Magarian Legislation Spring 2016

8/17/2019 Magarian Legislation Spring 2016

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Greg Magarian for Legislation in Spring of 2016

• Exam Overview

o 2 issue spotters (1,100 words each)

o

1 question to defend proposition (800 words)

o

3000 words totalo Organize/outline before you start writing

o Write for 5-6 hours of the 24 hour period

• 1964 Civil Rights Act

o Originated with Kennedy’s Justice Department

Must be introduced by member of Congress

• Descriptive and Normative Theories of Legislation (38-60)

Descriptive Normative

Interest Group/Pluralism Public Choice Pluralism

Proceduralism VetogatesDeliberation(institutions)

LiberalRepublican

o Public Choice

Horse Trading

Concentrated benefits and dispersed costs

“Intensity of Preference” – ex.: NRA/Gun control

• Most people don’t care, but gun people with freak the fuck out

o

Proceduralism

Vetogates – make it harder to pass legislation

• Libertarian kind of thinking

•

Conservative view, in modern termso

(Classical liberalism)

Deliberation – can inform the public and legislators, as well as influence

or change legislation

Classical Republicans – want to refine and enact public interest legislation

• Focuses on generating good legislation, not minimizing legislation

• Title VII as Applied: Interpretive Issues (pp. 61, 69-110, 114-116)

o Griggs v. Duke Power Co. (1970) – page 70

Issue – 703(h) – Whether professionally developed tests must be job

related, and if non-job related tests are prohibited if they have a disparate

impact on a protected racial class• Text of 703(h) says nothing about job-relatedness, only that tests

must be professionally developed

• Lower court rules test is ok

• Senator Towers (sponsor of 703) – indicated he included the

provision in response to the Motorola case, which found Motorola

in violation of Title VII because of a general intelligence test


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• Point here is textualism/ambiguity vs congressional purpose

o Intent is specific, purpose is general

Courts defer to agencies & administrative bodies like the EEOC in order

to keep litigation manageable

• Political environment is relevant when considering motives or

interpretation of agencies (Bush’s EPA or Obama’s EEOC) Supreme Court overrules lower court and creates disparate impact doctrine

(which prohibits unintentional discrimination)

o United Steelworkers v. Weber (1979) – page 80

5 out of 273 craft workers were black

Management started a training program with a 50% black quota

White guy sued alleging racial discrimination

Court says purpose of law is not to put employers in between a rock and a

hard place; quota is fine

o Santa Clara County (1987) – page 96

Brennan stresses Weber Weber must have been right since Congress hasn’t changed anything

• Scalia shreds this argument; argues for textualism

• Scalia brings up working class white guys getting screwed

• “Straight up precedent”/ stare decisis carries the day

Held that a public employer's decision to promote a female applicant

pursuant to a voluntary affirmative action plan was fully consistent with

Title VII's purpose of eliminating the effects of discrimination in the

workplace and that Title VII should not be read to thwart such efforts.

•

II. POLITICAL DETERMINANTS OF LEGISLATION

• Representational Structures: Political Equality; Racial Vote Dilution (pp. 117-141)

o Legislature is supposed to represent the people

Legislature is only as legitimate as process that elects it

o Theoretical language about representation

Accuracy

• Want representation to be accurate - **inherent goal of republican

government

Descriptive theory → Microcosm of the collective (page 117)

•

Can’t get it perfect• One way to approach descriptive representation is to look at issues

rather than irrelevant factors (Irish vs. Croatians)

Agency theory → Representative is agent of the constituency (117)

• Follow orders; should attempt to act as constituents want the

representative to act

• Goes with pluralism → normative evaluation


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o Accounts for interest groups

Trusteeship theory → Representatives should exercise their judgment

when making decisions/voting (117)

• Use best judgment

• “Wisdom” of representative

•

Republicano

Voting – “Right of aggregation” – districting issues – describes right of an interest

group not to get cut up into multiple districts and effectively nullify their

representation

o Voting Rights Act effectively guaranteed African Americans the right to vote

Gerrymandering

• “cracking” – Splits a district in order to split a constituency (split

up a city)

• “packing” – Put all of a constituency in one district (90% in one

district → 60% in 2 districts)

•

“stacking” → example: At large voting on all city councils wherecity is 60% white and 40% black

City of Mobile vs. Bolden

• Stacking case (at large voting)

o

Thornberg v. Gingles (139) – cracking case

Section 2 of Voting Rights Act

• Section 2 of the Voting Rights Act of 1965 prohibits any

jurisdiction from implementing a "voting qualification or

prerequisite to voting, or standard, practice, or procedure ... in a

manner which results in a denial or abridgement of the right ... to

vote on account of race," color, or language minority status.• Supreme Court had held there is a private right of action

3 Gingles factors Plaintiff’s must show to demonstrate minority vote

dilution (on page 139)

•

The racial or language minority group "is sufficiently numerous

and compact to form a majority in a single-member district;”

• The minority group is "politically cohesive" (meaning its members

tend to vote similarly); and

• The "majority votes sufficiently as a bloc to enable it ... usually to

defeat the minority's preferred candidate."

o

City of Rome (1966) Georgia Preclearance Case (§5/4(b) of Voting Rights Act)

Rule - Congress has the authority to regulate state and local voting through

the provisions of the Voting Rights Act, as the Fifteenth Amendment

supersedes contrary exertions of state power, and this act is an appropriate

means for carrying out Congress’ constitutional responsibilities under the

Fifteenth Amendment. Congress also has the power to regulate practices


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that it sees are discriminatory, even if no evidence of past discrimination is

in the present record.

o Shelby County v. Holder (2013)

Court ruled by a 5-to-4 vote that Section 4(b) is unconstitutional because

the coverage formula is based on data over 40 years old, making it no

longer responsive to current needs and therefore an impermissible burdenon the constitutional principles of federalism and equal sovereignty of the

states.[2][3] The Court did not strike down Section 5, but without Section

4(b), no jurisdiction will be subject to Section 5 preclearance unless

Congress enacts a new coverage formula.

• Representational Structures: Redistricting Designed to Ensure Minority Representation;

Political Gerrymandering (pp. 142-171)

o Right of Aggregation – Right of people to vote for representatives as a group, as

opposed to populations being split or “cracked”

o Shaw v. Reno (1993)

2 majority black, gerrymandered districts in North Carolina Supreme Court says weird shape

Can’t draw districts for racial reasons

Like affirmative action

North Carolina was trying to comply with §2 of the Voting Rights Act

Stephens dissent

• Require compact districts?

• Direct Democracy as an Alternative to Republican Government (pp. 367-415)

o Types of Direct Democracy

Recall – Recently in Wisconsin and 10 years ago in California

Referendum – legislature submits proposal; voters decide whether toapprove

Initiatives – brought by voters; can be approved by either legislature or

voters

Any of the above requires signatures to initiate

o Buckley v. American Constitutional Law Foundation (1998) (page 372)

Legislature imposing constraints on direct democracy

Legislature said petition gatherers had to be registered to vote

Real concern was special interests paying to get issues on the ballot

Law requiring name tags or voter registration violated first amendment

o Need money for direct democracy – same issues as representative democracy

o

Doe v. Reed (2010) (page 377)

Made petition signers names public

Legislature said it would let the public check accuracy of petition lists in

order to prevent fraud

III. LEGISLATIVE DELIBERATION


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• Rules of Legislative Deliberation; Legislative Immunities (pp. 261-263, 306-314, 327-

346)

o Legislative Process Rules

Goals for agency – pluralist view

Let interest groups do “logrolling” – putting a law together out of a bunch

of proposals by special interests groups; also known as a “Christmas tree bill”

o Goals from Republican/Trustee view

Strong anti-corruption rules or mechanisms

Equal time/ability for each representative to speak (Deliberation/debate is

key/important)

o Committee referral

Focuses expertise and interest

Hold hearings and create records to inform other representatives

Important vetogate

Slows things downo

Due process of law making

Laws should be debated & there should be careful deliberation

o Single Subject/Generality requirement

Laws must be general, rather than apply to specific individuals or interest

groups

Laws can only deal with one subject

Agency/pluralist

• Reduces ability of interest groups to compromise

• Intensity of preferences extremely relevant

•

Efficiency concerns Republican/Trustee → single subject rules are good and interest group

compromises are bad

o Speech or debate clause (pages 327-328

Helstotski – 338

• Rep. NJ, indicted for receiving money from non-citizens in return

for introducing private bills in Congress that would suspend the

application of U.S. immigration laws so that they could remain in

the United States. Lower Court rules that government could not

introduce evidence of “the performance of a past legislative act on

the part of the defendant.” Holding: relying on Clause’s language,

that Members “shall not be questioned in any other place,” Court

upholds lower court ruling.

• But, promise to perform future legislative act is not immunized.

Gravel v. U.S - Pentagon Papers scandal. Senator Gravel (ALASKA) and

his assistant Leonard Rodberg the target of an investigation by Justice

Dept. into the leaking of classified documents (the Pentagon Papers.)

Gravel had PP entered into the record of the Senate, then struck a deal via


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Rodberg with M.I.T. Press for their commercial publication. Question

here was 1) Did S&D Clause reach to aides? And 2) Did it reach far

enough to cover commercial publication? Majority’s Test: S&D Clause

covers the official acts of a legislator and her quintessential activities as a

legislator, as well as those with close legislative aides, insofar as they are

“integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to

the consideration and passage or rejection of proposed legislation or with

respect to other matters which the Constitution places within the

jurisdiction of either House.”

• The Line-Item Veto (pp. 314-327)

o Allows executive to veto parts of a bill instead of the whole bill

Many interpretations of what is permissible

Can be anything from a specific section to a single letter

Usually used in a budget context (budget restraint)

•

Reasons for this ^^^o Single subject rules usually don’t apply to budgets

o “anti-logrolling”

Disfavored from an agency/pluralist perspective

Favored from a trustee/republican perspective

o Rush v. Ray (1985)

See dissent

Governor vetoed restrictions on spending within a bill; majority opinion

said no/impermissible

o Clinton v. City of New York (page 321)

Clinton used item veto and those affected objected. Majority: item vetoimplicated presentment clause by making President into lawmaker.

Constitutionally the president can only accept or reject the whole bill.

This is a separation of powers problem—we don’t want President acting

independently of Congress. Concurrence: Not a presentment issue b/c

changes only made after the bill is passed and signed. Not a separation of

powers issue either, but a delegation issue b/c Congress gave the President

the power. Problem is that the power to impound is different from the

power to cancel—delegation is too great. Dissent: it’s not enough for

something to be almost unconstitutional. The delegation here is

reasonable and limited b/c Congress retains sufficient control. Not only is

it clearly within bounds, but even if it were questionable, the Court should

be hesitant to use its power to interfere with Congress’ intent, especially if

there is accord between the legislative and executive branches.

• Regulating “Corrupt” Deliberation (pp. 263-280)

o People ex rel Dickinson v. Van de Carr (1903) (page 266)

Exchanged favors (funds for horses in exchange for rehiring fired

employee)


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Synopsis of Facts -- Alderman of NYC charged w/ bribery. Commissioner

of street cleaning wrote him to say if he would give him more money for

projects, the case of Covino would be reconsidered. Alderman wrote back

and said if he would reinstate Covino, he would vote and otherwise help to

obtain the needed money for the projects.

1. Result--

Since the benefit defendant was to receive was thereinstatement of Covino, this would be embraced within the meaning of

the statute, since it would constitute a bribe.

2. Rational -- It is demoralizing to public service and against the spirit of

the statute for a legislator or other public official to bargain to sell his vote

or official action for a political or other favor or reward as it is for money

o Conflicts of Interest

Honorariums/outside income

(276) U.S. v. National Treasury Employees Union

• Court overturned law preventing low-level treasury employees

from accepting speaking fees.• Lobbying (pp. 280-306)

o Speech and Debate Clause (BIG THEME)

Lobbying – petition the government for redress of grievances

• Direct vs. Indirect lobbying

o Direct → Constituent hires lobbyist or directly contacts

representative

o Indirect (Grass roots) → “Write your congressman” and

similar

• Possible solutions to lobbying problems

o

Disclosure (primary way it has worked)o Limit who can be a lobbyist

o Limit how much time & access lobbyists have

o “revolving door” restrictions

• Lobbying is constitutionally protected

o (284) – U.S. v. Harris

Rewrote FLRA (Federal Lobbying Regulation Act)

Doctrine of Constitutional Avoidance relevant

Court desperately wanted to save statute since Congress was unlikely to

pass another one

HUAC/communist concerns First Amendment protects non-citizen lobbying

o (291) Lobby Disclosure Act of 1995

Definitions critical

Applies to lobbying for laws, nominations, executive or administrative

acts, and regulation

• Wednesday, Feb. 24

• Structural Due Process of Lawmaking (pp. 346-365)


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o Article I, §2 – Presentment and bicameralism

o (352) – U.S. v. Munoz-Flores

Stevens = Political Question Doctrine

Crime Victims Fund – Not a tax, so origination clause doesn’t apply

(Contrast with ACA/Obamacare

Scalia – Enrolled Bill Rule – operates as formal line in the sand – Bill iscertified by the House. The end.

o (357)Hampton v. Mow Sun Wong (1976)

Representation Reinforcing Review – When legislature undermines its

legitimacy, judicial restraint no longer applies/is relevant

Facts - Civil service made a rule that they wouldn’t hire non-citizens

Not an equal protection case; based on fact that civil service didn’t have

any responsibility for immigration or foreign policy

IV. STATUTES AS A SOURCE OF PUBLIC POLICY AND LEGAL PRINCIPLE

•

Friday, Feb. 26• Statutes as Principled Law (pp. 417-442)

o “Statutes in derogation of common law”

o Blackstone → Common law is principled; statutes should be construed narrowly

because legislators fuck up our coherent system

o Common law formalism → Judges don’t make law; the law has always been there

and judges only apply it

o

Legal Realism - a naturalistic and positive (or descriptive) theory of adjudication.

Realists believe that there is more to adjudication than the mechanical application

of known legal principles to uncontroversial fact-finding as legal formalism

believes. Some realists believe that one can never be sure that the facts and lawidentified in the judge's reasons were the actual reasons for the judgement,

whereas other realists accept that a judge's reasons can often be relied upon, but

not all of the time. Realists believe that the legal principles that legal formalism

treat as uncontroversial actually hide contentious political and moral choices.

o Legal Positivism - a philosophy of law that emphasizes the conventional nature of

law—that it is socially constructed. According to legal positivism, law is

synonymous with positive norms, that is, norms made by the legislator or

considered as common law or case law. Formal criteria of law’s origin, law

enforcement and legal effectiveness are all sufficient for social norms to be

considered law. Legal positivism does not base law on divine commandments,

reason, or human rights. As an historical matter, positivism arose in opposition to

classical natural law theory, according to which there are necessary moral

constraints on the content of law.

Legal positivism does not imply an ethical justification for the content of

the law, nor a decision for or against the obedience to law. Positivists do

not judge laws by questions of justice or humanity, but merely by the ways

in which the laws have been created. This includes the view that judges


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make new law in deciding cases not falling clearly under a legal rule.

Practicing, deciding or tolerating certain practices of law can each be

considered a way of creating law.

Justice Holmes – Law is power

o Legal Process – building body of law; opposite of received common law; sets the

agenda now o (427) Moragne v. States Marine Lines Inc.

Guy got killed; vessel was unseaworthy

No cause of action for wrongful death in this context; would have had a

cause of action had he only been injured

Lower court ruled there was no cause of action because of the felony

merger doctrine from England – no civil cause of action for wrongful

death under English law because felonies were punishable by death and

forfeiture of all property, so nothing was left to satisfy a judgment

Harlan used policy justifications to create a cause of action for Moragne

Legal process doctrine – Statutory and Judicial law are principled and gapfilling is appropriate to create a coherent and consistent body of law

• Vertical Versus Horizontal Legal Coherence (pp. 443-461)

o Legal realism – looks forward - horizontal coherence

o

Legal Process Era – vertical coherence

o Flood v. Kuhn (1972) – 445

Baseball decision – antitrust – baseball only sport exempt from Sherman

Act; court reasoned that although earlier decision (Fed Baseball) was

wrong, congressional inaction indicated Congress’s intent, so the Court

allowed Fed Baseball to stand

Somehow, MLB is not interstate commerce Reasons to deviate from Stare Decisis

• Inconsistency/horizontal coherence

• When a past decision is wrong

•

Retroactivity of Statutes (pp. 461-475)

o Retroactivity

Judicial opinions are retroactive; imposes high cost on opinions, which

constrains the judiciary

Legislation is not retroactive unless explicitly stated

• No constitutional problem with retroactivity

o

Doctrine of Constitutional Avoidance

Judges should interpret laws in such a way that they avoid rending them

unconstitutional

o

Ex Post Facto – not allowed

o When a court overrules a previous opinion striking down a law, the legal fiction is

that the overruled decision never happened, and the law was in effect the whole

time

o 466 – Langraff v. USI Film Products (1994)


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P worked the night shift at a plant, was subject to sexual harassment

fellow employee. Landgraf quit the job, filed a complaint with the EEOC,

which found USI had created a “hostile work environment” in violation of

Title VII. Landgraf’s lawsuit was dismissed according to a long line of

precedents, but while appeal was pending, the Civil Rights Act of 1991

was signed into law explicitly overruling those precedents. The Court ofAppeals refused to apply the new law retroactively, even though P’s

appeal was not yet granted when Act signed. Statutory Question: Did Civil

Rights Act of 1991 retrospectively grant the new right of action against

employers providing hostile work environments, so that Landgraf could

sue under the new law? No, statutory language on retroactivity not clear,

legislative history suggests no retroactivity intended.

Scalia concurrence: absent clear statement in statute, presume against

retroactivity.

Dissent: no reliance problem, ergo no retroactivity problem.

V. THEORIES OF STATUTORY INTERPRETATION

• Wednesday, Mar. 9

• From Eclecticism to Systematic Theory (pp. 477-497)

o Have to keep in mind that courts may only resolve the case or controversy at

hand; decide whether the law applies to the case at hand, NOT general

interpretation

o

Deductive Interpretive Theories

Textualism

Intentionalist – Intention of the legislature (specific)

•

Issues: Grandstanding & committee reports Purposivism (distinguished from intent; general)

• Ex:14th amendment

o Principled equality, but D.C. schools still segregated by

Congress

Always be skeptical of objectivity of judges

o 483 - Holy Trinity Church v. U.S.

Bower ignores text of statute and focuses on purpose & intent

Constitutional Avoidance – 1st amendment

Contracts to import labor were forbidden by Federal law, and specifically

by the Alien Contract Labor Law, an Act of Congress passed in 1885

prohibiting "the importation and migration of foreigners and aliens under

contract or agreement to perform labor or service of any kind in the United

States, its territories, and the District of Columbia."[2]

The court held that a minister was not a foreign laborer under the statute

even though he was a foreigner.

• Legal Process Statutory Interpretation Part 1 (pp. 497-545)

o Legal Process/Purposive interpretation


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Still starts with the text

At the margin, purpose matters more than text still want to be within text

except in extraordinary circumstances

Allowance/encouragement within legal process thinking (“good law”)

“Imaginative reconstruction” – figure out what the legislature was trying

to do• Incoherent inquiry because courts are addressing cases not

contemplated by legislatures

o 508 – Shine v. Shine

Correcting legislative errors

Guy declared bankruptcy and tried to get out of alimony & child support

Conflicting purposes:

• Bankruptcy purpose=clean slate

• Alimony & child support – not a debt but a duty

Case is problematic because support agreement came later (after original

divorce agreement with no support) “scrivener’s error” – Always a tension between potential errors and actual

intent

• Legal Process Statutory Interpretation Part 2: Critiques and Responses (pp. 551-

• 567, 625-633)

o Problems with legal process interpretation

Judiciary making policy

• Counter – Of course they make policy; they’ve always made

policy; there’s no absolutely objective interpretation of law

Legal process goal – “Give effect to legislative purpose or intent”

o

554 – TVA v. Hill Burger – stop building the dam so we can save some stupid goddamn fish

(snail darter)

“repeals by implication” – PRINCIPLE/CANON OF STATUTORY

CONSTRUCTION – we don’t repeal statutes based on inferences (this is

heavily disfavored)

o 558 – Griffin v. Oceanic Contractors, Inc. (1982)

Guy got hurt on an oil rig. Company owes him $400, which turns into a

$300,000 judgment/penalty under the text of the statute

Court says he gets the $300,000

•

The New Textualism (pp. 568-593); additional reading: King v. Burwell (U.S. June• 25, 2015)

o Scalia’s new textualism (King v. Burwell)

Give effect to every word in the statute

Distinction with regard to legal process – Scalia is going to work hard at

finding a plain meaning; legal process thinker/jurist will not look that hard

BE VERY AFRAID to look outside text

DON’T look at legislative history


12/14

“Give reasonable effect to legislative terms”

o King v. Burwell

Follow up to ACA/Sebelius/Obamacare

“Established by the state” IS ambiguous

• Chevron deference

•

IRS says any exchange•

Too important for Chevron deference

• Majority needed to establish ambiguity in order for majority’s

interpretation to work

VI. DOCTRINES OF STATUTORY INTERPRETATION

• Introduction to the Canons of Construction: Ordinary Meaning Rules and Textual

• Canons (pp. 643-690)

o MOST IMPORTANT

Canon of Constitutional Avoidance

•

Presumption that Congress does not intend to violate theconstitution

Canon that Congress does not intend to abrogate state authority or

otherwise limit state power unless there is good evidence (Federalism

Canon)

o Canons of construction are not law (descriptive/terms of art?)

Trying to capture certain descriptive patterns about how legislation works

Based on observing patterns of legislation and legislative purpose

Also work in the shadow of constitutional concerns

o Minor Canons:

Presumption that Congress does not intend to make excessive grants Tax code to b construed generously in favor of taxpayer

• Has been eroded (“IRS Buzzsaw”)

Courts should narrowly construe laws limiting Native American

Sovereignty

Presume Congress does not intend to violate treaties or International laws

& agreements

EVERYONE starts with the text

Textualist – purist

• Purposivist/legal process thinkers can’t be purists

•

Substantive Canons; the Rule of Lenity (pp. 690-712)o Canon of Constitutional Avoidance

Civil Rights Statutes construed broadly (remedial statutes & provisions)

o Rule of Lenity – application of statute can be unconstitutional if criminal statute

does not give notice because of vagueness or ambiguity

o Clear Statement Rule – Congress must clearly state a specific rule where the

general rule may present a constitutional problem


13/14

• Quasi-Constitutional Law and the Canons (pp. 712-748)

o 713 - NLRB v. Catholic Bishops of Chicago

NLRB asserted jurisdiction over Catholic Schools; Court says they lacked

jurisdiction

Magarian says avoided expending institutional capital by not making a 1st

amendment ruling but essentially rling on 1st amendment groundso 730 - Gregory v. Ashcroft

(US 1991): Age Discrimination In Employment law questioned for

modifying tenure rules of appointed State judges. Because no clear

statement that it meant to impose such burdens, Court rules that it does not

apply to the bench without a clear textual reading to the contrary.

• Friday, Apr. 8

• Legislative History: Committee Reports (pp. 776-777, 786-811, 813-826)

o Committee reports → written by the experts following debate (consensus) – most

probative

Other legislative history less persusive• Wednesday, Apr. 13

• Legislative History: Records of Legislative Deliberations (pp. 829-848, 853-857)

o

Montana Wilderness v. US Forest Service (1981)

Pre-Scalia and new textualism

Uses garbage legislative history (floor debates, etc)

“dog that didn’t bark” doctrine – If it isn’t mentioned, then interpretation

is void

• Drawing an inference from the absence of something

Text of statute has to be ambiguous before it is appropriate to look at or

analyze legislative history Presumption against repealing laws – canon

• 833 – “Notwithstanding any other provision of law”

More weight given to sponsors/authors/primary opponents of the bill

• Interpreting Statutes in Light of Other Statutes (pp. 859-876)

o 860 - Lorillard v. Pons (1978)

Plaintiff wanted a jury trial under 7th amendment for an ADEA claim

FLSA provides a jury trial, unlike Title VII, Congress says use procedures

from FLSA for ADEA → Court says Congress incorporated judicial

opinions along with FLSA statutory provisions

o

Borrowed statutes (common) Typically state borrows federal statute language

o 867 – Smith v. Bayer (2011)

State Courts can follow federal decisions or not; federal decisions are

persuasive but not mandatory authority; states are free to ignore federal

decisions

o 869 – Morton (1974)


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The issue is in the case was whether the hiring preference policy within

the BIA constituted invidious racial discrimination in violation of the Fifth

Amendment of the United States Constitution.

The hiring preference given here was not "racial discrimination" nor was it

even a "racial" preference. The court compared it to the requirement of a

Senator being from the state that she represents, or a city council member being required to reside in the area he represents. The Court said, "The

preference, as applied, is granted to Indians not as a discrete racial group,

but rather, as members of quasi-sovereign tribal entities whose lives and

activities are governed by the BIA in a unique fashion." Saying also, "the

BIA is truly sui generis." The Court also noted that this preference was

reasonably and directly related to a legitimate nonracially based goal, thus

preventing it from violating the Constitution.

• Friday, Apr. 22

• Judicial Deference to Agency Interpretation (pp. 1073-1094)

o

Pros: Expertiseo Cons: Agency Capture

o 1082 – Chevron v. NRDC (1984 – CHEVRON DOCTRINE)

Is the statute ambiguous?

If it is, is the interpretation a reasonable interpretation?

• Express delegation → arbitrary, capricious, or manifestly contrary

to the statute (EXTREMELY deferential to agency)

• No express delegation → a gap

o Less deferential → reasonableness standard

o Still pretty deferential

Court of Appeals did not d efer → did de novo review instead → SupremeCourt says Court of Appeals used the wrong standard

o 1087 – MCI v. AT&T (1994)

Scalia’s new textualist pushback against Chevron

Documents

Magarian Legislation Spring 2016