Order Code 97-589 A
CRS Report for Congress
General Principles and Recent Trends
Updated August 3,2001
American Law Division
Prepared for Members and
Committees of Congress
General Principles and Recent Trends
The Supreme 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." This report identifies and describes some ofthe more important
rules and conventions ofinterpretation that the Court applies. Because the Court has
recently placed renewed emphasis on statutory text and somewhat reduced emphasis
on legislativehistory and other interpretive sources "extrinsic"to the text, this report
focuses primarily on the Court's methodology in construing statutory text. The
Court's recent approaches to reliance on legislativehistory are also briefly described.
In analyzing a statute's text, the Court is guided by the basic principle that a
statute should be read as a harmonious whole, with its separate parts being interpreted
within their broader statutory context in a manner that furthers statutory purpose.
The various canons of interpretation and presumptions as to substantive results are
usually subordinated to interpretations that further a clearly expressed congressional
The Court frequently relies on "canons" of construction to draw inferencesabout
the meaning of statutory language. For example, in considering the meaning of
particular words and phrases, the Court distinguishes between terms of art that may
have specialized meanings and other words that are ordinarily given a dictionary
definition. Other canons direct that all words of a statute be given effect if possible,
that a term used more than once in a statute should ordinarily be given the same
meaning, and that specific statutory language ordinarily trumps conflicting general
language. "Ordinarily" is a necessary caveat, since any of these "canons" gives way
if context reveals an evident contrary meaning.
Not infrequently the Court stacks the deck, and subordinates the general,
linguistic canons of statutory construction, as well as other interpretive principles, to
overriding presumptions that favor particular substantive results. The Court usually
requires a "clear statement" of congressional intent to negate one of these
presumptions. A commonly invoked presumption is that Congress does not intend
to changejudge-made law. Other presumptions disfavor preemption of state law and
abrogation of state immunity from suit in federal court. Congress must also be very
clear if retroactive application of a statute or repeal of an existing law is intended.
The Court tries to avoid an interpretation that would raise serious doubts about a
statute's constitutionality. Other presumptions that are overridden only by "clear
statement" of congressional intent are also identified and described.
StatutoryText . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
In General .
Statutory Context and Purpose . . . . . . . . . . . . . . . . . . . . . .
Canons of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
InGeneral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ordinary and Specialized Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Termsofart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ordinary meaning and dictionaly definitions . . . . . . . . . . . . . . . . . . . .
Andor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General, Specific, and Associated Words . . . . . . . . . . . . . . . . . . . . . . . . . .
Grammatical Rules, Punctuation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Statutory Language Not to be Construed as “Mere Surplusage“ . . . . . . . .
Same Phrasing in Same or Related Statutes . . . . . . . . . . . . . . . . . . . . . . .
Different Phrasings in Same Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Congress Knows How to Say . . _”. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Statutory Silence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
De Minimis Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Overriding Presumptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Departure from Common Law or Established Interpretation . . . . . . . . . . .
Displacing State Law, Impinging on State Operations . . . . . . . . . . . . . . .
Abrogation of States‘Eleventh Amendment Immunity . . . . . . . . . . . . . . .
Nationwide Application of Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . .
Waiver of Sovereign Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Non-retroactivity / Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Avoidance of ConstitutionalIssues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Extraterritorial Application Disfavored . . . . . . . . . . . . . . . . . . . . . . . . . . .
Judicial Review of Administrative Action . . . . . . . . . . . . . . . . . . . . . . . . .
Deference to Administrative Interpretation . . . . . . . . . . . . . . . . . . . . . . . .
Repeals by Implication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Laws of the same session . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appropriationslaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RuleofLenity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Scienter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Remedial Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Statutes Benefiting Indian Tribes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Common Usages and Interpretations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Findings and Purposes Sections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sense of Congress” Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SavingsClauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Notwithstanding Any Other Provision of Law” . . . . . . . . . . . . . . . . . . . .
Implied Private Right of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
by Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Plain Meaning Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Uses of Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Post-Enactment or “Subsequent”Legislative History . . . . . . . . . . . . . . . .
Subsequent legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reenactment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Acquiescence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Isolated statements” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General Principles and Recent Trends
This report sets forth a brief overview of the Supreme Court’s current
approaches to statutory interpretation. The bulk of the report describes some of the
more important recent usages by the Court in construing statutory text, and the
remainder briefly describes the Court’s recent approaches to reliance on legislative
history. 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. ‘I1 In reading statutes, the Supreme Court appliesvarious rules and
conventionsof interpretation, and also sometimessuperimposesvarious presumptions
favoring particular substantive results. Other conventions assist the Court in
determining whether or not to consider legislative history. Although there is some
overlap and inconsistency among these rules and conventions, and although the
Court’spathway through the mix is often not clearly foreseeable, an understanding of
interpretational possibilities may nonetheless lessen the burdens of statutory drafting
and aid Congress in choosing among various drafting options.
Executive Order 12988, which provides guidance to executive agencies on
preparing legislation, contains a useful checklist of drafting issues.’ Many items on
the checklist are topics addressed in this report, and many ofthe court decisions cited
under those topics have resulted from the absence of clear statutory guidance.
Consideration of the checklist may facilitate clarification of congressional intent and
may thereby lessen the need for litigation.
Of course, Congress can always amend a statute to require a result different from
that reached by the Court. In interpreting statutes, the Court recognizes that
legislative power resides in Congress, and that Congress can legislate away
‘Finley v. United States, 490 U.S. 545, 556 (1989).
261Fed. Reg. 4729(Feb. 5, 1996),reprintedin28U.S.C. 8519. Theorderdirectsagencies
to ‘‘make every reasonable effort to ensure” that proposed legislation, “as appropriate . . .
specifies in clear language” - (A) whether causes of action arising under the law are subject
to statutesof limitations; (B) the preemptive effect; (C) the effect on existingFederal law; (D)
a clear legal standardfor affected conduct; (E) whether arbitration and other forms of dispute
resolutionare appropriate; (F) whether the provisions of the law are severableif one or more
is held unconstitutional; (G)the retroactive effect, ifany; (H)the applicableburdens of proof;
(I) whether private parties are granted a right to sue, and, if so, what relief is available and
whether attorney’s fees are available; (J) whether state courts havejurisdiction; (K) whether
administrative remedies must be pursued prior to initiating court actions; (L) standards
goveming personal jurisdiction; (M) definitions of key statutory terms; (N) applicability to
the Federal Government; (0)applicability to states, territories, the District of Columbia, and
the Commonwealthsof Puerto Rico and the Northern Mariana Islands; and (P) what remedies
are available, “such as money damages, civil penalties, injunctive relief, and attorney’s fees.”
interpretations with which it disagree^.^ In recent years Congress has revisited
statutory issues fairly frequently in order to override or counter the Court's
interpretations.' Corrective amendment can be a lengthy and time-consuming
process, however, and Congressin most instanceswill probablywish to state its intent
clearly the first time around.
- Statutory Context and Purpose
The starting point in statutory construction is the language of the statute itself.
The Supreme Court often recites the "plain meaning rule," that, ifthe language ofthe
statute is clear, there is no need to look outside the statute to its legislative history in
order to ascertain the statute's meaning. Twenty-five years ago it was axiomaticthat
this "rule" was honored more in the breach than in the observance. The trend in
recent years, however, is for the Court to place more emphasis on statutory text and
less emphasis on legislative history and other sources "extrinsic" to that text. More
often than before, statutory text is the ending point as well as the starting point for
A cardinal rule of construction is that a statute should be read as a harmonious
whole, with its various parts being interpreted within their broader statutory context
in a manner that furthers statutory purposes. Justice Scalia, who has been in the
vanguard ofrecent efforts to redirect statutory construction toward statutory text and
away from legislative history, has aptly 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."' This was not a novel approach. 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."6 Thus, the meaning of a specific
31tis because "'Congress is free to change this Court's interpretation of its legislation,"' that
the Court adheres more strictly to the doctrine of stare decisis in the area of statutory
constructionthan in the area of constitutional interpretation, where amendment is much more
difficult. Neal v. United States, 516 U S . 284, 295 (1996)(quoting Illinois Brick Co. v.
Illinois, 431 U S . 720,736 (1977)). "Stare decisis is usually the wise policy [for statutes],
because in most matters it is more important that the applicablerule o f law be settled than that
it be settled right." Bumet v. Coronado Oil & Gas Co., 285 U S . 393,406 (1932)(Justice
40ne scholar identified 187 override statutes from 1967 to 1990. William N. Eskridge,
Overriding Supreme Court Statutary Interpretation Decisions, 101 YALE L.J. 331 (1991).
Wnited Savings Ass'n v. Timbers of Inwood Forest Associates, 484 U S . 365,371 (1988)
(citationsomitted) (opinion o f Court).
a modem instance in which the Court's reading of text was informed by statutory context and
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 specificdirectives, by purposes inferredfromthose directives or from the statute
as a whole, and by the statute's overall structure. Courts also look to the broader
context of the body of law into which the enactment fits.7
The Supreme Court occasionally relies on 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."8
This report sets forth a number of such rules, conventions, and presumptions that the
Court has relied on in recent times. It is well to keep in mind, however, that the
overriding objective of statutory construction is to effectuate statutory purpose. As
Justice Jackson put it more than 50 years ago, "[hlowever 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
dominatinggeneral 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."'
Canons of Construction
"[Clanons 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.""0 The Court says much the same thing when it
chooses congressional intent rather than statutory text as its touchstone: a canon of
statutorypurpose, see BrotherhoodofLocomotoveEngieers v. Atchison, T. & S.F.R.R.,5 16
U S . 152, 157 (1996) (purposeofHoursofservice Actofpromotingsafetybyensuringthat
fatigued employees do not operate trains guides determination of whether employees'time is
7Greenv. Bock Laundry Machine Co., 490 U S . 504,528 (1990)
'McNary v. Haitian Refugee Center, 498 U.S. 479, 496 (1991) (referring to presumption
favoringjudicial review of administrativeaction). See also United States v. Fausto, 484 U S .
439,463 n.9 (1988) (Justice Stevens, dissenting) (Court presumes that "Congressis aware
ofthislongstandmgpresumption [disfavoringrepealsby implication]and that Congress relies
on it in drafting legislation").
9SECv. Joiner, 320 U S . 344, 350-51 (1943). Justice Jackson also explained that some of
the canons derived "from sources that were hostile toward the legislativeprocess itself," and
that viewed legislation as "'interference"' with the common law '"process of intelligent
judicial administration."' Id. at 350 & n.7 (quoting the first edition of SUTHERLAND,
'°ConnecticutNat'l Bank v. Germain, 503 U S . 249,253-54 (1992) (citationsomitted)
construction should not be followed "when application would be tantamount to a
formalistic disregard of congressional intent.""
Canons of construction are basically context-dependent "rules of thumb." That
is to say, canons are general principles, many of them of the common-sense variety,
for drawing inferences about the meaning of language. Since language derives much
of its meaning from context, canons should not be treated as rules of law, but rather
as "axiomsof experience"that do "not preclude consideration ofpersuasive [contrary]
evidence if it exists."'z Many ofthe difficulties that have been identified with reliance
on canons of construction can be avoided if their importance is not overemphasized
- if they are considered tools rather than "rules."
A basic difficulty, recognized years ago, is that there are so many "canons" or
alleged canons that there is apparent conflict among some of them. A 1950 article by
Professor Karl Llewellyn attempted to demonstrate that many canons can be
countered by equally correct but opposing canons." The case was somewhat
strained, since in some instances Llewellyn relied on statements in court opinions that
were not so generallyaccepted as to constitute "canons," but the clear implicationwas
that canons are useless because judges may pick and choose among them to achieve
whatever result is desired. The Supreme Court recently had to deal with such an
alleged conflict in ruling on the retroactive effect of the Civil Rights Act of 1991;
there were "seeminglycontradictory statements" in earlier decisions declaring general
principles that, on the one hand, "a court is to apply the law in effect at the time it
renders its decision," but, on the other hand, that "retroactivity is not favored in the
law." The Court explained that these two principleswere really not inconsistent, and
But even for those canons that
held that the provisions at issue were not retr~active.'~
do have equal opposites, a review of the Supreme Court's recent usages can reveal
current preferences of the Justices in choosing between the opposites, and may prove
helpful during congressional debate on legislation in the many instances in which
issues of clarity and meaning are raised.
"Rice v. Rehner, 463 U.S. 713, 732 (1983).
"Boston Sand & Gravel Co. v. United States, 278 U.S. 41,48 (1928) (Justice Holmes for
"Karl Llewellyn, Remarks on the Theory ofAppellate Decision and the Rules or Canons
About How Statutes Are To Be Construed, 3 V m .L. REV. 395 (1950).
14Landgrafv.US1 Film Products, 511 U.S. 244, 263-64 (1994) (traditional presumption
against retroactivity governs substantive rights, especially contractual or property rights;
however, courts often may apply procedural laws, e.g., those governing attorney's fees,
enacted after underlying conduct occurred).
Ordinary and Specialized Meaning
Terms of art.
When the meaning of specific statutory language is at issue, courts oRen need
to consider the meaning of particular words or phrases. If the word or phrase is
defined in the statute (federal statutes frequently collect definitions in a “definitions”
section), or elsewhere in the United StUtes C0de,l5then that definition governs if
applicable in the context used.I6 Even ifthe 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
”The Dictionary Act, ch. 388, 61 Stat. 633 (1947), as amended, 1 U.S.C. 88 1-6, has
definitions of a few common terms used in federal statutes (e.g., “person,” “vessel,” and
“vehicle”). These definitions govem in all federal statutes “unless the context indicates
otherwise.” See Rowlandv.CaliforniaMen’sColony, 506 U.S. 194(1993) (contextindicates
otherwise; the term “person” as used in 28 U.S.C. 5 1915(a) refers only to individuals and
docs not cany its Dictiomy Act definitionthat includes associations and artificial entities).
I6Colauttiv. Franklin, 439 U S . 379, 392 (1979). Ifthe context indicates otherwise, r.e., if
a mechanical application of a statutory definition throughout a statute would create an
“obviousincongruity” or frustratean evident statutorypurposefor a particular provision, then
it is permissible to depart fromthe definition. Lawson v. Suwannee S.S. Co., 336 U S . 198,
201 (1949). But, as noted below, a term appearing in several places in a statuteis ordinarily
interpreted as having the same meaning each time it appears. See text accompanying nn. 5254, infra.
”See, e.g., Sullivan v. Stroop, 496 U S . 478,483 (1990) (phrase “child support” as used in
Title lV AFDC provisions of Social SecurityAct). Note alsothat “wherea phrase in a statute
appears to have become a term of art . . . , any attempt to break down the term into its
constituent words is not apt to illuminate its meaning.” Id.
I8In appropriate circumstances, courts will assume that “adoption ofthe wording of a statute
from another legislativejurisdiction carries with it the previousjudicial interpretationsof the
wording.” CaroleneProducts Co. v. United States, 323 U.S. 18,26(1944) (finding, however,
that circumstances were inappropriate for reliance on the principle). For the presumption to
operate, the previous judicial interpretations must have been “known and settled.” Capital
Traction Co. v. Hot 174 U S . I, 36 (1899). See also Yates v. United States, 354 U.S. 298,
310 (1957) (inthc absence of legislativehistory indicatingthat decisionsof lower statecourts
were called to Congress’ attention, Court “should not assume that Congress was aware of
them”). Variations in statutory wording may also refute the suggestion that Congress
borrowed an interpretation. Shannon v. United States, 5 12 US. 573,581 (1994) (Congress
did not borrow the terms of the Insanity Defense Reform Act of 1984 from the District of
I9See,e . g . , Community for Creative Non-Violence v. Reid, 490 US. 730, 73940 (1989)
(relyingontraditionalcommon law agencyprinciples for meaning ofterm “employee”as used
without definition in the Copyright Act). See also Nationwide Mut. Ins. Co. v. Darden, 503
U S . 318,323 (1992) (following the same course after finding ERISA’s “circular” definition
of “employee” to be useless).
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
yW here Congress borrows terms of art in which are accumulated the le a1
traAbon and meaning of centuries of practice, it presumablyknows and adopts e
cluster of ideas that were attached to each borrowed word UI the body of leamin
from which it was taken and the meaning its use will convey to the judicial min
unless otherwise instructed. In such a case absence of contrary direction may be
takenas satisfactionwith widely accepted definitions,not as departure fromthem.
Ordinary meaning and dictionary definitions.
Words that are not terms of art and that are not statutorily defined are
customarily given their ordinary meanings, often derived ffom the dictionary.” Thus,
the Court has recently relied on regular dictionary definitions to interpret the word
“marketing” as used in the Plant Variety Protection
and the word “principal”
as used to modify a taxpayer’s place of business for purposes of an income tax
and relied on Black‘s Law Dictionary for the more specialized meaning
of the word “cognizable” as used in the Federal Tort Claims Act to refer to causes of
Of course application of dictionary definitions is not always a clear course; many
words have several alternative meanings, and context must guide choice among
them.26 “Ambiguity is a creature not of definitional possibilities but of statutory
context.”27 Questionable choices are sometimes made - witness the Court’s
”“[Wlhere a common law principle is well established, . . , the courts may take it as a given
that Congress has legislated with an expectationthat the principle will apply except ‘when a
statutory purpose to the contrary is evident.”’ Astoria Federal Savings & Loan Ass’n v.
Solimino,501 U.S. 104, 108 (1991) (quotingIsbrandtsen Co. v. Johnson, 343 U.S. 779,783
(1952)). No clear statement rule is required, however, in order to establish an “evident”
contrarypurpose. 501 U.S. at 108.
2’Morissettev. United States, 342 U.S. 246, 263 (1952). See also Miles v. Apex Marine
Corp., 498 U.S. 19,32 (1990) (‘We assume that Congress is aware of existing law when it
”In the absence of a statutory definition, “we construe a statutory term in accordancewith its
ordinary or natural meaning.” FDIC v. Meyer, 510 U S . 471,476 (1994).
23AsgrowSeed Co. v. Winterboer, 513 U.S. 179, 187 (1995).
24Commissionerv. Soliman, 506 U.S. 168, 174 (1993)
”FDIC v. Meyer, 510 U.S. 471,476 (1994).
26See,e.g., MCI Tel. Cow. v. American Tel. & Tel. Co., 512 U S . 218, 226-28 (1994)
(FCC’sauthority to “modify”requirements does not include the authority to make tarifffiling
optional; aberrant dictionary meaning “to make a basic or important change” is antithetical
to the principal meaning of incremental change and is more than statute can bear). If the court
views the issue as one ofdeferenceto anadministrativeinterpretation,then the agency’schoice
of one alternativedictionarydelinitionover another may indicate sufficient “reasonableness.”
Smiley v. Citibmk (South Dakota), 517 U.S. 735, 744-47 (1996).
Gardner, 513 U.S. 115, 118 (1994),
conclusion that “use” of a firearm in commission of a drug offense or crime of
violence includes trading a gun for drugs.28And sometimes d i c t i o n q meanings can
lead courts astray even if there are not multiple choices. As Judge Learned Hand
observed, “it is one ofthe 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.”29
Similar principles govern use of the words “ a n d and “or.” Ordinarily, as in
everyday English, use of the conjunctive “ a n d in a list means that all of the listed
requirements must be satisfied,” while use ofthe 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 “ a n d as “or,” or “or” as “and.”32
General, Specific, and Associated Words
Ordinarily, the specific terms of a statute override the general terms. “However
inclusive may be the general language of a statute, it will not be held to apply t o a
z8Smithv.Unitedstates, 508U.S. 223 (1993). Dissenting Justice Scaliacuttothecore: “[to]
use an instrumentalitynormally means to use it for its intended purpose. When someone asks
‘Do you use a cane?’he is not inquiring whether you have your grandfather’ssilver-bandled
walking-stick on display in the hall; he wants to know whether you walk with a cane.
Similarly,to speak of ‘using a firearm’ is to speak of using it for its distinctivepurpose, i. e.,
as a weapon.” Id. at 242. The Court had less difficulty with the provision in 1995,overruling
a lower court’s holding that proximity and accessibility of a firearm are alone sufficient to
establish “use.” Bailey v. United States, 516 U.S. 137 (1995) (driving car with gun located
in bag in car’strunk does not constitute ‘‘use’’of gun; person who sold drugs after retrieving
them from room in which gun was found in a locked trunk in a closet did not “use” that gun
in sale). The Bailey Court, however, defmed “use” in such a way (“active employment”) as
toleavethe Smith holding intact. See also Muscarello v. United States, 524 U S . 125 (1998)
(the companionphrase “carriesa firearm,”found in the same statutoryprovision, is a broader
category that includes transporting drugs with a handgun locked in the glove compartment of
”Cabell v. Markham, 148 F.2d 737,739 (2d Cir. 1945).
3nSee,e.g., Pueblo of Smta Ana v. Kelly, 932 F. Supp. 1284, 1292 (D. N. Mex. 1996).
”See, e.g., Zorich v. Long Beach Fire and Ambulance Serv., 118 F.3d 682, 684 (9th Cir.
1997); United States v. O’Driscoll, 761 F.2d 589, 597-98 (10th Cir. 1985).
32See,e.g.,United States v. Moore, 613 F.2d 1029(D.C. Cir. 1979);De Sylva v. Ballentine,
351 U S . 570,573 (1956) (“the word ‘or’ is often used as a careless substitutefor the word
‘and”’). Both “ a n d and “or” are contextdependent, and each word “is itself semantically
ambiguous, and can be used in two quite different senses.” Lawrence E. Filson, The
Legislative Drafter’s Desk Reference, 8 2 1.10 (1992).
matter specificallydealt with in another part ofthe same ena~tment.”’~
As with other
canons, context can dictate a contrary result.34
Another interpretational guide trotted out from time to time is the principle
noscitur a sociis, that “words grouped in a list should be given related meaning.”35
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 specificallyen~merated.”’~
These principles are probably honored
more in the breach than in the acceptance, however. The Court explained on one
occasion that they are only “instrumentalit[ies] for ascertaining the correct meaning
ofwords when there is ~ncertainty.”~’A less charitable assessment is that the maxims
do not aid in ascertaining meaning or deciding cases, but rather serve only to “classify
and label results reached by other means.”’*
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
The modern Court recognizes
need be, to render the true meaning of the ~tatute.”’~
that grammar and punctuation often clarify meaning, and that skilled drafters can be
’’Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228 (1957) (citations
omitted). The same principle is used to resolve conflict between two statutes. See, e.g.,
United States v. Estate of Romani, 523 U S . 517, 532 (1998) (later, more specific statute
governs). See also Morton v. Mancari, 417 U.S. 535,550-51 (1974) (a general statute will
not be held to have repealed by implication a more specific one unless there is “clear intention
34See,e.g., Adams v. Woods, 6 U.S. (2 Cranch) 336, 341 (1805).
35Dolev. United SteelworkersofAmerica, 494 U.S. 26,36 (1990); Gustafsonv. Alloyd Co.,
513 U.S. 561, 575 (1995) (reading a statutory definition as limited by the first of several
“Harrison v. PPG Industries, Inc., 446 U.S. 578, 588 (1980); Circuit City Stores, Inc. v.
Adams, 121 S. Ct. 1302 (2001). Thcprinciplecannotbeappliediftheenumeratedcategories
are too “disparate.” Arcadia v. Ohio Power Co., 498 U.S. 73, 78 (1990). And, of course,
context may reveal that application is inappropriate. Norfolk & Western Ry. v. Train
Dispatchers, 499 U.S. 117, 129 (1991) (exemption of carriers from “the antitrust laws and
all other law, including State and municipal law,” is “clear, broad and unqualified,” and
obviously applies outside of antitrust and similar laws).
”Id. See also Norfolk &Western Ry. v. Train Dispatchers, 499 U.S. 117,129 (1991) (“the
canon does not control . . . when the whole context dictates a different conclusion”); United
States v. Turkettc, 452 U.S. 576,580-82 (1981) (appeals court erred in linding that a second
category was merely a more general description of the first; context and language instead
reveal two contrasting categories).
THE ~NTERF’RETATIONAND APPLICATION OF STATUTES, 234 (1975).
’%mmock v. Loan and Trust Co., 105 US. (15 Otto) 77, 84-85 (1881) (disregarding a
comma). See also United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 82-83
(1932) (also disregarding a comma).
expected to apply good grammar,Nbut the Court remains reluctant to place primary
importance on such factors. “A statute’splain 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. The Court went on to
explain that “a purported plain meaning analysis based only on punctuation is
necessarily incomplete and runs the risk of distorting a statute’s true meaning.””
“Overwhelmingevidence from the structure, language, and subject matter” of the law
led the Court to conclude that “in this unusual case” the punctuation at issue was the
result of “a simple scrivener’s
While the Court has relied on comma
placement to find that a plain meaning was “mandated by the grammatical structure
of the statute,” the Court in that case also found other support for its reading.44
Perhaps more typical was the Court’s recent rehsal to apply the rule that a
modifymg clause modifies the last antecedent, even though it could easily have
concluded on the basis ofthe statutory language that application of the last antecedent
rule was “mandated by the [statute’s] grammatical structure.” The rule “is quite
sensible as a matter ofgrammar,” the Court explained, but it “is not c ~ m p e l l e d . ”So
too, in another recent case the Court shied away from “the most natural grammatical
reading” of a statute in order to avoid an interpretation that would have raised a
serious issue of con~titutionality.~~
Rehsal to be bound by the rules ofpunctuation and grammar, it seems, gives the
Court some flexibility it desires in construing statutes. This is not to say, however,
that grammaticalrules should be disregarded in statutory drafting, since such rules are
ordinarily strong guides to meaning.
40See,e.g., Arcadia v. Ohio Power Co., 498 U S . 73, 78 (1990). “In casual conversation,
perhaps, such absent-minded duplication and omission are possible, but Congress is not
presumed to draft its laws that way.” See also Ingalls Shipbuilding v. Director, OWCP, 519
U S . 248,255 (1997) (present tense of verb is an element of plain meaning).
4’UnitedStates Nat’l Bank of Oregon v. IndependentIns. Agents, 508 U S . 439,454 (1993).
421d.See also Costanzo v. Tillinghast, 287 U S . 341,344 (1932)(“It has often been saidthat
punctuation is not decisive ofthe constmction of a statute. . . . Upon like principlewe should
not apply the rules of syntax to defeat the evident legislative intent.”)
431ndependentIns. Agents, supra n.41, 508 U.S. at 462. This “unusual case” held that
Congress did not in 1918repeal a statutoryprovision enacted in 1916allowingnationalbanks
located in small communities to sell insurance. The “scrivener’s error” had erroneously
credited the 1916enactment with having amended a provision that was repealed by the 1918
“United States v. Ron Pair Enterprises, 489 U.S. 235,241 (1989)
45Nobelmanv. American Savings Bank, 508 US.324,330-31 (1993). School children, of
course, rely on this case at their peril.
&UnitedStatesv.X-CitementVideo, Inc., 513 U.S. 64,68 (1994). Justice Scalia, dissenting,
insistedthat the language was perfectlyclear, and that the rejected mterpretationwas “theonly
grammatical reading.” Id. at 81.
Statutory Language Not to be Construed as “Mere
A basic principle of statutory construction 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 empl~yed.”‘~
The modem variant is that statutes should be construed “so
as to avoid rendering superfluous” any statutory language.48 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 ~ffense.”~’
be differences of opinion, of course, as to when it is “possible” to give effect to all
statutory language and when the general rule should give way in the face of evident
47Montclairv. Ramsdell, 107 U.S. 147, 152 (1883)
48AstoriaFederal Savings & Loan Ass’n v. Solimino, 501 U S . 104, 112 (1991). See also
Bailey v. United States,516 U S . 137,146 (1995) (“weassumethat Congress usedtwo terms
because it intended each term to have a particular, nonsuperfluous meaning“) (rejecting
interpretationthat would have made “uses”and “canies” redundantin statutepenalizingusing
or carrying a firearm in commission ofoffense). The same principle applies to “redundancies
across statutes.” Two overlapping statutesmay be giveneffect so long as there is no “positive
repugnance” between them. Connecticut Nat’l Bank v. Germain, 503 U S . 249, 253 (1992)
(finding that, in spite ofconsiderableoverlap between two provisions, each addressed matters
that the other did not).
49UnitedStates v. Wilson, 503 U S . 333,336 (1992) (nonethelessattributing no significance
to deletion of a reference to the Attorney General; the reference “was simply lost in the
shuffle” of a comprehensive statutory revision that had various unrelated purposes). There
is also an exceptionfor minor, unexplained changesin phraseologymade during recodification
- changes that courts generally assume are “not intended to alter the statute’s scope.”
Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 318 (1985).
soRatzlafv.United States, 510 U.S. 135, 140-41 (1994)
”See, e.g.,Moskalv. United States, 498 U S . 103(1990). DissentingJustice Scaliaobjected
to the Court’sstrainingto avoid holding that “falsely made” is redundant in the federal forgery
statute, which prohibits receipt of “falsely made, forged, altered, or counterfeited securities.”
“The principle [against mere surplusage] is sound, but its limitation (‘ifpossible’) should be
observed. It should not be used to distort ordinary meaning. Nor should it be applied to
obvious instances of iteration to which lawyers, alas, are particularly addicted . . . .” Id. at
Same Phrasing in Same or Related Statutes
“Aterm appearing in several places in a statutory text is generally read the same
way each time it appears.”52This presumption is “at its most vigorous when a term
is repeated within agiven s e n t e ~ i c e . 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.”54 In other words, context can override the
Different Phrasings in Same Statutes
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 e x c l ~ s i o n . ” ~ ~
‘‘wlegative 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.”56 This maxim has been applied by the Court - or at least cited as a
52Ratzlafv.Unitedstates, 5lOU.S. 135,143 (1994). SeealsoGustafsonv. AlloydCo., 513
WilliamWrigley, Jr. Co.,505U.S.
214, 225 (1992). The Court cited this passage of Wrigley to invoke a quite different
principle, described as “theestablished canon”that “similar [ratherthan identical] language”
in the same section of a statute “must be accorded a consistent [rather than the same]
meaning.” National Credit Union A h . v. First Nat’l Bank & Trust Co., 522 U.S. 479,
53Brownv. Gardner, 513 U S . 115, 118 (1994); Reno v. Bossier Parish Sch. Bd., 528 US.
320, 329-30 (2000).
54AtlanticCleaners & Dyers, Inc. v. Umted States, 286 U.S. 427, 433 (1933). See also
Robinson v. Shell Oil Co., 519 U.S. 337, 342-43 (1997) (term “employees”means current
employees only in somesections o f TitleVII of Civil Rights Act, but in other sectionsincludes
former employees); United States v. Cleveland Indians Baseball Co., 121 S. Ct. 1433 (2001)
(different statutory contexts of worker eligibility for Social Security benefits and
“administrability” of tax rules justify different interpretations). For disagreement about the
appropriatenessofapplyingthisl i t ation, contrastthe Court’sopinionin Gustajsonv. Alloyd
Co., supran.52, 513 U.S. at 573, withthedissentingopinionofJusticeThomasinthesame
case, id. at 590 (interpreting a definition that, by its terms, was applicable “unless the context
55KeeneCorp. v. United States, 508 US. 200,208 (1993) (quotingRussell0 v. United States,
464 U.S. 16, 23 (1983)). See also Bailey v. United States. 516 U.S. 137, 146 (1995)
(distinctionin one provision between “used and “intended to beused creates implicationthat
related provision’s reliance on ‘‘use’’ alone refers to actual and not intended use); and Bates
v. United States, 522 U.S. 23, 29 (1997) (mclusion of “intent to defraud” language in one
provision and exclusion in a parallel provision).
s6Lindhv. Murphy, 521 U.S. 320, 330 (1997) (statute was explicit in making one section
applicable to habeas cases pending on date of enactment, but was silent as to parallel
justification -in distinguishing among different categories ofveterans benefits” and
among different categories of drug offenses.58 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. 59
“Congress Knows How to Say.
Occasionally the Court draws a contrast between the language at issue and other
statutory language that clearly and directly requires the interpretation being pressed
by one ofthe parties. There are some instances -e.g., failure to employ terms of art
or other language normally used for such purposes - in which this can be a fairly
persuasive argument. Recently, 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 “ a i d and “abet” in the statute, and hence did not impose
aiding and abetting liability.60To say that Congress did not use the clearest language,
however, does not necessarily aid the court in determining what the less precise
language means in its statutory context. Some statutes are not well drafted,6l and
others represent conscious choices, born of political compromise, to leave issues for
the courts to resolve.6z It may not always be safe to assume, therefore, that “[ilf
57Kingv. St. Vincent’s Hospital, 502 U S. 215, 220-21 (1991) (“given the examples of
affirmative limitations on reemployment benefits conferred by neighboring provisions, we
infer that the simplicity of subsection (d) was deliberate, consistent with a plain meaning to
provide its benefit without conditions on length of service”).
’*Chapmanv.UnitedStates, 500U.S. 453,459(1991)(factthat,withrespecttosomedrugs,
Congress distinguished between a “mixture or substance” containing the drug and a ‘‘pure’’
drug refutes the argument that Congress’ failure to so distinguish with respect to LSD was
59See Field v. Mans,516 U S . 59, 67 (1995) (“without more, the [‘negative pregnant’]
inference might be a helpful one,” but other interpretive guides prove more useful).
6oCentralBank of Denver v. First Interstate Bank, 511 U S . 164, 176-77 (1994). See also
Franklin Nat’l Bank v. New York, 347 U S . 373, 378 (1954) (finding “no indication that
Congress intended to make this phase of national banking subject to local restrictions, as it
has done by express language in severalother instances”);Meghng v. KFC Western, Inc., 516
US. 479,485 (1996) (“Congress . . . demonstrated in CERCLA that it h e w how to provide
for the recovery of cleanup costs, and . . . the language used to define the remedies under
RCRA does not provide that remedy”).
61See,e .g., the provisions of the Plant Variety Protection Act at issue in Asgrow Seed Co. v.
Wintcrboer,513 U.S. 179 (1995). Justice ScaliainhisopinionfortheCourtinAsgrowcalled
7 U.S.C. 5 2543 a “verbal maze,” and conceded that “it is quite impossible to make complete
sense of the provision.” Id.at 185-86. In another case the Court found statutory language
“incoherent” due to use of three different and conflictingstandards identifying an evidentiary
burden. Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 US.602,
627 (1993). The Court resolved the issue by treatmgthe “incoherence” as ambiguity, and by
applying the one possible construction that did not raise constitutional issues. Id.at 628-30.
“See, e.g., Landgraf v. US1 Film Products, 51 1 U.S. 244, 263 (1994) (“the history of the
1991 [Civil Rights] Act conveys the impression that the legislators agreed to disagree about
whether and to what extent the Act would apply to preenactment conduct”).
Congress had intended such an irrational result, surely it would have expressed it in
Nor is it safe to assume that Congress can or will address directly and explicitly
all issues that may arise. “As one court has aptly put it, ‘[nlot 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.”64 The Court recently identified a pregnant statutory silence,
however, contrasting that silence with a consistent pattern in federal statutes under
which departures from a general rule had been expressly authorized.6s
While Congress cannot be expected to anticipate and address all issues that may
arise, the Court does sometimes assume that Congress will address major issues, at
least in the context of amendment. “Congress . . . does not alter the fundamental
details of a regulatory scheme in vague terms or ancillary provisions - it does not . . .
hide elephants in mouseholes.”66 This premise underlay the Court’s reasoning in
concluding that the FDA lacked authority to regulate tobacco. “Congress could not
have intended to delegate a decision of such economic and political significance to an
agency in so cryptic a fa~hion.”~’
A variation on the statutory silence theme is the negative inference, a principle
so venerable it is sometimes expressed in Latin: expressio unzus est exclusio alterzus
63FMCCorp. v. Holliday, 498 U.S. 52,66 (1990) (Justice Stevens, dissenting, objecting to
Court’sinterpretation of convoluted preemption language in ERISA).
64Bumsv. United States, 501 US. 129, 136 (1991) (quoting Illinois Dep’t of Public Aid v.
Schweiker, 707 F.2d 273,277 (7th Cir. 1983)).
6SDirector,OWCP v. Newport News Shipbuilding Co., 514 U.S. 122 (1995) (agency in its
governmental capacity is not a “person adversely affected or aggrieved” for purposes of
judicial review). See also United States v. Bestfoods, 524 U.S. 51,62 (1998) (“against this
venerable common-law backdrop, the congressional silence is audible”).
66Wbitmanv.AmericanTrucking Ass’us, Inc., 121 S. Ct. 903,909-10 (2001). SeealsoMCI
Telecommunications Corp. v. AT&T, 512 U.S. 218,231 (1994) (conferral ofauthorityto
“modify” rates was not a crqptic conferral of authority to make filing of rates voluntary);
Director of Revenue of Mo. v. CoBank, ACB, 121 S. Ct. 941, 945 (2001) (“it would be
surprising, indeed,” if Congress had effected a “radical” change in the law “sub silentio” via
“technical and conforming amendments”).
67FDAv. Brown &Williamson Tobacco Corp., 529 U.S. 120, 160 (2000). Ordinarily the
Court does not require reference to specific applications of general authority, but in this
instance (“hardly an ordinary case”) the Court majority attached importance to the FDA’s
longstandingdisavowal of regulatory authority, and to subsequently enacted tobacco-specific
legislation that stopped short of conferring authority to ban sale of the product.
(the inclusion of one is the exclusion of others). “Where Congress explicitly
enumerates certain exceptions to a general prohibition, additional exceptions are not
to be implied, in the absence of a contrary legislative intent.”68 The Court recently
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 , , , ,”69 But here again, context may render the
principle inapplicable. A statutory listing may be “exemplary, not exclusive,” the
Court recently con~luded.’~
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 mznzmis deviation from a prescribed
standard must . . . be determined with reference to the purpose of the ~tandard.”’~
There are a number of instances in which the Court stacks the deck, and
subordinates the general, linguistic canons of statutory construction, as well as other
interpretive principles, to overriding presumptions that favor particular substantive
results. Some of the “weighty and constant values” protected by these presumptions
are derived from the Constitution, and some are not.” Application of a presumption
results in some form of “clear statement” rule, requiring that Congress, if it wishes to
v. United States, 314 U.S. 527, 533 (1942)).
‘%emarest v. Manspeaker, 498 U.S. 184, 188 (1991). Congress quickly acted to override
this result andprohibitpaymentofwitnessfeestoprisoners, Pub. L. 102-417, 106Stat. 2138
(1992),the House Judiciary Committeeexpressingthe belief that “Congress never intended
that prisoners be paid witness fees. H.R. Rep. No. 194, 102d Cong., 1st Sess. 2 (1991).
”%ationsBank v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995) (endorsing
Comptroller of the Currency’s interpretation).
”Wisconsin Dep‘t of Revenue v. William Wrigley, Jr. Co., 505 U.S. 214, 231-32 (1992)
(company’s activities within the state clearly exceeded de mmimis, so company was subject
to state franchise tax). See also Abbott Laboratories v. Portland Retail Druggists, 425 U.S.
1, 18 (1976) (occasional emergency dispensation of drugs to walk-in patients is de minimis
deviationfrom Robinson-Patman Act’sexemptionforhospitals’purchase of supplies“fortheir
own use”); Industrial Ass’n v. United States, 268 U.S. 64, 68 (1925) (3 or 4 “sporadic and
doubtful instances” of interference with interstate commerce in what was in essence an
intrastate matter were insufficientto establish a violation of the Sherman Act).
72AstoriaFederal Savings &Loan Ass’nv. Solimino, 501 U.S. 104, 108-09(1991).
achieve a particular result inconsistent with the Court’sview of legal traditions, must
state such an intent with unmistakable clarity.” Legislative drafters need to be
especially careful whenever overriding presumptions may be implicated. To that end,
a number are briefly described below.
Departure from Common Law or Established Interpretation
There is a presumption favoring continuation ofjudge-made law. “The normal
rule of statutory construction is that if Congress intends for legislationto change the
interpretation of a judicially created concept, it makes that intent ~pecific.”~‘In
another case the Court declared that “[wle will not read the Bankruptcy Code to
erode past bankruptcy practice absent a clear indication that Congress intended such
This principle is thus closely akin to the principle noted above that,
when Congress employslegalterms of art, it normally adoptsthe meanings associated
with those terms.
Displacing State Law, Impinging on State Operations
The Supremacy Clause of the Constitution, Article VI,cl. 2, provides that valid
federal law supersedes inconsistent state law. Courts encounter difficulty in applying
this simple principle, however, especially when federal law is silent as to preemptive
effect. The Court usually begins preemption analysis “with 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.”76 If the statute in
question contains an explicit statement of preemptive scope, therefore, either
preempting state law or disclaiming intent to do so, that is usually the end of the
matter.77 The Court also, however, recognizes several categories of implied
73JudgeWald described one such presumption as requiring that Congress “signal[ ] its
intention in nwn lights.” Patricia M. Wald, Some Observations on the Use of Legislative
History in the 1981 Supreme Court Term, 68 IOWAL.REV.195,208 (1983). Seegenerally
pp. 206-14 ofthe article. See also William N. Eskridge, Jr. and Philip P. Frickey, QuasiConstitutionalikw:Clear Statement Rulesas ConstitutionalLawmahng, 45 VAND.L.REv.
74MidlanticNat’l Bank v. New Jersey Dep’t of Envt’l Protection, 474 U S . 494, 501 (1986)
(quoting Edmonds v. Compagnie Generale Transatlantique, 443 U S . 256,266-67 (1979)).
75PennsylvaniaPub. Welfare Dep’t v. Davenport, 495 U.S. 552, 563 (1990) (nonetheless
finding that the statutoIy language plainly evidenced an intent to depart from past practice).
76Ricev . Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Wisconsin Public Intervenor
v. Mortier, 501 U.S. 597,605 (1991).
77Astatementassertingpreemption or disclaiming intent to preempt must be clear not only as
to preemptive intent, but also as to scope. In International Paper Co. v. Ouellette, 479 U S .
481 (1987), for example, the Court ruled that some aspects of state law were preempted in
spite of a savings clause in the citizens suit provision of the Clean Water Act declaring that
“nothing in this section” should be read as affectingan injuredparty’sright to seek relief under
any statute or common law. Other parts of the Act outside of the citizens suit section were
read as implying preemption. “Because we do not believe Congress intended to undermine
preemption of state law, various formulations of which are that state law must give
way to federal law if there is a direct conflict between them, if implementationof state
law would “frustrate congressional purpose,” or if federal law has “occupied the field
of regulation. These latter two categories lack precision, and, almost always, the
surer course of legislative drafting is lo spell out intended preemptive effect.
In the same vein, the Court will not lightly infer that Congress has enacted
legislation that restricts how states constitute their own governments. In ruling that
state judges are not “employees” for purposes of the Age Discrimination in
Employment Act, the Court required a plain statement rule applicableto laws limiting
the authority of the States to determine the qualifications of their most important
government officials -an authority protected by the Tenth Amendment and by the
“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 inte~flere.”’~
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 in federal court, “Congress must
make its intention ‘unmistakably clear in the language of the statute.”’80 Congress,
of course, has limited authority to abrogate states’ Eleventh Amendment immunity;
the Court recently held in Seminole Tribe ofFlorida v. Florida, that Article I powers
may not be used to “circumvent the constitutional limitations placed upon federal
jurisdiction [by the Eleventh Amendment].”81This leaves Section 5 of the Fourteenth
Amendment as the principal source of power to abrogate state immunity.
Nationwide Application of Federal Law
Congress may, if it chooses, incorporate state law as federal law.82Federal law
and there is a presumption that,
usually applies uniformly n a t i o n ~ i d e however,
this carefully drawn statute [leaving a source state responsible for control of point-source
discharges within itsboundaries] through ageneralsavingsclause, we conclude that the CWA
precludes a court from applyingthe law of an affected state against an out-of-state source.”
78Greg0ryv.Ashcroft, 501 U S . 452 (1991).
79rd. at 461
*%ohanv. ConnecticutIncome Maint. Dep’t,492 U.S. 96,101 (1989) (quotingAtascadero
State Hosp. v. Scanlon, 473 U S . 234,242 (1985)).
“517 U S . 44, 73 (1996).
82See,e.g., the Assimilative Crimes Statute, 18 U.S.C. 8 13, goveming crimes within the
special maritime and territorial jurisdiction of the United States.
83Jeromev. United States, 318 U S . 101, 104(1943). TheJerome Court actually overstated
the case, citing United States v. Pelzer, 312 U.S. 399, 402 (1941), for the proposition that
“the application of federal legislation is nationwide.” Pelzer was far less sweeping, holding
only that “in light of their general purpose to establish a nationwide scheme of taxation
“when Congress enacts a statute . .
dependent on state law.”84
. it does not intend to make its application
Waiver of Sovereign Immunity
“[Tlhe Government’s consent to be sued ‘must be construed strictly in favor of
the sovereign.”’’5 Waiver of sovereign immunity must be effected by unequivocal
expression in the statutory text itself; legislative history “has no bearing” on the
issue.86 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
Non-retroactivity I Effective Date
There is a general rule, based on the unfairness of attaching new legal
consequences to already-completed 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 affirmativelyconsidered the potential unfairness of retroactive
application and determined that it is an acceptable price to pay for the countervailing
benefits.”89The prohibitions on expostfucto laws, of course, impose a constitutional
bar to retroactive application of penal laws.go
uniform in its application,”provisions ofthe revenue laws “should not be taken as subject to
statecontrol or limitation unless the language or necessary implication ofthe section involved
makes its application dependent on state law.” 3 12 U.S. at 402-03.
84Dickersonv. New Banner Inst., 460 US. 103, 119 (1983) (quoting NLRB v. Randolph
Elec. Membership Corp., 343 F.2d 60, 62-63 (4th Cir. 1965)).
‘%ited States v. Nordic Village, Inc., 503 U.S. 30,34 (1992); Ardestani v. INS, 502 US.
129, 137 (1991) (partial waiver).
‘%JnitedStates v. Nordic Village, supra n.85, 503 US. at 37. For criticism of the rule, see
John Copeland Nagle, Waiving Sovereign Immunity in an Age of Clear Statement Rules,
1995WISC.L. REV. 771, 836.
”UMW v. United States, 330 U.S. 258,272 (1947) (United States is not an “employer” for
purposes ofthe Norris-LaGuardia Act); Vermont Agency ofNat. Resources v. United States
ex rel. Stevens, 529 US. 765, 780-81 (2000) (state is not a “person” for purposes ofqui tam
liability under the False Claims Act).
“Gozlon-Per& v. United States, 498 U.S. 395,404 (1991) (“absent aclear direction. . . to
the contrary, a law takes effect on the date of its enactment”).
89Landgrafv. US1 Film Products, 511 U.S. 244, 272-73 (1994) (findmg no such clearly
expressed congressional intent with respect to the civil rights law’s new compensatory and
punitive damages remedies and the associated right to a jury trial).
5 9, cl. 3 prohibits Congress from enacbng expostfact0 laws; Art. I, 5 10 appliesthe
prohibition to the states. See Lynce v. Mathis, 519 U S . 433, 439 (1997); and Johnson v.
United States, 529 U.S. 694, 701 (2000), for general discussion.
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.”” “[Wlhere 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 C o n s t i t ~ t i o n . ” ~“~Grave doubt” as to
constitutionality does not arise simply because a Court minority - even a minority
of four Justices -believes a statute is unconstitutional; rather, a Court majority must
“gravely . . . doubt that the statute is con~titutional.”~~
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 ofthe 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
Judicial Review of Administrative Action
As a general matter, there is a “strong presumption that Congress intendsjudicial
review of administrative action.”95 This presumption is embodied in the
”United States v. Jin Fuey Moy, 241 U S . 394, 401 (1916); Almendarez-Torres v. United
States, 523 U.S. 224, 237-38 (1998); Jones v. United States, 120 U S . 1904, 1911 (2000).
92DeBartoloCOT. v. FloridaGulfCoast Trades Council, 485 U S . 568,575 (1988) (quoting
Hooperv. California, 155 U.S. 648,657 (1895)). Accord, Bums v. United States, 501 U S .
129, 138 (1991); Gollust v. Mendell, 501 US. 115, 126 (1991).
93Almendarez-Torresv. United States, 523 U S . 224,239 (1998) (citingRust v. Sullivan, 500
U.S. 173, 191 (1991), in which the Court concluded, over the dissent of four Justices, that
abortion counseling regulations “do not raise the sort of ‘grave and doubtful constitutional
questions,’. . . that would lead us to assume Congress did not intend to authorize their
94EEOCv. Arabian American Oil Co., 499 US. 244,248 (1991) (quoting Foley Bros, Inc.
v. Filardo, 336 US. 281,285 (1949)). See also Smith v. United States, 507 US. 197,20304 (1993) (interpretation of Federal Tort Claims Act as inapplicable in Antarctica is
reinforced by presumption against extraterritorialapplication). Cf:Hartford Fire Ins. Co. v.
California, 509 US. 764,796 (1993) (ShermanAct appliesto foreign conduct producing, and
intended to produce, substantial effects in United States).
95Bowenv. Michigan Academy of Family Physicians, 476 U.S. 667,670 (1986). See also
McNary v. Haitian Refugee Center, 498 U S . 479, 496 (1991) (“it is most unlikely that
Congressintendedto forecloseallformsofmeaningfuljudicial review,”giventhepresumption
Administrative Procedure Act, which provides that “final agency action for which
there is no other adequate remedy in a court [is] subject to judicial review.”96 The
Administrative Procedure Act applies “except to the extent that , , . statutes preclude
judicial review,”97and issues relating to application of the presumption usually arise
in determining whether there is “clear and convincing evidence”98 or “persuasive
reason to believe”99 that Congress intended to preclude judicial review. The
presumption 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.””’”
Deference to Administrative Interpretation
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 2000102and one in 2001,’03the 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 Congresshas authorized the agency
“to speak with the force of law.”’”‘ Other agency interpretations that are made
“that Congress legislates with howledge of our basic rules of statutory construction”).
965U.S.C. 8 704.
”5 U.S.C. 8 701(a).
98Lindahlv. OPM, 470 U S . 768, 778 (1985) (provision in Civil Service Retirement Act
stating that OPM’s “decisions . . . concerning these matters are final and conclusive and are
not subjectto review”interpretedas precluding review only of OPM’sfactual determinations,
but as not precluding review of legal interpretations). The Lindahl Court contrasted other
statutory language said to be “far more unambiguous and comprehensive” in precluding
review. Id. at779-80&n.13 (citing5U.S.C. $8128(b)(“actionoftheSecretaly.. .isfinal
and conclusive for all purposes and with respect to all questions of law and fact”); and 38
U.S.C. $21l(a) (“decisionsofthe Administrator on any question of law or fact . . . shall be
h a l and conclusive and no other official or any court of the United States shall have power
or jurisdiction to review any such decision”).
9AbbottLabs. v. Gardner, 387 U S . 136, 140(1967)(predorcement review ofregulations
under Federal Food, Drug, and CosmeticAct is not precluded as a result ofnegativeinference
arising from fact that Act has explicit authorizationfor review of other kinds of regulations).
’“Block v. Community Nutrition Inst., 467 U S . 340, 349 (1984) (judicial review of milk
marketing ordersnot availableto consumers). Accord, United Statesv. Fausto, 484 U S . 439,
452 (1988) (congressionalhtent to precludejudicial review is clear from the purposes ofthe
Civil ServiceReform Act, from the entirety of its text, and from the structure ofthe statutory
“‘Chevron U S A . v. Natural Resources Defense Council, 467 U.S. 837 (1984).
’“*Christensenv. Harris County, 529 U S . 576 (2000).
‘“’United States v. Mead Corp. 121 S. Ct. 2164 (2001).
‘04A4eadC orp., 121 S. Ct. at 2172.
without the protections of a formal and public process are reviewed under preChevron principles set forth in Skidmore v. Swift & CO.~O~
If Chevron applies, the first question is “whether Congress has directly spoken
to the precise question at issue.”lo6 If the court, “employing the traditional tools of
statutory construction,” determines that Congress has addressed the precise issue,
then that is the end ofthe matter, because the “law must be given effect.”’” But ifthe
statute does not directly address the issue, then “the court does not simply impose its
own construction ofthe statute,” but rather determines “whether the agency’sanswer
is based on a permissible construction of the statute.””’8
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 ofthe 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.”’ Surprisingly, however, Chevron did not usher in an era of
increased deference by the Supreme Court. The Court has frequently determined that
in fact Congress h
s 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.”’
How the Court determines whether Congress has “directly addressed” an issue
takes on critical importance. Chevron is not a strong “clear statement” rule, since the
Court has considered legislative history as well as text in assessing the controlling
weight of statute.”’ And even when relying solely on text, the Court has not adhered
‘“Chevron, 467 U S . at 842.
’”467 U.S.at 843 n.9.
‘“Id. at 843
’”See, e.g., Sullivan v. Everhart, 494 U.S.83 (1990) (regulations are a reasonable
interpretation of Social Security Act); Smiley v. Citibank (South Dakota), 517 U S . 735
(1996)(upholdingComptrollerofthe Currency’sinterpretationof 1864Bank Act); and Lopez
v. Davis, 121 S. Ct. 714, (2001) (Bureau of Prisons regulation denying early release is
reasonable interpretation of discretionary authority).
“‘See, e.g., Sullivan v. Zebley, 493 U S . 521 (1990) (regulations “are simply inconsistent
with the statutory standard); and Dole v. Steelworkers, 494 U S . 26 (1990) (deference to
OMB interpretation of Paperwork Reduction Act is foreclosed by Court’s finding of clear
congressional intent to contrary).
”’Whitman v. American Trucking Ass’ns, Inc., 121 S.Ct. 903 (2001)
Il2See,e.g.,Dunnv. CFTC, 519 U S . 465,473-74 (1997)(legislativehistorysupportsCourt’s
conclusion that statute is clear and agency’sinterpretation is untenable). See also Babbitt v.
Sweet Home Chapter, 515 U S . 687, 708 (1995)(Court concludes, “based on the text,
structure,and legislativehistory ofthe ESA, that the Secretaryreasonablyconstruedtheintent
strictly to the original Chevron step-one formulation, sometimes instead employing
a broad textualist approach that emphasizes “plain meaning” and abandons inquiry
into whether Congress has addressed the “precise question” at issue.113This “plain
meaning” alternative has the effect of expanding the circumstances under which the
Court can resolve a case on statutory grounds rather than proceeding to stage two
and deferring to an agency’s interpretation.
The Court has recognized that there are some circumstances in which it is less
likely that Congress intended to leave resolution of statutory ambiguity to the
administering agency.’14 Thus, in holding that the FDA lacked authority to regulate
tobacco products, 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 f a s h i ~ n . ” ”Rather
than finding Chevron analysis inapplicable, however, the
Court ruled that Congress had “directly spoken” to the regulatory issue - not through
the FDCA itself, but rather through subsequentlyenacted tobacco-specific legislation
and through rejection of legislative proposals to confer jurisdiction on the FDA.116
In another case, the Court deemed 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 ofvalidity.”Il8 The fact that an agency
has changed its position over the years “is not fatal,” because “the whole point of
of Congress” in deiining “harm”)
II3See,e.g.,KMartCorp. v. Cartier,Inc.,486U.S. 281,291 (1988)(courtsshouldlook”to
the particular statutory languageat issue, as well as the language and design of the statute as
a whole” in order to ascertain statute’s “plain meaning”); Ohio Pub. Employees Retirement
Systernv. Betts, 492 U.S. 158,171 (1989) (“no deference is due to agency interpretations at
odds with the plain language of the statute itself”).
II4See,e.g., MCI TelecommunicationsCorp. v. AT&T Co., 5 12 U.S. 218,231 (1994) (“it is
highly unlikely that Congress would leave the determinationof whether an industry will be
entirely, or even substantially,rate-regulated to agency discretion”).
Il5FDAv. Brown &Williamson Tobacco Corp., 529 U S . 120, 160 (2000).
II6Tbe subsequent legislation created “a distinct regulatory scheme for tobacco
products.” 529 U S . at 159. As Justice Breyer’s dissent pointed out, tobacco products
clearly fell within the generally worded jurisdictional definitions of the Food, Drng, and
Cosmetic Act, and it was also clear that Congress had not spoken directly to the issue
anywhere else in that Act. 529 U.S. at 162.
“’Solid Waste Agency v. Army Corps of Engineers, 121 S. Ct. 675,683 (2001)
“8Smileyv.Citibank(SoutbD&ota), 5 17 U S . 735,740 (1996) (upholdingregulation issued
more than 100 years after statute’senactment).
Chevron is to leave the discretion provided by the ambiguities of a statute with the
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 ofwhich lack the force of law”12o)can still
be “entitled to respect” under the Skzhore decision,121“but only to the extent that
[they] have the power to persuade.”’22 To make this determination, courts look to
such factors as whether an interpretation dealt with technical and complex matters
that fell within an area of agency expertise,123whether an agency’s decisionwas well
reasoned,lD whether the agency’s interpretation was contemporaneous with the
statute’s e n a ~ t m e n t , and
’ ~ ~whether the agency’s interpretation was longstanding or
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 existinglaw,” “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.”I2’ 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.”128Only
’191d.at 742. In other words, the Court presumes ‘‘that Congress, when it left ambiguity in
a statute meant for implementation by an agency, understood that the ambiguity would be
resolved, first and foremost, by the agency . . . .” Id. at 740-41.
Harris County, 529 U.S. 576,587 (2000).
’z’Skidmorev. Swift & Co., 323 U.S. 134 (1944).
’22Christensenv. Harris County, 529 U.S. at 587. As the Court put it in Skidmore, agency
interpretations “constitute a body of experience and informedjudgment 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 prononncements, and all those factors which give it power
to persuade, if lacking power to control.” 323 U.S. at 140.
‘”See, e.g., Aluminum Co. v. Central Lincoln Util. Dist., 467 U.S. 380, 390 (1984)
’24See,e .g., Investment Co. Inst. v. Camp, 401 U.S. 617, 626-27 (1971).
‘”See, e.g., Udallv. Tallman, 380 U.S. 1, 16 (1965)
‘*‘See, e.g., General Electric Co. v. Gilbert, 429 U.S. 125, 142-43 (1976)
’27UnitcdStates v. Fausto, 484 U S . 439,453 (1988).
”8Wattv. Alaska, 451 US.259,267(1981). SeealsoLewisv.Lewis&ClarkMarine,Inc.,
121 S. Ct. 993 (2001) (reconciling “tension” between the saving to suitors clause and the
if provisions of two different federal statutes are “irreconcilably ~onflicting,”’~~
the later act covers the whole subject of the earlier one and is clearly intended as a
s u b ~ t i t u t e , ” will
’ ~ ~ courts apply the rule that the later of the two prevails. “[Rlepeals
by implication are not favored, . . . and will not be found unless an intent to repeal is
clear and manife~t.”’~’
As Judge 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.”132
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.’33 But, in the case of an irreconcilable
conflict between two laws ofthe same session, the later enactment will be deemed to
have repealed the earlier one to the extent of the conflict.i34 Because the focus here
is on legislative intent (or presumed legislative intent), time of legislative
Limitation of Liability Act); Ruckelshaus v. Monsanto Co., 467 U S . 986, 1017-18 (1984)
(rejecting a contention that the Federal Insecticide, Fungicide, and Rodenticide Act repealed
by implication a Tucker Act remedy for governmental taking of property without just
compensation,and reconciling the two statutesby implyinga requirementthat remedies under
FIFRA must be exhausted before relief under the Tucker Act could be obtained). But see
Stewart v. Smith, 673 F.2d 485, 492 (D.C. Cir. 1982) (inkrpretq a statute authorizing
agency heads to set maximum age limits for law enforcement officersas an exceptionto the
Age Discriminationin EmploymentAct). Even though the laws might have been harmonized
through a “strained reading,” the court concluded that doing so would thwart the maximum
age law’s sense and purpose. The Stewart court relied on legislativehistory to find a “clear”
congressional intent “to employ maximum entry ages as a means towards securing a ‘young
and vigorous’ work force of law enforcementofficers,”and concludedthat furtherance of this
policy required “consideration of factors not ordinarily accounted for” under ADEA
I2wattv. Alaska, supra n.128, at 266.
’30Posadasv. National City Bank,296 U S . 497,503 (1936).
‘31Rodriguezv. United States, 480 U.S. 522,524 (1987) (citationsomitted). See also Morton
v. Mancari, 417 US.535,550-51 (1974). For an instance in whichthe Court found repeal
by implication, see ArgentineRepublic v. Amerada Hess Shipping Corp., 488 U S 428,438
(1989) (concluding that Congress had intended to “deal comprehensively with the subject of
foreign sovereign immunity in the [Foreign Sovereign Immunities Act of 19761,” and that
consequently suit against the Argentine Republic could not be brought under the Alien Tort
888F,2d511,516(7thCir. 1989). Ontheplusside,themle
serves the “superior values of harmonizing different statutes and constraining judicial
discretion in the interpretation of the laws.” Astoria Federal Savings & Loan Ass’n v.
Solimino, 501 U.S. 104, 109 (1991).
‘33Pullenv.Morgenthau, 73 F.2d 281 (2d Cir. 1934).
STATUTES AND S’TATUTOKYCONSTRUCTION $23.17 (NOm%Ul J. Singer,
ed., 5th ed. 1993).
consideration, rather than effective dates of the statutes, is the key to determining
which enactment was the ‘‘later’’
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.’36
Nevertheless, Congress can repeal substantive law through appropriations measures
if intent to do so is clearly e~pressed.’~’
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.”’38 Lenity principles “demand resolution of ambiguities in criminal statutes
in favor of the defendant.”’39The reasons for the rule are that “‘fair warning should
be given to the world in language that the common world will understand, ofwhat the
law intends to do if a certain line is passed”’ and that “‘legislatures and not courts
should define criminal a ~ t i v i t y . ” ”If~statutory
language is unambiguous, the rule of
lenity is inappli~able.’~’
Intent is generally a required element of a criminal offense, and consequently
there is a presumption in favor of a scienter or men8 rea requirement in a criminal
statute. The presumption applies “to each of the statutory elementswhich criminalize
otherwise innocent conduct.”’” The Court may read an express scienter requirement
136TVAv. Hill, 437 U.S. 153, 190 (1978).
States v. Will, 449 U.S. 200, 222 (1980).
”‘United States v. Gradwell, 243 U.S. 476,485 (1917).
”%ugheyv. United States, 495 U.S. 411,422 (1990). See also Jnited States v. Gran erson,
511 U S . 39, 54 (1994) (“In these circumstances - where text, structure, and [legislative]
history fail to establish that the Government’sposition is unambiguously correct -we apply
the rnle of lenity and resolve the ambiguity in [the defendant’s]favor”); Cleveland v. United
States, 121 S. Ct. 365, 374 (2000)(before choosing a “harsher alternative”interpretation of
the mail fraud statute, “it is appropriate . . . to require that Congress should have spoken in
language that is clear and definite”).
‘40Ratzlafv.United States, 510 U S . 135,148-49(1994)(quotingBoyle v. UnitedStates, 283
U.S. 25,27 (1931) (JusticeHolmes for Court)).
I4’Beechamv United States, 5 11 U.S. 368.374 (1994) (quoting Chapman v. United States,
500U.S.453,463-64 (1991)).Accurd,NationalOrg.forWomenv. Scheidler,510U.S.249,
I4*UnitedStates v. X-Citement Video, Inc., 513 U.S. 64,72 (1994)
more broadly than syntax would require or normally permit,’43 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 h d l or injurious and that is therefore unlikely
to be perceived as lawful and i n n ~ c e n t . “ D
~ etermining whether such an exception
applies can be difficult.I6 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 ofthe appropriate phrase from the statutory definition
is necessary to justify dispensing with an intent req~irement.”’~’
One can search in vain for recent Supreme Court reliance on the canon that
“remedial statutes” should be “liberally” or “broadly” construed.’48 This is probably
reluctance to simply follow the most grammatical reading of the statute is heightened
by our cases interpretingcriminal statutesto includebroadly applicablescienter requirements,
even where the statute by its terms does not contain them.” X-Cifernent Video, 513 U S . at
70. See also Staples v. United States, 511 U.S. 600 (1994) (National Fireanns Act
interpreted to require that defendant knew that the weapon he possessed was a “fiream”
subject to the Act‘s registration requirements); and Liparota v. United States, 471 U S . 419
(1985) (“knowingly” read as modifying not only operative verbs “uses . . . or possesses,” but
also “in a manner not authorized).
’44Posters‘N’ Things, Ltd. v. United States, 511 U.S. 513 (1994) (interpreting drug
paraphernalia law as requiring that merchant knew that customers in general arc likely to use
the merchandise with drugs).
145See,e.g., United States v. Dotterweich, 320 U.S. 277 (1943) (upholding punishment of
corporate officer whose company shipped misbranded and adulterated drugs in violation of
Food and Drug laws); United States v. Freed, 401 U.S. 601 (1971) (upholding conviction
under National Fireams Act for possession of unregistered hand grenades; Act does not and
need not require proof of knowledge that weapons were not registered).
United States v. Freed, 401 U.S. 601 (1971) (knowledge ofunregistered status
of hand grenades not required for conviction under National Firearms Act) with Staples v.
United States, 511 U S . 600 (1994) (conviction under the Firearms Act must be predicated
on defendant’s knowledge of the particular characteristics making a semi-automatic rifle
convertible to a machine gun and hence subject to registration requirement). The Stuples
Court distinguished Freed, partly on the basis that, given the “long tradition of widespread
lawful gun ownership by private individuals in this country,” possession of a semi-automatic
rifle should not be equated with possession of hand grenades. See 51 1 U.S. at 610-12.
‘‘’Unitcd States v. United States Gypsum Co., 438 U S . 422,438 (1978) (applying principle
to Sherman Act violation).
I4*Fornot-so-recent reliance on the canon, see Peyton v. Rowe, 391 US. 54, 65 (1968)
(petitioner IS “in custody” in violation of Constitution for purposes of federal habeas corpus
statute if any of consecutive sentences he is scheduled to serve was imposed as a result of
deprivation of his rights); Tcherepnin v. Knight, 389 U.S. 332,336 (1967) (term “security”
should be construed broadly, in part because “Securities ExchangeAct quiteclearly falls into
the category of remedial legislation”); and Chishohu v. Georgia, 2 U S . (2 Dall.) 419, 475
(1793) (opinion of Chief Justice Jay) (Constitution’s extension of judicial power over
controversiesbetween a state and citizens of another state is “remedial, [and]therefore, to be
due to a variety of factors, including recognition that the principle is difficult to apply
and almost hopelessly general.I4’ In a sense all statutes are “remedial,” and
consequently courts have wide discretion in determining scope of application. There
may also be uncertainty over what “liberal” or “broad” construction means.’so But 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.lS2 Absence of this principle from 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,”3 or may instead prefer in such circumstances to analyze a
statute without reliance on canonical crutches. Categorizing a statute as “remedial,”
or even as a “civil rights statute,” is no substitute for more refined analysis of the
purposes of the particular statute at iss~e.’~‘
‘49TheCourt recently referredto a variant ofthe canon (a statute should be liberally construed
to achieve its purposes) as “that last redoubt oflosing causes,”explaining that “[elvery statute
proposes, not only to achieve certain ends, but also to achieve them by particular means and there is often a considerable legislative battle over what those means ought to be.”
Director, OWCP v. Newport News Shipbuilding, 514 U.S. 122, 135-36 (1995).
‘50JusticeScalia has inveighed againstthe maximin a lecture reprinted as a law review article,
calling it a ‘‘prime example[ ] of lego-babble.” The rule, Justice Scalia concluded, “is both
of indeterminate coverage (since no one knows what a ‘remedial statute’ is) and of
indeterminate effect (since no one h o w s how liberal is a liberal construction).” Antonin
‘”See, e.g., Smithv. Heckler, 820 F.2d 1093, 1095 (9th Cir. 1987) (Social Security Act “is
remedial, to be construed liberally . . . and not so as to withhold benefits in marginal cases”).
is not to say, however, that the same fairness considerations that underlie the rule of
lenityjustify application of the “remedial statute” rule.
I5?ree, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991) (“provisions for
benefits to members of the Armed Services are to be construed in the beneficiaries’favor”);
FDICv.Meyer,510 U.S. 471,480(1994)(“sue-and-be-suedwaiversofsovereignimmunity
should be liberally construed).
’54See,e.g., Felder v. Casey, 487 U S . 131, 149 (1988) (“the Congress which enacted [42
U.S.C.] g 1983over 100years ago would have rejected [a requirement of exhaustionof state
remedies] as inconsistent with the remedial purposes of its broad statute”); Sullivan v. Little
Hunting Park, 396 U.S. 229, 237 (1969) (“A narrow construction of 4 1982 would be
inconsistent with the broad and sweeping nature of the protection meant to be afforded by 6
1ofthe Civil Rights Act of 1866”);Northeast Marine Terminal v. Caputo, 432 U S . 249,268
(1977) (“The language of the 1972Amendments [tothe LHWCA] is broad and suggests that
we should take an expansive view of the extended coverage. Indeed such a construction is
appropriate for this remedial legislation.”)
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 t o favor Indians.”L55Most cases resolving issues relating to tribal matters
implicate some variation of this p r o p ~ s i t i o n , but
’ ~ ~frequently there are also statutespecific considerations that amplify’57or outweighI5’ any such generalities.
Common Usages and Interpretations
Findings and Purposes Sections
In applying the general principle that statutory language should be interpreted
in a manner consistent with statutory purpose, courts naturally look to the stated
purposes of legislation in order to resolve ambiguities in the more specific language
of operative sections. For example, the Court relied in part on N C O s broad purpose
of seeking “the eradication of organized crime in the United States,” to conclude that
the term “enterprise” as used in the Act includes criminal conspiracies organized
solely for illegitimate purposes, and is not limited to legitimate businesses that are
infiltrated by organized crime.’*’
It is easy, however, to place too much reliance on general statutoly purposes in
resolving narrow issues of statutory interpretation. Legislation seldom if ever
lS5Bryanv. Itasca County, 426 U S . 373, 392 (1976) (quoting Alaska Pacific Fisheries v.
United States, 248 U.S. 78, 89 (1918)). An even less restrictive statement is the following:
“statutes are to be construed liberally in favor of the Indians, with ambiguous provisions
interpreted to their benefit.” Montana v. Blackfeet Tribe, 471 U S . 759,766 (1985).
e.g.,Washgtonv. ConfeederatedTribes,447U.S.134,154 (1980)(tribalsovereignty
is subordinate only to the federal government, not to the states); Bryan v. Itasca County, 426
U S . 373, 393 (1976) (states may tax reservation Indians only if Congress bas indicated its
consent); Hagen v. Utah, 510 US. 399,411-12 (1994) (mild presumption against statutory
diminishment of reservation land).
I5’See, e.g., California v. Cabazon Band of Mission Indians, 480 U S . 202, 214-22 (1987)
(federal policy promoting tribal self-government and self-sufficiency,reflected in numerous
statutes, is frustrated by state and county restrictions on operation of bingo and card games,
profits from which were Tribes’ sole source of income).
’”See, e.g., Negonsott v. Samuels, 507 U.S. 99, 110 (1993) (fact that Kansas Act
unambiguouslyconfersjurisdictionon Kansascourts overcrimes on reservationsmakes resort
to canon inappropriate).
‘59UnitedStates v. Turkette, 452 US. 576, 588-90 (1981) (relying on RICO statement of
findings andpurpose, 18U.S.C. 8 1961nt.). Seealso Knebel v. Hein, 429U.S. 288,292n.9
(1977) (rejecting,in view of Secretaryof Agriculture’sbroad discretionto administerthe Food
Stamp Program, and in view of broad purpose of Act to “increase Fouseholds’] food
purchasing power” (7 U.S.C. g 2011), a holding that the Secretary lacked authority to
determinethat receipt ofcommutingexpenses to attend a training program should be counted
as household “income” determining eligibility for food stamps).
authorizes each and every means that can be said to further a general purpose,I6’ and
there is also the possibility that stated or inferred purposes may in some instances
c o d i c t with one another.I6’
“Sense of Congress” Provisions
“Sense of Congress” language is appropriate if Congress wishes to make 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.’62 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.”163
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 ofthe statute.”164Inclusion 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 savingslanguage 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 interpretati~n.’~~
‘60“[N]0legislationpursues its purposes at all costs. Deciding what competingvalues will or
will not be sacrificed to the achievement of a particular objective is the very essence of
legislative choice - and it frustrates rather than effectuates legislative intent simplistically
to assumethat whatever furthersthe statute’sprimary objective must be the law.” Rodrrmez
v. UnitedStates, 480 U.S. 522, 525-26 (1987) @er curium)
’“Compare Justice Brennan’sopinion of the Court in Mississippi Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 50-5 1 (1989) (Congress used undefined term “domicile” so as to
protect tribal jurisdiction in child custody cases), with Justice Stevens’ dissent, id at 54
(Congressintended to protect the parents as well as the tribe).
162Monahanv. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 994-95 (1st. Cir. 1992)
(“sense of Congress”that each state“should review and revise its laws to ensure servicesfor
mental health patients); Yang v. California Dep’t of Social Services, 183 F.3d 953, 958-61
(9th Cir. 1999) (“sense of Congress” that Hmong and other Lao refugees who fought in
Vietnam war “should be considered veterans for purposes of receiving certain welfare
‘63SeeAccardi v. Pennsylvania R.R., 383 U.S. 225, 229 (1966) (“sense of Congress” that
reemployed veterans should not lose seniority as a result of military service evidenced
“continuing purpose” already establishedby existinglaw); StateHighway Comm’nv. Volpe,
479 F.2d 1099, 1116 (8th Cir. 1973) (“sense of Congress” language “can he useful in
resolving ambiguities in statutory construction,”and in reinforcing meaning of earlier law).
IMPMC,Inc. v. Sherwin-Williams Co., 151 F.3d 610,618 (7th Cir. 1998)
‘6SSee,e.g., 30 U.S.C. p 189, which provides that notbmg in the Mineral Leasing Act shall
be construed to affect the rights of state and local governments to levy and collect taxes on
cases, the legislative history of the savings provision can reveal its purpose.’66 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 camers, 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. “[Tlhe act cannot be said to destroy itself,” the Court
Even very clear savings language will not be allowed to thwart what
the Court views as the objective of the federal enactment.’68
“NotwithstandingAny Other Provision of Law”
Congress sometimes underscores statutory directives by requiring that they be
undertaken “notwithstanding any other provision of law.” This phrase seldom aids
interpretation. It is the statutory equivalent of a parent telling a child “I’mserious,’’
or “I really mean it.” Despite the admonition, courts and administrators still must
determine what the underlying directive means. And, ordinarily, there will still be
other provisions of law that apply; the trick is to determine which ones.169Courts
have recognized these difficulties. One court, for example, ruled that a directive to
proceed with offering and awarding of 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 setimprovements and “output of mines.” The Supreme Court relied on this language in holding
that states may impose severance taxes on coal extracted from federal lands. Commonwealth
Edison Co. v. Montana, 453 U.S. 609,631-33 (1981).
e.g.,Memll, Lynch, Pierce, Fenner, & Smithv. Curran, 456 U S . 353,386-87 (1982)
(“saving clause” stating that amendment to Commodity Exchange Act was not intended to
“supersede or limit the jurisdiction” of state or federal courts, placed in the bill to alleviate
fears that the new remedies would be deemed exclusive, was an indication of congressional
intent not to eliminate an implied private right of action under the Act).
I6’Adams Express Co. v. Croninger, 226 U S . 491, 507 (1913). Accord, AT&T v. Central
Office Tel., Inc., 524 U.S. 2 14,227 (1998). In City of Milwaukee v. Illinois, 45 1 U.S. 304,
328-29 (1981), the Court held that the Federal Water Pollution Control Act of 1972 created
a comprehensiveregulatoryprogrm that eliminatedpreviously availablefederalcommonlaw
remedies. Savings language in the citizen suit section providing that “nothug in this section
shall restrict any right which any person. . . may haveunder. .. common law” was irrelevant,
sinceit was the Act’s standards-settingand permitting provisions, not the citizen suit section,
that ousted federal common law.
168See,e .g., Geier v. American Honda Motor Co., 529 U.S. 861 (2000) (state common law
negligence action against auto manufacturer is preempted by a federal motor vehicle safety
standard in spiteof statute’ssavingclauseproviding that “compliance with” a safety standard
“does not exempt any person from any liability under common law’?.
1691nthis sense, the statutoryphrase is analogous to a parent telling a child “don’tunder any
circumstances leave the house until I return.” The parent doesn’treally mean for the child to
remain under any and all circumstances, but instead assumes that the child will try to get out
if the house catches on fire or some other emergency occurs.
asides, and export restriction^.'^^ “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.”’7’ In the few instances
in which the “notwithstanding” phrase may be marginally helpkl to interpretation, it
still must play second fiddle to a clear and unambiguous statement of the underlying
dire~tive,’~’and it is not as helphl as spelling out which other laws are to be
”“Oregon Natural Resources Council v. Thomas, 92 F.3d 792 (9th Cir. 1996). The court
harmonized the “notwithstandx& phrase with other provisions of the act that pointed to the
I7’1d.at 796. The Three-Sisters Bridge saga offers another example. After a court decision
had ordered a halt to construction ofthe bridge pending compliancewith various requirements
in D.C. law for public hearings, etc., the project was abandoned. Congressthen directedthat
constructionproceed on the bridge project and related highway projects “notwithstandingany
other provision of law, or any court decision or administrative action to the contrary.” The
same section,however, directedthat “such construction shall be carried out in accordance
with all applicableprovisions oftitle 23 ofthe United States Code.” The federal appealscourt
held that, notwithstandingthe “notwithstandx& language, compliancewith federal highway
law in title 23 (including requirements for an evidentiary hearing, and for a finding of no
feasible and prudent alternativeto use of parkland) was still mandated. D.C. Fed’n of Civic
Ass’ns v. Volpe, 434 F.2d 436 @.C. Cir. 1970). Then, following remand, the same court
ruled that compliance with 16 U.S.C. 5 470f, which requires consultation and consideration
of effects of such federally fimded projects on historic sites, was also still mandated. 459 F.
2d 1231, 1265 (1972).
e.g., Schneiderv.United States, 27 F.3d 1327, 1331 (8th Cir. 1994). Thecourtthere
rejected an argument that language in the Military Claims Act (‘“n]otwithstanding any other
provision of law, the settlement of a claim under section 2733 . . . of this title is final and
conclusive”) does not preclude judicial review, but merely cuts off other administrative
remedies. Noting different possible interpretationsof “final,”“final and conclusive,” and the
provision’sactual language, the court concludedthat “[tlo interpretthe section as precluding
only further administrativereviewwould be to render meaninglessthe phrase ‘notwithstanding
any other provision of law.”’
‘ 7 3 Tbe
~ sure, not every potential roadblock can be anticipated and averted by narrowly
tailored language, and broad language may be necessaryto ensure that statutory purposes are
not frustrated. But, in spite of the interpretation in Schneider, supra n.172, the
“notwithstanding”phrase is a blunt instrument. The Trans-AlaskaPipelineAuthorizationAct
is a better model for such situations. That Act directed that the Pipeline “be constructed
promptly without further administrative or judicial delay or impediment,” specified that
construction was to proceed generally in accordance with plans set forth in the alreadyprepared Final Environmental Impact Statement, declared that no further action was to be
requiredunder the National EnvironmentalPolicy Act, specifiedwhich subsectionsofthe law
governing rights-of-way across federal land (a law that had been relied upon in earlier
litigation to enjoin the project) were to apply, and severely limited judicial review See 43
U.S.C. 8 1652. For a less complete identification of laws to be disregarded, and some
concomitant interpretationalproblems, seeNorfolk & Western Ry. v. Train Dispatchers, 499
U S . 117, 138-39 (1991) (two dissenting Justices dispute Court’s conclusion that the
exemption of a carrier in a rail consolidation from “the antitrust laws and all other law,
including State and municipal law,” comprehended an exemption from the terms of a
collective bargaining agreement).
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 zmpZicitZy creates
~ the Supreme Court
traces to the old view that every right must have a r e m e d ~ . ”As
put it in an early implication 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.”’76 The
Court has gradually retreated from that position,’77 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,
~ ~ the Court has attempted to explain that it
why did it not do so e ~ p l i c i t l y ? ’While
does not m e a n u ~ t u u l i n t e n t ,the
’ ~ ~test now seems weighted against finding an implied
is at issue in these cases is usually whether a federal statutecreates a right in a private
individual to sue another private entity. Persons alleging that federal statutory rights have
been violated by state or local governmental action may sue under 42 U.S.C. 5 1983.
’ 7 S M a r b uv.~Madison, 5 U S . (1 Cranch) 163 (1803) (citing Blackstone’s Commentaries).
’76Texas&Pacific Ry. v. Rigsby, 241 U.S. 39-40 (1916).
‘77See,e.g., Cort v. Ash, 422 U.S. 66 (1975) (creating a four-part test to determine whether
a private right of action was implied, one part of which was congressionalintent); and Touche
Ross & Co. v. Redington, 442 U.S. 560,575 (1979) (calling congressional intent the “central
17’There may be plausible answers for some older statutes. Congress may have enacted the
law at a time when the old rule held sway favoring remedies for statutory rights, or Congress
may have patterned the language after language in another law that had been interpreted as
creating a private right ofaction. See, e.g.,Cannon v. University of Chicago, 441 U S . 677,
710-11 (1979) (Congress patterned Title IX of Civil Rights Act after Title VI, and believed
that Title VI was enforceable by private action).
focus on congressional intent does not mean that we require evidence that Members
of Congress, in enacting the statute, actually had in mind the creation of a private right of
action. The implied cause of action doctrine would be a virtual dead letter were it limited to
correcting drafting error when Congress simply forgot to codify its evident intention . . . .”
This “intention,” the Court went on, “can be inferred from the language of the statute, the
statutory structure, or some other source.” Thompson v. Thompson, 484 U.S. 174, 179
(1988). Concurring in the same case, Justice Scalia found himself “at a loss to imagine what
congressional intent to create a private right of action might mean, if it does not mean that
Congress had in mind the creation of a private right of action.” Id. at 188. Justice Scalia
instead advocated “[a] flat rule that private rights of action will not be implied in statutes
hereafter enacted,” explaining that “[a] legislative act so significant, and so separable from
the remainder of the statute, as the creation of a private rigbt of action seems to me so
implausibly left to implication that the risk should not be endured.” Id. at 192.
private cause of action.180 Legislative drafters wishing to create a private right of
action should therefore do so explicitly.
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.I8’ 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.”’82
When one section of a law is held unconstitutional, courts are faced with
determining whether the remainder ofthe 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”’83 Congress
frequently includes aproforma severability clause in a statute,Ig4and this reinforces
a “presumption” of severability by removing much of the doubt about congressional
intent.185A severability clause does not guarantee, however, that what remains of a
’gosee,e.g.,Alexanderv. Sandoval, 121 S. Ct. 1511 (2001)(thereisnoprivaterightofaction
to enforce disparate-impactregulations issued under the general regulation-issuing authority
of section 602 of Title VI of the Civil Rights Act; even though a private right of action does
exist to enforce the antidiscrimination prohibition of section 601, the disparate-impact
regulations “do not simply apply 5 601,” but go beyond it). For analysis of the whole topic,
including the changing approach by the Court, see Susan J. Stabile, The Role of
CongressionalIntent in Determining the Existence ofImplied Private Rights of Action, 7 1
NOTREDAMEL REV.861 (1996).
’*‘2A SUTHERLAND, STATUTESAND STATUTORY INTERPRETATION, 5 5 1.07(Sands, 4th ed.
IS2Id.A clear example of a general incorporation was afforded by 5 20 of the Jones Act,
providing that in an action for wrongful death of a seaman, “all statutes of the United States
conferring or regulatingthe right of action for death in the case of railway employees shall be
applicable.” As the Court explained in Panama R.R. Co. v. Johnson, 264 U S . 375, 391-92
(1924), this “generic reference” was “readily understood” as a reference to the FELA and its
’83AlaskaAirlines, Inc. v. Brock, 480 U.S. 678,684 (1987) (quoting Buckley v. Valeo, 424
U.S. 1, 108 (1976)).
See, e.g., 2 U.S.C. 5 1438 (4 509 of the Congressional Accountability Act of 1995): “If
any provision of this Act or the applicationof such provision to any person or circumstance
is held to be invalid, the remainder o f this Act and the application of the provisions of the
remainder to any person or circumstanceshall not be affectedthereby.” These provisions are
also sometimes called “separability” clauses. See, e.g., 29 U.S.C. 5 114.
I8’Alaska Airlines, 480 US. at 486. Absence of a severability clause does not raise a
presumption against severability. New York v. United States, 505 U.S. 144, 186 (1992).
statute after a portion has been invalidated is “hlly operative”; courts sometimes find
that valid portions of a statute cannot stand on their own even though Congress has
included a severability clause.’86 Far less frequently, Congress includes non
severability language providing that remaining sections of a law shall be null and void
if apart (sometimes a specified part) is held unconstitutional.18’ Case law is sparse,lg8
but there is no apparent reason why courts should rehse to honor a clearly expressed
Plain Meaning Rule
The plain meaning rule, which purports to bar courts from relying on legislative
history when statutory language is plain, is often the semantic bridge to a court’s
consideration of legislative history. That is to say, a court that actually relies on
legislative history will usually do so only after expressing a belief that the statutory
language is not plain, but instead is unclear or “ a m b i g u o ~ s . ” Significant
arise, however, in the willingness of courts to label particular statutory language as
“ambiguous” and thereby legitimize resort to legislative history. Some judges are
more confident than others in their ability to read and interpret statutory text, and
some are more convinced than others of the propriety of attempting to do so without
resort to the “extrinsic” aid of legislative history.’” Correspondingly, there are basic
‘‘@‘Aseverabilityclause requires textualprovisionsthat can be severed.” Reno v. ACLU, 52 1
U S . 844, 882 (1997). See also Hill v. Wallace, 259 U.S. 44 (1922); and Carter v. Carter
Coal Co., 298 U.S. 238,312-16 (1936).
”’See, e.g., 25 U.S.C. 8 941m(a) (8 15(a) of the Catawba Indian Tribe of South Carolina
Land Claims Settlement Act of 1993):“Ifany provision of section 941b(a), 941c, or 941d of
this title is rendered invalid by the final action of a court, then all of this subchapter is
‘88Butsee, e.g.,Zobel v. Williams, 457 U.S. 55,65 (1982) (observing in dictumthat, due to
inclusion of non-severability language in an Alaska law, “we need not speculate as to the
intent of the Alaska Legislature”).
“’See Israel E. Friedman, Comment, Inseverability Clauses in Statutes, 64 U. CHI.L. REV.
903 (1997). Friedman contends that “inseverabilityclauses are fundamentally different from
severability clauses and should be shown greater deference.” Id. at 904. Inseverability
clauses, he points out, “are anythmgbut boilerplate,”usually are included only after extensive
debate, and are often designed to preserve a legislative compromise. Id. at 911-13.
190“Inaid of the process of construction we are at liberty, ifthe meaning be uncertain, to have
recourse to the legislative history of the measure and the statements by those in charge of it
during its considerationby the Congress.” United Statesv. GreatNorthern Ry., 287 US. 144
(1932). On the other hand, “we do not resort to legislative history to cloud a statutory text
that is clear.” Ratzlafv. United States, 510 US. 135, 147-48 (1994).
‘’l“When aid to the constmction of the meaning of words, as used in the statue, is available,
there certainly can be no ‘rule of law’ which forbids its use, however clear the words may
appear on ‘superficialexamination.”’United States v. American Trucking Ass‘ns, 3 10 U.S.
534,543-44 (1940). Justice Frankfurter, dissentingin United States v. Monia, 317 U S .424
(1943), made much the same point: “[tlhe notion that because the words ofa statute are plain,
differences in approach, from narrow focus on the clarity or ambiguity of the
particular statutory phrase at issue, to recognition that phrases that may seem
ambiguous in isolation may be clarified by statutory context.i92And, inevitably, there
are real differences in the clarity of statutory 1 a n g ~ a g e . I ~ ~
Agreement on the basic meaning of the plain meaning rule -if it occurs --does
not guarantee agreement over 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.’94 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,’9s or t o refute arguments that a contrary interpretation was “intended.”’96
its meaning is also plain, is merely pernicious oversimplification.” Justice Scalia explains
why he opposes ready resort to legislative history: “Judges interpret laws rather than
reconstruct legislators’intentions. Where the language ofthose laws is clear, we are not free
to replace it with an unenacted legislative intent.” INS v. Cardoza-Fonseca, 480 U.S. 421,
452-53 (1987) (concurring).
i92UnitedSavings Ass’n v. Timbers of Inwood Forest Associates, 484 U S . 365, 371 (1988)
(“only one of the permissible meanings [of an ambiguous phrase] produces a substantive
effect that is compatible with the rest of the law”).
’”Compare United States v. Locke, 471 U.S. 84, 92 (1985), (a requirement that a filing be
made “prior to December 3 1” could not be stretched to permit a filing on December 31) with
Davis v. United States, 495 U S . 472,479 (1990) (phrase “for the use of‘ -a phrase which
“on its face . . . could support any number of different meanings,” is narrowed by reference
to legislative history). In Locke the Court explained that “the plain language of the statute
simply cannot sustain the gloss appellees would put on it. . . . w i t h respect to filing
deadlines a literal reading of Congress’ words is generally the only proper reading of those
words. To attempt to decide whether some date other than the one set out in the statute is the
date actually ‘intended by Congress is to set sail on an aimless journey.’’ 471 U.S. at 93.
Despite the evident clarity of this language, three Justices dissented.
Ig4See,e.g., Sedima, S.P.R.L. v. h e x Co., 473 U.S. 479 (1985) (disagreement over the
scope of civil RICO).
’95ThunderBasin Coal Co. v. Reich, 5 10 U.S. 200, 209 (1994) (“The legislative history of
the Mine Act confirms this interpretation”).
‘%See Darby v. Cisneros, 509 U S . 137, 147 (1993) (“Recourse to the legislative history of
5 1O(c) is unnecessary in light of the plain meaning of the statutory text. Nevertheless, we
consider that history briefly because both sides have spent much of their time arguing about
its implications.”);Toibb v. Radloff, 501 U.S. 157, 162 (1991) (“even were we to consider
the sundry legislative comments urged [upon us] . . . ,the scant legislative history does not
suggesta ‘clearlyexpressed legislativeintent [tothe] contrary”’);Arcadia v. Ohio Power Co.,
498 U. S. 73, 84 n.2 (1990) (rejectingreliance on legislativehistory said to be “overborne”by
the statutorytext). The Court has declaredthat it will not allow a literal reading ofthe statute
to produce a result “demonstrablyat odds with the intentions of its drafters,” but in the same
breath has indicated that it is only “the exceptional case” in wlnch that can occur. Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982).
The one generally recognized exception to the rule is that a plain meaning is rejected
if it would produce an “absurd result.”i97
There is, needless to say, scholarly debate over the merits of the plain meaning
rule.i98 There is probably general consensus, however, that the plain meaning rule
aptly characterizes interpretational priorities (statutory language is primary, legislative
history secondary), but that its usage often merely announces rather than determines
Uses of Legislative History
Once a court has decided to look to legislative history, there is a question ofhow
legislative history should be used. Possibilities range from background information
about the general problems Congress sought to address in the legislation, to
explanation of the specific statutory language at issue, to specific instructions about
how to deal with the particular factual situation giving rise to the litigation. The first
of these uses is generally considered legitimate, the second may or may not be, and
the third is generally considered to be improper.
Reference to legislative history for background and historical context 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.”’99
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.200 Selection of one
‘”See, e.g., United States v. Grandcrson, 511 U.S. 39, 47 n.5 (1994) (dismissing an
interpretation said to lead to an absurd result); Dewsnup v. Timm, 502 U.S. 410,427 (1992)
(Justice Scalia, dissenting) (“[i]fpossible,we should avoid construingthe statute in awaythat
produces such absurd results”); Public Citizen v. Department of Justice, 491 US. 440,454
(1989) (“[w]here the literal reading of a statutory term would compel ‘anodd result,’ . . . we
must search for other evidence of congressional intent to lend the term its proper scope”).
Iq8See,e .g., Frederick Schauer, Statutory Construction and the Coordinating Function of
PlainMeaning, 1990 SUP. CT.REV. 231; Artbur W. Murphy, OldMaxims Never Die:The
“Plain-MeaningRule” and Statutory Interpretation in the ‘i2lodern” Federal Courts, 15
COLUML. REV. 1299 (1975); Clark Cunningham, Judith Levi, Georgia Green, and Jef�rcy
Kaplan, PlainMeaningandHardCases, 103 Y.4LEL.J. 1561 (1994).
”wirtz v. Bottle Blowers Ass’n, 389 U.S. 463, 468 (1968). For more recent reliance on
legislative history for guidance on broad congressionalpurposes, see Shell Oil Co. v. Iowa
Dep’t of Revenue, 488 U S . 19,26 (1988) (purposes of OCSLA, as evidenced in legislative
history, confirm textual reading of statute and refute oil company’s reading); Wilder v.
Virginia Hosp. Ass’n, 496 U S . 498, 515 (1990) (referenceto Senate report for evidence of
“the primary objective” ofthe Boren amendment to the Medicaid law).
”United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222 (1952). “Statutory
history” as well as bill history can also be important. See, e.g., United States v. Wells, 5 19
House’s version over that of the other House may be significant.20’ In some
circumstances rejection of an amendment can be important. While courts are naturally
reluctant to attribute significance to the failure of Congress t o 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 C O U ~ ~ . ’ ~ ~
Explanatory legislative history is also consulted on occasion for more narrowly
focused explanation ofthe meaning of specific statutory language that a court believes
is unclear.204 Reliance on legislative history for such purposes may be more
controversial, either because contrary indications may be present in other passages of
or because the degree of direction or detail may be an
unwarranted narrowing of a more general statutory text.206The 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 legislative history “excerpts” said
U.S. 482, 492-93 (1997) (consolidation of a number of separate provisions supports the
“natural reading” ofthe current law); Booth v. Chumer, 121 S. Ct. 1819, 1824-25 (2001)
(eliminationof “the very term” relied on by the Court in an earlier case suggests that Congress
desired to preclude that result in future cases).
’“See, e.g., United States v. Riverside Bayview Homes, 474 US. 121, 136-37 (1985)
(attaching significanceto conferencecommittee’schoiceof Senateversion,retainingthe broad
definition of “navigable waters” then in current law, over a House version that would have
narrowed the definition).
zOz“TbisCourt generally is reluctant to draw inferencesfrom Congress’failure to act. Indeed,
those members of Congress who did not support these bills may have been as convinced by
testimony that the NGA already provided ‘broad and complete . . . jurisdiction and control
over the issuance of securities’ as by arguments that the matter was best left to the States.”
Schneidewindv. ANR Pipeline Co., 485 US. 293, 306 (1988).
203PacificGas & Elec. Co. v. Energy Resources Conserv. & Dev. Comm’n,461 U.S. 190,220
(1983) (noting that language bad been deleted to insure that there be no preemption); INS v.
Cardoza-Fonseca, 480 U S 421, 441-42 (1987) (rejection of Senate language limiting the
AttorneyGeneral’sdiscretionin grantingasylum in favor of House languageauthorizinggrant
of asylum to any refugee).
2wSee,e.g.,Revesv. Emst&Young, 507U.S. 170,179-83 (1993)(RICOsectionproscribing
“conduct” of racketeering activity limited to persons who participate in the operation or
management of the enterprise); Gustafson v. AUoyd Co., 513 U.S. 561, 581-82 (1995)
(legislative history supports reading of “prospectus” in Securities Act as being limited to
initial public offerings); Babbitt v. Sweet Home Chapter, 515 U S . 687, 704-06 (1995)
(relying on committee explanations of word “take” in Endangered Species Act).
205Thedissent in Babbitt v. Sweet Home found legislative history that suggested a narrower
use of the word “take,” reflecting a consistent distinction between habitat conservation
measures and restrictions on ‘taking” of endangered species. 515 U S . at 726-30 (Justice
206“Thelanguage of a statute - particularly language expressly granting an agency broad
authority is not to be regarded as modified by examples set forth in the legislative history.”
Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633,649 (1990).
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. . . . “[Ulnenacted approvals, beliefs, and desires are not laws.”zo7
Statutory silence is not always “pregnant,” and silence of legislative history is
seldom significant. There is no requirement that “every permissible application of a
statute be expressly referred to in its legislative history.”208The Court does, however,
occasionally attach import to the absence ofany indication in a statute or its legislative
history of an intent to effect a “major change” in well-established law.z09
207PuertoRicoDep’t ofconsumer Affairs v. Isla PetroleumCorp.,485 U.S. 495,501 (1988).
The Court explainedfurther that, “without a text that can, in light ofthose [legislativehistory]
statements, plausibly be interpreted as prescribing federalpre-emptionit is impossibleto find
that a free market was mandated by federal law.” See also Secretary of the Interior v.
California, 464 U S . 312,323 n.9 (1984) (committee report directive purporting to require
coordinationwith stateplanning dismissedas purely “precatory”whenthe accompanyingbill
plainly exempted federal activities from such coordination); Shannon v. United States, 5 12
U.S. 573, 583 (1994) (Court will not give “authoritative weight to a single passage of
legislative history that is in no way anchored in the text of the statute”).
”08Moskal v. United States, 498 U.S. 103, 111 (1990). Accord, Pittston Coal Group v.
Sebhen, 488 U.S. 105,115 (1988) (“it is not the law that a statute can have no effects which
are not mentioned in its legislativehistory”);PBGC v. LTV Corp., 496 US. 633,649 (1990)
(“the language of a statute - particularly language expressly grantmg an agency broad
authority -is not to be regarded as modified by examples set forth in the legislativehistory”).
See also Oncale v. Sundowner Offshore Servs., 523 U S . 75,79 (1998) (male-on-malesexual
harassment is covered by Title VII although it “was assuredly not the principal evil Congress
was concerned with”).
209Edmondsv. Compagnie Generale Transatlantique, 443 U.S. 256,266-27 (1979) (silence
of legislative history “is most eloquent, for such reticence while contemplating an important
and controversial change in existing law is unlikely”); United Savings Ass’n v. Timbers of
Inwood ForestAssocs.,484 U S . 365,380 (1988) (majorchange “wouldnotlikelyhave been
made without specific provision in the text of the statute,” and it is “most improbable that it
would have been made without even any mention in the legislative history”); Dewsnup v.
T m , 502 U.S. 410, 419 (1992) (Court reluctant to interpret the Bankruptcy Code as
effecting “a major change in pre-Code practice that is not the subject of at least some
discussion in the legislative history”). Sometimesthe Justices disagree over the significance
of congressional silence. Compare Justice Stevens’ opinion for the Court in Chisom v.
Roemer, 501 U.S. 380,396 11.23 (1991) (“Congress’silence in this regard can be likened to
the dog that did not bark”) with Justice Scalia’sdissenting rejoinder, id. at 406 (“apart from
the questionable wisdom of assuming that dogs will bark when something important is
happening, we have forcefully and explicitly rejected the Conan Doyle approach to statutory
construction in the past”).
Post-Enactment or “Subsequent” Legislative History
“The legislative history of a statute is the history of its consideration and
enactment. ‘Subsequent legislative history’ - which presumably means the postenactment history of a statute’s consideration and enactment - is a contradiction in
terms.”’” The Court frequently observes that “‘[tlhe views of a subsequent Congress
form a hazardous basis for inferring the intent of an earlier one.”’*” Actually,
however, “post-enactment history” and “subsequent legislative history” are terms
sometimes used as loose descriptions of several different kinds of congressional
actions and inactions, and it is helpful to distinguish among them. The interpretational
value - if any
of the views of a subsequent Congress depends upon how those
views are expressed.
If the views of a later Congress are expressed in a duly enacted statute, then of
course 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.”’12 “Subsequent legislation declaring the intent of
an earlier statute is entitled to great weight in statutory constru~tion.””~Other
statutes may be 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.’“
z’oSullivanv. Finkelstein, 496 U.S. 617, 631 (Justice Scalia, concurring in part).
’”Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 840 (1988) (quoting United
States v. Price, 361 U.S. 304,313 (1960)).
T73E INTERPRETATION AND APPLICATION OF STATUTES 179 (1975).
*I3RedLion Broadcastmg Co. v. FCC, 395 U.S. 367, 380-81 (1969). By contrast, a “mere
statement in a conferencereport. . . as to what the Committee believes an earlier statutemeant
is obviously less weighty” because Congress has not “proceeded formally through the
legislative process.” South Carolinav. Regan, 465 U.S. 367, 379 n.17 (1984).
2’4MountSinai Hosp. v. Weinberger, 5 17F.2d 329,343 (5th Cir. 1975),quotedwithapproval
in Bellv. New Jersey, 461 U.S. 773,785 n. 12 (1983). See also Memll Lynch, Pierce, Fenner
& Smithv. Curran, 456 U.S.343,382-87 (1982), relying on congressionalintenttopreserve
an implied private right of action as the reason for a “savings clause” on court jurisdiction.
In FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 1.56 (2000), the Court mled
that, because legislation restrictingthe advertising and labeling oftobacco products had been
premised on an understanding that the FDA lacked jurisdiction over tobacco, Congress had
“effectively ratified that interpretation of FDA authority. The labeling statutes were
“incompatible”with FDA jurisdiction in one “important respect’’ - although supervisionof
product labelingis a “substantial component”ofthe FDA’s regulatoly authority,the tobacco
labeling laws “explicitly prohibit any federalagency from imposing anyhealth-relatedlabeling
requirements on . . . tobacco products.”
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.”216Similarly, 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
~tatute.”~”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.218Note,
however, that the presumption comes into play in the absence of direct evidence that
Congress actually considered the issue at hand. Under these circumstances, other
inferences as to the significance of congressional silence seem equally strong.
Congress may have simply overlooked the matter, or may have intended to leave it
“for authoritative resolution in the courts.”219
Congressional inaction is sometimes construed as approving or “acquiescing” in
an administrativeor judicial interpretation even if unaccompanied by the positive act
of reenactment of the statute as a whole.zz0 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. But when the Court does infer
v. Underwood, 487 U S . 552,567 (1988) (reenactmentof “a statute that had in fact
been given a consistent judicial interpretation . . . generally includes the settled judicial
interpretation”), In Pierce, however, a committee report’sapproving reference to a minority
viewpointwas dismissedas not representing a “settledjudicial interpretation,”since 12ofthe
13 appellate circuits had ruled to the contrary. See nlso Metropolitan Stevedore Co. v.
Rambo, 515 U S . 291,299 (1995) (reenactment carried with it no endorsement of appellate
court decisions that were not uniform and some of which misread precedent).
2’6MemllLynch, Pierce, Fenner & Smithv. Curran, 456 U S . 343,382 11.66(1982), quoting
Lorillard v. Pons, 434 U.S. 575,580 (1978).
2’7Lorillardv. Pons, 434 U.S 575,581 (1978)
*‘*Id.at 582. The Court “bluntly” rejects ratification arguments if Congress “has not
comprehensively revised a statutory scheme but has made only isolated amendments.”
Alexander v. Sandoval, 121 S. Ct. 1511, 1523 (2001) (also expressing more general
misgivings about the ratification doctrine’s reliance on congressional inaction).
2’9ZenithRadio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,336 n.7 (1971).
acquiescence and reenactment are similar in that each involves an inference that
Congress has chosen to leave an interpretation unchanged, there is a fimdamentaldifference:
reenactment purports to involve interpretation of duly enacted legislation,while acquiescence
attributes significance to Congress’failure to act. C
’ INS v. Chadha, 462 U.S. 919 (1983)
(Congress may legislate only in conformity with the bicameralism and presentment
requirements of Art. I, 8 7).
acquiescence, the most important factor (other than the Court’s agreement that the
administrative or judicial interpretation is the correct one) seems to be congressional
awareness that the interpretation has generated controversy.22‘As with reenactment,
however, there are other inferences that can be drawn from congressional silence.222
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 ofthe committee statement Congress had not “proceeded formally
through the legislation process.”223 The Court has also explained that “isolated
statements by individual Members of Congress or its committees, all made after
enactment ofthe statute under consideration, cannot substitute for a clear expression
of legislative intent at the time of enactment.”224“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.”225 The disfavor in which post-enactment
’*’In Bob Jones Univ. v. United States, 461 U.S. 574,601 (1983), for example, the Court, in
fmding congressional acquiescence in a revenue ruling that denied tax-exempt status to
educationalinstitutions with racially discriminatorypolicies, pointed to inaction on a number
of bills introduced to overturn the ruling as evidencing Congress’ “prolonged and acute
awareness of so important an issue.” See also United States v. Rutherford, 442 U.S. 544
(1979) (finding acquiescence, and pointing to congressional hearings as evidencing
congressional awareness of FDA policy) On the other band, failure to include in an
amendment language addressing an interpretation described as then-prevailing in a memo
placed in the Congressional Record is “too slender a reed on which to base an inference o f
congressional acquiescence. McLaughlii v. Richland Shoe Co., 486 U.S. 128, 132 n.8
222“The‘complicated check on legislation’ . . . erected by our Constitution creates an inertia
that makes it impossible to assert with any degree of assurancethat congressionalfailure to
act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how
to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo,
or even (5) political cowardice.” Johnson v. Transportation Agency, 480 U.S. 616, 672
(1987) (Justice Scalia, dissenting).
223ConsumerProduct Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 118 n.13 (1980)
(dismissing as not “entitled to much weight here” a statement at hearings made by the bill’s
sponsor 4 years after enactment, and language in a conference report on amendments, also 4
years after enactment).
224SoutheasternCommunity College v. Davis, 442 U.S. 397, 411 n.11 (1979) (dismissing
1974 committee report language and 1978 floor statements purporting to explain 1973
enactment). See also Los Angeles Dept. ofwater & Power v. Manhart, 435 U.S. 702, 714
(1978) (one member’s “isolated comment on the Senate floor” a year after enactment “cannot
change the effect of the plain language of the statute itself).
z2sNLRBv. Health Care & Retirement Carp., 511 U.S. 571,582 (1994) (“isolated statement”
in 1974 committee report accompanying amendments to other sections of act is not
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.”z26
“authoritative interpretation” of language enacted in 1947).
**‘Bread Political Action C o r n . v. FEC, 455 U S . 577, 582 n.3 (1982) (1977 litigation
affidavit of a Senator and his aide as to intent in drafting a 1974 floor amendment cannot be
given “probative weight” because such statements, made after enactment, represent only the
“personal views” ofthe legislator). But see North Haven Bd. ofEduc. v. Bell, 456 U S . 5 12,
530-3 1 (1982), citing a bill summaryplacedintheCongressionalRecordbythe bill’ssponsor
after passage, and explanatory remarks made two years later by the same sponsor;and Pacific
Gas & Elec. Co. v. Energy Resources Conserv. & Dev. Comm’n, 461 U.S. 190, 220 n.23
(1983) (relying on a 1965 explanation by “an important figure in the drafting of the 1954
[Atomic Energy] Act”).