Georgetown University Law Center



Congress and the Administrative StateSpring 2014Victoria NourseProfessor of Lawvfn@law.georgetown.eduMy assistant: Johnny Wong, jcw103@law.georgetown.eduOffice hours: Tuesday 2-4 or by appointmentAlmost every course in law schools teaches students about courts. This course teaches about Congress, the President, and agencies, as well as courts. Using case studies, the course introduces students to the government as a whole—Congress, the President, and the Supreme Court—and how each institution fits into the constitutional scheme. Much of the course’s focus is statutory interpretation, teaching interpretive skills applicable to all statutes, whether civil rights or tax or securities law. This course also introduces students to the rules governing Congress (e.g., the filibuster) and how and whether these rules should affect how legislation is passed and how courts interpret statutes. Because much statutory interpretation occurs under the President’s watch, the course also introduces students to rules governing administrative agencies, and explains how courts apply special rules of statutory construction to agency regulations. Almost all the classes will also include participatory exercises, in which students and the instructor will be public actors resolving difficult issues of public lawmaking. Thus, we shall imagine how lobbyists, legislators, administrators, and judges approach issues in their distinctive ways—and how the constitutional structure of public lawmaking influences and constrains these actors. The exercises are designed to teach practical skills as well as public law reasoning and substantive knowledge. The text for this course will be Statutes, Regulation, and Interpretation: Legislation and Administration in the Republic of Statutes by Professors Abbe Gluck, William Eskridge Jr., and myself.The final examination in the course will be a take-home exam. Students will be given 8 hours to complete the exam, which is designed as a 3-4 hour in-class exam. Prior exams are on file in the library. If you have technical questions concerning the materials, the website, please address these to Johnny Wong, jcw103@law.georgetown.edu.Introduction to the CourseThis introduction will explain how this course differs from a standard common law course like torts or contracts. Courts do not create most law in our society: legislatures and agencies do. The goal is to teach students about how statutes and regulations are made and how this influences courts, agencies, and Congress in reading statutes and regulations.Read: Problems 1-6 (pp. 1-32)The problems focus on a simple statute. How do courts interpret the text of the statute? How do legislators make the text? How do agencies implement the text? Students are assigned to play roles as judges, legislators, agencies, and interest groups.Part I Congress, Agencies, and Courts Part I of the course is an in depth, comparative, introduction to the internal workings of Congress, the Executive, and Courts. As you read these materials, ask yourself: What does Congress do and how does it do it? What are Congress’s institutional rules of operation? What do agencies do and how do they do it? What are the basic rules governing agencies? In comparison, what do courts do? This is essential background to move toward our goal of being able to understand how statutes and regulations are made and how to argue cases involving statutes and regulations in court.Part IA. Congress History of Civil Rights Act (Chapter 1, pp. 1-29) Read Story of the Civil Rights Act of 1964 (Chapter 1, sec. 1) This class involves a reenactment of the creation of the Civil Rights Act of 1964, a statute that changed law and society in vital ways; students play roles, including Senator Hubert Humphrey, Senator Everett Dirksen, President Lyndon Baines Johnson, Attorney General Bobby Kennedy, and the “women of the house” etc. Pay attention to how the statute is made, what procedural hurdles its advocates face, and how easy it is to stop proposed legislation. If someone told you to pass a civil rights remedy, would you know what steps to take?Congress and Its Rules (Chapter 1, pp. 29-51)Read Notes on the Rules of the House and the Senate Notes on Interest Groups and Political Parties Problems 1-1, 1-2This class reviews the principles and rules governing congressional action (an important prelude to Part III on Congress and statutory interpretation). To enhance students’ interest in the topic, focus is on the problems.Part IB. Agencies Constitutional Limits on Agency Action (Chapter 2, sec. 2, pp. 33-59) Read The Steel Seizure Case Problem 2-3This class intensifies students’ understanding of how agencies interpret statutes by focusing on how the State Department interpreted “hostilities” in the War Powers Act and uses this controversy to ensure that students are aware of important limits on all agency action (domestic and foreign), which is to say that all agency action must be traced to a statute. Forms of Agency Action (Chapter 2, sec. 3, pp. 60-93) Read Introduction to Agency Implementation Problem 2-6 FDA v. Brown & Williamson Problem 2-7 Stem Cell Research Scan: White House Cost-Benefit Review of Agency Rules (pp. 94-108)This class introduces students to basic forms of agency action, including formal actions (rulemaking and adjudication) as well as informal actions (guidance, letters) etc. The Administrative Procedure Act is introduced, but considered in far greater detail in Part IV. The FDA case shows the power of agencies as well as the limits placed on them by the requirement that all agency action be consistent with a congressional statute. Reading statutes is shown as very important to agency action.Part IC. CourtsJudicial Power and Its Limits I (Chapter 3, pp. 1-12, 24-37)This class teaches students the limits of the judicial power, which is to say that courts are institutions hampered in many ways from the kinds of general prospective problem-solving done by legislatures and agencies. Students are introduced to doctrines—such as standing, ripeness, and political question—which limit courts’ power. Also emphasized is stare decisis—the power of precedent to limit judicial decision. Typically, it is thought that judges have no constituency but one way to think of stare decisis is that a judges’ constituency is precedent—the most prominent source to which judges look for guidance in decision.Read Excerpts on Standing, Ripeness, Mootness, Political QuestionProblem 3-1Flood v. Kuhn Judicial Power and Its Limits II (Chapter 3, pp. 38-57)This class focuses on the interaction of the various players in the system. What happens when courts make decisions that other institutions dislike? Agencies can push interpretations of existing law, but Congress has the ultimate power to override a statutory interpretation decision by passing a new law. That Congress has this power is an important constraint on the judiciary.Read Geduldig v. AielloGeneral Electric v. GilbertProblem 3-2Part II COURTS & STATUTORY INTERPRETATIONThis Part of the course returns to our opening problem: how courts interpret statutes. It emphasizes the two basic doctrines used by courts today in interpreting statutes: textualism and purposivism. Students should, by the end of this part, be able to read statutes, find the relevant text, and make textualist and purposivist arguments for each and every statute considered, for both parties in the case. Along the way, students will be exposed to the history of statutory interpretation and judicial canons of statutory interpretation. Introduction to Statutory Interpretation (Chapter 4, pp. 1-17)Read Church of the Holy Trinity v. United StatesQuestions: Isolate the relevant parts of the statute. Is there “a” plain meaning” to the text? Purposivist Statutory Interpretation (Chapter 4, pp. 23-43) Read Hart & Sacks, The Legal ProcessNote on Criminal Sentence Enhancements Marshall v. United States Questions: Identify the relevant text in the lengthy drug statute (this is in and of itself an important skill!) How does a textualist decide the relevant case? How does a purposivist decide the relevant case? Can you identify more than one purpose to the statute? Statutory Interpretation and the Problem of Changing Norms(Chapter 4, pp. 43-72)Read Note on New York Adoption Law In re Jacob Bob Jones Univ. v. United StatesQuestions: What is the key text? The purpose of the text? Should courts “update” statutes to serve their purposes or because other law or social norms change?Textualism I: Confirming text/Disregarding consequences(Chapter 4, pp. 72-87)Read TVA v. Hill United States v. LockeNote on the Plain Meaning Rule in State CourtsQuestions: Was there a plain meaning in TVA? Could you predict that Congress would ultimately save the dam? If so, why? In both these cases, the text triumphs even though the consequences may seem harsh to the public or to individuals. Ask yourself: plain meaning to whom? Citizens, representatives, agency clients?Textualism II: Rejecting legislative history (Chapter 4, pp. 87-113)Read Note on the Rise of the New Textualism (Chapter 4, § 3)Green v. Bock Laundry Machine (Chapter 4, § 3)Scalia, Matter of Interpretation (Chapter 4, § 3)Chisom v. Roemer (Chapter 4, sec. 3) Questions: Was there a plain meaning to the statutes in Bock Laundry or Chisom? If not, was it wrong for the court to look to legislative context to resolve ambiguity? Should a court assume that Congress has acted irrationally? Canons of Statutory Construction I: Grammar Canons(Chapter 5, pp. 1-26)ReadNote on the Textual Canons Problem 5-2 Questions: To learn the latin and grammar canons, we will focus on Problem 5-2. Which canons apply? Expressio unius? Noscitur a sociis? Ejusdem Generis? Students are responsible for these “latin” canons as well as rules involving preambles, anti-derogation, and the whole act rule. Canons of Statutory Construction II: Substantive Canons(Chapter 5, pp. 27-47, 63-79)Read: Substantive Canons MuscarelloGregory v. AshcroftQuestions: Be sure you know the difference between grammar/latin canons and substantive canons. We will focus on three substantive canons: rule of lenity, constitutional avoidance, and federalism.PART III CONGRESS AND STATUTORY INTERPRETATIONThis part of the course asks how knowledge of Congress should affect statutory interpretation. We return to the Introduction—where students were exposed to the rules and principles of congressional procedure. We ask how this knowledge should, if at all, affect judges’ interpretation of statutes. How and by what means should judges find Congress’s meaning?Legislative Context I (Chapter 6, pp. 1-29)Read: OLP MemorandumPepper v. HartNational Pride at Work v. GovernorQuestions: This class raises one of the most important modern questions bedeviling statutory interpretation: how to deploy (or not) evidence of Congress’s meaning. Pepper v. Hart is a leading British case illustrating how “plain” meaning in one context (the judicial context) may not be “plain” meaning in other contexts (the legislative context). National Pride at Work demonstrates that rather controversial questions may hinge on the kind of evidence deployed.Legislative Context II: Reverse Engineering (Chapter 6, sec. 2 & sec. 3)Read:Holy Trinity Church (in chapter 4)Public Citizen & Appendix 1 to Chapter 6Green v. Bock Laundry (in chapter 4)Questions: Is it possible to pick and choose text? Ask yourself what the proper text is in Holy Trinity, Public Citizen and Green. Be sure to trace the statutory history in Public Citizen: what text did the House pass? What text did the Senate pass? What text came out of the conference committee? Do the same for Green. You can find these bills quoted in the text of the Supreme Court cases. Legislative Context III: Winners and Losers (Chapter 6, sec. 2)Read: WeberBabbitt v. Sweet HomeQuestions: Focus on the types of legislative history deployed in Weber and Babbitt. In some cases they rely upon committee reports. Are committee reports the best sources here? If not, why not? What should be the best legislative history? Should courts be using “loser’s” history (statements by those who opposed the bills)? Note: you are not responsible for Problem 6-1, 6-2, or 6-3.PART IV AGENCIES AND STATUTORY INTERPRETATIONThis part of the course addresses important questions arising in cases where regulations are challenged in court. In the first section, students learn limits placed on administrative action by the Administrative Procedure Act. In the second, they learn how and why courts defer to agencies in cases involving statutory and regulatory interpretation.Administrative Law I: Rulemaking (Chap. 7, pp. 1-21, 28-42)Read State FarmProblem 7-1Questions: Under the Administrative Procedure Act, what standard do agencies’ actions have to meet? What review does the President exercise? Be sure to look at Problem 7-1 and the cost-benefit analysis of prison rape. (You are not responsible for Nova Scotia Foods).Administrative Law II: Agency Action and Review (Chapter 7, pp. 55-75)Read: In the Matter of …Golden Globes (Admin Ruling) FCC v. Fox Television(Judicial Review)Questions: Note the differences between formal and informal agency action. When does an agency’s informal action satisfy the Administrative Procedure Act?Judicial Deference to Agency Interpretations I (Chapter 8, pp. 1-17)Read:Skidmore v. SwiftChevron USA v NRDCQuestions: Be sure you know the difference between levels of deference and questions of arbitrariness under the APA (discussed in previous classes). Be sure you know the standards and reasons for deference announced in Skidmore and Chevron, are APPLIED!Judicial Deference to Agency Interpretations II (Chapter 8, pp. 18-34)Read:MCI v. AT & TFDA v. Brown & WilliamsonQuestions: Chevron does not mean that one can avoid the basic question of statutory interpretation, as MCI emphasizes. Return to FDA to remind yourself how statutory and regulatory interpretation relate to each other.Judicial Deference to Agency Interpretations III (Chapter 8, pp. 34-49)Read:MeadQuestions: Mead is a notoriously difficult case. Focus on the question of delegation and the nature of the agency action. How is Mead deference different from Skidmore and Chevron.REVIEWThere will be TWO review classes— one to review the material, the other to review answers to a practice exam. ................
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