Statutory Interpretation: General Principles and Recent Trends
General Principles and Recent Trends
Updated August 31, 2008
American Law Division
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 of the more important
rules and conventions of interpretation that the Court applies. Although this report
focuses primarily on the Court’s methodology in construing statutory text, the
Court’s approach to reliance on legislative history 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
The Court frequently relies on “canons” of construction to draw inferences
about 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 throughout, 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 change judge-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.
In General — Statutory Context and Purpose........................2
Canons of Construction.............................................4
Ordinary and Specialized Meaning................................5
Terms of art..............................................5
Ordinary meaning and dictionary definitions.....................6
General, Specific, and Associated Words..........................10
Grammatical Rules, Punctuation.................................10
Statutory Language Not to be Construed as “Mere Surplusage”.........12
Same Phrasing in Same or Related Statutes........................13
Different Phrasings in Same Statute..............................14
“Congress Knows How to Say ...”................................15
De Minimis Principle..........................................17
Departure from Common Law or Established Interpretation............18
Displacing State Law, Impinging on State Operations................18
Abrogation of States’ Eleventh Amendment Immunity................19
Nationwide Application of Federal Law...........................19
Waiver of Sovereign Immunity..................................20
Non-retroactivity / Effective Date................................20
Avoidance of Constitutional Issues...............................21
Extraterritorial Application Disfavored............................21
Judicial Review of Administrative Action..........................22
Deference to Administrative Interpretation.........................23
Repeals by Implication.........................................26
Laws of the same session...................................27
Rule of Lenity...............................................28
Statutes Benefitting Indian Tribes................................30
Titles of Acts or Sections.......................................31
Preambles (“Whereas Clauses”).................................32
Findings and Purposes Sections..................................32
“Sense of Congress” Provisions..................................33
“Notwithstanding Any Other Provision of Law”.....................35
Implied Private Right of Action..................................36
Deadlines for Administrative Action..............................38
Plain Meaning Rule...........................................39
Uses of Legislative History.....................................41
Post-Enactment or “Subsequent” Legislative History.................44
General Principles and Recent Trends
This report sets forth a brief overview of the Supreme Court’s approach to
statutory interpretation.1 The bulk of the report describes some of the Court’s more
important methods of construing statutory text, and the remainder briefly describes
the Court’s restraint in relying 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.”2 In reading statutes,
the Supreme Court applies various rules and conventions of interpretation, and also
sometimes superimposes various 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’s pathway 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
Executive Order 12988, which provides guidance to executive agencies on
preparing legislation, contains a useful checklist of considerations to keep in mind
when drafting legislation.3 Many items on the checklist are topics addressed in this
report, and many of the 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 as
a means to resolve ambiguity in legislation.
1 This report was originally prepared by George Costello. It has now been updated by Yule
Kim, who is available to answer questions on these issues.
2 Finley v. United States, 490 U.S. 545, 556 (1989).
3 61 Fed. Reg. 4729 (February 5, 1996), reprinted in 28 U.S.C. § 519. The Order directs
agencies 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 statutes of limitations; (B) the preemptive effect; (C) the effect on
existing Federal law; (D) a clear legal standard for affected conduct; (E) whether arbitration
and other forms of dispute resolution are appropriate; (F) whether the provisions of the law
are severable if one or more is held unconstitutional; (G) the retroactive effect, if any; (H)
the applicable burdens 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 have jurisdiction; (K) whether administrative remedies must be pursued prior to
initiating court actions; (L) standards governing personal jurisdiction; (M) definitions of key
statutory terms; (N) applicability to the Federal Government; (O) applicability to states,
territories, the District of Columbia, and the Commonwealths of 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.”
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
interpretations with which it disagrees.4 Congress has revisited statutory issues fairly
frequently in order to override or counter the Court’s interpretations.5 Corrective
amendment can be a lengthy and time-consuming process, however, and Congress
in most instances will probably wish to state its intent clearly the first time around.
In General — 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, if the language of the
statute is clear, there is no need to look outside the statute to its legislative history in
order to ascertain the statute’s meaning.6 It was once axiomatic that this “rule” was
honored more in the breach than in the observance. However, the Court has begun
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 interpretation.
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 of 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.”7 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
4 It is 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
construction than 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)); Shepard v. United States, 544 U.S. 13, 23 (2005).
“Stare decisis is usually the wise policy [for statutes], because in most matters it is more
important that the applicable rule of law be settled than that it be settled right.” Burnet v.
Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Justice Brandeis, dissenting).
5 One scholar identified 187 override statutes from 1967 to 1990. William N. Eskridge,
Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991).
6 See discussion of rule under “Legislative History,” infra p. 39.
7 United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988)
the whole law, and to its object and policy.”8 Thus, the meaning of a specific
statutory directive may be shaped, for example, by that statute’s definitions of terms,
by the statute’s statement of findings and purposes, by the directive’s relationship to
other specific directives, by purposes inferred from those directives or from the
statute as a whole, and by the statute’s overall structure. Courts also look to the
broader context of the body of law into which the enactment fits.9
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.”10
This report sets forth a number of such rules, conventions, and presumptions that the
Court has relied on. 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, “[h]owever well these rules may serve at times to decipher
legislative intent, they long have been subordinated to the doctrine that courts will
construe the details of an act in conformity with its dominating general purpose, will
read text in the light of context and will interpret the text so far as the meaning of the
words fairly permits so as to carry out in particular cases the generally expressed
8 United States v. Boisdoré’s Heirs, 49 U.S. (8 How.) 113, 122 (1850) (opinion of Court).
For a modern instance in which the Court’s reading of text was informed by statutory
context and statutory purpose, see Brotherhood of Locomotove Engineers v. Atchison, T.
& S.F.R.R., 516 U.S. 152, 157 (1996) (purpose of Hours of Service Act of promoting safety
by ensuring that fatigued employees do not operate trains guides the determination of
whether employees’ time is “on duty”). As Justice Breyer explained, dissenting in FCC v.
NextWave Personal Communications, Inc., 537 U.S. 293, 311 (2003), “[i]t is dangerous .
. . in any case of interpretive difficulty to rely exclusively upon the literal meaning of a
statute’s words divorced from consideration of the statute’s purpose.” The Justice cited the
stock example that “‘no vehicles in the park’ does not refer to baby strollers or even to tanks
used as part of a war memorial,” as well as Justice Field’s opinion for the Court in United
States v. Kirby, 74 U.S. (7 Wall.) 482, 486 (1869) (prohibition on obstructing mail does not
apply to local sheriff’s arrest of mail carrier on a murder charge; “[g]eneral terms should be
so limited in their application as not to lead to injustice, oppression, or an absurd
9 Green v. Bock Laundry Machine Co., 490 U.S. 504, 528 (1990).
10 McNary v. Haitian Refugee Center, 498 U.S. 479, 496 (1991) (referring to presumption
favoring judicial review of administrative action). See also United States v. Fausto, 484
U.S. 439, 463 n.9 (1988) (Justice Stevens, dissenting) (Court presumes that “Congress is
aware of this longstanding presumption [disfavoring repeals by implication] and that
Congress relies on it in drafting legislation”).
11 SEC v. Joiner, 320 U.S. 344, 350-51 (1943). Justice Jackson explained that some of the
canons derived “from sources that were hostile toward the legislative process itself,” and
that viewed legislation as “‘interference’” with the common law “‘process of intelligent
judicial administration.’” 320 U.S. at 350 & n.7 (quoting the first edition of SUTHERLAND,
STATUTES AND STATUTORY CONSTRUCTION). A more recent instance of congressional
purpose and statutory context trumping a “canon” occurred in General Dynamics Land
Systems, Inc. v. Cline, 540 U.S. 581, 594-599 (2004), the Court determining that the word
“age” is used in different senses in different parts of the Age Discrimination in Employment
Act, and that consequently the presumption of uniform usage throughout a statute should
Canons of Construction
“[C]anons of construction are no more than rules of thumb that help courts
determine the meaning of legislation, and in interpreting a statute a court should
always turn first to one, cardinal canon before all others. . . . [C]ourts must presume
that a legislature says in a statute what it means and means in a statute what it says
there. When the words of a statute are unambiguous, then, this first canon is also the
last: <judicial inquiry is complete.’”12 The Court takes much the same approach when
it chooses congressional intent rather than statutory text as its touchstone: a canon of
construction should not be followed “when application would be tantamount to a
formalistic disregard of congressional intent.”13
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 “axioms of experience” that do “not preclude consideration of persuasive
[contrary] evidence if it exists.”14 Context can provide that contrary evidence. Many
of the 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.”
There are so many “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.15 The case was
somewhat strained, since in some instances Llewellyn relied on statements in court
opinions that were not so generally accepted as to constitute “canons.” Nonetheless,
the clear implication was that canons are useless because judges may pick and choose
among them to achieve whatever result is desired. The Supreme Court had to deal
with such a conflict in ruling on the retroactive effect of the Civil Rights Act of 1991;
there were “seemingly contradictory 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,” and, on the other hand, that “retroactivity is not favored
in the law.”16 The Court explained that these two principles were really not
not be followed.
12 Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations omitted).
13 Rice v. Rehner, 463 U.S. 713, 732 (1983).
14 Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928) (Justice Holmes for
15 Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons
About How Statutes Are To Be Construed, 3 VAND. L. REV. 395 (1950).
16 Landgraf v. USI Film Products, 511 U.S. 244, 263-64 (1994).
inconsistent, and held that the provisions at issue were not retroactive.17 But even for
those canons that do have equal opposites, a review of the Supreme Court’s usages
can reveal the 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.
Ordinary and Specialized Meaning
Terms of art.
When the meaning of specific statutory language is at issue, courts often 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 States Code,18 then that definition governs if
applicable in the context used.19 Even if the word or phrase is not defined by statute,
it may have an accepted meaning in the area of law addressed by the statute,20 it may
have been borrowed from another statute under which it had an accepted meaning,21
18 The Dictionary Act, ch. 388, 61 Stat. 633 (1947), as amended, 1 U.S.C. §§ 1-6, has
definitions of a few common terms used in federal statutes (e.g., “person,” “vessel,” and
“vehicle”). These definitions govern in all federal statutes “unless the context indicates
otherwise.” See Stewart v. Dutra Constr. Co., 543 U.S. 481, 489 (2005) (relying on
Dictionary Act’s definition of “vessel”); Rowland v. California Men’s Colony, 506 U.S. 194
(1993) (context indicates otherwise; the term “person” as used in 28 U.S.C. § 1915(a) refers
only to individuals and does not carry its Dictionary Act definition , which includes
associations and artificial entities).
19 Colautti v. Franklin, 439 U.S. 379, 392 (1979). If the context indicates otherwise, i.e., if
a mechanical application of a statutory definition throughout a statute would create an
“obvious incongruity” or frustrate an evident statutory purpose for a particular provision,
then it is permissible to depart from the 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 statute is
ordinarily interpreted as having the same meaning each time it appears. See section on
“Same Phrasing in Same or Related Statutes,” infra p. 13.
20 See, e.g., Sullivan v. Stroop, 496 U.S. 478, 483 (1990) (phrase “child support” as used in
Title IV AFDC provisions of Social Security Act). Note also that “where a 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.
21 In appropriate circumstances, courts will assume that “adoption of the wording of a statute
from another legislative jurisdiction carries with it the previous judicial interpretations of
the wording.” Carolene Products 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. Hof, 174 U.S. 1, 36 (1899). See also Yates v. United
States, 354 U.S. 298, 310 (1957) (in the absence of legislative history indicating that
decisions of lower state courts 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, 512 U.S.
573, 581 (1994) (Congress did not borrow the terms of the Insanity Defense Reform Act of
or it may have had an accepted and specialized meaning at common law.22 In each
of these situations the accepted meaning governs23 and the word or phrase is
considered a technical term or “term of art.” Justice Jackson explained why this
reliance is appropriate:24
[W]here Congress borrows terms of art in which are accumulated the legal
tradition and meaning of centuries of practice, it presumably knows and adopts
the cluster of ideas that were attached to each borrowed word in the body of
learning from which it was taken and the meaning its use will convey to the
judicial mind unless otherwise instructed. In such a case, absence of contrary
direction may be taken as satisfaction with widely accepted definitions, not as
departure from them.
Ordinary meaning and dictionary definitions.
Words that are not terms of art and that are not statutorily defined are
customarily given their ordinary meanings, often derived from the dictionary.25 Thus,
the Court has relied on regular dictionary definitions to interpret the word
“marketing” as used in the Plant Variety Protection Act,26 and the word “principal”
as used to modify a taxpayer’s place of business for purposes of an income tax
deduction,27 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 identify certain
causes of action.28
Of course application of dictionary definitions is not always a clear course;
many words have several alternative meanings, and context must guide choice among
22 See, e.g., Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989)
(relying on traditional common law agency principles for meaning of term “employee” as
used without definition in the Copyright Act). See also Nationwide Mut. Ins. Co. v. Darden,
definition of “employee” to be useless); Clackamas Gastroenterology Assocs., P.C. v. Wells,
538 U.S. 440, 444 (2003) (same construction of similarly “circular” definition of
“employee” in ADA).
23 “[W]here a common law principle is well established, . . . the courts may take it as a given
that Congress has legislated with an expectation that 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) (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783
(1952)). No clear statement rule is required, however, in order to establish an “evident”
contrary purpose. 501 U.S. at 108.
24 Morissette v. 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
25 In the absence of a statutory definition, “we construe a statutory term in accordance with
its ordinary or natural meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994).
26 Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995).
27 Commissioner v. Soliman, 506 U.S. 168, 174 (1993).
28 FDIC v. Meyer, 510 U.S. 471, 476 (1994).
them.29 “Ambiguity is a creature not of definitional possibilities but of statutory
context.”30 Witness the Supreme Court’s conclusion that “use” of a firearm in
commission of a drug offense or crime of violence includes trading a gun for drugs.31
And sometimes dictionary meanings can cause confusion even if there are not
multiple choices. As Judge Learned Hand observed, “it is one of the surest indexes
of a mature and developed jurisprudence not to make a fortress out of the dictionary;
but to remember that statutes always have some purpose or object to accomplish,
whose sympathetic and imaginative discovery is the surest guide to their meaning.”32
29 See, e.g., MCI Tel. Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 226-28 (1994)
(FCC’s authority to “modify” requirements does not include the authority to make tariff
filing optional; aberrant dictionary meaning “to make a basic or important change” is
antithetical to the principal meaning of incremental change and is more than the statute can
bear); and Nixon v. Missouri Municipal League, 541 U.S. 125 (2004) (preemption of state
laws that prohibit “any entity” from providing telecommunications service means, in
context, “any private entity,” and does not preempt a state law prohibiting local governments
from providing such services). If the court views the issue as one of deference to an
administrative interpretation, then the agency’s choice of one alternative dictionary
definition over another may indicate sufficient “reasonableness.” Smiley v. Citibank (South
Dakota), 517 U.S. 735, 744-47 (1996).
30 Brown v. Gardner, 513 U.S. 115, 118 (1994).
31 Smith v. United States, 508 U.S. 223 (1993). Dissenting Justice Scalia cut to the core:
“[to] use an instrumentality normally 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’s
silver-handled 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 distinctive
purpose, 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’s trunk 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, defined “use” in such a way
(“active employment”) as to leave the Smith holding intact. See also Muscarello v. United
States, 524 U.S. 125 (1998) (the companion phrase “carries a firearm,” found in the same
statutory provision, is a broader category that includes transporting drugs with a handgun
locked in the glove compartment of a vehicle).
32 Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945). Justice Stevens has expressed a
preference for established interpretation over dictionary definitions. “In a contest between
the dictionary and the doctrine of stare decisis, the latter clearly wins.” Hibbs v. Winn, 542
U.S. 88, 113 (2004) (J. Stevens, concurring).
Similar principles govern use of the words “and” and “or.” Ordinarily, as in
everyday English, use of the conjunctive “and” in a list means that all of the listed
requirements must be satisfied,33 while use of the disjunctive “or” means that only
one of the listed requirements need be satisfied.34 Courts do not apply these
meanings “inexorably,” however; if a “strict grammatical construction” will frustrate
evident legislative intent, a court may read “and” as “or,” or “or” as “and.”35
Moreover, statutory context can render the distinction secondary.36
As in common usage, a drafter’s choice between the definite and indefinite
article can affect meaning. “The definite article ‘the’ particularizes the subject which
it precedes. It is a word of limitation as opposed to the indefinite or generalizing
force of ‘a’ or ‘an.’”37
33 See, e.g., Pueblo of Santa Ana v. Kelly, 932 F. Supp. 1284, 1292 (D. N. Mex. 1996).
34 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). A corollary is
that use of the disjunctive “or” creates “mutually exclusive”conditions that can rule out
mixing and matching. United States v. Williams, 326 F.3d 535, 541 (4th Cir. 2003) (“a
crime may qualify as a serious drug offense by meeting all the requirements of (i) or all the
requirements of (ii), but not some of the requirements of (i) and some of (ii)”).
35 See, 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 substitute for the word
‘and’”). Both “and” and “or” are context-dependent, 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, § 21.10 (1992).
36 See, e.g., United States v. 141st St. Corp., 911 F.2d 870 (2d Cir. 1990) (holding that an
affirmative defense to forfeiture of real property used in a drug offense, applicable if the
offense was committed “without the knowledge or consent” of the property owner, applies
if the property owner had knowledge of the crime, did not consent, and took all reasonable
steps to prevent illicit use of his property).
37 American Bus Ass’n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir. 2000). See also Reid v.
Angelone, 369 F.3d 363, 367 (4th Cir. 2004) (“because Congress used the definite article
‘the,’ we conclude that . . . there is only one order subject to the requirements”); Warner-
Lambert Corp. v. Apotex Corp., 316 F.3d 1348, 1356 (Fed. Cir. 2003) (reference to “the”
use of a drug is a reference to an FDA-approved use, not to “a” use or “any” use); Freytag
v. Commissioner, 501 U.S. 868, 902 (1991) (concurring opinion of Justice Scalia)
(contending that use of the definite article in the Constitution’s conferral of appointment
authority on “the Courts of Law” “obviously narrows the class of eligible ‘Courts of Law’
to those courts of law envisioned by the Constitution”). But cf. Sprietsma v. Mercury
Marine, 537 U.S. 51, 63 (2002) (reference in a preemption clause to “a law or regulation”
“implies a discreteness — which is embodied in statutes and regulations — that is not
present in the common law”).
Use of “shall” and “may” in statutes also mirrors common usage; ordinarily
“shall” is mandatory and “may” is permissive.38 These words39 must be read in their
broader statutory context, however, the issue often being whether the statutory
directive itself is mandatory or permissive.40 Use of both words in the same
provision can underscore their different meanings,41 and often the context will
confirm that the ordinary meaning of one or the other was intended.42 Occasionally,
however, context will trump ordinary meaning.43
An elementary rule of statutory construction is that the singular includes the
plural, and vice-versa.44 Thus, a statutory directive that the Secretary of
Transportation require automakers to install a warning system in new cars to alert
drivers “when a tire is significantly under-inflated” is not satisfied by a system that
fails to warn when two tires on the same side, or all four tires, are significantly under-
i n fl at ed. 45
38 “The mandatory ‘shall’ . . . normally creates an obligation impervious to judicial
discretion.” Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35
(1998). “The use of a permissive verb — ‘may review’ instead of ‘shall review’ — suggests
a discretionary rather than mandatory review process.” Rastelli v. Warden, Metro.
Correctional Center, 782 F.2d 17, 23 (2d Cir. 1986).
39 “Should” sometimes is substituted for “may” as a permissive word. Union Elec. Co. v.
Consolidation Coal Co., 188 F.3d 998, 1001 (8th Cir. 1999). “Will” and “must” can be
additional mandatory words. Bankers Ins. Co. v. Florida Res. Prop. & Cas. Jt. Underwriting
Ass’n, 137 F.3d 1293, 1298 (11th Cir. 1998).
40 See IA SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 25:4 (Norman J.
Singer ed., 6th ed. 2002 rev.).
41 See, e.g., Lopez v. Davis, 531 U.S. 230, 241 (2001) (“Congress’ use of the permissive
‘may’ . . . contrasts with the legislators’ use of a mandatory ‘shall’ in the very same
section”); and United States ex rel. Siegel v. Thoman, 156 U.S. 353, 359-60 (1895) (“in the
law to be construed here it is evident that the word ‘may’ is used in special contradistinction
to the word ‘shall’”).
42 See, e.g., Escoe v. Zerbst, 295 U.S. 490, 493 (1935) (“doubt . . . is dispelled when we pass
from the words alone to a view of [the statute’s] ends and aims”).
43 See, e.g., Moore v. Illinois Cent R.R., 312 U.S. 630, 635 (1941) (substitution of “may” for
“shall” “was not, we think, an indication of a change in policy, but was instead a
clarification of the [Railway Labor Act’s] original purpose [of establishing] a system for
peaceful adjustment and mediation voluntary in its nature”). See also discussion in
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 n.9 (1995) (“shall” sometimes means
44 The Dictionary Act provides that “unless the context indicates otherwise,” “words
importing the singular include and apply to several persons, parties, or things; words
importing the plural include the singular.” 1 U.S.C. § 1.
45 Public Citizen, Inc. v. Mineta, 340 F.3d 39, 54 (2d Cir. 2003).
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 to a
matter specifically dealt with in another part of the same enactment.”46 As with other
canons, context can dictate a contrary result.47
Another interpretational guide used from time to time is the principle noscitur
a sociis, that “words grouped in a list should be given related meaning.”48 A
corollary, ejusdem generis, instructs that, “where general words follow an
enumeration of specific items, the general words are read as applying only to other
items akin to those specifically enumerated.”49 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 of words when there is uncertainty.”50 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.”51
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
46 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
47 See, e.g., Adams v. Woods, 6 U.S. (2 Cranch) 336, 341 (1805).
48 Dole v. United Steelworkers of America, 494 U.S. 26, 36 (1990); Gustafson v. Alloyd Co.,
513 U.S. 561, 575 (1995) (reading a statutory definition as limited by the first of several
49 Harrison v. PPG Industries, Inc., 446 U.S. 578, 588 (1980); Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 114-15 (2001); Washington Dep’t of Social Servs. v. Keffeler, 537
U.S. 371, 384 (2003) (relying on both noscitur a sociis and ejusdem generis). The principle
cannot be applied if the enumerated categories 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).
50 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. Turkette, 452 U.S. 576, 580-82 (1981) (appeals court erred in finding that a second
category was merely a more general description of the first; context and language instead
reveal two contrasting categories).
51 REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES, 234 (1975).
need be, to render the true meaning of the statute.”52 The modern Court recognizes
that grammar and punctuation often clarify meaning, and that skilled drafters can be
expected to apply good grammar.53 The Court has also found plain meaning resulting
from verb tense.54
The Court remains reluctant, however, to place primary importance on
punctuation. “A statute’s plain meaning must be enforced . . . , and the meaning of
a statute will typically heed the commands of its punctuation.”55 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.”56
“Overwhelming evidence from the structure, language, and subject matter” of the law
led the Court to conclude that “in this unusual case” the punctuation at issue was the
result of “a simple scrivener’s error.”57 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.58
Perhaps more typical was the Court’s refusal to apply the rule that a modifying
clause modifies the last antecedent, even though it could easily have concluded on
the basis of the 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 of grammar,” the Court explained, but it “is not compelled.”59 So too, in
another case the Court shied away from “the most natural grammatical reading” of
52 Hammock v. Loan and Trust Co., 105 U.S. (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).
53 See, 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.”).
54 Ingalls Shipbuilding v. Director, OWCP, 519 U.S. 248, 255 (1997) (present tense of verb
is an element of plain meaning); Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003)
(interpretation required by “plain text” derived from present tense).
55 United States Nat’l Bank of Oregon v. Independent Ins. Agents, 508 U.S. 439, 454 (1993).
56 Id. See also Costanzo v. Tillinghast, 287 U.S. 341, 344 (1932) (“It has often been said
that punctuation is not decisive of the construction of a statute. . . . Upon like principle we
should not apply the rules of syntax to defeat the evident legislative intent.”).
57 Independent Ins. Agents, supra n.55, 508 U.S. at 462. This “unusual case” held that
Congress did not in 1918 repeal a statutory provision enacted in 1916 allowing national
banks located in small communities to sell insurance. The “scrivener’s error” had
erroneously credited the 1916 enactment with having amended a provision that was repealed
by the 1918 enactment.
58 United States v. Ron Pair Enterprises, 489 U.S. 235, 241 (1989).
59 Nobelman v. American Savings Bank, 508 U.S. 324, 330-31 (1993). See also Lamie v.
United States Trustee, 540 U.S. 526, 534 (2004) (“The statute is awkward, and even
ungrammatical; but that does not make it ambiguous”).
a statute in order to avoid an interpretation that would have raised a serious issue of
Refusal to be bound by the rules of punctuation and grammar, it seems, gives
the Court some flexibility in construing statutes. This is not to say, however, that
grammatical rules should be disregarded in statutory drafting, since such rules are
ordinarily strong guides to meaning.
Statutory Language Not to be Construed
as “Mere Surplusage”
A basic principle of statutory interpretation is that courts should “give effect, if
possible, to every clause and word of a statute, avoiding, if it may be, any
construction which implies that the legislature was ignorant of the meaning of the
language it employed.”61 The modern variant is that statutes should be construed “so62
as to avoid rendering superfluous” any statutory language. 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.”63 Resistance to treating statutory words as mere surplusage “should be64
heightened when the words describe an element of a criminal offense.” There can
be differences of opinion, of course, as to when it is “possible” to give effect to all
60 United States v. X-Citement Video, Inc., 513 U.S. 64, 68 (1994). Justice Scalia,
dissenting, insisted that the language was perfectly clear, and that the rejected interpretation
was “the only grammatical reading.” Id. at 81.
61 Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).
62 Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991); Sprietsma
v. Mercury Marine, 537 U.S. 51, 63 (2003) (interpreting word “law” broadly could render
word “regulation” superfluous in preemption clause applicable to a state “law or
regulation”). See also Bailey v. United States, 516 U.S. 137, 146 (1995) (“we assume that
Congress used two terms because it intended each term to have a particular, nonsuperfluous
meaning”) (rejecting interpretation that would have made “uses” and “carries” redundant
in statute penalizing using or carrying a firearm in commission of offense). The
presumption also guides interpretation of “redundancies across statutes.” Two overlapping
statutes may be given effect 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 of
considerable overlap between two provisions, each addressed matters that the other did not).
63 United States v. Wilson, 503 U.S. 333, 336 (1992) (nonetheless attributing 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); Stone
v. INS, 514 U.S. 386, 397 (1995) (“When Congress acts to amend a statute, we presume it
intends its amendment to have real and substantial effect.”). There is an exception for
minor, unexplained changes in phraseology made 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).
64 Ratzlaf v. United States, 510 U.S. 135, 140-41 (1994).
statutory language and when the general rule should give way in the face of evident
A converse of the rule that courts should not read statutory language as
surplusage is that courts should not add language that Congress has not included.
Thus, in a situation where Congress subjected specific categories of ticket sales to
taxation but failed to cover another category, either by specific or by general
language, the Court refused to extend the coverage. To do so, given the
“particularization and detail” with which Congress had set out the categories, would
amount to “enlargement” of the statute rather than “construction” of it.66
Same Phrasing in Same or Related Statutes
“A term appearing in several places in a statutory text is generally read the same
way each time it appears.”67 This presumption is “at its most vigorous when a term
is repeated within a given sentence.”68 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
65 See, e.g., Moskal v. United States, 498 U.S. 103 (1990). Dissenting Justice Scalia
objected to the Court’s straining to 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 (‘if possible’) 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 120.
66 Iselin v. United States, 270 U.S. 245, 250 (1926). See also Lamie v. United States
Trustee, 540 U.S. 526, 537 (2004) (courts should not add an “absent word” to a statute;
“there is a basic difference between filling a gap left by Congress’ silence and rewriting
rules that Congress has affirmatively and specifically enacted”). Obviously, the line
between the permissible filling in of statutory gaps and the impermissible adding of statutory
content may be indistinct in some instances, and statutory context, congressional purpose,
and overriding presumptions may tip the scales. For example, the Court made no mention
of the “absent word” rule in holding that a reference to “any entity” actually meant “any
private entity” in the context of preemption. Nixon v. Missouri Municipal League, 541 U.S.
125 (2004) (preemption of state laws that prohibit “any entity” from providing
telecommunications service does not preempt a state law prohibiting local governments from
providing such service).
67 Ratzlaf v. United States, 510 U.S. 135, 143 (1994). See also Gustafson v. Alloyd Co., 513
U.S. 561, 570 (1995); and Wisconsin Dep’t of Revenue v. William Wrigley, Jr. Co., 505
U.S. 214, 225 (1992). The Court cited this passage of Wrigley to invoke a quite different
principle, described as “the established canon” that “similar [rather than identical] language”
in the same section of a statute “must be accorded a consistent [rather than the same]
meaning.” National Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479,
68 Brown v. Gardner, 513 U.S. 115, 118 (1994); Reno v. Bossier Parish Sch. Bd., 528 U.S.
in different parts of the act with different intent.”69 In other words, context can
override the presumption.
Different Phrasings in Same Statute
The other side of the coin is that “where Congress includes particular language
in one section of a statute but omits it in another . . . , it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or exclusion.”70
“[N]egative implications raised by disparate provisions are strongest when the
portions of a statute treated differently had already been joined together and were
being considered simultaneously when the language raising the implication was
inserted.”71 This maxim has been applied by the Court — or at least cited as a
justification — in distinguishing among different categories of veterans benefits72 and
among different categories of drug offenses.73 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.74
69 Atlantic Cleaners & Dyers, Inc. v. United 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 some sections of Title VII of Civil Rights Act, but in other sections
includes former employees); United States v. Cleveland Indians Baseball Co., 532 U.S. 200
(2001) (different statutory contexts of worker eligibility for Social Security benefits and
“administrability” of tax rules justify different interpretations); General Dynamics Land
Systems, Inc. v. Cline, 540 U.S. 581, 594-595 (2004) (word “age” means “old age” when
included in the term “age discrimination” in the Age Discrimination in Employment Act
even though it is used in its primary sense elsewhere in the act). For disagreement about the
appropriateness of applying this limitation, contrast the Court’s opinion in Gustafson v.
Alloyd Co., supra n.67, 513 U.S. at 573, with the dissenting opinion of Justice Thomas in
the same case, id. at 590 (interpreting a definition that, by its terms, was applicable “unless
the context otherwise requires”).
70 Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)). See also Bailey v. United States. 516 U.S. 137, 146 (1995)
(distinction in one provision between “used” and “intended to be used” creates implication
that 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) (inclusion of “intent to defraud” language in
one provision and exclusion in a parallel provision).
71 Lindh v. 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
72 King v. 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”).
73 Chapman v. United States, 500 U.S. 453, 459 (1991) (fact that, with respect to some
drugs, 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 inadvertent).
74 See 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).
“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 of the 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. For example, the Court reasoned that, although “Congress
knew how to impose aiding and abetting liability when it chose to do so,” it did not
use the words “aid” and “abet” in the statute, and hence did not impose aiding and
abetting liability.75 To 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.76 Some statutes are not well drafted,77 and others
represent conscious choices, born of political compromise, to leave issues for the
courts to resolve.78 It may not always be safe to assume, therefore, that “[i]f
Congress had intended such an irrational result, surely it would have expressed it in
75 Central Bank 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 several other instances”); Meghrig v. KFC Western, Inc.,
516 U.S. 479, 485 (1996) (“Congress . . . demonstrated in CERCLA that it knew how to
provide for the recovery of cleanup costs, and . . . the language used to define the remedies
under RCRA does not provide that remedy”); FCC v. NextWave Personal Communications,
Inc., 537 U.S. 293, 302 (2003) (when Congress has intended to create exceptions to
bankruptcy law requirements, “it has done so clearly and expressly”); Dole Food Co. v.
Patrickson, 538 U.S. 468, 476 (2003) (Congress knows how to refer to an “owner” “in other
than the formal sense,” and did not do so in the Foreign Sovereign Immunities Act’s
definition of foreign state “instrumentality”); Whitfield v. United States, 543 U.S. 209, 216
(2005) (Congress has imposed an explicit overt act requirement in 22 conspiracy statutes,
yet has not done so in the provision governing conspiracy to commit money laundering).
76 See, e.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (Title IX’s
prohibition on sex discrimination encompasses retaliation despite absence of an explicit
prohibition on retaliation such as those contained in Title VII, the ADA, and the Age
Discrimination in Employment Act).
77 See, e.g., the provisions of the Plant Variety Protection Act at issue in Asgrow Seed Co.
v. Winterboer, 513 U.S. 179 (1995). Justice Scalia in his opinion for the Court in Asgrow
called 7 U.S.C. § 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 conflicting standards identifying an
evidentiary burden. Concrete Pipe & Products v. Construction Laborers Pension Trust, 508
U.S. 602, 627 (1993). The Court resolved the issue by treating the “incoherence” as
ambiguity, and by applying the one possible construction that did not raise constitutional
issues. Id. at 628-30.
78 See, e.g., Landgraf v. USI Film Products, 511 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”).
79 FMC Corp. v. Holliday, 498 U.S. 52, 66 (1990) (Justice Stevens, dissenting, objecting to
Court’s interpretation of convoluted preemption language in ERISA).
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, ‘[n]ot every silence
is pregnant.’ In some cases, Congress intends silence to rule out a particular statutory
application, while in others Congress’ silence signifies merely an expectation that
nothing more need be said in order to effectuate the relevant legislative objective.
In still other instances, silence may reflect the fact that Congress has not considered
an issue at all. An inference drawn from congressional silence certainly cannot be
credited when it is contrary to all other textual and contextual evidence of
congressional intent.”80 Occasionally, however, the Court identifies a pregnant
statutory silence, as, for example, when that silence contrasts with a consistent
pattern in federal statutes under which departures from a general rule had been
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.”82 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 fashion.”83
A variation on the statutory silence theme is the negative inference: expressio
unius est exclusio alterius (the inclusion of one is the exclusion of others). “Where
80 Burns v. United States, 501 U.S. 129, 136 (1991) (quoting Illinois Dep’t of Public Aid v.
Schweiker, 707 F.2d 273, 277 (7th Cir. 1983)).
81 Director, 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”); Elkins v. Moreno,
435 U.S. 647, 666 (1978) (absence of reference to an immigrant’s intent to remain citizen
of foreign country is “pregnant” when contrasted with other provisions of “comprehensive
and complete” immigration code); Meyer v. Holley, 537 U.S. 280 (2003) (ordinary rules of
vicarious liability apply to tort actions under the Fair Housing Act; statutory silence as to
vicarious liability contrasts with explicit departures in other laws).
82 Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001). See also MCI
Telecommunications Corp. v. AT&T, 512 U.S. 218, 231 (1994) (conferral of authority to
“modify” rates was not a cryptic conferral of authority to make filing of rates voluntary);
Director of Revenue of Mo. v. CoBank, ACB, 531 U.S. 316, 323 (2001) (“it would be
surprising, indeed,” if Congress had effected a “radical” change in the law “sub silentio” via
“technical and conforming amendments”).
83 FDA v. 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
longstanding disavowal of regulatory authority, and to subsequently enacted tobacco-
specific legislation that stopped short of conferring authority to ban sale of the product.
Congress explicitly enumerates certain exceptions to a general prohibition, additional
exceptions are not to be implied, in the absence of a contrary legislative intent.”84
The Court applied the principle, albeit without express recognition, in holding that
a statute requiring payment of an attendance fee to “a witness” applies to an
incarcerated state prisoner who testifies at a federal trial. Because Congress had
expressly excepted another category (detained aliens) from eligibility for these fees,
and had expressly excepted any “incarcerated” witness from eligibility for a different
category of fees, “the conclusion is virtually inescapable . . . that the general language
‘witness in attendance’ . . . includes prisoners . . . .”85 But here again, context may
render the principle inapplicable. A statutory listing may be “exemplary, not
exclusive,” the Court once concluded.86
De Minimis Principle
“The venerable maxim de minimis non curat lex (‘the law cares not for trifles’)
is part of the established background of legal principles against which all enactments
are adopted, and which all enactments (absent contrary indication) are deemed to
accept. . . . Whether a particular activity is a de minimis deviation from a prescribed
standard must . . . be determined with reference to the purpose of the standard.”87
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.88 Application of a presumption
results in some form of “clear statement” rule, requiring that Congress, if it wishes
to achieve a particular result inconsistent with the Court’s view of legal traditions,
84 Andrus v. Glover Const. Co., 446 U.S. 608, 616-17 (1980) (citing Continental Casualty
Co. v. United States, 314 U.S. 527, 533 (1942)).
85 Demarest v. Manspeaker, 498 U.S. 184, 188 (1991). Congress quickly acted to override
this result and prohibit payment of witness fees to prisoners, P.L. 102-417, 106 Stat. 2138
(1992), the House Judiciary Committee expressing the belief that “Congress never intended”
that prisoners be paid witness fees. H.Rept. 102-194, 102d Cong., 1st Sess. 2 (1991).
86 NationsBank v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995) (endorsing
Comptroller of the Currency’s interpretation).
87 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 minimis, 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
deviation from Robinson-Patman Act’s exemption for hospitals’ purchase of supplies “for
their 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 insufficient to establish a violation of the Sherman Act).
88 Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 108-09 (1991).
must state such an intent with unmistakable clarity.89 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 of judge-made law. “The normal
rule of statutory construction is that if Congress intends for legislation to change the
interpretation of a judicially created concept, it makes that intent specific.”90 In
another case the Court declared that “[w]e will not read the Bankruptcy Code to
erode past bankruptcy practice absent a clear indication that Congress intended such
a departure.”91 This principle is thus closely akin to the principle noted above that,
when Congress employs legal terms of art, it normally adopts the 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.”92 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 the93
matter. The Court also, however, recognizes several categories of implied
89 Judge Wald described one such presumption as requiring that Congress “signal[ ] its
intention in neon lights.” Patricia M. Wald, Some Observations on the Use of Legislative
History in the 1981 Supreme Court Term, 68 IOWA L. REV. 195, 208 (1983). See generally
pp. 206-14 of the article. See also William N. Eskridge, Jr. and Philip P. Frickey, Quasi-
Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV.
90 Midlantic Nat’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)).
91 Pennsylvania Pub. Welfare Dep’t v. Davenport, 495 U.S. 552, 563 (1990) (nonetheless
finding that the statutory language plainly evidenced an intent to depart from past practice).
92 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Wisconsin Public Intervenor
v. Mortier, 501 U.S. 597, 605 (1991).
93 A statement asserting preemption 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 affecting an injured party’s right 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 this carefully drawn statute [leaving a source state responsible for control of
point-source discharges within its boundaries] through a general savings clause, we
conclude that the CWA precludes a court from applying the law of an affected state against
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 implementation of
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 to spell out intended preemptive effect.
In the same vein, the Court will not lightly infer that Congress has enacted
legislation that restricts how states may constitute their own governments. In ruling
that state judges are not “employees” for purposes of the Age Discrimination in
Employment Act, the Court required a plain statement rule applicable to 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 Guarantee Clause.94 “This plain statement rule is nothing more than an
acknowledgment that the States retain substantial sovereign powers under our
constitutional scheme, powers with which Congress does not readily interfere.”95
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.’”96 Congress,
of course, has limited authority to abrogate states’ Eleventh Amendment immunity;
the Court held in Seminole Tribe of Florida v. Florida, that Article I powers may not
be used to “circumvent the constitutional limitations placed upon federal jurisdiction
[by the Eleventh Amendment].”97 This 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.98 Federal law
usually applies uniformly nationwide,99 however, and there is a presumption that,
an out-of-state source.” Id. at 484.
94 Gregory v. Ashcroft, 501 U.S. 452 (1991).
95 Id. at 461. See also Nixon v. Missouri Municipal League, 541 U.S. 125 (2004) (indicating
that the plain statement rule is also appropriate for laws “interposing federal authority
between a State and its municipal subdivisions”).
96 Hoffman v. Connecticut Income Maint. Dep’t, 492 U.S. 96, 101 (1989) (quoting
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)).
97 517 U.S. 44, 73 (1996).
98 See, e.g., the Assimilative Crimes Statute, 18 U.S.C. § 13, governing crimes within the
special maritime and territorial jurisdiction of the United States.
99 Jerome v. United States, 318 U.S. 101, 104 (1943). Arguably, the Jerome 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 uniform in its application,” provisions of the revenue laws “should not
“when Congress enacts a statute . . . it does not intend to make its application
dependent on state law.”100
Waiver of Sovereign Immunity
“[T]he Government’s consent to be sued ‘must be construed strictly in favor of
the sovereign.’”101 Waiver of sovereign immunity must be effected by unequivocal
expression in the statutory text itself; legislative history “has no bearing” on the
issue.102 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 / Effective Date
“[A]bsent a clear direction by Congress to the contrary, a law takes effect on the104
date of its enactment.” 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 affirmatively considered the potential
unfairness of retroactive application and determined that it is an acceptable price to
be taken as subject to state control or limitation unless the language or necessary implication
of the section involved makes its application dependent on state law.” 312 U.S. at 402-03.
100 Dickerson v. New Banner Inst., 460 U.S. 103, 119 (1983) (quoting NLRB v. Randolph
Elec. Membership Corp., 343 F.2d 60, 62-63 (4th Cir. 1965)).
101 United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992); Ardestani v. INS, 502 U.S.
102 United States v. Nordic Village, supra n.101, 503 U.S. at 37. For criticism of the rule,
see John Copeland Nagle, Waiving Sovereign Immunity in an Age of Clear Statement Rules,
103 UMW v. United States, 330 U.S. 258, 272 (1947) (United States is not an “employer” for
purposes of the Norris-LaGuardia Act); Vermont Agency of Nat. Resources v. United States
ex rel. Stevens, 529 U.S. 765, 780-81 (2000) (state is not a “person” for purposes of qui tam
liability under the False Claims Act).
104 Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991). Ordinarily, and in the absence
of special circumstances, the law does not recognize fractions of the day, so a law becomes
effective “from the first moment” of the effective date. Lapeyre v. United States, 17 Wall.
191, 198 ( 1872). However, “whenever it becomes important to the ends of justice . . . the
law will look into fractions of a day.” Louisville v. Savings Bank, 104 U.S. 469, 474
(1881). See Burgess v. Salmon, 97 U.S. 381 (1878) (a law signed in the afternoon could not
be applied to fine a person for actions he had completed on the morning of the same day);
United States v. Will, 449 U.S. 200, 225 n.29 (1980) (a judicial salary increase had taken
effect at the beginning of the day, and was already in effect when the President later in the
day signed legislation reducing cost-of-living increases).
pay for the countervailing benefits.”105 The prohibitions on ex post facto laws, of
course, impose a constitutional bar to retroactive application of penal laws.106
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.”107 “[W]here an otherwise acceptable construction
of a statute would raise serious constitutional problems, the Court will construe the
statute to avoid such problems unless such construction is plainly contrary to the
intent of Congress. . . . ‘The elementary rule is that every reasonable construction
must be resorted to, in order to save a statute from unconstitutionality.’ This
approach not only reflects the prudential concern that constitutional issues not be
needlessly confronted, but also recognizes that Congress, like this Court, is bound by
and swears an oath to uphold the Constitution.”108 “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 constitutional.”109
Extraterritorial Application Disfavored
“It is a longstanding principle of American law ‘that legislation of Congress,
unless a contrary intent appears, is meant to apply only within the territorial
jurisdiction of the United States.’ This ‘canon of construction’ . . . serves to protect
105 Landgraf v. USI Film Products, 511 U.S. 244, 272-73 (1994) (finding 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).
106 Art. I, § 9, cl. 3 prohibits Congress from enacting ex post facto laws; Art. I, § 10 applies
the 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.
107 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, 529 U.S. 848, 857 (2000). See
also Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (J. Brandeis,
concurring) (“The Court will not pass upon a constitutional question, although properly
presented by the record, if there is also present some other ground upon which the case may
be disposed of. [...] Thus, if a case can be decided upon two grounds, one involving a
constitutional question, the other a question of statutory construction or general law, the
Court will decide only the latter.”).
108 DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988)
(quoting Hooper v. California, 155 U.S. 648, 657 (1895)). Accord, Burns v. United States,
109 Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998) (citing Rust v. Sullivan,
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 issuance”).
against unintended clashes between our laws and those of other nations which could
result in international discord.”110
Judicial Review of Administrative Action
As a general matter, there is a “strong presumption that Congress intends
judicial review of administrative action.”111 This presumption is embodied in the
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.”112 The
Administrative Procedure Act applies “except to the extent that . . . statutes preclude
judicial review,”113 and issues relating to application of the presumption usually arise
in determining whether there is “clear and convincing evidence”114 or “persuasive
reason to believe”115 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.”116
110 EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros, Inc.
v. Filardo, 336 U.S. 281, 285 (1949)). See also Smith v. United States, 507 U.S. 197, 203-
04 (1993) (interpretation of Federal Tort Claims Act as inapplicable in Antarctica is
reinforced by presumption against extraterritorial application). Cf. Hartford Fire Ins. Co.
v. California, 509 U.S. 764, 796 (1993) (Sherman Act applies to foreign conduct producing,
and intended to produce, substantial effects in United States).
111 Bowen v. 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
Congress intended to foreclose all forms of meaningful judicial review,” given the
presumption “that Congress legislates with knowledge of our basic rules of statutory
112 5 U.S.C. § 704.
113 5 U.S.C. § 701(a).
114 Lindahl v. 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 subject to review” interpreted as precluding review only of OPM’s factual
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. at 779-80 & n.13 (citing 5 U.S.C. § 8128(b) (“action of the
Secretary . . . is final and conclusive for all purposes and with respect to all questions of law
and fact”); and 38 U.S.C. § 211(a) (“decisions of the Administrator on any question of law
or fact . . . shall be final and conclusive and no other official or any court of the United
States shall have power or jurisdiction to review any such decision”).
115 Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (pre-enforcement review of
regulations under Federal Food, Drug, and Cosmetic Act is not precluded as a result of
negative inference arising from fact that act has explicit authorization for review of other
kinds of regulations).
116 Block v. Community Nutrition Inst., 467 U.S. 340, 349 (1984) (judicial review of milk
marketing orders not available to consumers). Accord, United States v. Fausto, 484 U.S.
439, 452 (1988) (congressional intent to preclude judicial review is clear from the purposes
of the Civil Service Reform Act, from the entirety of its text, and from the structure of the
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 1984.117 In
two decisions, one in 2000118 and one in 2001,119 the Court clarified and narrowed
Chevron’s application, ruling that Chevron deference applies only if an agency’s
interpretation is the product of a formal agency process, such as adjudication or
notice-and-comment rulemaking, through which Congress has authorized the agency
“to speak with the force of law.”120 Other agency interpretations that are made
without the protections of a formal and public process are reviewed under pre-
Chevron principles set forth in Skidmore v. Swift & Co.121
If Chevron applies, the first question is “whether Congress has directly spoken
to the precise question at issue.”122 If the court, “employing the traditional tools of
statutory construction,” determines that Congress has addressed the precise issue,
then that is the end of the matter, because the “law must be given effect.”123 But if
the statute does not directly address the issue, “the court does not simply impose its
own construction of the statute,” but rather determines “whether the agency’s answer
is based on a permissible construction of the statute.”124
On its face, the Chevron rule is quite deferential, and was perceived as a
significant break from the multi-factored approach that preceded it. One would
expect that a court’s conclusion as to whether Congress has “directly spoken” to the
issue would be decisive in most cases, that most of the myriad of issues that can arise
in the administrative setting would not be directly addressed by statute, and that,
consequently, courts would most often defer to what are found to be “reasonable”
agency interpretations.125 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 has settled the matter, and that consequently there is no need to
117 Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
118 Christensen v. Harris County, 529 U.S. 576 (2000).
119 United States v. Mead Corp., 533 U.S. 218 (2001).
120 Mead Corp., 533 U.S. at 229.
121 323 U.S. 134 (1944).
122 Chevron, 467 U.S. at 842.
123 467 U.S. at 843 n.9.
124 Id. at 843.
125 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) (upholding Comptroller of the Currency’s interpretation of 1864 Bank Act); and
Lopez v. Davis, 531 U.S. 230, 240 (2001) (Bureau of Prisons regulation denying early
release is reasonable interpretation of discretionary authority).
proceed to the second, more deferential step of the inquiry.126 The Court has also
found that, even though Congress has left the matter for agency resolution, the
agency’s interpretation is unreasonable.127
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.128 And even when relying solely on text, the Court has not adhered
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.129 This “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.130 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 fashion.”131 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 subsequently enacted tobacco-specific
legislation and through rejection of legislative proposals to confer jurisdiction on the
FDA.132 In another case, the Court deemed deference to be inappropriate where the
126 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).
127 Whitman v. American Trucking Ass’ns, Inc., 531 U.S. 457 (2001).
128 See, e.g., Dunn v. CFTC, 519 U.S. 465, 473-74 (1997) (legislative history supports
Court’s conclusion that statute is clear and agency’s interpretation is untenable). See also
Babbitt v. Sweet Home Chapter, 515 U.S. 687, 708 (1995) (Court concludes, “based on the
text, structure, and legislative history of the ESA, that the Secretary reasonably construed
the intent of Congress” in defining “harm”).
129 See, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (courts should look “to
the particular statutory language at 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 System v. Betts, 492 U.S. 158, 171 (1989) (“no deference is due to agency
interpretations at odds with the plain language of the statute itself”).
130 See, e.g., MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218, 231 (1994) (“it
is highly unlikely that Congress would leave the determination of whether an industry will
be entirely, or even substantially, rate-regulated to agency discretion”).
131 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000).
132 The 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, Drug, and Cosmetic Act,
agency interpretation “invokes the outer limits of Congress’ power,” and there is no
“clear indication” that Congress intended that result.133
A logical consequence of applying Chevron is to render irrelevant whether an
agency interpretation was “contemporaneous” with a statute’s enactment, or whether
an agency’s position has been consistent over the years. “Neither antiquity nor
contemporaneity with the statute is a condition of validity.”134 The fact that an
agency has changed its position over the years “is not fatal,” because “the whole
point of Chevron is to leave the discretion provided by the ambiguities of a statute
with the implementing agency.”135
The Supreme Court has also ruled in National Cable & Telecommunications
Assn. v. Brand X Internet Services (Brand X) that a federal court must defer to a
reasonable agency interpretation of an ambiguous statute even if, prior to the agency
interpretation, the circuit has adopted a differing interpretation in an opinion.136 The
only time a prior judicial interpretation of a statute trumps an agency interpretation
is when the federal court’s interpretation flows from an unambiguous reading of the
st at ut e. 137
Agency interpretations that take place in the many less formal contexts where
Chevron deference is inapplicable (e.g., opinion letters, policy statements, agency
manuals, and enforcement guidelines, “all of which lack the force of law”138) can still
be “entitled to respect” under the Skidmore decision,139 “but only to the extent that
[they] have the power to persuade.”140 To make this determination, courts look to
and it was also clear that Congress had not spoken directly to the issue anywhere else in that
act. 529 U.S. at 162. The Court’s different resolution of a similar issue concerning patent
protection for plant breeding illustrates that a subsequently enacted “distinct regulatory
scheme” does not always trump general authority. The Court ruled in 1980 and again in
2001 that neither the Plant Patent Act of 1930 nor the Plant Variety Protection Act — both
premised on the understanding that the Patent and Trademark Office lacked authority to
issue plant patents under its general utility patent authority — deprived the Office of
authority to issue plant patents pursuant to that general authority. Diamond v. Chakrabarty,
133 Solid Waste Agency v. Army Corps of Engineers, 531 U.S. 159, 172 (2001).
134 Smiley v. Citibank (South Dakota), 517 U.S. 735, 740 (1996) (upholding regulation
issued more than 100 years after statute’s enactment).
135 Id. 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.
136 545 U.S. 967 (2005).
137 Id. at 982.
138 Christensen v. Harris County, 529 U.S. 576, 587 (2000).
139 Skidmore v. Swift & Co., 323 U.S. 134 (1944).
140 Christensen v. Harris County, 529 U.S. at 587. As the Court put it in Skidmore, agency
interpretations “constitute a body of experience and informed judgment to which courts and
litigants may properly resort . . . . The weight of such a judgment in a particular case will
such factors as whether an interpretation dealt with technical and complex matters
that fell within an area of agency expertise,141 whether an agency’s decision was well-
reasoned,142 whether the agency’s interpretation was contemporaneous with the
statute’s enactment,143 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 existing law,”
“construction with other laws,” or the like. “[It] can be strongly presumed that
Congress will specifically address language on the statute books that it wishes to
change.”145 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.”146 Only if provisions of two different federal statutes are
“irreconcilably conflicting,”147 or “if the later act covers the whole subject of the
depend upon the thoroughness evident in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those factors which give it power
to persuade, if lacking power to control.” 323 U.S. at 140.
141 See, e.g., Aluminum Co. v. Central Lincoln Util. Dist., 467 U.S. 380, 390 (1984).
142 See, e.g., Investment Co. Inst. v. Camp, 401 U.S. 617, 626-27 (1971).
143 See, e.g., Udall v. Tallman, 380 U.S. 1, 16 (1965).
144 See, e.g., General Electric Co. v. Gilbert, 429 U.S. 125, 142-43 (1976).
145 United States v. Fausto, 484 U.S. 439, 453 (1988).
146 Watt v. Alaska, 451 U.S. 259, 267 (1981). See also Lewis v. Lewis & Clark Marine,
Inc., 531 U.S. 438 (2001) (reconciling “tension” between the saving to suitors clause and
the 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 statutes by implying a requirement that 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) (interpreting a statute authorizing
agency heads to set maximum age limits for law enforcement officers as an exception to the
Age Discrimination in Employment Act). 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 legislative history
to find a “clear” congressional intent “to employ maximum entry ages as a means towards
securing a ‘young and vigorous’ work force of law enforcement officers,” and concluded
that furtherance of this policy required “consideration of factors not ordinarily accounted
for” under ADEA procedures.
147 Watt v. Alaska, supra n.146, at 266.
earlier one and is clearly intended as a substitute,”148 will courts apply the rule that
the later of the two prevails. “[R]epeals by implication are not favored, . . . and will
not be found unless an intent to repeal is clear and manifest.”149 And in fact, the
Court rarely finds repeal by implication.150 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
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.152 But, in the case of an irreconcilable
conflict between two laws of the same session, the later enactment will be deemed
to have repealed the earlier one to the extent of the conflict.153 Because the focus
here is on legislative intent (or presumed legislative intent), time of legislative
consideration, rather than effective dates of the statutes, is the key to determining
which enactment was the “later” one.154
148 Posadas v. National City Bank, 296 U.S. 497, 503 (1936).
149 Rodriguez v. United States, 480 U.S. 522, 524 (1987) (citations omitted). See also
Morton v. Mancari, 417 U.S. 535, 550-51 (1974).
150 For an instance in which the Court arguably found repeal by implication, see Argentine
Republic 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 1976],” and that consequently suit
against the Argentine Republic could not be brought under the Alien Tort Statute). But see
Branch v. Smith, 538 U.S. 254, 293 (2003), in which Justice O’Connor asserted that the
Court last found a repeal by implication in 1975, in Gordon v. New York Stock Exchange,
151 Friedrich v. City of Chicago, 888 F.2d 511, 516 (7th Cir. 1989). Judge Posner describes
the assumption on which the canon rests — that Congress surveys and envisions the whole
body of law before legislating — as “unrealistic”: how could Congress do so, he has
questioned, “given the vast expanse of legislation that has never been repealed and the even
vaster expanse of judicial and administrative rulings glossing that legislation.” In re
Doctors’ Hospital of Hyde Park, 337 F.3d 951, 960 (7th Cir. 2003). On the plus side, the
rule 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).
152 Pullen v. Morgenthau, 73 F.2d 281 (2d Cir. 1934).
153 SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION § 23:18 (Norman J. Singer ed.,
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.155
Nevertheless, Congress can repeal substantive law through appropriations measures
if intent to do so is clearly expressed.156
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.”157 Lenity principles “demand resolution of ambiguities in criminal statutes
in favor of the defendant.”158 The reasons for the rule are that “‘fair warning should
be given to the world in language that the common world will understand, of what
the law intends to do if a certain line is passed’” and that “‘legislatures and not courts
should define criminal activity.’”159 If statutory language is unambiguous, the rule
of lenity is inapplicable.160
Intent is generally a required element of a criminal offense, and consequently
there is a presumption in favor of a scienter or mens rea requirement in a criminal
statute. The presumption applies “to each of the statutory elements which
criminalize otherwise innocent conduct.”161 The Court may read an express scienter162
requirement more broadly than syntax would require or normally permit, and may
155 TVA v. Hill, 437 U.S. 153, 190 (1978) (emphasis added).
156 United States v. Will, 449 U.S. 200, 222 (1980).
157 United States v. Gradwell, 243 U.S. 476, 485 (1917).
158 Hughey v. United States, 495 U.S. 411, 422 (1990). See also United States v.
Granderson, 511 U.S. 39, 54 (1994) (“In these circumstances — where text, structure, and
[legislative] history fail to establish that the Government’s position is unambiguously
correct — we apply the rule of lenity and resolve the ambiguity in [the defendant’s] favor”);
Cleveland v. United States, 531 U.S. 12, 25 (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”).
159 Ratzlaf v. United States, 510 U.S. 135, 148-49 (1994) (quoting Boyle v. United States,
160 Beecham v. United States, 511 U.S. 368, 374 (1994) (quoting Chapman v. United States,
161 United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).
162 “Our reluctance to simply follow the most grammatical reading of the statute is
heightened by our cases interpreting criminal statutes to include broadly applicable scienter
requirements, even where the statute by its terms does not contain them.” X-Citement Video,
513 U.S. at 70. See also Staples v. United States, 511 U.S. 600 (1994) (National Firearms
read into a criminal prohibition a scienter requirement that is not expressed.163 The
Court recognizes some “strict liability” exceptions, especially for “public welfare”
statutes regulating conduct that is inherently harmful or injurious and that is therefore
unlikely to be perceived as lawful and innocent.164 Determining whether such an
exception applies can be difficult.165 However, if the statute does not preclude a
holding that scienter is required, and if the public welfare exception is deemed
inapplicable, “far more than the simple omission of the appropriate phrase from the
statutory definition is necessary to justify dispensing with an intent requirement.”166
One can search in vain for recent Supreme Court reliance on the canon that
“remedial statutes” should be “liberally” or “broadly” construed.167 This is probably
due to a variety of factors, including recognition that the principle is difficult to apply
and almost hopelessly general.168 This is because many statutes are arguably
Act interpreted to require that defendant knew that the weapon he possessed was a “firearm”
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”).
163 Posters <N’ Things, Ltd. v. United States, 511 U.S. 513 (1994) (interpreting drug
paraphernalia law as requiring that merchant knew that customers in general are likely to
use the merchandise with drugs).
164 See, 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 Firearms Act for possession of unregistered hand grenades; Act does not and
need not require proof of knowledge that weapons were not registered).
165 Compare United States v. Freed, 401 U.S. 601 (1971) (knowledge of unregistered 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 Staples
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 511 U.S. at 610-12.
166 United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978) (applying principle
to Sherman Act violation).
167 For not-so-recent reliance on the canon, see Peyton v. Rowe, 391 U.S. 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 Exchange Act quite clearly falls
into the category of remedial legislation”); and Chisholm v. Georgia, 2 U.S. (2 Dall.) 419,
475 (1793) (opinion of Chief Justice Jay) (Constitution’s extension of judicial power over
controversies between a state and citizens of another state is “remedial, [and] therefore, to
be construed liberally”).
168 The Court once referred to a variant of the canon (a statute should be liberally construed
to achieve its purposes) as “that last redoubt of losing causes,” explaining that “[e]very
“remedial,” and consequently courts have wide discretion in determining scope of
application. There may also be uncertainty over what “liberal” or “broad”
construction means.169 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,170 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.171 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,172 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 issue.173
Statutes Benefitting Indian Tribes
Another subcategory of the “remedial” statutes canon is the proposition that
“statutes passed for the benefit of dependent Indian tribes . . . are to be liberally
construed to favor Indians.”174 Most cases resolving issues relating to tribal matters
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).
169 Justice Scalia has inveighed against the maxim in 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 knows how liberal is a liberal construction).” Antonin
Scalia, Assorted Canards of Legal Analysis, 40 CASE W. RES. L. REV. 581, 586 (1989-90).
170 See, e.g., Smith v. 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”).
171 This is not to say, however, that the same fairness considerations that underlie the rule
of lenity justify application of the “remedial statute” rule.
172 See, 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”);
FDIC v. Meyer, 510 U.S. 471, 480 (1994) (“sue-and-be-sued” waivers of sovereign
immunity should be liberally construed).
173 See, e.g., Felder v. Casey, 487 U.S. 131, 149 (1988) (“the Congress which enacted [42
U.S.C.] § 1983 over 100 years ago would have rejected [a requirement of exhaustion of 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 § 1982 would be
inconsistent with the broad and sweeping nature of the protection meant to be afforded by
§ 1 of the Civil Rights Act of 1866”); Northeast Marine Terminal v. Caputo, 432 U.S. 249,
268 (1977) (“The language of the 1972 Amendments [to the 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.”).
174 Bryan v. 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:
implicate some variation of this proposition,175 but frequently there are also statute-
specific considerations that amplify176 or outweigh177 any such generalities.
Titles of Acts or Sections
Although “it has long been established that the title of an Act ‘cannot enlarge
or confer powers,’”178 the title of a statute or section “can aid in resolving an
ambiguity in the legislation’s text.”179 As Chief Justice Marshall explained, “[w]here
the mind labours to discover the design of the legislature, it seizes everything from
which aid can be derived.”180 A title or heading, however, being only “a short-hand
reference to the general subject matter involved” and “not meant to take the place of
the detailed provisions of the text,”181 can provide only limited interpretive aid.
Thus, a heading may shed light on the section’s basic thrust,182 or on ambiguous
“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).
175 See, e.g., Washington v. Confederated Tribes, 447 U.S. 134, 154 (1980) (tribal
sovereignty 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 has
indicated its consent); Hagen v. Utah, 510 U.S. 399, 411-12 (1994) (mild presumption
against statutory diminishment of reservation land).
176 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).
177 See, e.g., Negonsott v. Samuels, 507 U.S. 99, 110 (1993) (fact that Kansas Act
unambiguously confers jurisdiction on Kansas courts over crimes on reservations makes
resort to canon inappropriate).
178 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19 n.14 (1981) (quoting United
States v. Oregon & California R.R., 164 U.S. 526, 541 (1896) and Cornell v. Coyne, 192
U.S. 418, 430 (1904), and citing United States v. Fisher, 2 Cranch 358, 386 (1805) and
Yazoo & Mississippi Valley R.R. v. Thomas, 132 U.S. 174, 188 (1889)).
179 INS v. National Center for Immigrants’ Rights, 502 U.S. 183, 189-90 (1991) (citing
Mead Corp. v. Tilley, 490 U.S. 714, 723 (1989); and FTC v. Mandel Bros., Inc., 359 U.S.
180 United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805).
181 Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528 (1947).
182 See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (words “criminal
penalties” in section heading relied on as one indication that the section does not define a
separate crime, but instead sets out penalties for recidivists); INS v. National Center for
Immigrants’ Rights, 502 U.S. 183, 189 (1991) (“text’s generic reference to ‘employment’
should be read as a reference to the ‘unauthorized employment’ identified in the paragraph’s
language in the text, but it “cannot limit the plain meaning of the text,”183 and “has
no power to give what the text of the statute takes away.”184
Preambles (“Whereas Clauses”)
Preambles, or “whereas clauses,” precede the enacted language, “are not part of the
act,” and consequently “cannot enlarge or confer powers, nor control the words of the
act, unless they are doubtful or ambiguous.”185 Nonetheless, “whereas clauses”
sometimes serve the same purpose as findings and purposes sections, and can provide
useful insight into congressional concerns and objectives.186 As with titles,
preambles can sometimes help resolve ambiguity in enacted language.187
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 the Racketeer
Influenced and Corrupt Organizations (RICO) statute’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.188
It is easy, however, to place too much reliance on general statutory purposes in
resolving narrow issues of statutory interpretation. Legislation seldom if ever
183 Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 529 (1947); Intel Corp. v. Advanced
Micro Devices, Inc., 542 U.S. 241, 256 (2004) (quoting Trainmen).
184 Demore v. Kim, 538 U.S. 510, 535 (2003) (O’Connor, J., concurring) (citing INS v. St.
Cyr, 533 U.S. 289, 308-09 (2001)).
185 Yazoo and Mississippi Valley R.R. v. Thomas, 132 U.S. 174, 188 (1889).
186 See, e.g., Donovan v. Dewey, 452 U.S. 594, 602 n.7 (1981) (citing the preamble to the
Mine Safety and Health Act as evidence of congressional awareness of the hazardous nature
of the mining industry); Gray v. Powell, 314 U.S. 402, 418 (Justice Roberts, dissenting)
(citing the preamble of the Bituminous Coal Act as evidence of congressional purpose).
187 “[T]he preamble may be referred to in order to assist in ascertaining the intent and
meaning of a statute fairly susceptible of different constructions.” Price v. Forrest, 173 U.S.
188 United States v. Turkette, 452 U.S. 576, 588-90 (1981) (relying on RICO statement of
findings and purpose, 18 U.S.C. § 1961 nt.). See also Knebel v. Hein, 429 U.S. 288, 292
n.9 (1977) (rejecting, in view of Secretary of Agriculture’s broad discretion to administer
the Food Stamp Program, and in view of broad purpose of Act to “increase [households’]
food purchasing power” (7 U.S.C. § 2011), a holding that the Secretary lacked authority to
determine that receipt of commuting expenses 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,189 and
there is also the possibility that stated or inferred purposes may in some instances
conflict with one another.190
“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.191 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
Savings (or “saving”) clauses are designed to preserve remedies under existing
law. “The purpose of a savings clause is merely to nix an inference that the statute
in which it appears is intended to be the exclusive remedy for harms caused by the
violation of the statute.”193 A corollary is that a savings clause typically does not194
create a cause of action.
189 “[N]o legislation pursues its purposes at all costs. Deciding what competing values 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 assume that whatever furthers the statute’s primary objective must be the law.”
Rodriguez v. United States, 480 U.S. 522, 525-26 (1987) (per curiam).
190 Compare Justice Brennan’s opinion of the Court in Mississippi Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 50-51 (1989) (Congress used undefined term “domicile” so as to
protect tribal jurisdiction in child custody cases), with Justice Stevens’ dissent, id. at 54
(Congress intended to protect the parents as well as the tribe).
191 Monahan v. 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 services
for 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
192 See Accardi 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 established by existing law); State Highway Comm’n v.
Volpe, 479 F.2d 1099, 1116 (8th Cir. 1973) (“sense of Congress” language “can be useful
in resolving ambiguities in statutory construction,” and in reinforcing the meaning of earlier
193 PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir. 1998).
194 The “sole function” of a saving clause in CERCLA, the Superfund law, is to clarify that
the provision authorizing a limited right of contribution “does nothing to ‘diminish’ any
cause(s) of action for contribution that may exist independently . . . .” Cooper Industries v.
Aviall Servs., 543 U.S. 157, 165-68 (2004).
Inclusion of a savings clause, however, does not make all pre-existing remedies
compatible with the newly enacted law. If there is a conflict, the savings clause gives
way.195 Courts will attempt to give the savings language some effect, but may have
to narrow that effect to avoid eviscerating the new law. A reference to specific
remedies to be preserved can ease interpretation.196 In some cases, the legislative
history of the savings provision can reveal its purpose.197 In other cases courts must
reason from the scope and purpose of the new statute. For example, when the
Carmack Amendment to the Interstate Commerce Act imposed comprehensive
federal regulation governing the liability of interstate carriers, the Court held that
savings language preserving “any remedy or right of action . . . under existing law”
applied only to federal, not state remedies. To allow resort to state law remedies that
were inconsistent with the federal regulation would negate the Amendment’s effect.
“[T]he act cannot be said to destroy itself,” the Court concluded.198 Even very clear
savings language will not be allowed to thwart what the Court views as the objective
of the federal enactment.199
195 Even if there is no conflict, courts may construe a savings clause narrowly. See, e.g., City
of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 (2005) (relief is not available under
42 U.S.C. § 1983 as an alternative to a new statutory cause of action to enforce a new
statutory right; a savings clause providing that the amendments do not “impair” existing law
has “no effect” on the availability of section 1983 actions because no such relief was
available prior to creation of the new right).
196 See, e.g., 30 U.S.C. § 189, which provides that nothing in the Mineral Leasing Act shall
be construed to affect the rights of state and local governments to levy and collect taxes on
improvements 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).
197 See, e.g., Merrill, Lynch, Pierce, Fenner, & Smith v. Curran, 456 U.S. 353, 386-87 (1982)
(“saving clause” stating that an amendment to the 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).
198 Adams Express Co. v. Croninger, 226 U.S. 491, 507 (1913). Accord, AT&T v. Central
Office Tel., Inc., 524 U.S. 214, 227 (1998). In City of Milwaukee v. Illinois, 451 U.S. 304,
328-29 (1981), the Court held that the Federal Water Pollution Control Act of 1972 created
a comprehensive regulatory program that eliminated previously available federal common
law remedies. Savings language in the citizen suit section providing that “nothing in this
section shall restrict any right which any person . . . may have under . . . common law” was
irrelevant, since it was the act’s standards-setting and permitting provisions, not the citizen
suit section, that ousted federal common law.
199 See, 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 spite of statute’s savings clause providing that “compliance with” a safety
standard “does not exempt any person from any liability under common law”). But see
Sprietsma v. Mercury Marine, 537 U.S. 51, 63 (2003) (finding no such conflict preemption,
and concluding that the Federal Boat Safety Act’s savings clause, providing that compliance
with federal standards “does not relieve a person from liability at common law,”
“buttresses” the conclusion that the act’s preemption language does not encompass common-
“Notwithstanding Any 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’m serious,”
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.200 Courts
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 set-
asides, and export restrictions.201 “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.”202 In the few instances
in which the “notwithstanding” phrase may be marginally helpful to interpretation,
it still must play second fiddle to a clear and unambiguous statement of the
200 In this sense, the statutory phrase is analogous to a parent telling a child “don’t under any
circumstances leave the house until I return.” The parent doesn’t really 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.
201 Oregon Natural Resources Council v. Thomas, 92 F.3d 792 (9th Cir. 1996). The court
harmonized the “notwithstanding” phrase with other provisions of the act that pointed to the
202 Id. at 796. The Three-Sisters Bridge saga offers another example. After a court decision
had ordered a halt to construction of the bridge pending compliance with various
requirements in D.C. law for public hearings, etc., the project was abandoned. Congress
then directed that construction proceed on the bridge project and related highway projects
“notwithstanding any other provision of law, or any court decision or administrative action
to the contrary.” The same section, however, directed that “such construction . . . shall be
carried out in accordance with all applicable provisions of title 23 of the United States
Code.” The federal appeals court held that, notwithstanding the “notwithstanding”
language, compliance with federal highway law in title 23 (including requirements for an
evidentiary hearing, and for a finding of no feasible and prudent alternative to use of
parkland) was still mandated. D.C. Fed’n of Civic Ass’ns v. Volpe, 434 F.2d 436 (D.C. Cir.
§ 470f, which requires consultation and consideration of effects of such federally funded
projects on historic sites, was also still mandated. 459 F. 2d 1231, 1265 (1972).
underlying directive,203 and it is not as helpful as spelling out which other laws are
to be disregarded.204
Implied Private Right of Action
From time to time courts have held that a federal statute that does not explicitly
create a private cause of action nonetheless implicitly creates one.205 This notion
traces to the old view that every right must have a remedy.206 As the Supreme Court
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.”207 The
Court has gradually retreated from that position,208 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
203 See, e.g., Schneider v. United States, 27 F.3d 1327, 1331 (8th Cir. 1994). The court there
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 interpretations of “final,” “final and conclusive,” and
the provision’s actual language, the court concluded that “[t]o interpret the section as
precluding only further administrative review would be to render meaningless the phrase
<notwithstanding any other provision of law.’”
204 To be sure, not every potential roadblock can be anticipated and averted by narrowly
tailored language, and broad language may be necessary to ensure that statutory purposes
are not frustrated. But, in spite of the interpretation in Schneider, supra n.203, the
“notwithstanding” phrase is a blunt instrument. The Trans-Alaska Pipeline Authorization
Act 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 already-
prepared Final Environmental Impact Statement, declared that no further action was to be
required under the National Environmental Policy Act, specified which subsections of the
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. § 1652. For a less complete identification of laws to be disregarded, and some
concomitant interpretational problems, see Norfolk & Western Ry. v. Train Dispatchers, 499
U.S. 117, 138-39 (1991) (two dissenting Justices disputed the 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).
205 What is usually at issue in these cases is whether a federal statute creates 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 be able to sue state officials
under 42 U.S.C. § 1983.
206 Marbury v. Madison, 5 U.S. (1 Cranch) 163 (1803) (citing Blackstone’s Commentaries).
207 Texas & Pacific Ry. v. Rigsby, 241 U.S. 39-40 (1916).
208 See, 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 congressional intent); and
Touche Ross & Co. v. Redington, 442 U.S. 560, 575 (1979) (calling congressional intent the
action, why did it not do so explicitly?209 While the Court has attempted to explain
that it does not mean actual intent,210 the test now seems weighted against finding an
implied private cause of action.211 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.212 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.”213
209 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 of action. See, e.g., Cannon v. University of Chicago, 441 U.S. 677,
710-11 (1979) (Congress patterned Title IX of the Civil Rights Act after Title VI, and
believed that Title VI was enforceable by private action).
210 “Our 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 right of action seems to me so
implausibly left to implication that the risk should not be endured.” Id. at 192.
211 See, e.g., Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (there is no private right of
action to enforce disparate-impact regulations 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 anti-discrimination prohibition of section 601, the disparate-
impact regulations “do not simply apply § 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 Congressional Intent in Determining the Existence of Implied Private Rights of Action,
212 2B SUTHERLAND, STATUTES AND STATUTORY INTERPRETATION, § 51.07 (Norman J.
Singer ed., 6th ed. 2000 revision).
213 Id. A clear example of a general incorporation was afforded by § 20 of the Jones Act,
providing that in an action for wrongful death of a seaman, “all statutes of the United States
conferring or regulating the 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 Federal
Employer Liability Act and its amendments.
When one section of a law is held unconstitutional, courts are faced with
determining whether the remainder of the statute remains valid, or whether the whole
statute is nullified. “Unless it is evident that the Legislature would not have enacted
those provisions which are within its power, independently of that which is not, the
invalid part may be dropped if what is left is fully operative as a law.”214 Congress
frequently includes a pro forma severability clause in a statute,215 and this reinforces
a “presumption” of severability by removing much of the doubt about congressional
intent.216 A severability clause does not guarantee, however, that what remains of a
statute after a portion has been invalidated is “fully operative”; courts sometimes find
that valid portions of a statute cannot stand on their own even though Congress has
included a severability clause.217 Far less frequently, Congress includes non-
severability language providing that remaining sections of a law shall be null and
void if a part (sometimes a specified part) is held unconstitutional.218 Case law is
sparse,219 but there is no apparent reason why courts should refuse to honor a clearly
expressed non-severability directive.220
Deadlines for Administrative Action
“If a statute does not specify a consequence for noncompliance with statutory
timing provisions, the federal courts will not in the ordinary course impose their own
214 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424
U.S. 1, 108 (1976)).
215 See, e.g., 2 U.S.C. § 1438 (§ 509 of the Congressional Accountability Act of 1995): “If
any provision of this Act or the application of such provision to any person or circumstance
is held to be invalid, the remainder of this Act and the application of the provisions of the
remainder to any person or circumstance shall not be affected thereby.” These provisions
are also sometimes called “separability” clauses. See, e.g., 29 U.S.C. § 114.
216 Alaska Airlines, 480 U.S. 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).
217 “A severability clause requires textual provisions that can be severed.” Reno v. ACLU,
Carter Coal Co., 298 U.S. 238, 312-16 (1936).
218 See, e.g., 25 U.S.C. § 941m(a) (§ 15(a) of the Catawba Indian Tribe of South Carolina
Land Claims Settlement Act of 1993): “If any 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
219 But see, e.g., Zobel v. Williams, 457 U.S. 55, 65 (1982) (observing in dictum that, due
to inclusion of non-severability language in an Alaska law, “we need not speculate as to the
intent of the Alaska Legislature”).
220 See Israel E. Friedman, Comment, Inseverability Clauses in Statutes, 64 U. CHI. L. REV.
903 (1997). Friedman contends that “inseverability clauses are fundamentally different
from severability clauses and should be shown greater deference.” Id. at 904. Inseverability
clauses, he points out, “are anything but boilerplate,” usually are included only after
extensive debate, and are often designed to preserve a legislative compromise. Id. at 911-13.
coercive sanction.”221 Absent specified consequences, such deadlines “are at best
precatory rather than mandatory,”222 and are read “as a spur to prompt action, not as
a bar to tardy completion.”223 “A statute directing official action needs more than a
mandatory ‘shall’ before the grant of power can sensibly be read to expire when the
job is supposed to be done.”224 Thus, agency actions taken after a deadline are
ordinarily upheld as valid.225 Although courts are loath to impose “coercive”
sanctions that would defeat the purpose of the underlying agency duty, courts
sometimes will lend their authority, backed by the possibility of contempt for
recalcitrant agency officials, by ordering compliance with statutory directives after
a missed deadline.226
Plain Meaning Rule
Although over the years the plain meaning rule, which purports to bar courts
from relying on legislative history when statutory language is plain, may have been
more honored in the breach than the observance,227 that trend has reversed. And even
221 United States v. James Daniel Good Real Property, 510 U.S. 43, 63 (1993) (failure of
customs agent to “report immediately” a customs seizure should not result in dismissal of
a forfeiture action).
222 Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1328, 1377 (Fed. Cir. 2002).
223 Barnhart v. Peabody Coal Co., 537 U.S. 149, 172 (2003).
224 Barnhart v. Peabody Coal Co., 537 U.S. at 161.
225 In Peabody Coal, the Court held that a deadline in the Coal Industry Retiree Health
Benefit Act for assignment of retired beneficiaries to coal companies did not prevent
assignment after the deadline. See also United States v. Montalvo-Murillo, 495 U.S. 711
(1990) (failure to comply with the Bail Reform Act’s requirement of an “immediate”
hearing does not mandate release pending trial); Brock v. Pierce County, 476 U.S. 253
(1986) (Secretary of Labor’s failure to comply with the statutory deadline for beginning an
investigation about misuse of federal funds does not divest the Secretary of authority to
launch a tardy investigation).
226 See, e.g., NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1975) (setting general guidelines,
based on equitable principles, for courts to follow in mandating agency compliance
following missed deadlines); Sierra Club v. Thomas, 658 F. Supp. 165 (N.D. Cal. 1987)
(using the length of time initially set by Congress as the measure of how much additional
time to allow EPA after the agency missed a deadline for promulgating regulations).
227 The classic extremes are represented by Caminetti v. United States, 242 U.S. 470 (1917),
and Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). In Caminetti, the
Court applied the plain meaning rule to hold that the Mann Act, or “White Slave Traffic
Act,” which prohibits transportation of women across state lines for purposes of
“prostitution, debauchery, or any other immoral purpose,” clearly applies to noncommercial
immorality, in spite of legislative history showing that the purpose was to prohibit the
commercial “white slave trade.” In Holy Trinity, the Court held that a church’s contract
with a foreigner to come to this country to serve as its minister was not covered by a
statutory prohibition on inducements for importation of aliens “to perform labor or service
when breached, the “rule” is usually paid lip service, and becomes 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 “ambiguous.”228
Significant differences 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
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.229
Correspondingly, there are basic 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.230 And, inevitably, there are real differences in the clarity of statutory
of any kind.” The Court brushed aside the fact that the statute made no exception for
ministers, although it did so for professional actors, artists, lecturers, singers, and domestic
servants, and declared the law’s purpose to be to prevent importation of cheap manual labor.
“A thing may be within the letter of the statute and yet not within the statute, because not
within its spirit, nor within the intention of its makers,” the Court explained. 143 U.S. at
228 “In aid of the process of construction we are at liberty, if the meaning be uncertain, to
have recourse to the legislative history of the measure and the statements by those in charge
of it during its consideration by the Congress.” United States v. Great Northern Ry., 287
U.S. 144 (1932). On the other hand, “we do not resort to legislative history to cloud a
statutory text that is clear.” Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994).
229 “When aid to the construction of the meaning of words, as used in the statute, is
available, there certainly can be no <rule of law’ which forbids its use, however clear the
words may appear on <superficial examination.’” United States v. American Trucking
Ass’ns, 310 U.S. 534, 543-44 (1940). Justice Frankfurter, dissenting in United States v.
Monia, 317 U.S. 424 (1943), made much the same point: “[t]he notion that because the
words of a statute are plain, 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 of those 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).
230 United Savings 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”).
231 Compare United States v. Locke, 471 U.S. 84, 92 (1985) (a requirement that a filing be
made “prior to December 31” 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]ith 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
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.232 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,233 or to refute arguments that a contrary interpretation was
“intended.”234 The one generally recognized exception to the rule is that a plain
meaning is rejected if it would produce an “absurd result.”235
There is scholarly debate over the merits of the plain meaning rule.236 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 results.
Uses of Legislative History
Once a court has decided to look to legislative history, there is a question of how
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
232 See, e.g., Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985) (disagreement over the
scope of civil RICO).
233 Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209 (1994) (“The legislative history of
the Mine Act confirms this interpretation”).
234 See Darby v. Cisneros, 509 U.S. 137, 147 (1993) (“Recourse to the legislative history of
§ 10(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
suggest a ‘clearly expressed legislative intent [to the] contrary’”); Arcadia v. Ohio Power
Co., 498 U.S. 73, 84 n.2 (1990) (rejecting reliance on legislative history said to be
“overborne” by the statutory text). The Court has declared that it will not allow a literal
reading of the statute to produce a result “demonstrably at odds with the intentions of its
drafters,” but in the same breath has indicated that it is only “the exceptional case” in which
that can occur. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982).
235 See, e.g., United States v. Granderson, 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]f possible, we should avoid construing the statute in a way
that produces such absurd results”); Public Citizen v. Department of Justice, 491 U.S. 440,
. . . we must search for other evidence of congressional intent to lend the term its proper
236 See, e.g., Frederick Schauer, Statutory Construction and the Coordinating Function of
Plain Meaning, 1990 SUP. CT. REV. 231; Arthur W. Murphy, Old Maxims Never Die: The
“Plain-Meaning Rule” and Statutory Interpretation in the “Modern” Federal Courts, 75
COLUM L. REV. 1299 (1975); Clark Cunningham, Judith Levi, Georgia Green, and Jeffrey
Kaplan, Plain Meaning and Hard Cases, 103 YALE L.J. 1561 (1994).
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.”237
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.238 Selection of one
House’s version over that of the other House may be significant.239 In some
circumstances rejection of an amendment can be important. While courts are
naturally reluctant to attribute significance to the failure of Congress to act,240 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
237 Wirtz v. Bottle Blowers Ass’n, 389 U.S. 463, 468 (1968). For examples of reliance on
legislative history for guidance on broad congressional purposes, 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 a textual reading of the statute and refute the oil company’s reading);
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 515 (1990) (reference to Senate report for
evidence of “the primary objective” of the Boren amendment to the Medicaid law).
238 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, 519
U.S. 482, 492-93 (1997) (consolidation of a number of separate provisions supports the
“natural reading” of the current law); Booth v. Churner, 532 U.S. 731, 740 (2001)
(elimination of “the very term” relied on by the Court in an earlier case suggests that
Congress desired to preclude that result in future cases).
239 See, e.g., United States v. Riverside Bayview Homes, 474 U.S. 121, 136-37 (1985)
(attaching significance to the conference committee’s choice of the Senate version, retaining
the broad definition of “navigable waters” then in current law, over a House version that
would have narrowed the definition).
240 “This Court generally is reluctant to draw inferences from 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.” Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306 (1988).
241 Pacific Gas & Elec. Co. v. Energy Resources Conserv. & Dev. Comm’n, 461 U.S. 190,
INS v. Cardoza-Fonseca, 480 U.S. 421, 441-42 (1987) (rejection of Senate language limiting
the Attorney General’s discretion in granting asylum in favor of House language authorizing
grant of asylum to any refugee); Doe v. Chao, 540 U.S. 614, 622 (2004) (“drafting history
show[s] that Congress cut the very language in the bill that would have authorized any
Explanatory legislative history is also consulted on occasion for more narrowly
focused explanation of the meaning of specific statutory language that a court
believes is unclear.242 Reliance on legislative history for such purposes may be more
controversial, either because contrary indications may be present in other passages
of legislative history,243 or because the degree of direction or detail may be an
unwarranted narrowing of a more general statutory text.244 The concern in the latter
instances is whether the legislative history is a plausible explanation of language
actually contained in the statutory text, or whether instead explanatory language (e.g.,
report language containing committee directives or “understandings”) outpaces that
text. As the Court observed in rejecting reliance on legislative history “excerpts”
said to reflect congressional intent to preempt state law, “we have never [looked for]
congressional intent in a vacuum, unrelated to the giving of meaning to an enacted
statutory text. . . . [U]nenacted approvals, beliefs, and desires are not laws.”245
Statutory silence is not always “pregnant,”246 and silence of legislative history
is seldom significant.247 There is no requirement that “every permissible application
242 See, e.g., Reves v. Ernst & Young, 507 U.S. 170, 179-83 (1993) (RICO section
proscribing “conduct” of racketeering activity is limited to persons who participate in the
operation or management of the enterprise); Gustafson v. Alloyd 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).
243 The dissent 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
244 “The language 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).
245 Puerto Rico Dep’t of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501
(1988). The Court explained further that, “without a text that can, in light of those
[legislative history] statements, plausibly be interpreted as prescribing federal pre-emption
it is impossible to 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) (a committee report directive
purporting to require coordination with state planning is dismissed as purely “precatory”
when the accompanying bill plainly exempted federal activities from such coordination);
Shannon v. United States, 512 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”); and Roeder v. Islamic Republic of Iran, 333 F.3d 228, 237-38 (D.C. Cir. 2003)
(explanatory statement accompanying conference report purported to explain a previous
enactment rather than the current one, and could not operate to abrogate an executive
agreement). For what is arguably a departure from the general principle, see Wisconsin
Project on Nuclear Arms Control v. United States Dep’t of Commerce, 317 F.3d 275 (D.C.
Cir. 2003) (relying on “congressional intent” relating to a lapsed statute). As dissenting
Judge Randolph characterized the majority’s approach, “the statute has expired but its
legislative history is good law.” Id. at 285.
246 See “Statutory Silence,” supra, p. 16.
247 “[A] statute is not to be confined to the ‘particular application[s] . . . contemplated by the
legislators.’” Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980) (ruling that inventions not
of a statute be expressly referred to in its legislative history.”248 The Court does,
however, occasionally attach import to the absence of any indication in a statute or
its legislative history of an intent to effect a “major change” in well-established
law.249 And sometimes the Justices disagree over the significance of congressional
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 post-
enactment history of a statute’s consideration and enactment — is a contradiction in
terms.”251 The Court frequently observes that “‘[t]he views of a subsequent Congress
form a hazardous basis for inferring the intent of an earlier one.’”252 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.
contemplated when Congress enacted the patent law are still patentable if they fall within
the law’s general language) (quoting Barr v. United States, 324 U.S. 83, 90 (1945)).
248 Moskal v. United States, 498 U.S. 103, 111 (1990). Accord, Pittston Coal Group v.
Sebben, 488 U.S. 105, 115 (1988) (“it is not the law that a statute can have no effects which
are not mentioned in its legislative history”); PBGC v. LTV Corp., 496 U.S. 633, 649 (1990)
(“the language 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”). See also Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998) (male-on-
male sexual harassment is covered by Title VII although it “was assuredly not the principal
evil Congress was concerned with”); and Cook County v. United States ex rel. Chandler,
538 U.S. 119, 128-29 (2003) (local governments are subject to qui tam actions under the
expansive language of the False Claims Act even though the enacting Congress was
primarily concerned with fraud by Civil War contractors).
249 Edmonds v. 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 Forest Assocs., 484 U.S. 365, 380 (1988) (major change “would not likely have
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. Timm, 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”).
250 Compare Justice Stevens’ opinion for the Court in Chisom v. Roemer, 501 U.S. 380, 396
n.23 (1991) (“Congress’ silence in this regard can be likened to the dog that did not bark”)
with Justice Scalia’s dissenting 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”).
251 Sullivan v. Finkelstein, 496 U.S. 617, 631 (Justice Scalia, concurring in part).
252 Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 840 (1988) (quoting United
States v. Price, 361 U.S. 304, 313 (1960)).
If the views of a later Congress are expressed in a duly enacted statute, then the
views embodied in that statute must be interpreted and applied. Occasionally a later
enactment declares congressional intent about interpretation of an earlier enactment
rather than directly amending or clarifying the earlier law. Such action can be given
prospective effect because, “however inartistic, it . . . stands on its own feet as a valid
enactment.”253 “Subsequent legislation declaring the intent of an earlier statute is
entitled to great weight in statutory construction.”254 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
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.256 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
253 REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 179 (1975).
254 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81 (1969). By contrast, a “mere
statement in a conference report . . . as to what the Committee believes an earlier statute
meant is obviously less weighty” because Congress has not “proceeded formally through the
legislative process.” South Carolina v. Regan, 465 U.S. 367, 379 n.17 (1984).
255 Mount Sinai Hosp. v. Weinberger, 517 F.2d 329, 343 (5th Cir. 1975), quoted with
approval in Bell v. New Jersey, 461 U.S. 773, 785 n.12 (1983). See also Merrill Lynch,
Pierce, Fenner & Smith v. Curran, 456 U.S. 343, 382-87 (1982), relying on congressional
intent to preserve 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, 156
(2000), the Court ruled that, because legislation restricting the advertising and labeling of
tobacco 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 supervision of product labeling is a “substantial component” of the FDA’s
regulatory authority, the tobacco labeling laws “explicitly prohibit any federal agency from
imposing any health-related labeling requirements on . . . tobacco products.”
256 Pierce v. Underwood, 487 U.S. 552, 567 (1988) (reenactment of “a statute that had in fact
been given a consistent judicial interpretation . . . generally includes the settled judicial
interpretation”). In Pierce, however, a committee report’s approving reference to a minority
viewpoint was dismissed as not representing a “settled judicial interpretation,” since 12 of
the 13 appellate circuits had ruled to the contrary. See also 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); Jama v.
Immigration and Customs Enforcement, 543 U.S. 335, 349 (2005) (neither of the two
requirements for ratification by reenactment are present: the law was not reenacted without
change, and the presumed judicial consensus was not “so broad that we must presume
Congress knew of and endorsed it”).
change.”257 Similarly, if Congress in enacting a new statute incorporates sections of
an earlier one, “Congress normally can be presumed to have had knowledge of the
interpretation given to the incorporated law, at least insofar as it affects the new
statute.”258 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.259 Note,
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.”260
Congressional inaction is sometimes construed as approving or “acquiescing”
in an administrative or judicial interpretation even if unaccompanied by the positive
act of reenactment of the statute as a whole.261 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
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
257 Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 343, 382 n.66 (1982), quoting
Lorillard v. Pons, 434 U.S. 575, 580 (1978).
258 Lorillard v. Pons, 434 U.S. 575, 581 (1978).
259 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, 532 U.S. 275, 292 (2001) (also expressing more general misgivings
about the ratification doctrine’s reliance on congressional inaction).
260 Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 336 n.7 (1971).
“[C]ongressional inaction is perhaps the weakest of all tools for ascertaining legislative
intent, and courts are loath to presume congressional endorsement unless the issue plainly
has been the subject of congressional attention. Extensive hearings, repeated efforts at
legislative correction, and public controversy may be indicia of Congress’s attention to the
subject.” Butterbaugh v. Department of Justice, 336 F.3d 1332, 1342 (Fed. Cir. 2003)
261 Although acquiescence and reenactment are similar in that each involves an inference
that Congress has chosen to leave an interpretation unchanged, there is a fundamental
difference: reenactment purports to involve interpretation of duly enacted legislation, while
acquiescence attributes significance to Congress’ failure to act. Cf. INS v. Chadha, 462 U.S.
919 (1983) (Congress may legislate only in conformity with the bicameralism and
presentment requirements of Art. I, § 7).
awareness that the interpretation has generated controversy.262 As with reenactment,
however, there are other inferences that can be drawn from congressional silence.263
Although congressional inaction or silence is sometimes accorded importance
in interpreting an earlier enactment, post-enactment explanations or expressions of
opinion by committees or members are often dismissed as “isolated statements” or
“subsequent legislative history” not entitled to much if any weight. As the Court has
noted, statements as to what a committee believes an earlier enactment meant are
“obviously entitled to less weight” than is subsequent legislation declaring such
intent, because in the case of the committee statement Congress had not “proceeded
formally through the legislation process.”264 The Court has also explained that
“isolated statements by individual Members of Congress or its committees, all made
after enactment of the statute under consideration, cannot substitute for a clear
expression of legislative intent at the time of enactment.”265 “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.”266 The disfavor in which
post-enactment explanations are held is sometimes expressed more strongly when the
262 In Bob Jones Univ. v. United States, 461 U.S. 574, 601 (1983), for example, the Court,
in finding congressional acquiescence in a revenue ruling that denied tax-exempt status to
educational institutions with racially discriminatory policies, 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 hand, 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
of congressional acquiescence. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 132 n.8
263 “The ‘complicated check on legislation’ . . . erected by our Constitution creates an inertia
that makes it impossible to assert with any degree of assurance that congressional failure 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).
264 Consumer Product 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 four years after enactment, and language in a conference report on amendments,
also four years after enactment).
265 Southeastern Community 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 Dep’t of Water & 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”).
266 NLRB v. Health Care & Retirement Corp., 511 U.S. 571, 582 (1994) (“isolated
statement” in 1974 committee report accompanying amendments to other sections of act is
not “authoritative interpretation” of language enacted in 1947).
views are those of a single member. The Court has declared that “post hoc
observations by a single member carry little if any weight.”267
Judicial reliance on presidential signing statements to interpret statutes268 poses
problems above and beyond those presented by reliance on legislative materials, and
there is no consensus as to whether courts should rely at all on signing statements.269
Presidents’ routine use of signing statements to try to influence statutory
interpretation by courts is a relatively recent development,270 there has been no
definitive ruling by the Supreme Court, and even lower courts have seldom had to
resolve cases that require a choice between conflicting presidential and congressional
interpretations. Courts cite signing statements from time to time, but usually in
situations where the interpretation is not critical to case outcome.271
267 Bread Political Action Comm. 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” of the legislator). But see North Haven Bd. of Educ. v. Bell, 456 U.S.
512, 530-31 (1982), citing a bill summary placed in the Congressional Record by the bill’s
sponsor 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”).
268 Other controversial uses of signing statements, e.g., to allege the unconstitutionality of
provisions or to direct administrators how to implement statutory directives, are beyond the
scope of this analysis. For analysis, see CRS Report RL33667, Presidential Signing
Statements: Constitutional and Institutional Implications, by T.J. Halstead.
269 See, e.g., William D. Popkin, Judicial Use of Presidential Legislative History: A
Critique, 66 IND. L.J. 699 (1991); Brad Waites, Let Me Tell You What You Mean: An
Analysis of Presidential Signing Statements, 21 GEORGIA L. REV. 755 (1987); Marc N.
Garber and Kurt A. Wimmer, Presidential Signing Statements as Interpretations of
Legislative Intent: An Executive Aggrandizement of Power, 24 HARV. J. ON LEGIS. 363
(1987); Frank B. Cross, The Constitutional Legitimacy and Significance of Presidential
“Signing Statements,” 40 ADMIN. L. REV. 209 (1988); Kristy L. Carroll, Comment, Whose
Statute Is It Anyway?: Why and How Courts Should Use Presidential Signing Statements
When Interpreting Federal Statutes, 46 CATH U. L. REV. 475 (1997); The Legal Significance
of Presidential Signing Statements, 17 Op. Off. Legal Counsel 131 (1993).
270 President Andrew Jackson used a signing statement in 1830, and in 1842 an ad hoc
congressional committee strongly condemned President Tyler for having filed a statement
of his reasons for signing a bill (See 4 Hinds’ Precedents § 3492), but routine use of signing
statements began during the Reagan Administration, when Attorney General Meese
persuaded West Publishing Company to include the President’s signing statements with
legislative histories published in United States Code Congressional and Administrative
News. The Attorney General explained this as facilitating availability of signing statements
to courts “for future construction of what the statute actually means.” Address by Attorney
General Ewin Meese, III, National Press Club (February 25, 1986). Presidents since Reagan
have continued this practice.
271 See, e.g., Berry v. Department of Justice, 733 F.2d 1343, 1349 (9th Cir. 1984) (citing
signing statement as well as congressional committee reports as affirming one of the broad
The nature of the President’s role in vetoing or approving legislation suggests
that little interpretational weight should be given to signing statements. Article I,
section 7, clause 2 of the U.S. Constitution provides that, after Congress passes a bill
and presents it to the President, “if he approves he shall sign it, but if not he shall
return it, with his Objections to that House in which it shall have originated, who
shall enter the Objections at large on their Journal, and proceed to reconsider it.”
Several observations about this language are possible.
First, the President is required to set forth “objections” to a bill he vetoes, but
there is no parallel requirement that he set forth his reasons for approving a bill.
Correspondingly, there is a procedure for congressional consideration of the
President’s objections and for reconsideration of the bill following a veto, but no
procedure for congressional response following a signing. Of course, absence of a
constitutionally recognized procedure does not require that the President’s views be
discounted; after all, the Constitution is also silent about committee reports, floor
debates, and other components of legislative history. But such absence does suggest
that the President’s views should be discounted when they conflict with
congressional explanations otherwise entitled to weight. A rule for resolving
conflicts in legislative history provides guidance here. When the two Houses have
disagreed on the meaning of identical language in a bill that did not go to conference,
the explanation that was before both Houses (i.e., the explanation of the originating
House) prevails if the court relies on legislative history at all. The rationale is that
congressional intent should depend upon the actions of both Houses. “By
unanimously passing the Senate Bill without amendment, the House denied the entire
Senate an opportunity to object (or concur) to [its] interpretation.”272 Similarly,
because Congress has no opportunity to respond to interpretations set forth in signing
statements, courts should not use those interpretations to change meaning.273
A second observation about the Constitutional text is that the President has a
choice of approving or disapproving a “bill” in its entirety, and may not disapprove
some portions while approving others. Not only does the President lack a line-item
veto, but Congress can’t grant the President such authority by statute.274 Giving
goals of the Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658,
661-62 (4th Cir. 1969) (cited as elaborating on floor manager’s explanation of good-faith
defense in Portal-to-Portal Act); United States v. Yacoubian, 24 F.3d 1, 8 (9th Cir. 1994)
(cited along with conference report to establish rational purpose of statute); Taylor v.
Heckler, 835 F.2d 1037, 1044 n.17 (3d Cir. 1987) (refusing to consider a signing statement
that was “largely inconsistent” with legislative history on which the court had previously
relied); Caruth v. United States, 688 F. Supp. 1129, 1146 n.11(N.D. Tex. 1987) (relying
extensively on legislative history but refusing to give “any weight” to signing statements).
272 Department of the Air Force v. Rose, 425 U.S. 352, 366 (1976) (quoting Vaughn v.
Rosen, 523 F.2d 1136, 1142 (D.C. Cir. 1975)).
273 A related analogy can be drawn from post-enactment or “subsequent” legislative history
in the form of “isolated statements,” discussed above, usually dismissed by courts as entitled
to little or no weight.
274 Clinton v. City of New York, 524 U.S. 417 (1998) (invalidating the Line Item Veto Act
as inconsistent with the Presentment Clause of Art. I, § 7, cl.2).
effect to a signing statement that would negate a statutory provision275 can be
considered analogous to a line item veto.276
The President’s signing statement explanations of bill language may be entitled
to more weight if the President or his Administration worked closely with Congress
in developing the legislation, and if the approved version incorporated the President’s
recommendations.277 This principle can be applied not only to bills introduced at the
Administration’s behest, but also to bills the final content of which resulted from
compromise negotiations between the Administration and Congress.278 In such
circumstances, of course, signing statements are used to explain rather than negate
congressional action, and are most valuable as lending support to congressional
Even if presidential signing statements should not be treated as a significant part
of legislative history, they may still affect interpretation as directives to administering
agencies. As explained above under “Deference to Administrative Interpretations,”279
courts are highly deferential to interpretations of agencies charged with implementing
statutes. Such deference, however, is premised on the conclusion that Congress has
authorized the agency to “speak with the force of law” through a rulemaking or other
formal process. Congress has not authorized the President to speak with the force of
law through signing statements. So, although signing statements may influence or
even control agency implementation of statutes, it is the implementation, and not the
signing statement itself, that would be measured against the statute’s requirements.280
At most, signing statements might be considered analogous to informal agency
actions, entitled to respect only to the extent that they have the power to persuade.281
275 Signing statements allegedly have been used for this purpose. “[T]he president had used
the . . . signing statement . . . to effectively nullify a wide range of statutory provisions even
as he signed the legislation that contained them into law.” Phillip J. Cooper, George W.
Bush, Edgar Allen Poe, and the Use and Abuse of Presidential Signing Statements, 35
PRESIDENTIAL STUDIES QUARTERLY 515 (2005).
276 Garber and Wimmer, supra n.269, at 376.
277 “It may . . . be appropriate for the President, when signing legislation, to explain what his
(and Congress’s) intention was in making the legislation law, particularly if the
Administration has played a significant part in moving the legislation through Congress.”
278 “[T]hough in some circumstances there is room for doubt as to the weight to be accorded
a presidential signing statement in illuminating congressional intent . . . , President Reagan’s
views are significant here because the Executive Branch participated in the negotiation of
the compromise legislation.” United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989).
279 Supra, p. 23.
280 If Congress has directed that the President rather than an agency implement a statute,
then, by analogy, it can be argued that Congress has implicitly delegated to the President
whatever policymaking authority is necessary to fill in gaps and implement the statutory
rule. But here again, the signing statement would not usually constitute an act of
281 The Constitution’s vesting in the President of the executive power and of the duty to
“take care that the laws be faithfully executed” implies authority to interpret the law in order
to determine how to execute it, but this implicit authority would not appear to require
change to the Chevron/Skidmore deference approaches.