Each method is concerned with “legislative intent” though they understand the phrase differently. Each is trying to enforce a decisions that they think is legitimately attributable to the legislature. The Judge’s Role in Relation to Congress Independent – check & balance Congress Partner – collaborate with Congress to further the public good Faithful agent – follow Congress as its faithful agent “I believe banning strollers is a bad idea” independent partnership if it furthers the public good subordinate if the legislature gave the directive that judges decide what “vehicle” means in marginal cases Federalist 78 combines all three The essay is a defense of what would become Article III, Section I. Independent: checking the limitations of the CNSTN so that the legislature does not abuse its power, deterring Congress from passing unjust laws by mitigating their effects. Tenure and salary protection to ensure degree of independence. Partner: Not checking the power of Congress to pass the law directly but mitigating the effects of existing laws for the public good. Relies on assumption that judges can discern what is an unjust or partial law. Faithful agent: no active resolution whatsoever. No force or will. Marshall (The LSD Case)(7th Cir. 1990) Q: Does weight of the carrier (blotting paper) factor in the weights listed in the statute, which trigger statutory minimum sentencing? Held: Yes, because (1) Against using the weight of pure LSD only “Substance or mixture” must have some meaning; “detectable amount” is the opposite of “pure”; structural argument (PCP provision would have surplus if “mixture or substance” meant pure); Congress intended that “mixture” not be converted into an equivalent amount of pure LSD (2) For weight of LSD plus paper as a “mixture or substance” Ordinary meaning of “substance” and “mixture” combined with specialized usage in chemistry, colloquial meaning, LH, precedent “Odd results may occur” Dissenting, Posner assumes more of an independent or partner role The minima would be triggered by one dose in a glass of OJ but not by one dose in an empty glass Disproportionate to other, more serious drugs. Acknowledges that “substance and mixture” would have no referent under his analysis Independent “Well, what if anything can we judges do about this mess?” Moderating an unjust law Partner
1940s-1980s – peaked after the new deal 1990s – today – declined without disappearing What might explain the rise of LH? Congressional recordkeeping [??] Congressional preference for drafting [??] Judicial appointments Judicial preference for constraint Judicial idea of collective intent (think about how people interpret personal letters or email) The weight afforded LH varied by type (this hierarchy survives to the extent LH is still used) Committee reports = most weight Sponsor statements = nearly as weighty Other Member statements = little weight Hearing testimony = little weight Amendment history = variable [??] Ratification at T2 = some weight Acquiescence at T2 = less weight Post-New Deal use: Justified as a constraint on judicial discretion that reflects the intent of Congress and respects congressional delegation Train (1976)(The Radioactive Materials Case)(2 Acts, 2 Agencies)(8-0) Q: Are nuclear materials “pollutants” within the meaning of the FWPCA (Clean Water Act)? If so, the EPA can regulate their discharge into waterways despite the fact that the Atomic Energy Act and the AEC already regulate the discharge of certain nuclear materials. The EPA excluded said radioactive materials in its regulations. AEA – The Atomic Energy Act Licenses covering 3 types of radioactive material from nuclear power plants, with AEC administering and adopting standards it “may deem necessary or desirable… to protect health…” From nuclear power plant FWPCA – The Clean Water Act Permits for water discharge of “pollutants,” defined to include “radioactive materials,” 33 U.S.C. §1362(6) (with exceptions) with EPA or a State administering and adopting regulations. Into water Held: The EPA properly excluded those radioactive materials covered by the AEA. Consistent with both statutes. Rule: Reliance on plain meaning can be insufficient to determine the actual legislative intent of Congress, which must be dispositive. Use of LH despite unambiguous language. Intentionalism Without reliance on LH inevitably overlap Those radioactive materials are covered by the ordinary and specialized meanings of “radioactive materials”
Strong Textualists probably wouldn’t use LH in this way Confirming that which exists outside the beltway As opposed to tipping the hat to Congress How about using only on-point committee reports?As a mend-it-don’t-end-it compromise Other ways of confining use of LH that have their vices and virtues Cheaper—less contextualizing of debates What about tiebreakers? If you think LH is valuable, you’re throwing out valuable information Restricts finding your friends in the crowd But Committee might not be represented or properly delegated And up the value of being able to control the content of the committee report Lobbyists, staffers, etc. But focusing the attention in this way; would specify exactly where policing needs to take place. Focuses bad and good actors Canons of Construction Canons present factors and arguments, not really a formula or code Be able to contrast and compare (1) semantic canons, (2) substantive canons (3) arbitrary canons Semantic: generalizations about how the English language works Form of textual analysis Substantive Judge-made principles, grounded in commitment to certain systemic values rather than empirical beliefs about actual congressional intent Rule of lenity Arbitrary Not supported by how language works/is used nor founded on a valued principle. Still, can be useful for breaking ties and closing cases Example: McBoyle(1931)(The Stolen Airplane Case) National Motor Vehicle Theft Act §3 (1919) barred certain interstate transport of a stolen “motor vehicle,” which, under §3, “shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails.” Q: Does word “vehicle” in phrase “any other self-propelled vehicle not designed for running on rails” include an airplane? Held: An airplane is not such a vehicle, so defendant is not covered. Government relies on dictionary and purpose Dictionary Words imbedded in the phrase “any other” sounds inclusive “self-propelled” a general rule with an exception “not designed for running on rails” expressio unius
Question: given how it’s 6 voting members are appointed, can the FEC constitutionally exercise the power granted to it? How the voting members of the commission are selected Two appointed by the President pro tempore of the Senate Two appointed by the Speaker of the House Two appointed by the President Very collaborative—checks and balances FEC’s responsibilities/functions include Report keeping, disclosure of information and investigation Rulemaking/adjudicative power Make rules necessary for the carrying out of the Act’s objectives Can render advisory opinions Can authorize campaign expenditures that exceed the statutory limit Direct, wide ranging enforcement power Can institute civil action for injunctive or other relief Can make a finding that a person failed to file a require report which would limit their ability to run for a year Appointments Clause POTUS, with advice and consent of the senate, appoints Officers of the US “not herein otherwise provided for” “but Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments” Exclusivity of A2 §2 for officers: it is divided into two specific classes of appointments with specific protocol for each Neither the Speaker nor the President pro tempore come into the language for either class “Heads of Department” in conjunction with “Courts of Law” suggests that it was referring to executive branch, which rules out the president pro tempore of the and the speaker Covers all appointments—expressio Best legal arguments against exclusivity: What if the Appointments clause is a floor? The enhanced checks and balances is in the spirit of the separation of powers (Functional argument) “Separation of powers isn’t just a broad principle, it’s woven into the document so look at the document” Look at how separation of powers was implemented in the Constitution “Herein” might apply to the Constitution as a whole not the Appointments Clause In this case, the senate and house can appoint their own officers Categorization as (partly) officers, not mere employees The FEC members are at LEAST “inferior Officers” officers: “exercising significant authority pursuant to the laws”– here, enforcement power beyond info collection and investigation