Statutory Interpretation: General Principles and Recent Trends
Released: 2014-09-24T00:00:00

Introduction

Article I, Section 1 of the Constitution vests all federal legislative power in Congress, while Article I, Section 7 sets forth the process for effectuating this power through passage of legislation by both houses and either presidential approval or veto override. The exercise of the judicial power of the United States often requires that courts construe statutes so enacted to apply them in concrete cases and controversies. Judicial interpretation of a statute is authoritative in the matter before the court, and may guide courts in future cases. Beyond this, the methodologies and approaches taken by the courts in interpreting meaning also can help guide legislative drafters, legislators, implementing agencies, and private parties.

This report provides an overview of how the Supreme Court approaches statutory interpretation, with particular emphasis on rules and conventions that focus on the text itself. That is, to inform Congress on how the Court might go about analyzing the meaning of particular legislative language, this report emphasizes "textualist"-based means of interpretation. "Textualism" considers the "law" to be embodied in the language of the statute, construed according to its "plain meaning," which can be discerned through the aid, as necessary, of various judicially developed rules of interpretation. As put by Justice Oliver Wendell Holmes in an oft-quoted aphorism: "We do not inquire what the legislature meant; we ask only what the statute means." "Textualism," as captured in Justice Holmes' quote, eschews explanatory legislative materials, and inferences drawn from them and other extrinsic sources, in applying statutory language to particular circumstances.

Despite its currency in recent decades, "textualism" is not the exclusive means of statutory analysis, and this report also briefly discusses "intentionalist"-based means of interpretation and the Court's approach toward relying on legislative history and other extrinsic considerations. This report is not intended as an examination of all schools of judicial decision making, or as an analysis of the merits or limits of the many methodologies used by courts in applying statutes in specific cases. In this regard, even though textualism may be the primary approach toward interpreting statutes, individual Supreme Court opinions often employ multiple types of statutory analysis to support their conclusions and critique majority/dissenting opinions with which they do not agree. Moreover, as general approaches for inferring meaning, neither textualism nor intentionalism is rigidly mechanistic or limited to the action of the enacting Congress, with "textualists," for example, sometimes looking to broader legal contexts and "intentionalists" at times venturing beyond the enacting Congress's particular intent to preserve a statute's purposes.

When reading statutory text, the Supreme Court uses content-neutral canons developed by the judiciary that focus on word usage, grammar, syntax and the like. Sometimes, the Court also brings to bear various presumptions that reflect broader judicial concerns and can more directly favor particular substantive results. Other conventions assist the Court in determining whether to go beyond the corners of a statute and judicial-based rules of interpretation to also consider the congressional deliberations that led to a statute's passage. Although there is some overlap and inconsistency among these rules and conventions, and although the Court's pathway through the mix is often not clearly foreseeable, an understanding of interpretational possibilities may nonetheless aid Congress in choosing among various drafting options. To this end, the Court has expressed an interest "that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts."

Of course, Congress can always amend a statute to supersede the reading given it by the Court. In interpreting statutes, the Court recognizes that legislative power resides in Congress, and that Congress can legislate away interpretations with which it disagrees. Congress has revisited statutory issues fairly frequently to override or counter the Court's interpretations. Corrective amendment can be a lengthy and uncertain process, however.

Statutory Text

In General—Statutory Context and Purpose

The starting point in construing a statute is the language of the statute itself. The Supreme Court often recites the "plain meaning rule," that, if the language of the statute is plain and unambiguous, it must be applied according to its terms. There is no single test to assay the clarity of statutory language. The interpretive process frequently begins with a narrow focus on the meaning of particular words and phrases. This view is commonly supplemented by perspectives provided from elsewhere within the statute. How has Congress used or distinguished the same terms in other places in the statute? How does the section containing the language at issue fit within the statute's structure? What do the structure and language of a statute reveal about the statute's overall purposes?

The primacy of text in statutory analysis would appear to marginalize whatever insight legislative history or other extrinsic aids might provide. The strictures of a text-based "plain meaning rule" were once thought honored more in the breach than in the observance. However, this perception has changed: More often than before, statutory text is thought to be the ending point as well as the starting point for interpretation.

Under text-based analysis, the cardinal rule of construction is that the whole statute should be drawn upon as necessary, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes. Justice Scalia, who was in the vanguard of efforts to redirect statutory construction toward statutory text and away from legislative history, has characterized this general approach. "Statutory construction ... is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law." In 1850 Chief Justice Taney described the same process: "In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." Thus, the meaning of a specific statutory directive may be shaped, for example, by that statute's definitions of terms, by the statute's statement of findings and purposes, by the directive's relationship to other specific directives, by purposes inferred from those directives or from the statute as a whole, and by the statute's overall structure. Beyond this, courts also may look to the broader body of law into which the enactment fits. Nevertheless, realities of the legislative process, including bundled deal making and consolidation of multiple proposals into omnibus bills, may militate against unstinting application of "whole act" or "whole code" methodologies.

The Supreme Court often cites general rules, or canons, of construction in resolving statutory meaning. The Court, moreover, presumes "that Congress legislates with knowledge of our basic rules of statutory construction." It is well to keep in mind, however, that the overriding objective of statutory construction has been to effectuate statutory purpose as expressed in a law's text. As Justice Jackson put it 68 years ago, "[h]owever well these rules may serve at times to decipher legislative intent, they long have been subordinated to the doctrine that courts will construe the details of an act in conformity with its dominating general purpose, will read text in the light of context and will interpret the text so far as the meaning of the words fairly permits so as to carry out in particular cases the generally expressed legislative policy."

"Language" Canons of Construction

In General

The "language" canons of construction are neutral, analytical guides for discerning the meaning of particular text that might otherwise appear unclear. That is to say, these canons are based on general linguistic principles, many of them of the common-sense variety, for drawing inferences about the meaning of language. The meaning of a word or phrase can be shaped by its ordinary or specialized meaning, its context in the statute, the usage of similar terms in the statute, the statute's structure, and other factors. The language canons are "axioms of experience," but none "preclude[s] consideration of persuasive [contrary] evidence if it exists." Each canon provides its own perspective, and different takes from different views can give different insights into the meaning of what is being observed. Considering and weighing the value of various views would appear to be a sound process for ensuring well-reasoned interpretations. However, the language canons are intrinsic aids only, not "rules of law." Discerning what Congress probably meant by particular language for the purpose of applying it to a particular set of facts can be a difficult judicial exercise that is not amenable to formulaic resolution.

The sheer number and variety of canons have been cited to emphasize their limited utility as a stand-alone method of statutory construction. Still influential, for example, is a 1950 article by Professor Karl Llewellyn that lists many canons (both language canons and substantive canons) juxtaposed to equally "correct" but opposing canons. Professor Llewellyn's main point was to argue that judges should take current circumstances into account in applying a statute in a case—he was critical of the impression that "formalism" gave of there being "only one single correct answer possible" in reading text. Nevertheless, many have broadened his message into a charge that canons are mere pretext because judges may pick and choose among them to achieve whatever result they desire.

However, accepting that there may be more than one "correct" answer in resolving the meaning of a statutory provision—a premise that seems unremarkable in many cases at the Supreme Court level —does not necessarily mean that a Court majority begins with a preferred policy outcome and then marshals only those canons that support it. Given an array of established templates to guide interpretation, one may be a particularly apt fit in a given case, and the case's outcome will in large measure be driven by the rationale of the canon applied. This might particularly be so when a substantive canon of interpretation (e.g., avoidance of constitutional issues) is in play. (These canons are discussed below.)

In any event, one possible suggestion of the indeterminacy of canons is that statutory construction should be a narrow pursuit, not a broader one:

[C]anons of construction are no more than rules of thumb that help courts determine the meaning of legislation, and in interpreting a statute a court should always turn first to one, cardinal canon before all others.... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: "judicial inquiry is complete."

Ordinary and Specialized Meaning

Determining how a statute is to be applied often comes down to considering what a particular word or phrase means as used in the statute . In this exercise, a threshold inquiry is whether language is being used in the "ordinary," "general dictionary" sense or in a narrower, specialized sense or as a term of art. Also, the appropriate reference is what a term meant to Members when Congress passed the statute, not its meaning at the time the statute is being adjudicated.

Terms of Art

If the word or phrase is defined in the statute (federal statutes frequently collect definitions in a "definitions" section), or elsewhere in the United States Code , then that definition governs if applicable in the context used. Even if the word or phrase is not defined by statute, it may have an accepted meaning in the area of law addressed by the statute, it may have been borrowed from another statute under which it had an accepted meaning, or it may have had an accepted and specialized meaning at common law. In each of these situations the accepted meaning governs and the word or phrase is considered a technical term or "term of art." Justice Jackson explained why this reliance is appropriate:

[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such a case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as departure from them.

Ordinary Meaning and Dictionary Definitions

Words that are not terms of art and that are not statutorily defined are customarily given their ordinary meanings, frequently derived from the dictionary. Thus, the Court has relied on regular dictionary definitions to interpret the word "marketing" as used in the Plant Variety Protection Act, and the word "principal" as used to modify a taxpayer's place of business for purposes of an income tax deduction, and relied on Black's Law Dictionary for the meaning of the word "cognizable" as used in the Federal Tort Claims Act to identify certain causes of action. At times, the ordinary meaning of a term in an everyday dictionary has prevailed over an interpretation given to a term in circuit court precedents.

Of course application of dictionary definitions is not always a clear course; many words have several meanings, and context must guide choice among them, where possible. However, "[a]mbiguity is a creature not of definitional possibilities but of statutory context." Consider two cases in which context did not clearly point to whether a term was to be given its broadest dictionary meaning or was to be construed narrowly according to "common understanding." In one case, the Supreme Court concluded that "use of a firearm" in the commission of a drug offense or crime of violence included trading a gun for drugs; that is, "use of a firearm" was not confined to its use as a weapon. This conclusion may be compared to a finding that purchasing drugs over a cell phone did not constitute the felony of "facilitating" drug trafficking through a communication device: "[S]tatutes are not read as a collection of isolated phrases ... 'A word in a statute may or may not extend to the outer limits of its definitional possibilities.' We think the word here does not." In close cases such as these, the Court may go beyond the words of a statute for guidance and look to the statute's broader purpose or its fit with other laws. As Judge Learned Hand observed, "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."

And/Or

Ordinarily, as in everyday English, use of the conjunctive "and" in a list means that all of the listed requirements must be satisfied, while use of the disjunctive "or" means that only one of the listed requirements need be satisfied. Courts do not apply these meanings "inexorably," however; if a "strict grammatical construction" will frustrate evident legislative intent, a court may read "and" as "or," or "or" as "and." Moreover, statutory context can render the distinction secondary.

Definite/Indefinite Article

As in common usage, a drafter's choice between the definite and indefinite article can affect meaning. "The definite article 'the' particularizes the subject which it precedes. It is a word of limitation as opposed to the indefinite or generalizing force of 'a' or 'an.'"

Shall/May

Use of "shall" and "may" in statutes also mirrors common usage; ordinarily "shall" is mandatory and "may" is permissive. These words must be read in their broader statutory context, however, the issue often being whether the statutory directive itself is mandatory or permissive. Use of both words in the same provision can underscore their different meanings, and often the context will confirm that the ordinary meaning of one or the other was intended. Occasionally, however, context will trump ordinary meaning.

Singular/Plural

An elementary rule of statutory construction is that the singular includes the plural, and vice-versa. Thus, a statutory directive that the Secretary of Transportation require automakers to install a warning system in new cars to alert drivers "when a tire is significantly under-inflated" is only satisfied by a system capable of a separate warning for each tire, so that a driver knows when two tires on the same side, or all four tires, are significantly under-inflated.

General, Specific, and Associated Words

Ordinarily, specific terms in a statute prevail over general terms. "However inclusive may be the general language of a statute, it will not be held to apply to a matter specifically dealt with in another part of the same enactment." In one case citing this canon, the Court examined whether time granted to a defendant to prepare pretrial motions extended the Speedy Trial Act's deadline for the government to begin a trial. The act directed that the clock stop for "[a]ny period of delay resulting from other proceedings concerning the defendant, including but not limited to ... (D) delay resulting from any pretrial motion, from the filing of the motion through conclusion...." The Court held that this directive could not include time expended preparing motions: despite "delays from other proceedings" not being limited to those contained in a list of illustrative subparagraphs, the specific language in subparagraph (D) on delays due to pretrial motions, beginning with their being filed , left no room for delays related to preparing motions prior to their being filed. As with other canons, context is critical.

Another interpretational guide used from time to time is the principle noscitur a sociis , that "words grouped in a list should be given related meaning." Thus, a tax provision that advantaged "income resulting from exploration, discovery, or prospecting" was held not to apply to income derived from patented cameras and pharmaceuticals that the taxpayers had "discovered." "Discovery," as used in conjunction with "exploration" and "prospecting," limited the scope of "discovery" to activities associated with oil and mineral extraction. Similarly, the Court inferred that "defalcation" in a bankruptcy code provision required an element of intentional wrongdoing based on its placement in the phrase "fraud [,] defalcation ..., embezzlement or larceny." Because "fraud," "embezzlement," and "larceny" require intentional wrongdoing, "defalcation" presumably is similarly intended.

On the other hand, the term "administrative" in the phrase "a congressional, administrative, or Government Accounting Office [sic] report, hearing, audit or investigation" was held to extend beyond federal administrative entities to include the work of state bodies as well. Similarly, the term "report" in the same phrase was broadly construed to cover raw copies of contractor documents obtained through the Freedom of Information Act: the placement of "report" within a list including "hearings, audits, and investigations" did not, as the Second Circuit had concluded, limit "reports" to materials that also analyzed, synthesized, or explained the information presented. As with other language canons, noscitur a sociis can be a factor in interpretation, but "is by no means a hard and fast rule...."

A corollary, ejusdem generis , instructs that, "where general words follow an enumeration of specific items, the general words are read as applying only to other items akin to those specifically enumerated." Thus, an exemption from arbitration for "contracts of employment of seamen, railroad employees, or any other class of workers engaged in ... commerce" did not apply to the case of a salesperson at a consumer electronics store: only contracts for the employment of individuals who transported goods and materials were to be exempted. At times, however, discerning commonalities among particulars to guide interpretation of the general is not so straightforward.

Grammatical Rules, Punctuation

The old rule, borrowed from English law, was that "[p]unctuation is no part of the statute," and that "[c]ourts will ... disregard the punctuation, or repunctuate, if need be, to render the true meaning of the statute." Nevertheless, the modern Court now recognizes that punctuation may clarify meaning, even though it remains reluctant to place primary importance on it. "A statute's plain meaning must be enforced ..., and the meaning of a statute will typically heed the commands of its punctuation." So said the Court—not, however, in applying a plain meaning consistent with punctuation, but instead while justifying a departure from that meaning. "Overwhelming evidence from the structure, language, and subject matter" of the law led the Court to conclude that in this unusual case the punctuation at issue resulted from "a simple scrivener's error."

The Court assumes that a legislative drafter writes precisely and in accordance with the rules of grammar. Verb tense and the like count. But, as with other interpretive challenges, more than one grammatical principle potentially might apply, and these principles might point to different interpretations. The interpreter is left with a choice of which principle applies most aptly. As an example, first consider the "rule of the last antecedent." That rule holds that a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows. One application of this rule looked at language that denies SSI disability to an individual who is able to "do his previous work ... or engage in any other kind of substantial gainful work which exists in the national economy." The claimant's job as an elevator operator had been eliminated, and her subsequent SSI application rested in part on the assertion that elevator operator work no longer existed in significant numbers in the national economy. A unanimous Court upheld the government's position that the claimant was ineligible for SSI if she was physically capable of doing elevator operator work at all: the phrase "which exists in the national economy" applied only to "other kind of substantial gainful work."

Distinct from the rule of the last antecedent is a principle enunciated in Port Rico Railway, Light & Power Co. v. Mor : "When several words are followed by a clause which is applicable as much to the first and other words as the last, the natural construction of the language demands that the clause be read as applicable to all." A provision of the federal criminal code mandates restitution for the full amount of the victim's losses, which are defined to include five specific types of loss ( e.g. , medical costs, lost income) and "any other losses suffered by the victim as a proximate result of the offense." The Court held that the phrase "as a proximate result of the offense" modified each of the five separately listed types of losses.

Though refusal always to be bound by the rules of grammar and punctuation gives the Court flexibility in construing statutes, this is not to say that grammatical rules should be disregarded in statutory drafting. These rules remain strong guides. There are many cases decided on the basis of what constitutes the most "natural reading" of a statute according to common rules of grammar, without extended reference to particular canons or other interpretational aids.

Statutory Language Not to be Construed as "Mere Surplusage"

A basic principle of statutory interpretation is that courts should "give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed." The modern variant is that statutes should be construed "so as to avoid rendering superfluous" any statutory language: "A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant...." A related principle applies to statutory amendments: there is a "general presumption" that, "when Congress alters the words of a statute, it must intend to change the statute's meaning." Resistance to treating statutory words as mere surplusage "should be heightened when the words describe an element of a criminal offense."

There can be differences of opinion, of course, as to when it is "possible" to give effect to all statutory language – that is, to search for distinctions between similar terms or apparently redundant language without distorting the significance of those distinctions -- and when the general rule should give way to a more "common sense" interpretation.

The presumption against surplusage also can guide interpretation of "redundancies across statutes," but the canon "is strongest when an interpretation would render superfluous another part of the same statutory scheme." Two overlapping statutes may be given effect so long as there is no "positive repugnance" between them.

A converse of the rule that courts should not read statutory language as surplusage is that, as discussed below, courts should not add language that Congress has not included.

Same Phrasing in Same or Related Statutes

"A term appearing in several places in a statutory text is generally read the same way each time it appears." This presumption is "at its most vigorous when a term is repeated within a given sentence." It also has been applied to the appearance of a term in inter-related programs. Additionally, the Court in at least one instance referred to a broader "established canon" that similar language contained within the same section of a statute be accorded a consistent meaning.

The general presumption is not rigid, however, and "readily yields when there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent." Context and statutory history can override the presumption.

Different Phrasings in Same Statute

The other side of the coin is that "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." The Court cited this maxim when Congress had restricted direct access by Guantanamo detainees to the courts but did not expressly restrict access in pending cases through petitions for writs of habeas corpus: "A familiar principle of statutory construction ... is that a negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute." In an earlier case on the availability of habeas review by a convicted murderer, the Court referred to the history of the provision that treated habeas relief and other access to the courts differently: "[N]egative implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted." This maxim has been applied by the Court—or at least cited as a justification—in distinguishing among different categories of veterans benefits and among different categories of drug offenses. A court can only go so far with the maxim, of course; establishing that language does not mean one thing does not necessarily establish what the language does mean.

"Congress Knows How to Say ..."

Occasionally the Court contrasts a party's interpretation of certain language with language that expresses the same concept more clearly and directly. There are some instances—for example, a failure to employ particular terms of art—in which this argument can be fairly persuasive. For example, the Court reasoned that, although "Congress knew how to impose aiding and abetting liability when it chose to do so," it did not use the words "aid" and "abet" in the statute at issue, and hence did not impose aiding and abetting liability. To say that Congress did not use the most precise language, however, does not necessarily aid the court in determining what the less precise language means in its statutory context. Some statutes may not be well drafted, but others represent conscious choices, born of political compromise, that may or may not signal that a different result is intended or that Congress is leaving final interpretation to agencies, courts, or future legislatures. It may be inappropriate question begging to assume, therefore, that "[i]f Congress had intended such an irrational result, surely it would have expressed it in straightforward English."

Statutory Silence

Nothing compels Congress to act comprehensively when it legislates on a subject. It is not safe to assume that Congress intends to address all ancillary issues directly whenever it acts.

As one court has aptly put it, "[n]ot every silence is pregnant." In some cases, Congress intends silence to rule out a particular statutory application, while in others Congress' silence signifies merely an expectation that nothing more need be said in order to effectuate the relevant legislative objective. In still other instances, silence may reflect the fact that Congress has not considered an issue at all. An inference drawn from congressional silence certainly cannot be credited when it is contrary to all other textual and contextual evidence of congressional intent.

Occasionally, the Court does regard silence as a significant indicator of meaning, especially when Congress has consistently used particular language in similar laws. Nevertheless, the Court generally assumes Congress will speak to major issues directly: "Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not ... hide elephants in mouseholes." Thus, when the Court held that the FDA's authority did not include authority to regulate tobacco products as drugs, it stated: "Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion."

A variation on the statutory silence theme is the negative inference: expressio unius est exclusio alterius (the inclusion of one is the exclusion of others). Thus, where Congress subjected specific categories of ticket sales to taxation but failed to cover another category, either by specific or by general language, the Court refused to extend the coverage. To do so, given the "particularization and detail" with which Congress had set out the categories, would amount to "enlargement" of the statute rather than "construction" of it. Relatedly, "[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent." The Court applied the principle, albeit without express recognition, in holding that a statute requiring payment of an attendance fee to "a witness" applies to an incarcerated state prisoner who testifies at a federal trial. Because Congress had expressly excepted another category (detained aliens) from eligibility for these fees, and had expressly excepted any "incarcerated" witness from eligibility for a different category of fees, "the conclusion is virtually inescapable ... that the general language 'witness in attendance' ... includes prisoners ...."

But here again, context may render the principle inapplicable. A statutory listing may be "exemplary, not exclusive," the Court once concluded. In one case, a provision of the Fair Debt Collection Act (FDCA) authorized the award of attorney's fees and costs to defendants who were sued in bad faith for the purpose of harassment. Did this provision negatively imply that costs could not be awarded to prevailing defendants in cases not involving bad faith and harassment? A majority of the Court found that costs could indeed be awarded in these cases. According to the Court, the expressio unius cannon only applies when it is fair to assume that Congress considered broader coverage but rejected it. Here, the general rules on awarding costs, the prevalence of redundancies in costs provisions, and certain aspects of the statutory structure all indicated that the FDCA was not meant to categorically bar the award of costs to any class of defendants prevailing in FDCA actions.

De Minimis Principle

"The venerable maxim de minimis non curat lex ('the law cares not for trifles') is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept.... Whether a particular activity is a de minimis deviation from a prescribed standard must ... be determined with reference to the purpose of the standard."

"Substantive" Canons of Construction

In some circumstances, the Court subordinates the general, linguistic canons of statutory construction, as well as other interpretive principles, to overarching presumptions that, unless rebutted, favor particular substantive results. Some of the "weighty and constant values" protected by these "substantive" canons of construction are derived from the Constitution, others from notions of federalism, and yet others from interests in judicial administration and ordered governance. Application of a substantive canon often, but not always, results in some form of "clear statement" rule, requiring that Congress, if it wishes to achieve a particular result inconsistent with the Court's view of legal traditions, must state such an intent with unmistakable clarity.

Departure from Common Law or Established Interpretation

Congress is presumed to legislate with knowledge of existing common law. When it adopts a statute, related judge-made law (common law) is presumed to remain in force and work in conjunction with the new statute absent a clear indication otherwise. Thus, when Congress established civil actions for harms "by reason of" violations of antitrust laws and the Racketeer Influenced and Corrupt Organizations Act (RICO), the courts incorporated common law principles of "proximate cause" to determine liability. Establishing that a harm would not have occurred "but for" the violation is insufficient; as is the case under common law actions, a more direct and immediate connection between violation and harm must be shown. Similarly, when Congress adopted the common law on abandonment of property as part of the Bankruptcy Code, it was deemed to have adopted all the judge-made corollaries and exceptions that attended the abandonment law: "The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific." In another bankruptcy case the Court declared that "[w]e will not read the Bankruptcy Code to erode past ... practice absent a clear indication that Congress intended such a departure." Further, the Court held that Congress, in adopting language stating that a patent is presumed valid, concomitantly adopted the common law rule that the presumed validity of a patent may be overcome only by clear and convincing evidence.

Questions about whether common-law rights and causes of action continue come up in a variety of contexts. In some instances, the presumption of continuation has been overcome by general reference to a statute's purpose, even absent a "clear statement." In other instances, the Justices have disagreed on whether particular language sufficiently evidences an intent to overcome the presumption: Does language in the Federal Employers' Liability Act making railroads liable for employee injuries "resulting in whole or in part from [carrier] negligence" supersede (and relax) common law rules limiting liability to injuries arising from a "proximate cause"? In one case, five Justices held that it does, while four Justices held that it does not.

Preempting State Law, Deferring to State Powers

Under the Supremacy Clause of the Constitution (Article VI, cl. 2), federal law supersedes inconsistent state law. Whether a particular statute does so is a matter of congressional intent. One substantive canon proceeds from "the assumption that the historic police powers of the States were not to be superseded by [a federal law] unless that was the clear and manifest purpose of Congress." Also, solicitude toward state police powers can lead the Court to look for a clear indication of intent from Congress when a statute implicates traditional state authorities, even if there is no conflict with state law.

Many federal regulatory statutes contain an express statement preempting state law or disclaiming intent to do so. Nevertheless, both preemption and savings statements have presented the Court difficult interpretive questions of precisely what has been foreclosed or preserved. When a statute is silent on preemption, the Court has asked three questions in determining whether state law has been preempted implicitly: Is there a direct conflict between federal and state law—can they be implemented simultaneously? Would implementation of state law "frustrate congressional purpose"? Has federal law "occupied the field" of regulation? Answering these questions has very much been a case-by-case exercise.

In deference to the states, the Court will not lightly infer that Congress has enacted legislation that restricts how states may constitute their own governments. In ruling that state judges are not "employees" for purposes of the Age Discrimination in Employment Act, the Court cited the lack of a plain statement to limit state authority to determine the qualifications of important government officials—an authority protected by the Tenth Amendment and by the Guarantee Clause. "This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere."

Abrogation of States' Eleventh Amendment Immunity

Also protective of state sovereignty is the rule that, in order to abrogate the states' Eleventh Amendment immunity from suit, "Congress must make its intention 'unmistakably clear in the language of the statute.'" Even then, Congress has limited authority to abrogate states' Eleventh Amendment immunity. The Court held in Seminole Tribe of Florida v. Florida , that Congress's general legislative powers under Article I may not be used to "circumvent the constitutional limitations placed upon federal jurisdiction [by the Eleventh Amendment]." This leaves Section 5 of the Fourteenth Amendment (specific power to enforce the provisions of the Amendment) as the principal source of power to abrogate state immunity. Despite these restrictions, Congress has been found to have authorized suits against states in appropriate circumstances.

Nationwide Application of Federal Law

Congress, if it chooses, can incorporate state law into federal law. Federal law usually applies uniformly nationwide, however, and there is a presumption that, "when Congress enacts a statute ... it does not intend to make its application dependent on state law."

Sovereign Immunity

"[T]he Government's consent to be sued 'must be construed strictly in favor of the sovereign.'" A waiver of sovereign immunity must be effected by unequivocal expression in statutory text; legislative history "has no bearing" on the issue. As a consequence, "statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign without express words to that effect."

Separate from whether Congress has clearly and unequivocally waived immunity is the availability of money damages when immunity has been waived. When the amenability of the federal government to damages is at issue, the Court at times has read a statute under a "fair interpretation" standard that is "demonstrably" less exacting than the "clear and unequivocal" test to determine whether immunity has been waived in the first place. At other times, the Court has been more demanding, saying, for example, when waiver of state immunity under the Eleventh Amendment is at stake, liability for monetary damages must be stated unambiguously.

Though most commonly the issue in immunity cases is whether a sovereign's right to immunity has been waived, the issue in some cases is whether a sovereign state has extended immunity to substate or private entities. The question arises under, among other areas, anti-trust law when a political subdivision or private entity claims that the state has cloaked it with state anti-trust immunity to engage in certain anti-competitive practices. To successfully claim immunity in this circumstance, it must be established that the extension of immunity was a foreseeable result of clearly articulated, affirmatively expressed statutory language.

Non-retroactivity/Effective Date

"[A]bsent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment." There is a general rule, based on the unfairness of attaching new legal consequences to past events, disfavoring retroactive application of civil statutes. Statutory provisions do not apply to events antedating enactment unless there is clear congressional intent that they so apply. "Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits." The prohibition on ex post facto laws, of course, imposes a constitutional bar to retroactive application of penal laws.

Avoidance of Constitutional Issues

The doctrine of "constitutional doubt" requires courts to construe statutes, "if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score." "[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress .... 'The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.' This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution." As with other issues, of course, it is the view of the majority that prevails: "Grave doubt" as to constitutionality does not arise simply because a Court minority—even a minority of four Justices—believes a statute may be constitutionally suspect.

Extraterritorial Application Disfavored

"It is a longstanding principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.' This 'canon of construction' ... serves to protect against unintended clashes between our laws and those of other nations which could result in international discord."

A 2010 securities fraud case reasserted the preclusive extent of the presumption against extraterritorial application. Circuit court jurisprudence had been moving toward a fact-specific reasonableness test for allowing fraud-based actions related to securities transactions abroad. The Court eschewed this approach, however. Rather, it held that no fraud-related cause of action was available under U.S. securities law for foreign transactions in foreign securities because Congress had not affirmatively indicated it intended to cover those transactions. Absent a clear indication that extraterritorial effects ( e.g. , declines in share prices on a foreign exchange) were to be remediable, it did not matter, for example, that it was fraudulent conduct in the U.S. by a U.S. subsidiary that led to the parent company's inflated stock price on a foreign exchange.

A majority of the Court also interposed the presumption against extraterritoriality as an obstacle to finding jurisdiction under the Alien Tort Statute over a foreign tort against a foreign national. That statute provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." According to the majority, nothing in this language, nor its historical context, overcomes the underlying presumption against recognizing a cause of action against a foreign national occurring abroad. By comparison, four concurring Justices approached the jurisdictional issue from more neutral ground. Rather than initially proceeding from a position presuming an absence of jurisdiction, they would assess the ties each case has to the U.S., taking into consideration whether the alleged tort occurred in the U.S., was committed by an American, or substantially and adversely affected important American interests.

Judicial Review of Administrative Action

There is a strong presumption that Congress intends judicial review of administrative action: "[A] survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress." The Court requires that a statute contain "clear and convincing evidence" of an intent to preclude judicial review of decisions made under it. Also, the Court tends to construe preclusions narrowly. Thus, even where a statute has barred judicial review of the merits of individual cases, the Court nevertheless has found that the regulations and practices for determining cases may be reviewed.

While the presumption of reviewability predated the enactment of the Administrative Procedure Act in 1946, the APA embodied the presumption in statute. Under the APA, final agency actions for which there is no other adequate remedy in a court are subject to judicial review, "except to the extent that ... statutes preclude judicial review; or ... agency action is committed to agency discretion by law." As to the first exception, the presumption of reviewability may be overcome by specific statutory language, but it also "may be overcome by inferences of intent drawn from the statutory scheme as a whole." The second exception applies "in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.'"

An aspect of the second exception is that "review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Thus, the Court in Webster v. Doe looked at the structure of the National Security Act and language allowing the Director of Central Intelligence to terminate an employee as the Director deemed necessary or advisable, and concluded that a court could not, as a general matter, review the necessity or advisability of terminating an employee based on sexual orientation. But, as in many other judicial review cases, the Webster Court was very precise as to what review a statute foreclosed. Though the Court found decisions on whether a dismissal was necessary or advisable resided with the Director alone, this discretion did not go so far as to preclude court consideration of colorable constitutional claims arising from the actions of the Director. In the Court's view, a clearer statement from Congress is necessary before courts should refrain from reviewing constitutional claims of administrative error.

Deference to Administrative Interpretation

Interpreting statutes is not solely a matter for the courts. Executive agencies charged with implementing regulatory statutes adopt policies and processes to put statutes into action. Agency decisions might set operational rules of general application or might arise during agency adjudications; they might be the result of more or less formal processes; they might purport to be more or less binding. But they all involve interpreting the law to some degree, and courts considering challenges to agency decision making face the issue of how much to defer to an agency reading of the law or to proceed to interpret the law on their own.

Under current precedent, when a court reviews an agency's formal interpretation of a statute that the agency administers, and when the statute has not removed agency discretion by compelling a particular disposition of the matter at issue, courts defer to any reasonable agency interpretation. This is the Chevron rule announced in 1984. In two decisions, one in 2000 and one in 2001, the Court clarified and narrowed Chevron's application, ruling that Chevron deference applies only if an agency's interpretation is the product of a formal agency process, such as adjudication or notice and comment rulemaking, through which Congress has authorized the agency "to speak with the force of law." Other agency interpretations that are made without a formal and public process often are reviewed under pre- Chevron principles set forth in Skidmore v. Swift & Co . Additional variations of deference analysis also may come into play in individual cases, depending on subject matter and other factors.

As in other matters of interpretation, it is congressional intent that counts. Under Chevron , the first question is "whether Congress has directly spoken to the precise question at issue." If the court, "employing the traditional tools of statutory construction," determines that Congress has addressed the precise issue, then that is the end of the matter, because the "law must be given effect." However, if the statute does not directly address the issue, "the court does not simply impose its own construction of the statute," but rather determines "whether the agency's answer is based on a permissible construction of the statute."

On its face, the Chevron rule is quite deferential, and was perceived as a significant break from the multi-factored approach that preceded it. One would expect that a court's conclusion as to whether Congress has "directly spoken" to the issue would be decisive in most cases, that most of the myriad of issues that can arise in the administrative setting would not be directly addressed by statute, and that, consequently, courts would most often defer to what are found to be "reasonable" agency interpretations. However, Chevron did not usher in a sea change of increased deference by the Supreme Court. The Court has frequently determined that in fact Congress has settled the matter, and that consequently there is no need to proceed to the second, more deferential step of the inquiry. The Court has also found that, even though Congress has left the matter for agency resolution, the agency's interpretation is unreasonable.

In determining whether Congress has "directly spoken," there is much territory between an express delegation to an agency to address a particular issue and express legislative language resolving the issue statutorily. Imprecision on an issue may reflect an oversight by Congress, a failure to anticipate what might arise, a political compromise, an implicit assumption that the gap would be filled in by the agency with technical expertise, or other considerations. With this in mind, the Court has recognized circumstances in which it is less likely that Congress intended to leave resolution of statutory uncertainty to the administering agency, especially when it appears that the agency may be citing vague terms to justify jurisdiction over controversial matters with major policy implications traditionally resolved by Congress or another agency. Thus, in holding that the Food and Drug Administration lacked authority to regulate tobacco products as "drugs" and "devices" under the Federal Food, Drug, and Cosmetic Act, the Court concluded that "Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion." The Court ruled that Congress had "directly spoken" to the regulatory issue—not through the FDCA itself, but rather through subsequently enacted tobacco-specific legislation and through rejection of legislative proposals to confer jurisdiction on the FDA. In another case, the Court found deference to be inappropriate where the agency interpretation "invokes the outer limits of Congress' power," and there is no "clear indication" that Congress intended that result.

A logical consequence of applying Chevron is to render irrelevant whether an agency interpretation was "contemporaneous" with a statute's enactment, or whether an agency's position has been consistent over the years. "Neither antiquity nor contemporaneity with the statute is a condition of validity." The fact that an agency has changed its position over the years "is not fatal," because "the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency."

Agency interpretations that take place in the many less formal contexts where Chevron deference is inapplicable (e.g., opinion letters, policy statements, agency manuals, and enforcement guidelines, "all of which lack the force of law" ) can still be "entitled to respect," "but only to the extent that [they] have the power to persuade." As the Court put it in Skidmore v. Swift & Co. , agency interpretations "constitute a body of experience and informed judgment to which courts and litigants may properly resort.... The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." These factors may include whether an interpretation applied technical expertise on a complex matter within agency jurisdiction, whether an agency's decision was well-reasoned, and whether the agency's interpretation was longstanding or consistent. It should be emphasized that, far from being superseded by Chevron , the Court continues to consider agency interpretations under Skidmore -like analyses with some frequency.

Repeals by Implication

If Congress intends one statute to repeal an earlier statute or section of a statute in toto , it usually says so directly in the repealing act. There are other occasions when Congress intends one statute to supersede an earlier statute to the extent of conflict, but intends the earlier statute to remain in effect for other purposes. This too is often spelled out, usually in a section captioned "effect on existing law," "construction with other laws," or the like: "[It] can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change."

Not infrequently, however, conflicts arise between the operation of two federal statutes that are silent as to their relationship. In such a case, courts will try to harmonize the two so that both can be given effect. A court "must read [two allegedly conflicting] statutes to give effect to each if [it] can do so while preserving their sense and purpose." Only if provisions of two different federal statutes are "irreconcilably conflicting," or "if the later act covers the whole subject of the earlier one and is clearly intended as a substitute," will courts apply the rule that the later of the two prevails. "[R]epeals by implication are not favored, ... and will not be found unless an intent to repeal is clear and manifest." And, in fact, the Court rarely finds repeal by implication. As Judge Richard Posner has pointed out, this canon is "a mixed bag. It protects some old statutes from ... inadvertent destruction, but it threatens to impale new statutes on the concealed stakes planted by old ones."

Laws of the Same Session

The presumption against implied repeals "is all the stronger" if both laws were passed by the same session of Congress. In the case of an irreconcilable conflict between two laws of the same session, the later enactment will be deemed to have repealed the earlier one to the extent of the conflict. Because the focus here is on legislative intent (or presumed legislative intent), time of legislative consideration, rather than effective dates of the statutes, is the key to determining which enactment was the "later" one.

Appropriations Laws

The doctrine disfavoring repeals by implication also "applies with even greater force when the claimed repeal rests solely on an Appropriations Act," since it is presumed that appropriations laws do not normally change substantive law. Nevertheless, Congress can repeal substantive law through appropriations measures if intent to do so is clearly expressed.

Rule of Lenity

The "rule of lenity" requires that "before a man can be punished as a criminal ... his case must be plainly and unmistakably within the provisions of some statute." Lenity principles "demand resolution of ambiguities in criminal statutes in favor of the defendant." The reasons for the rule are that "'fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed'" and that "'legislatures and not courts should define criminal activity.'" Consequently, the rule "places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead." If statutory language is unambiguous, the rule of lenity is inapplicable.

Scienter

Intent is generally a required element of a criminal offense, and consequently there is a presumption in favor of a scienter or mens rea requirement in a criminal statute. The presumption applies "to each of the statutory elements which criminalize otherwise innocent conduct." The Court may read an express scienter requirement more broadly than syntax would require or normally permit, and may read into a criminal prohibition a scienter requirement that is not expressed. The Court recognizes some "strict liability" exceptions, especially for "public welfare" statutes regulating conduct that is inherently harmful or injurious and therefore unlikely to be perceived as lawful and innocent. Determining whether such an exception applies can be difficult. However, if the statute does not preclude a holding that scienter is required, and if the public welfare exception is deemed inapplicable, "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." On the other hand, while "it is fair to begin with a general presumption that the specified mens rea applies to all elements of an offense, ... it must be recognized that there are instances in which context may well rebut that presumption."

Remedial Statutes

One can search in vain for recent Supreme Court reliance on the canon that "remedial statutes" should be "liberally" or "broadly" construed. This is probably due to a variety of factors, including recognition that the principle is difficult to apply and almost hopelessly general. This is because many statutes are arguably "remedial," and consequently courts have wide discretion in determining scope of application. There may also be uncertainty over what "liberal" or "broad" construction means. Nevertheless, if the principle is reformulated as merely requiring that ambiguities in a remedial statute be resolved in favor of persons for whose benefit the statute was enacted, the principle should be no more difficult to apply (once a "remedial" statute has been identified) than the rule of lenity, which counsels resolution of ambiguities in penal statutes in favor of defendants. The scarcity of this principle in the current Court's lexicon, therefore, may reflect substantive preferences of the Justices as well as recognition of its limitations. Then too, the Court may employ more specific or limited presumptions in circumstances in which earlier Courts might have cited the liberal-remedial maxim, or may instead prefer in such circumstances to analyze a statute without reliance on canonical supports. Categorizing a statute as "remedial," or even as a "civil rights statute," is often employed as a springboard to more refined analysis of the purposes of the particular statute at issue.

Statutes Benefiting Indian Tribes

Another subcategory of the "remedial" statutes canon is the proposition that "statutes passed for the benefit of dependent Indian tribes ... are to be liberally construed to favor Indians." Most cases resolving issues on tribal matters potentially raise this proposition, but frequently there are also statute-specific considerations that amplify or outweigh any such generalities. A 2009 case did not mention an interpretive canon to favor Indians in disallowing a protective measure taken by the Secretary of the Interior.

Miscellany

Titles of Acts or Sections

Although "it has long been established that the title of an Act 'cannot enlarge or confer powers,'" the title of a statute or section "can aid in resolving an ambiguity in the legislation's text." As Chief Justice Marshall explained, "[w]here the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived." A title or heading, however, being only "a short-hand reference to the general subject matter involved" and "not meant to take the place of the detailed provisions of the text," can provide only limited interpretive aid. Thus, a heading may shed light on the section's basic thrust, or on ambiguous language in the text, but it "cannot limit the plain meaning of the text," and "has no power to give what the text of the statute takes away."

Preambles ("Whereas Clauses")

Preambles, or "whereas clauses," precede the enacted language, have no "operative effect," "are not part of the act," and consequently "cannot enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous." Nonetheless, "whereas clauses" sometimes serve the same purpose as findings and purposes sections, and can provide useful insight into congressional concerns and objectives. Preambles can sometimes help resolve ambiguity in enacted language.

Findings and Purposes Sections

To apply the principle that statutory language be interpreted consistent with congressional intent, courts may consult the stated purposes of legislation to resolve ambiguities in the more specific language of operative sections. For example, the Court relied in part on the stated purpose of the Racketeer Influenced and Corrupt Organizations (RICO) statute to seek "the eradication of organized crime in the United States," to conclude that the term "enterprise" as used in the act includes criminal conspiracies organized for illegitimate purposes, and is not limited to legitimate businesses that are infiltrated by organized crime. The Court also cited legislative findings in the Americans with Disabilities Act in determining the scope of the act's coverage: by finding that "some 43 million Americans" suffered from one or more physical or mental disabilities, Congress indicated that the ADA was not meant to cover all individuals with uncorrected, but correctable, infirmities (e.g., severe myopia).

It is easy, however, to place too much reliance on general statutory purposes in resolving narrow issues of statutory interpretation. Legislation seldom if ever authorizes each and every means that can be said to further a general purpose, and there is also the possibility that stated or inferred purposes may in some instances conflict with one another.

"Sense of Congress" Provisions

"Sense of Congress" language is appropriate if Congress makes a statement without making enforceable law. Ordinarily, a statement that it is the "sense of Congress" that something "should" be done is merely precatory, and creates no legal rights. In the appropriate context "sense of Congress" language can have the same effect as statements of congressional purpose—that of resolving ambiguities in more specific language of operative sections of a law—but if that is the intent the more straightforward approach is to declare a "purpose" rather than a "sense."

Savings Clauses

Savings (or "saving") clauses are designed to preserve remedies under existing law. "The purpose of a savings clause is merely to nix an inference that the statute in which it appears is intended to be the exclusive remedy for harms caused by the violation of the statute." A corollary is that a savings clause typically does not create a cause of action.

Inclusion of a savings clause, however, does not make all pre-existing remedies compatible with the newly enacted law. If there is a conflict, the savings clause gives way. Courts will attempt to give the savings language some effect, but may have to narrow that effect to avoid eviscerating the new law. A reference to specific remedies to be preserved can ease interpretation. In some cases, the legislative context and history of the savings provision can reveal its purpose. In other cases courts must reason from the scope and purpose of the new statute. For example, when the Carmack Amendment to the Interstate Commerce Act imposed comprehensive federal regulation governing the liability of interstate carriers, the Court held that savings language preserving "any remedy or right of action ... under existing law" applied only to federal, not state remedies. To allow resort to state law remedies that were inconsistent with the federal regulation would negate the Amendment's effect. "[T]he act cannot be said to destroy itself," the Court concluded. Even very clear savings language will not be allowed to thwart what the Court views as an important element of a regulatory scheme carefully crafted by Congress and implemented by the executive branch.

"Notwithstanding Any Other Provision of Law"

Congress sometimes seeks to underscore the primacy of a statutory directive by stating that it is to apply "notwithstanding" the provisions of another, specified statute or class of statutes. Courts take into account this expressed intent to override the provisions specified in a "notwithstanding" clause, but when the clause purports to override "any other provision of law," its preclusive scope often is unclear. One court, for example, ruled that a directive to proceed with timber sale contracts "notwithstanding any other provision of law" meant only "notwithstanding any provision of environmental law," and did not relieve the Forest Service from complying with federal contracting law requirements governing such matters as non-discrimination, small business set-asides, and export restrictions. "We have repeatedly held that the phrase 'notwithstanding any other law' is not always construed literally ... and does not require the agency to disregard all otherwise applicable laws." Still, there are cases that have given full measure to "any other provision of law." As a rule, though, it might be more effective to spell out which other laws are to be disregarded, and it must be kept in mind, of course, that no "notwithstanding" clause can foreclose subsequent legislation that supersedes it expressly or implicitly.

Implied Private Right of Action

From time to time courts have held that a federal statute that does not explicitly create a private cause of action nonetheless implicitly creates one. This notion traces to the old view that every right must have a remedy. As the Supreme Court put it in an early case, where "disregard of the command of a statute ... results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover damages from the party in default is implied."

The Court has gradually retreated from that position, and now is willing to find an implied private right of action only if it concludes that Congress intended to create one. This raises an obvious question: if Congress intended to create a cause of action, why did it not do so explicitly? While the Court has attempted to explain that it does not mean direct intent, the test now seems weighted against finding an implied private cause of action. The Court appears particularly reluctant to find that a violation of a condition placed on funding (e.g., barring education funds to schools that do not require consent for release of student records) gives rise to a private remedy.

When an implied right of a private cause of action has been found, the Court tends to give it "narrow dimensions," leaving to Congress the option to expand it.

Incorporation by Reference

Interpretational difficulties may also arise if one statute incorporates by reference provisions of an existing statute. A leading treatise declares that incorporations by "general reference" normally include subsequent amendments, but that incorporations by "specific reference" normally do not. A general reference "refers to the law on the subject generally," while a specific reference "refers specifically to a particular statute by its title or section number."

Severability

When one section of a law is held unconstitutional, courts are faced with determining whether the remainder of the statute remains valid, or whether the whole statute is nullified. "Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Congress frequently includes a pro forma severability clause in a statute, and this may reinforce a "presumption" of severability by removing much of the doubt about congressional intent. A severability clause does not guarantee, however, that what remains of a statute after a portion has been invalidated is "fully operative"; courts sometimes find that valid portions of a statute cannot stand on their own even though Congress has included a severability clause. Far less frequently, Congress includes non-severability language providing that remaining sections of a law shall be null and void if a part (sometimes a specified part) is held unconstitutional. Case law is sparse, but there is no apparent reason why courts should refuse to honor a clearly expressed non-severability directive.

Deadlines for Administrative Action

"If a statute does not specify a consequence for noncompliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction." Absent specified consequences, such deadlines "are at best precatory rather than mandatory," and are read "as a spur to prompt action, not as a bar to tardy completion." "A statute directing official action needs more than a mandatory 'shall' before the grant of power can sensibly be read to expire when the job is supposed to be done." Thus, agency actions taken after a deadline are ordinarily upheld as valid. Although courts are loath to impose "coercive" sanctions that would defeat the purpose of the underlying agency duty, courts sometimes will lend their authority, backed by the possibility of contempt for recalcitrant agency officials, by ordering compliance with statutory directives after a missed deadline.

"Jurisdictional" Rules

Under the Constitution, Congress determines what cases a federal adjudicatory body has authority to consider. Most fundamentally, Congress limits the subject matter a court or administrative adjudicator can hear. These subject matter limitations are "mandatory and jurisdictional"; an adjudicator is powerless over cases that lie outside them, however meritorious. Beyond subject matter rules, the Court at times also has held that statutory deadlines and preconditions to bringing a case are similarly "mandatory and jurisdictional." Thus, the Court in Bowles v. Russell held that a court of appeals could not hear an appeal when the notice to appeal was filed after a statutory 14-day deadline, but within a 17-day deadline set forth by the district court.

Nevertheless, the Court often distinguishes between rules of "jurisdiction," which speak to the power of the adjudicator, and those restrictions and conditions, sometimes referred to as "claim-processing requirements," which speak more to the rights and obligations of parties. "Jurisdictional" rules are absolute bars, but the latter types of requirement may be waived or overcome by considerations of equity. Key to the distinction is whether Congress "clearly states that a threshold limitation on a statute's scope shall count as jurisdictional...." If Congress has not, the Court likely will regard the limitation's effect more flexibly. Filing deadlines for administrative review of monetary claims, reimbursements, fees, and the like, are particularly apt to be held non-jurisdictional.

Legislative History

Plain Meaning Rule

Different schools of statutory interpretation regard text differently. Textualists regard the words embodied in the text of a statute as the "law": "Congress' intent is found in the words it has chosen to use." Intentionalism and related methods are less sanguine about whether statutory language alone can fully and adequately embody the "law" for purposes of applying statutes in individual cases. Yet textualists on occasion recognize the value of extrinsic perspectives, and intentionalists regard statutory language as the analytical starting point and at least strong evidence of what a law intends.

The primacy of text in discerning meaning is expressed in the "plain meaning rule." That rule holds that where the language of a statute is plain, the sole role of the courts is to enforce it according to its terms. In practice, the cases vary in characterizing the rule as mandatory or prudential, and those differences often play out indirectly through arguments about whether particular language is sufficiently clear and unambiguous to preclude further inquiry.

There seems to be general consensus that the plain meaning rule aptly characterizes interpretational priorities (statutory language is primary, other considerations of intent and purpose secondary). However, agreement on the basic meaning of the plain meaning rule—if it occurs—does not guarantee agreement in the rule's application. There have been cases in which Justices of the Supreme Court have agreed that the statutory provision at issue is plain, but have split 5-4 over what that plain meaning is. There are other cases in which strict application is simply ignored; courts, after concluding that the statutory language is plain, nonetheless look to legislative history, either to confirm that plain meaning, or to refute arguments that a contrary interpretation was "intended." The one generally recognized exception to the rule is that a plain meaning is rejected if it would produce an "absurd result." Nevertheless, even in cases of "absurd results" Justices can disagree over whether it is appropriate to consult legislative materials for interpretational insight.

The commonest bridge from text to legislative history is a finding that the statutory language is not plain, but instead is unclear or "ambiguous." Significant differences arise, however, in the willingness of courts to label particular statutory language as "ambiguous" and thereby resort to legislative history. Some judges are more sanguine than others in the ability to interpret statutory text without resort to the "extrinsic" aid of legislative history. Some judges limit themselves to a narrow focus on the clarity or ambiguity of a particular statutory phrase, while others look more broadly to statutory context for insight into phrases that may seem ambiguous in isolation. And, inevitably, tensions may arise between apparently clear language and perceived intent.

Uses of Legislative History

Over time, the Court has by turns been relatively more receptive or skeptical toward mining the legislative process for insight into a statute's meaning. Legislating is a collective exercise. Drafters seek to capture a sponsor's intent in words, however imperfectly. Language introduced as legislation is subjected to examination, criticism and revision in diverse congressional fora—large and small, formal and informal—as it moves toward approval—again, via diverse groups with varying degrees of expertise and interest—and eventual enactment into law. Particularly since the 1980s, some Court opinions have characterized modern congressional processes as too fractured to admit any statement or explanation made in any step along the way as an authoritative declaration by Congress as a whole (assuming Congress had a discernible "collective understanding" on the matter at issue before the Court in the first place ). Adding to this reluctance is the perception of some that the published history could be skewed by the partisanship of committee staff, the manipulation of interest groups, or the dominant influence of federal agencies. It is preferable, under this view, to re-focus on the statutory text to gain some space for judicial independence and clarity.

More recently, some commentators and jurists who look at congressional processes have had a different take. They, too, see complexity and fragmentation in Congress, but argue that one can ascribe an "institutional purpose" to legislation even though the motives of individual legislators may be unknown or unknowable. Under this "busy Congress" model, for example, congressional committees, as specialists in their field, are regarded as reporting accurate accounts of information and insight to their respective chambers so that Members may better consider legislation they have limited knowledge of.

The stuff of legislative history itself potentially comprises a wide variety of materials. On the one hand, a current statute may be compared to its predecessors and differences among their language and structure analyzed. This use is limited to examining language passed by Congress, which, unlike materials attending congressional deliberations, is often thought to best reflect the intent of Congress as a whole. Considering past statutes and their evolution is not a particularly controversial exercise. On the other hand are the committee reports, hearings, floor debates, and other records of deliberations and correspondence on legislation as it moves through the legislative process. One aspect of examining this material can be to compare different versions of a provision as it progresses, a use somewhat like the comparing of statutes to their predecessors, but without each version having been approved by Congress as a whole.

Courts may read contemporaneous congressional materials for many reasons: background information and context, explanations of specific legislative language, or expectations of how a provision will be applied to the particular fact situation before them. Reliance on these materials varies among courts, with the circumstances of a statute's passage and its clarity or complexity being factors. Courts also may be more willing to consult committee reports and the like for insight into the particular problem Congress sought to address than they are to consult language that purports to direct certain interpretations or outcomes. The nature of the issue before a court is another variable that may bear on what materials the court uses and why.

Among published history, some sources may be considered relatively more authoritative. As a rule, committee report explanations, and especially those of conference committees, are considered more persuasive and reliable than statements made during floor debates or hearings. Within floor debates, statements of sponsors and explanations by floor managers are usually accorded the most weight, and statements by other committee members of the reporting committee[s] next. Floor statements by Members not associated with sponsorship or committee consideration of a bill have little weight, and statements by bill opponents less weight still. Hearings may be useful in providing background, less so as to illuminating the meaning of particular language.

This hierarchy generally characterizes where a court might go to seek to clarify an unclear statute, but several factors might tip the scales in favor of one bit of history or another of a particular bill. Final language might have arisen from a floor amendment, in which case earlier reports and debates may be of interest only as a point of contrast. Similarly, final language might have been added by the second chamber to consider a bill, in which case the history developed in it would be most pertinent, especially absent conference consideration. Also, a court's willingness to delve into the more remote reaches of legislative history can vary with the issue at hand and the point sought to be clarified.

Again, courts may consult explanatory documents to gain a better feel for context or to shed light on particular language. Reference to legislative history for background is commonplace. A "proper construction frequently requires consideration of [a statute's] wording against the background of its legislative history and in the light of the general objectives Congress sought to achieve." Looking to published history to help explain the meaning of statutory terms may be more controversial, either because contrary indications may be present in other passages of legislative history, or because the degree of direction or detail may be an unwarranted narrowing of a more general statutory text. The concern in the latter instances is whether the legislative history is a plausible explanation of language actually contained in the statutory text, or whether instead explanatory language (e.g., report language containing committee directives or "understandings") outpaces that text. As the Court observed in rejecting reliance on "excerpts" said to reflect congressional intent to preempt state law, "we have never [looked for] congressional intent in a vacuum, unrelated to the giving of meaning to an enacted statutory text ... [U]nenacted approvals, beliefs, and desires are not laws."

A distinct but related inquiry focuses not on the explanations that accompanied committee or floor consideration, but rather on the sequence of changes in bill language. Consideration of the "specific history of the legislative process that culminated in the [statute at issue] affords ... solid ground for giving it appropriate meaning" and for resolving ambiguity present in statutory text. Selection of one house's version over that of the other house may be significant. In some circumstances rejection of an amendment or earlier version can be important, but there is no general "rejected proposal rule." While courts are naturally reluctant to attribute significance to the failure of Congress to act, that reluctance may be overcome if it can be shown that Congress considered and rejected bill language that would have adopted the very position being urged upon the court.

Even more than in the case of legislative language, discussed above, silence in the published legislative history of a bill is seldom significant. There is no requirement that "every permissible application of a statute be expressly referred to in its legislative history." The Court does, however, occasionally attach importance to the absence of any indication in a statute or its legislative history of an intent to effect a "major change" in well-established law. And sometimes the Justices disagree over the significance of congressional silence.

Inferences Based on "Subsequent" Legislative History

Once a statute is enacted, later Congresses may comment on it or choose to revisit it (or not) as circumstances change. Views expressed in the documents or deliberations of a subsequent Congress generally are eschewed. It has been stated in this context that "[t]he legislative history of a statute is the history of its consideration and enactment. 'Subsequent legislative history'—which presumably means the post -enactment history of a statute's consideration and enactment—is a contradiction in terms."

The Court also is wary about reading significance into the actions of a subsequent Congress, having warned that they are "a hazardous basis for inferring the intent of an earlier one.'" To the degree congressional action is considered (as opposed to the statutory language), it is the enacting Congress that is key, and interpretation is ordinarily not affected by the several different kinds of congressional actions and inactions frequently characterized as "post-enactment history." However, depending on context, including intervening developments, what a subsequent Congress does may have interpretational value.

Subsequent Legislation

If the views of a later Congress are expressed in a duly enacted statute, then the views embodied in that statute must be interpreted and applied. Occasionally a later enactment declares congressional intent about interpretation of an earlier enactment rather than directly amending or clarifying the earlier law. Such action can be given prospective effect because, "however inartistic, it ... stands on its own feet as a valid enactment." "Subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction." Other statutes may be expressly premised on a particular interpretation of an earlier statute; this interpretation may be given effect, especially if a contrary interpretation would render the amendments pointless or ineffectual.

The Court closely adheres to judicial precedents in interpreting statutes, on the grounds that Congress is free to supersede the Court's interpretation of a particular statute through subsequent legislation. But it may not always be evident exactly how far Congress went in subsequent legislation to sweep aside an earlier construction. For example, when Congress acts narrowly against a result in a Court decision, is it also discrediting the Court's reasoning that led to the result? A female employee who is adversely affected by a discriminatory seniority system is barred from relief under a Supreme Court decision that holds Title VII's statute of limitation clock is intended to tick solely from the time of the discriminatory act, not from the time harm is realized. Congress adopts a provision that specifies time of harm as restarting the statute of limitations clock for those discriminated against under a seniority system. Later, a female brings suit alleging that she had been discriminated against in raise decisions over time and that consequently her pay continued to be lower than that of men in similar positions. Is the Court's more general "time of the act" interpretation in the seniority case still to be accorded weight in the later raise discrimination case, even though the interpretation no longer pertains in a seniority system context? In Ledbetter v. Goodyear Tire & Rubber Co., Inc. , five Justices substantially relied on the earlier interpretation to hold that the raise discrimination was barred by the statute of limitations, over the objection of a four-Justice dissent.

Reenactment

If Congress reenacts a statute and leaves unchanged a provision that had received a definitive administrative or judicial interpretation, the Court sometimes holds that Congress has ratified that interpretation. The stated rationale is that "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change." Similarly, if Congress in enacting a new statute incorporates sections of an earlier one, "Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute." However, congressional ratification of a judicial interpretation will not be inferred from reenactment unless "the supposed judicial consensus [is] so broad and unquestioned that Congress knew of and endorsed it." Also, the reenactment presumption is usually indulged only if the history of enactment shows that Congress conducted a comprehensive review of the reenacted or incorporated statute, and changed those aspects deemed undesirable. Though the presumption can come into play in the absence of evidence that Congress directly considered the issue at hand, the Court may require other indicia of congressional awareness of the issue before reading significance into reenactment. Congress may have simply overlooked the matter, or may have intended to leave it "for authoritative resolution in the courts."

Acquiescence

Congressional inaction is sometimes construed as approving or "acquiescing" in an administrative or judicial interpretation. There is no general presumption that congressional inaction in the face of interpretation bespeaks acquiescence, and there is no consistent pattern of application by the Court. When the Court does infer acquiescence, the most important factor seems to be congressional awareness that an interpretation has generated widespread attention and controversy. As with reenactment, however, there are other inferences that can be drawn from congressional silence.

"Isolated Statements"

Although congressional inaction or silence is sometimes accorded importance in interpreting an earlier enactment, post-enactment explanations or expressions of opinion by committees or members are often dismissed as "isolated statements" or "subsequent legislative history" not entitled to much if any weight. As the Court has noted, statements as to what a committee believes an earlier enactment meant are "obviously entitled to less weight" than is subsequent legislation declaring such intent, because in the case of the committee statement Congress had not "proceeded formally through the legislation process." The Court has also explained that "isolated statements by individual Members of Congress or its committees, all made after enactment of the statute under consideration, cannot substitute for a clear expression of legislative intent at the time of enactment." "It is the function of the courts and not the Legislature, much less a Committee of one House of the Legislature, to say what an enacted statute means." The disfavor in which post-enactment explanations are held is sometimes expressed more strongly when the views are those of a single member. The Court has declared that " post hoc observations by a single member carry little if any weight."

Presidential Signing Statements

Under the Constitution, the President's formal role in enacting statutes is one of "take it or leave it." Article I, Section 7, clause 2 provides that, after Congress passes a bill and presents it to the President, "if he approves he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it." Thus, the recording of a President's views as part of the constitutional lawmaking process is limited to objections attending a veto. Also, the President may not amend the language of a presented bill before acting on it. Nor may the President pick and choose which provisions of a presented bill to sign into law, while vetoing others. The President's options are "thumbs up" or "thumbs down" on a bill in its entirety. The President may have an integral role in the enactment of statutes into law, but "[a]ll legislative Powers" reside in Congress, and it is exclusively up to the houses of Congress, at least formally, to come to common agreement on statutory language.

Nevertheless, recent Presidents have frequently used the occasion of signing a bill into law to issue statements that contend that portions of the bill are unconstitutional, claim a law is of limited application, or otherwise signal that a law will be implemented strictly in accord with the President's views of the office's prerogatives and authorities. Assertions in signing statements vary in specificity and purported scope; the statements would not appear to have any immediate, direct legal effect in and of themselves; and they may best be understood in the context of the enduring tension between the political branches over accountability, control of executive agencies, and similar institutional concerns. At the same time, Administrations since the 1980s have asserted that signing statements have weight as legislative history and should be taken into account by courts. There is no legal impediment to a President commenting on a statute's meaning in a signing statement, and the political reality is that an Administration is not a passive spectator during congressional deliberations. Often, the Administration forwards draft legislation for introduction, and liaisons from the executive branch regularly communicate its views on bills as they proceed. If the President or the Administration worked closely with Congress in developing legislation, and if the approved version incorporated the President's recommendations, reference to a signing statement arguably may help complete the picture of a bill's purpose, especially in the absence of published congressional documents on a bill. The same might also be said with respect to bills whose final content arose from compromise negotiations between the Administration and Congress.

Citation of signing statements may be more controversial when statutory language appears clear or the meaning attributed in a signing statement conflicts with congressional history. Congress has no opportunity during the legislative process to respond as an institution to a characterization in a signing statement. Giving the President "the last word" on the meaning of a bill he approves, it may be pointed out, stands in contrast to the procedure for congressional consideration of the President's objections in the case of a vetoed bill.

The Supreme Court has not accorded legal weight to signing statements. And, in longstanding litigation on a statute implicating the status of Jerusalem, the prominence of President George W. Bush's signing statement as an issue has steadily declined. Neither the latest court of appeals decision, nor recent briefs by the parties to the Supreme Court, do more than mention it in passing as part of the case's history. Also, lower courts have seldom had to resolve cases that require a choice between conflicting presidential and congressional interpretations. Presidents' routine use of signing statements to try to influence statutory interpretation by courts is a relatively recent development. Thus far, courts have not been particularly receptive, even while citing them on occasion.

Judicial reluctance to consider signing statements would not appear to be contrary to judicial deference to agency action. Deference is premised on the conclusion that Congress has, by statute, authorized the agency to "speak with the force of law" through a rulemaking or other formal process. Congress has not authorized the President (or, indirectly, an agency) to speak with the force of law through signing statements. So, although signing statements may influence or even control agency implementation of statutes, it is the implementation, and not the signing statement itself, that would be measured against the statute's requirements. At most, signing statements might be considered analogous to informal agency actions, entitled to respect only to the extent that they have the power to persuade.