reconciliation bill and how the Reconciliation process can be used are complex, but it has increasingly become the means of accomplishing...
- The Journal that Article I requires Congress to keep is not the relatively familiar Congressional Record. The Congressional Record instead is a transcript of the proceedings on the floor of both the U.S. House and Senate, which Congress since 1873 has independently opted, but is not required, to keep. (It was preceded by the Annals of Congress, the Register of Debates, and the Congressional Globe, a series of less comprehensive records). Meanwhile, the Journal of each house is a short but official summary account of the business conducted in that chamber, including records of the votes on pending legislation.
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Chapter 7. The Challenge of Textual Interpretation 265 80 results (showing 5 best matches)
- Many of these and other aspects of interpretive methodology are the subject of the next chapter. As additional foundation for that discussion, this section will reflect briefly on what the “law” itself is and where it comes from, including both the role of courts as well as the place of statutes and regulations in American law. Although the general question “what is law?” is far too broad for this chapter to even begin to address well, a few thoughts will provide some relevant background. Some theory of “the law” and how it is created, even if it is entirely implicit, inevitably undergirds one’s theory of textual interpretation (as does some theory of language, even if also implicit). For a full Nutshell treatment of what “law” is, see
- The first six chapters (Part I) of this Nutshell focused on the roles of legislatures and agencies in the American legal system, and the processes through which legislatures and agencies create law. The remaining six chapters (Part II) address the reality that, for many reasons, it is inevitable that the statutes and regulations that emerge from these lawmaking processes will often contain ambiguities that require interpretation. The primary focus of this second Part is on how these ambiguities in the law are resolved, and by whom. This chapter begins that effort with an overview of the necessity of legal interpretation and of the challenge this necessity poses.
- Formalists viewed courts as deductive not only in the ways in which they fostered the development of the common law, but also in the ways in which they interpreted and applied—arguably even refined—the crude statutory law. Under a Formalist account, the role of the court as the interpreter of legal text was to find the intrinsic meaning of that text. Hierarchical relationships among written constitutions, legislative statutes, and agency regulations, as described in Chapter 1, helped courts to identify and prioritize the application of these rules and principles.
- Furthermore, interpretive ambiguities are not confined to matters of judge-made or common law. Comparable challenges also routinely arise in determining textual meaning in statutes enacted by legislatures, as well as in regulations promulgated by agencies. Indeed, as the examples later in this chapter and throughout Part II reflect, statutes and regulations are replete with examples of interpretive ambiguities. In part, these ambiguities result because it is simply unrealistic to expect lawmakers always to craft language that covers all existing circumstances. Ambiguities also can arise when circumstances change or unanticipated developments happen; when a legislature deliberately uses vague or broad terms; or when drafting error or sloppiness occurs in the lawmaking process. As suggested in Chapters 2 and 5, legislatures are simply not structured to be nimble enough to resolve all of these ambiguities themselves (although agencies, as suggested in Chapter 6, are often better able...
- Or, to take an example with a more detailed yet still ultimately contestable definition of a key term, the Endangered Species Act makes it unlawful to “take” any endangered species of fish or wildlife and defines “take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The Secretary of the Interior, responsible for administering the Endangered Species Act, promulgated a regulation that in turn defined the term “harm” (as found in the statutory definition of “take”) to include “significant habitat modification or degradation where it actually kills or injures wildlife . . . .” In an important case (discussed further in Chapter 9) concerning the adverse impact of the logging industry on the northern spotted owl and red-cockaded woodpecker, the Supreme Court considered whether the Secretary’s regulation misconstrued the statutory definition of “take.”
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Chapter 2. The Nature of Democratic Representation 35 70 results (showing 5 best matches)
- One helpful perspective on the legislative and regulatory processes of both the federal and state governments is to consider the impact of the numerous required procedures that make it difficult to enact new laws and regulations. For instance, at the legislative level, these procedures include a legislature’s internal rules concerning such matters as: how proposed legislation may be introduced; what authority legislative committees have to alter pending bills; when legislators may speak on a bill; how a legislative session can be delayed or manipulated; when and how voting occurs; and, in the U.S. Senate, the filibuster. These procedures also include the constitutional requirements of bicameralism and presentment, mentioned in Chapter 1 above. Agencies similarly have a set of often-complex requirements that govern their rulemaking procedures.
- Issues like the one addressed in the tobacco case also raise important questions about institutional competence in the modern administrative state. What is it that government agencies are best suited to do? When is it that courts are well-positioned to override agency action? How much should the legislature be able to delegate to the experts who staff the agencies? Where are political pressures the greatest? Should political pressures be excluded from some stages of the process? Should they be taken into account in resolving interpretive issues? These and other questions deserve continuing reflection as part of the study of legislation and regulation.
- As detailed in Chapter 1, the primary lawmaking institutions of contemporary American government consist of the United States Congress and the fifty state legislatures, substantially assisted by the regulatory agencies they have created. Thus, it is essential for twenty-first century attorneys to have a sophisticated understanding of the structure, function, and operation of these legislative and administrative institutions. The rest of this Part of the Nutshell is devoted to that understanding.
- A third perspective on the processes of representative government examines the relationships between at least five distinct institutions of American government, at both the federal and state levels, that play important and interdependent roles in the shaping of statutory law and its implementing regulations. These institutions include: (1) & (2) each of a legislature’s two chambers (except in Nebraska, whose state legislature is unicameral); (3) the President or Governor, as head of the executive branch; (4) independent agencies or departments and agencies of the executive branch; and (5) the judicial branch. On occasion, multiple agencies can be involved in the same issue, or institutions at both the state and federal levels may sometimes be involved in a single issue (as, for example, when states had to decide whether to accept federal funds to expand their Medicaid programs under the Affordable Care Act, after the Supreme Court in ...this expansion). At the state level, in those...a
- For instance, for years the Food and Drug Administration assumed that it lacked authority to regulate tobacco products, despite text in its authorizing statute that could easily be read to place nicotine within the scope of the FDA’s jurisdiction over “drugs.” Meanwhile, a strong tobacco lobby prevented Congress from amending the statute. But in 1996, with the support of President Clinton and sensing that the tobacco lobby, despite its power, would be unable to persuade Congress to override the action, the FDA decided to regulate cigarettes. In the ensuing legal battle, the Supreme Court invalidated the FDA’s regulation, perhaps also sensing that Congress would be unable to muster the votes necessary to override the Court’s decision by passing a new law to re-empower the FDA. . And further demonstrating how an awareness of institutional dynamics can affect the modern administrative state, the Court’s opinion ...regulation relied heavily on the Court’s own inferences... ...and the...
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Chapter 4. Campaign Financing, Lobbying, and Bribery: The Impact of Money in Politics 116 results (showing 5 best matches)
- This section considers various attempts to regulate the influence of money in political campaigns. It first offers a few thoughts on the skyrocketing costs of political campaigns, before summarizing some competing arguments about the value of regulating campaign expenditures. The bulk of this section then focuses on the current state of campaign finance regulation, a state of affairs that has resulted largely from the complex interplay between legislative measures designed to reduce political corruption, on the one hand, and the U.S. Supreme Court’s review of the constitutionality of those measures, on the other. Meanwhile, this remains an evolving area. For additional treatment of these topics, see
- But perhaps as important as any of these factors is that corporate America has simply become increasingly convinced of, and eager to capitalize on, the potential value of a large and well-managed lobbying operation. For many large corporations, this involves a team of both in-house lobbyists and hired government relations firms, whose activities often involve collectively monitoring hundreds of different proposed legislative and administrative actions, first identifying and then working to control the most important opportunities and risks. For many corporate clients, lobbyists’ most valuable contributions can be defensive efforts to prevent the enactment of an undesirable piece of legislation, capitalizing on the many “vetogates” described in Chapter 5 to defend against new regulations.
- Today the FLDA, as amended, remains the primary mechanism for regulating congressional and federal agency lobbying. The FLDA is substantially more detailed than the 1946 Act, with elaborate definitions that specify its scope with precision, but which often require careful analysis to apply. At its core is its definition of a lobbyist as “any individual who is employed or retained by a client for financial or other compensation for services that include more than one lobbying contact,” with an exception for an individual whose “lobbying activities” amount to less than 20% of the individual’s work for the client. Separate provisions define “lobbying contact” quite broadly to include any oral or written communications with members of Congress and their staff, as well as with executive branch officials, “with regard to” federal legislation and regulation, except for a lengthy list of communications that are specifically exempted as not amounting to a lobbying contact. (These exceptions...a
- In particular, the Court in rejected the argument that political expenditure and contribution limits were regulations of conduct, rather than speech. Because the Court analyzed these regulations in terms of their impact on political speech, they were subject to what the Court in called “exacting scrutiny” under the First Amendment. This scrutiny required the Court to balance the government’s asserted justification for the regulations against the degree to which they infringed upon the free speech rights of citizens.
- By the end of the 20th century, the growth of the number of professional lobbyists, and of the amount of money flowing into the legislative and regulatory processes as a result, had given rise to increasing calls for Congress to regulate the lobbying industry further (see subsection 4 next). Meanwhile, states were employing their own regimes to regulate the lobbying process, in two broad categories. One category of state regulations requires only that groups and individuals engaged in lobbying, however a state chooses to define it, register with the state and disclose certain details concerning their lobbying activities and expenditures. A second category of state regulations not only requires registration and disclosure, but also imposes limits on who may engage in lobbying, or when lobbyists may participate in campaign financing efforts. For instance, some states prohibit lobbyists from contributing to legislative campaign funds while the legislature is in session, or even from...
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Chapter 6. Inside the Administrative State: The Authority and Operation of Government Agencies 71 results (showing 5 best matches)
- is the power to establish rules and regulations (terms used here interchangeably) of legal force, pursuant to a statutory directive that the more specific regulatory provisions are helping to operationalize. These agency rules have binding legal effect on all parties subject to the agency’s jurisdiction. For instance, when the Clean Water Act authorizes the Environmental Protection Agency to develop water quality standards, the standards the agency promulgates have the same binding authority as if they were a provision in the legislation.
- Judicial review of agency action raises difficult questions of when and to what degree courts should defer to agency expertise (which after all is a primary rationale for delegating substantial discretionary authority to agencies in the first place). Accordingly, over the years several distinct doctrines of judicial review have developed for a variety of agency rulemaking and adjudication contexts. The paragraphs below sketch the outlines of several of the most significant of these doctrines. Other topics beyond the scope of this Nutshell concerning judicial review of agency action include: the “exhaustion” requirement, which requires aggrieved parties to exhaust all avenues for relief within the administrative process before turning to courts for relief; related requirements that an agency action must be “final” before it is reviewable in court; the APA provision that judicial review is not available for agency actions “committed to agency discretion by ...that an agency’s... ...and...
- As observed at the outset of this chapter, legislatures may find it advantageous to leave to a body of experts—an agency—the development of more detailed regulations in a specific area of law, be it tax law, environmental law, energy law, or election law. Arguably, these agencies can develop detailed legal requirements much more efficiently than could Congress or a state legislature. On the other hand, as described in Chapter 2 above, efficiency is not necessarily a virtue for the lawmaking process, and many inefficiencies or hurdles in the legislative process are often defended as helping produce better laws in the long run. In large measure, the
- But what is an “intelligible principle”? In the federal system, a litany of cases suggests that almost anything can be an “intelligible principle” and that the nondelegation doctrine therefore appears to have little direct bite (although as will be discussed below in Chapter 12, when a statute leaves the extent of delegated authority ambiguous, the application of a “nondelegation canon” of interpretation often may limit the scope of the delegation). In only two cases, both involving the same statute and both in 1935 during the height of the Supreme Court’s rejection of New Deal legislation, has the Court held that Congress unconstitutionally delegated legislative power to the executive branch: In , and again in
- In 2015, however, the Supreme Court appeared to impose a new hurdle on certain agency rulemaking powers. At issue in , was the Environmental Protection Agency’s 2012 threshold regulation of power plant emissions of specified pollutants, under a statutory delegation of authority that empowered the agency to regulate these emissions if it determined that doing so was “appropriate and necessary.” By a 5–4 vote, the Court held that the agency could not properly determine whether this regulation was appropriate and necessary unless it had considered the costs involved. The agency had argued that it need not consider costs in making the initial decision to regulate power plant emissions, and instead could consider costs during subsequent stages of a lengthy rulemaking process that would follow its initial decision to regulate. But Justice Scalia’s majority opinion for the Court concluded that by ignoring costs even at the threshold stage, the agency had not considered all relevant factors...
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Outline 81 results (showing 5 best matches)
Acknowledgments 4 results
- Teaching Legislation & Regulation as a first-year course at the Ohio State University Moritz College of Law, as well as teaching our elective Legislation Clinic for second- and third-year students, have been immensely satisfying experiences. They form the backbone of this volume and I am grateful to my many wonderful colleagues who have collaborated or otherwise shared these teaching experiences with me over the past two decades: Doug Berman, Jim Brudney, Sandy Caust-Ellenbogen, Ruth Colker, Terri Enns, Dakota Rudesill, Peter Shane, Donald Tobin, Dan Tokaji, & Chris Walker.
- In preparing this volume I have been fortunate to have the assistance of a cadre of excellent research assistants: Ryan Agee, Hailey Akah, Jedidiah Bressman, Kris Chandler, Ben Fogle, Ethan McNaghten, Zach Soehnlen, & Ben Wallace. I also owe an especially great debt of gratitude to my former student Keith Darsee, who in addition to his own fabulous service as a research assistant has also been a steadfast supporter of the project and an invaluable advisor about content and organization.
- In addition, my involvements since 2004 with the program, and in the past several years with the related OSU Democracy Studies Program, have further enriched my perspective on the legislative and regulatory processes treated in this volume. My activities with these programs have confirmed for me the importance of promoting a better understanding of these processes. I am grateful for my OSU colleague Ned Foley, Director of , for his vision and leadership in this regard.
- My parents, Bob and Dixie; my children, Diana, Emmy, and Kate; and my partner, Julianne, have also been immensely supportive, each in distinctive ways, of all my efforts to study, improve, and teach about the institutions and processes of American law and government. I am deeply grateful not only for their love and encouragement, but also to be able to share our lives—and citizenship—together.
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Chapter 1. Sources and Hierarchy of Lawmaking Authority 9 58 results (showing 5 best matches)
- Typically, when federal agencies and departments promulgate regulations, they do so by engaging in a statutorily prescribed “notice and comment” rule-making process. This process, described in more detail below in Chapter 6, provides the public with an opportunity for input. It also provides lobbyists and interest group representatives a prime opportunity to shape the resulting policies. Many state agency rulemaking processes are analogous, although state agencies also may often have the power to promulgate regulations using different processes.
- As described in section A above, the state and federal constitutions are the supreme law within their respective spheres at the state or federal level. Other sources of law—statutes, regulations, judicial orders, executive orders, local ordinances—all derive their authority from these constitutions. These constitutions, in turn, impose important structural features and substantive limits upon the subordinate powers of federal and state lawmaking.
- Also following the federal model, each state constitution provides that legislation cannot become law without either the approval of the state’s Governor, or if that approval is not given, the subsequent approval of a legislative supermajority, the size of which is specified in the state constitution. But in a departure from the federal model, many states allow their governor to disapprove individual parts or “items” of a legislative measure, rather than limiting the executive veto to the entirety of a measure. This item veto (or “line-item veto”) authority can have a substantial impact on the legislative dynamic between the executive and legislative branches, even in states that limit these partial vetoes to only the dollar amounts of individual items in legislative appropriations measures.
- To better facilitate the implementation and execution of law, it has long been an accepted feature of American government for legislatures to create departments within the executive branch to administer government policies over specified subject matters. Indeed, in 1789, several of the First Congress’s earliest and most important actions were to establish the Departments of State, War, and Treasury. But today, the duties given to government departments and agencies routinely include more than the mere execution of law, and also comprehend the development of substantive regulations and the adjudication of disputes. Indeed, although appears to grant Congress exclusive federal legislative authority, Congress routinely delegates to federal departments and agencies the authority to promulgate regulations that clarify, extend, or otherwise fine-tune statutory law in areas overseen by the relevant department or agency.
- Today, a thorough grounding in legislative and regulatory processes is an essential component of an understanding of the sources and authority of American law. While the court-centric common-law tradition to which American law traces its roots continues to profoundly shape the U.S. legal system, state and federal legislatures have long displaced courts as the primary creators of law. In turn, as American society and government have grown more complex, legislatures have increasingly shared their lawmaking authority with administrative agencies, whose regulations now comprise another substantial layer of American law. Accordingly, this chapter briefly identifies the sources and hierarchy of legislative and regulatory lawmaking authority. The remaining chapters of Part I then provide more detail concerning the function and operation of contemporary legislatures and administrative agencies.
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Chapter 11. Agency Interpretation of Legal Text 461 45 results (showing 5 best matches)
- All lobbyists worth their salt know that even after a bill becomes a law, many opportunities remain to influence its implementation. This is primarily because the complexity of American law today regularly requires the promulgation of additional regulations to clarify and enforce the statute, and also relies on the administrative adjudication of a range of associated issues. Responsibility for promulgating these regulations and conducting these adjudications generally rests with the executive branch departments and independent agencies whose existence, organization, and function were described in Chapter 6.
- A related but distinct feature of agency interpretation is that agencies have substantial latitude to interpret (or reinterpret) their own regulations whenever those regulations themselves have ambiguity in them. As Chapter 12 also will discuss, reviewing courts will generally uphold an agency’s subsequent interpretation or reinterpretation of the agency’s own rule unless the interpretation is “plainly erroneous or inconsistent with the regulation.” . This is a highly permissive standard of judicial review, giving the agency great freedom to operate dynamically within the space delegated to it by Congress. Some commentators, including Justices Thomas and Alito and the late Justice Scalia, have worried that giving agencies this degree of interpretive freedom will encourage an agency to promulgate vague or ambiguous rules in the first instance, in order for the agency then to have more ...interpret that regulation. Nevertheless, this remains the governing standard, as enforced through...
- As Chapter 7 noted, many types of actors—from citizens to lawyers to judges to executive branch officials—must confront the task of legal interpretation. Nevertheless, as Chapters 8, 9, and 10 reflect, the primary focus of interpretive theory has been on how judges construe legal text, given the judiciary’s role to declare what the law is. However, every bit as much (actually much more) official interpretation of statutory text occurs at the hands of agency officials, in fulfillment of their rulemaking and adjudicatory responsibilities summarized in Chapter 6, responsibilities that give rise to a host of agency regulations and orders. Meanwhile, agencies also must frequently interpret their own regulations and orders—a responsibility that is not always easy, given that agencies can be vast, complicated bureaucracies.
- The legislature may deliberately employ this expertise in at least three very different ways. One is by charging a particular agency to fill in the gaps of an enacted statute, on the premise that the agency is better suited than the legislature to specify the detailed rules that will best accomplish the legislative aim. A second is to allow the agency to adjudicate the application of the statute and its regulations to specific controversies, on the premise that the agency is better suited than the judicial branch to understand how the rules apply to the relevant facts within the agency’s subject matter, especially in a complex or technical field.
- Of course, it goes almost without saying that Congress should have the ability to revise its own handiwork; indeed, updating the law is a core legislative function. Agencies may also be able to make important contributions in this regard (within the accepted limits of the nondelegation doctrine), whether in response to changing public and political views, or in response to new information developed or evaluated by the agency experts. Agencies therefore not only are allowed to revise their own regulations (consistent with APA rulemaking requirements, which generally mean an agency must follow the same process to revise a rule that it used to promulgate it, ), but also in many circumstances may be expected to do so when a regulation interpreting a statute has become outmoded.
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Chapter 3. Electoral Structures, or How American Legislatures Are Populated 138 results (showing 5 best matches)
- Nevertheless, many details concerning how to structure legislative elections remain open for debate, depending in part on the underlying representational goals. This chapter considers a number of the essential legal rules and principles that determine who serves in the legislatures. These include some relatively fixed requirements, such as the eligibility criteria specified in the U.S. Constitution and state constitutions; evolving legal principles and political practices that determine how legislative district boundaries are drawn; and the frequently changing rules and principles of state law (as affected by an overlay of federal constitutional and statutory law) that determine how elections are conducted. The chapter concludes with a consideration of legislative term limits. Many of these topics also are discussed in much greater detail in
- , the Supreme Court has considered a number of cases concerning redistricting practices. These cases have variously raised issues under the Equal Protection Clause of the Fourteenth Amendment, under the Fifteenth Amendment, and under the Voting Rights Act. One set of cases concerns the use of race in drawing districts, while another set of cases concerns the use of party. These cases are only briefly summarized here; for a fuller treatment, see
- However, prospects of repealing legislative term limits outright appear remote, although some possibility exists that certain states might choose to lengthen their limits. Even legislators who were themselves elected in a term-limited environment often share the view that the length of the limits is too short, and that they are termed out just as they are beginning to hit their stride as a legislator. But despite legislative frustration with term limits and little evidence that their promised benefits are being realized, public support for the concept of term limits remains strong. Indeed, public support likely reflects some of the same sentiments that underlie the continuing calls for campaign finance regulation, discussed in the next chapter, namely, that elected officials are out of touch with regular people and instead are beholden to narrow, wealthy special interests.
- In 2015, some of these alternative state redistricting processes—specifically those adopted through a popular initiative—survived a legal challenge that they contravened the Constitution’s Elections Clause, article I, section 4, clause 1. This clause provides that “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” Opponents of these alternative redistricting processes argued that taking the redistricting authority away from the state legislature by popular initiative violated the Elections Clause because only a state’s legislature can prescribe the process for drawing its congressional districts. But in a 5–4 decision, the U.S. Supreme Court read the phrase “by the Legislature thereof” broadly, holding that in a state with a popular initiative, the people themselves possess lawmaking power coextensive with that of the...
- Meanwhile, states have also been working to coordinate with one another so that as the country’s increasingly mobile electorate moves more frequently from jurisdiction to jurisdiction, voters are properly reregistered in their new home and removed from the voter rolls in their former jurisdiction. It would obviously be a violation of the one-person, one-vote principle for the same person to vote in congressional (or U.S. presidential) elections in two or more states in the same election. And while there is no necessary reason why a citizen with substantial ties to two states should not be eligible to vote for state legislators in each state, as a policy matter all states have insisted that potential voters establish a state of primary domicile, and vote only in that state’s elections. The updating of voter registration lists therefore is an important task—and an ongoing burden—for state and local election officials.
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Chapter 12. Judicial Review of Agency Interpretations 481 117 results (showing 5 best matches)
- It remains beyond the scope of this Nutshell to explore the legal complexities of federal preemption doctrine in any depth. But for current purposes it is worth observing that many of these same complexities serve as a predicate for the belief that courts, not agencies, should be the arbiter of whether an ambiguous measure has a preemptive effect, and that the question of any particular congressional measure’s effect on limiting or preempting state law in the area is often not the kind of question for which either agency expertise or accountability is especially helpful. Accordingly, some jurists and scholars have been reluctant to extend deference to an agency’s determination that a statute it administers
- This Nutshell concludes with a chapter dedicated to one of the most important and difficult questions in the field of statutory interpretation: How should courts oversee or review the way in which administrative agencies interpret statutory text? In part, the question of the scope and relevant standards of judicial review of agency interpretation is important because of just how many laws today are interpreted and applied by the administrative state. But in addition to the widespread impact that the answer to this question will have, it is particularly important because it concerns the relationship among all three of the coordinate branches of American representative democracy. The legislative branch passes a law, but leaves to executive branch departments and agencies (whether deliberately or inadvertently) many elements of the statute’s administration and enforcement, including ascertaining the statute’s meaning in particular cases. Some of those administrative interpretations...
- The high degree of deference that a analysis affords agencies means that courts have only rarely invalidated an agency interpretation as unreasonable at Step Two. One recent study of federal circuit court cases found that agencies prevail more than 90% of the time at Step Two; in the U.S. Supreme Court agency losses at Step Two have been even more unusual. But in a significant development, in , the Supreme Court in a 5–4 decision invalidated as unreasonable an Environmental Protection Agency’s regulation of power plant pollution. The underlying statute had given EPA the authority to regulate power plant emissions if the agency determined that regulation was “reasonable and necessary,” a standard that the Court acknowledged was very broad. Nevertheless, as discussed above in Chapter 6, the Court concluded at Step Two that the agency’s interpretation was not a permissible one because the agency construed the phrase not to require the agency to consider the costs of regulation. Not...
- The Clean Air Act charged the Environmental Protection Agency (EPA) with administering the Act. Throughout the 1970s, in a series of rulemaking proceedings, the EPA had resisted industry calls to adopt a “bubble” definition of “stationary source” for all purposes of the Act (although the EPA had used the bubble concept for other purposes of the Act unrelated to the 1977 Amendments). But in 1981, under the deregulatory policies of the Reagan Administration, the EPA reconsidered its approach and issued a regulation adopting the plant-wide bubble definition for all purposes. The Natural Resources Defense Council and others then challenged this regulation as inconsistent with the language and purpose of the 1977 Amendments.
- Step Two. For instance, in , the Supreme Court reviewed regulations promulgated by the Department of Health and Human Services (HHS) construing provisions in the Public Health Service Act that prohibited using federal funds “in programs where abortion is a method of family planning.” The regulations elaborated more specifically on the kinds of programs and activities to which HHS would not grant federal funds. Potential recipients of the funds challenged the regulations both as unauthorized by the Act and as unconstitutional.
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Chapter 8. Theories of Statutory Interpretation 303 109 results (showing 5 best matches)
- There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient, in and of themselves, to determine the purpose of the legislation. In such cases, we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one “plainly at variance with the policy of the legislation as a whole,” this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination.”
- At the state level, state courts construing state legislation do not engage in Purposivist interpretation nearly as much as do their federal counterparts construing congressional legislation. (As noted at the end of section B, however, many states direct their courts to construe ambiguous statutes so as to further “legislative intent” or “legislative purpose,” but only in a small number of these states does this instruction explicitly contemplate using whatever legislative history materials are available as part of determining the purpose). This divergence between the amount of Purposivist interpretation in state and federal courts at least partly reflects the fact that state legislatures historically have not produced much in the way of the kinds of legislative history materials upon which Purposivist interpretation typically depends (and which Congress has long prepared). But the historical lack of state legislative history materials is gradually changing, as more and more state...
- At the outset, it bears noting that the meaning of most statutes and regulations, as applied to most circumstances, is usually clear. For instance, when a state statute provides that public schools shall provide their pupils with 180 days of annual instruction, public school districts generally understand what this obligation requires as they go about setting their academic calendar. Or when federal law provides that a voter who appears at a polling place without a required form of identification must at least be allowed to cast a provisional ballot, the fundamental obligation that this law imposes on election workers and systems is clear. Yet even for the clearest of legal texts, circumstances may arise for which the meaning of the words is no longer obvious. It is primarily to the difficult cases that the theories and tools of interpretation in this and the following chapters are directed.
- Searching for the “spirit” of the law as a means for resolving interpretive problems certainly could be consistent with being guided by legislative “intent”—in other words, what the enacting legislature intended the words of its statutory text to signify. But the idea of following the spirit of the law also seems to capture something larger, more akin to the “purpose” of the statute—in other words, the animating motive behind the legislation. As discussed in the following two sections, the interpretive methods of and
- One increasingly frequent aid in applying the plain meaning rule is to turn to as a source for understanding the text. Of course, an enacting legislature can always include its own definitions of critical statutory terms for purposes of a given measure, and many statutes have a separate section devoted to definitions. But absent these internal definitions (and sometimes even in spite of them, or to understand undefined terms contained within a statutory definition), courts, agencies, and other interpreters may choose to consult dictionaries, on the theory that dictionaries can help identify the ordinary or natural meaning of a term. Moreover, dictionary definitions can be used not only to develop an understanding of the ordinary meaning of a term, but also to identify technical, scientific, or legal definitions of a term, in contexts in which those specialized uses may be the more appropriate “plain” meanings.
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Chapter 10. Legislative History and Other Extrinsic Tools of Interpretation 405 109 results (showing 5 best matches)
- If the statutory text seeks to remedy a defect in the existing common law, then understanding the common law background can help in understanding the purpose behind the statute, which in turn can shape the interpretive task. As an example of referring to the common law to supply an understanding of the mischief to which a statute is directed, consider the admiralty case of . At common law, maritime employers liable to their employees for unpaid wages were entitled to deduct or set-off damages for the employees’ alleged derelictions of duty. But in , the Supreme Court concluded that because Congress had intended “to change the general maritime law so as to improve the lot of seamen,” federal statutory law now preempted what would have been the employer’s common-law deductions. The Court acknowledged the interpretive rule that “[s]tatutes which invade the common law . . . are to be read with a presumption favoring the retention of long-established and familiar principles” (a version...in
- In the federal system, it has long been the practice to publish in the Congressional Record a transcript of the proceedings of both houses of Congress, as well as to produce transcripts of most committee hearings and to require committees to publish official reports on proposed legislation. As discussed above, these materials form the bulk of the legislative history sources relied upon in construing federal legislation. But the analogous forms of materials are often non-existent in state legislatures. In those circumstances, press accounts are often the closest form of contemporary record of what occurred in a committee proceeding or floor debate. For instance, in
- Much as common law understandings or principles may shed light on an interpretive problem in a statute or regulation, so too may the purposes, policies, or principles enshrined in other statutes or regulations occasionally provide interpretive assistance. Likewise, a definition included in one statute may prove helpful when the same term is used without definition in another similar statute. Often the key interpretive issue is whether the referenced text is sufficiently related to the text in need of interpretation.
- Although committee reports are generally seen as the most authoritative and reliable sources of legislative history, often it is a measure’s principal drafters and sponsors who are looked to as best understanding the measure’s purpose or intent. Sponsors and drafters will often find opportunities to make on-the-record statements about the meaning of some portions of their measures, typically in fulfillment of their responsibility to shepherd a measure’s consideration by the full chamber. These opportunities most often include explanatory statements offered when introducing a measure, or colloquies (whether planned or spontaneous) with colleagues. As Justice Frankfurter said more than sixty years ago, “Whatever we may think about the loose use of legislative history, it has never been questioned that the reports of committees
- This chapter describes the major categories of extrinsic tools of interpretation. These include: (1) the relationship between the specific text at issue and any relevant principles; (2) the relationship between the specific text at issue and
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Chapter 9. Canons of Construction and Other Intrinsic Tools of Interpretation 363 95 results (showing 5 best matches)
- Dissenting, Justice Scalia relied on three different Whole Act Rule arguments to support his view that the Secretary’s regulation was impermissible: (1) the penalty provisions of the ESA made little sense when applied to the types of indirect impact on protected species covered by the regulation; (2) using the regulation’s expansive definition of “harm” would not fit well with many other uses of the defined term “take” elsewhere in the Act; and (3) the broader structure of the ESA included separate provisions that already charged federal agencies with avoiding destruction or adverse modification of protected species’ habitat on federal lands, a requirement that the Secretary’s regulation would render superfluous, and that by implication suggested Congress had not meant to reach habitat
- Similarly, in modern legislatures, it has become increasingly typical to include some background for an act in the statute itself, at least in major pieces of legislation. While historically “preambles” and “whereas” clauses were seen as preceding the enacted text, it has become common for similar statements of background and purpose to be incorporated as components of the duly enacted law itself, even if taken alone these provisions typically do not create or impose new legal obligations. Either explicitly or implicitly, these components may explain something about the enacting legislature’s intent or in other ways provide the context for the measure. And because they are fully “law,” interpreters may see these sources of context and legislative intent as more reliable than legislative history.
- Writing for the majority, Justice Stevens relied on three Whole Act points to affirm the Secretary’s regulation: (1) the word “harm” in the definition of “take” would be superfluous if it encompassed only direct impact, and not also indirect impact in a way that the other words in the definition of “take” did not; (2) the broad sweep of the ESA’s other provisions, and the overall coverage of the act as compared to its predecessor statutes, supported a “comprehensive” construction of the definition of “take”; and (3) an amendment of the act authorized the Secretary to permit “incidental” takings of protected species, thus implying that Congress understood the act could apply to incidental or indirect takings. (Justice Stevens’ opinion for the Court did not actually construe the statute directly, but instead concluded that the Secretary’s construction of the statute was a reasonable one to which the Court would defer, according to the principles of agency deference that will be...
- To take another example, the Endangered Species Act makes it unlawful for anyone to “take” any endangered species. In the case discussed previously in Chapter 7, at issue was the meaning of the term “harm,” as used in the statute’s definition of the term “take” to mean: “to harass, , pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (emphasis added). The Secretary of the Interior had promulgated a regulation further specifying that “harm . . . means an act which actually kills or injures wildlife,” including “significant habitat modification or degradation . . . .” Again the Court divided, this time with three dissenters invoking the canon to argue that “harm” should be understood, like the other words in the definition, to require affirmative conduct “directed immediately and intentionally against a particular animal,” and not to include acts affecting protected wildlife “indirectly and by accident.” ...the term as a... ...in...
- The Supreme Court’s treatment of the interpretive problem at issue in
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Appendix: Representative Canons of Statutory Interpretation 55 results (showing 5 best matches)
- Although many of these canons are frequently expressed in terms of the role that “Congress” plays in enacting the text at issue, the list below expresses many of the canons using the more universal term “the legislature” to reflect that these canons are also of potential use in construing state legislation as well as federal legislation.
- deference: An agency’s interpretation of its own regulations is entitled to judicial deference unless “plainly erroneous or inconsistent with the regulation.”
- A few of the canons could fit in multiple categories, and indeed many of these canons appear in several variations in some other lists, with the variants treated as distinct canons. The list below, however, has collapsed minor variations into a single more universal canon in many instances.
- Strong presumption against construing a federal statute to alter the federal-state balance or infringe upon traditional state regulation.
- Rule of meaningful and purposive variation:
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Index 103 results (showing 5 best matches)
Table of Cases 10 results (showing 5 best matches)
WEST ACADEMIC PUBLISHING’S LAW SCHOOL ADVISORY BOARD 6 results (showing 5 best matches)
- Publication Date: April 5th, 2017
- ISBN: 9781628102109
- Subject: Legislation & Regulation
- Series: Nutshells
- Type: Overviews
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Description:
While traditional American legal education has focused primarily on the judicial branch of government, legislatures and regulatory agencies are responsible for the vast majority of today's law creation and law implementation, in fields from health insurance regulation, to motor vehicle operation, to environmental protection, to the mechanics of voting, to stimulating the economy, to the criminalization of internet piracy, to the distribution of tax burdens, to name only some.
Because well-equipped attorneys need a comprehensive grounding in legislative and regulatory processes and the relationships among all three branches of government, many law schools now teach some version of a course in Legislation and Regulation in the first year. This Nutshell addresses all the major topics of these courses, including the central question of how courts and agencies should interpret ambiguous statutes.
Part I describes the functioning of modern-day legislatures and administrative agencies, including not only their essential mechanics but also theories of democratic representation. Part II then builds on this foundation to develop the principal theories and doctrines of statutory and regulatory interpretation. It includes detailed discussions of the various "intrinsic" and "extrinsic" interpretive tools, as well as the competing interpretive approaches of Textualism and Purposivism. It also includes a chapter devoted to the Chevron doctrine and the question of how courts should review agency interpretations of statutes.
