When a legislature has specifically stated that a particular contract is void, a court need only:

1.

Though different actors in the political and legal processes share an interest in "what a statute means," they can come to the issue in different contexts and with different concerns. Often, the question may not be one of what is the "best" interpretation of particular legislative language. For example, as legislation is deliberated and compromises are struck, legislators may be concerned with what substantive and regulatory "gaps" are being created, who likely will fill them (e.g., executive agencies or the courts) and in accordance with what standards, and what the prospects are that the legislature will revisit an issue because of how a statute is implemented or interpreted. Similarly, an implementing agency may see silence or ambiguity in a statute as an implicit delegation of broad regulatory powers. Private parties may be primarily concerned with assessing what options they have to act. The pertinent query in many instances might be whether a particular interpretation is "reasonable," not whether it is the "best." For one leading commentator's view on compromise as part of the legislative process and why courts should be cautious in "filling in the blanks" left open by a legislature, see Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 540-42 (1983). For a discussion of interpretation in the administrative setting, see Michael Herz, Purposivism and Institutional Competence in Statutory Interpretation, 2009 Mich. St. L. Rev. 89 (2009).

2.

In places, the report also refers to opinions of United States courts of appeals and scholarly discussion of statutory interpretation generally.

3.

It is sometimes disputed whether the rules characterized as "substantive" canons of construction in this report, and also variously as "overarching presumptions" or "normative canons," properly fit within "textualism," which most often is associated with the linguistic, or "language," canons.

4.

Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899) cited, among other places, at Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 29 (2012).

5.

There is an extensive body of legal literature on statutory interpretation by the courts. A small sampling includes Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 STANFORD L. REV. 901 (2013); Mark Tushnet, Theory and Practice in Statutory Interpretation, 43 Tex. Tech L. Rev. 1185 (2011); James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 Duke L.J. 1231 (2009); Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. Rev. 769 (2008); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921 (1992); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405 (1989); William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987). See also Symposium, A Reevaluation of the Canons of Statutory Interpretation, 45 Vand. L. Rev. 529 (1992).

Methods of interpretation other than textualism and intentionalism, such as "pragmatism," "purposivism," and "practical reasoning," generally are more open to considering the functional effects of a particular decision, changed circumstances since a statute's enactment and how the current Congress might view an issue, and the broad aims of Congress in passing a specific law. As to purposes, Justice Breyer has written that a purpose-oriented approach to interpretation "helps further the Constitution's democratic goals, ... helps individual statutes work better for those whom Congress intended to help, ... [and] help[s] Congress better accomplish its own legislative work." ` Stephen Breyer, Making Our Democracy Work: A Judge's View, 94, 96 (2010).

6.

See, e.g., Frank B. Cross, The Significance of Statutory Interpretive Methodologies, 82 Notre Dame L. Rev. 1971 (2007). Even when the Court is unified, and its opinion relatively brief, the Court commonly rests its interpretations on multiple, mutually reinforcing grounds. E.g., Kucana v. Holder, 558 U.S. 233 (2010).

7.

See Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court's First Era: An Empirical and Doctrinal Analysis, 62 Hastings L.J. 221 (2010-2011).

8.

Finley v. United States, 490 U.S. 545, 556 (1989). Even as the courts see themselves as providing a feedback loop to Congress to inform legislative drafting, they also routinely characterize themselves as "faithful agents" of Congress. However, acting as a "faithful agent" to effectuate congressional will presumes judicial familiarity with the ins and outs of bill drafting practices and congressional procedure. A 2011-2012 survey of 137 congressional counsels with bill drafting responsibilities revealed significant disparities between the principles and considerations that influence how legislation is crafted and the canons of construction and other factors that guide how legislative language is interpreted by the courts. The results of this survey are reported in a May 2013 Stanford Law Review article. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stanford L. Rev. 901 (2013).

As is evident from this report, many of the interpretive challenges faced by the Court arise from lack of completeness and specificity. In this regard, Executive Order 12988, which in part provides guidance to agencies in drafting proposed legislation for possible congressional consideration, 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) its 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." 61 Federal Register 4729 (February 5, 1996), reprinted in 28 U.S.C. §519. Many items in this list are addressed in this report because statutes have lacked clear guidance on them.

However, it would be a mistake to conclude that all "lapses" of completeness and specificity result from oversights. As observed by Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit, in an article written in 1983: "Almost all statutes are compromises, and the cornerstone of many a compromise is the decision, usually unexpressed, to leave certain issues unresolved.... What matters to the compromisers is reducing the chance that their work will be invoked subsequently to achieve more, or less, than they intended, thereby upsetting the balance of the package." Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 540 (1983).

9.

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, or adherence to judicial precedents, 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). See also, e.g., CSX Transportation, Inc. v. McBride, 564 U.S. ___, No. 10-235, slip op. at 5, 10 n.4, 12-13 (June 23, 2011) (Ginsburg, J., for the Court).

10.

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). See also Deborah A. Widiss, Shadow Precedents and the Separation of Powers, 84 Notre Dame L. Rev. 511 (2009). One prominent override addressed the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. (550 U.S. 618 (2007)), which held that a plaintiff had failed to file a timely suit for past sex discrimination under Title VII of the Civil Rights Act. Congress superseded the decision in the Lilly Ledbetter Fair Pay Act of 2009, which amended Title VII to clarify the time limit to sue employers in a way that did not foreclose a suit of the type Ms. Ledbetter brought. Lilly Ledbetter Fair Pay Act of 2009, P.L. 111-2, 123 Stat. 5 (2009).

11.

The extent and intended effect of overrides vary, and courts may not always give an override the breadth of application Congress desired. Deborah A. Widiss, Shadow Precedents and the Separation of Powers, 84 Notre Dame L. Rev. 511 (2008).

12.

E.g., Sebelius v. Cloer, 569 U.S. ___, No. 12-236, slip op. (May 20, 2013).

13.

For an example of an empirical study finding decreased reliance on legislative history by the Supreme Court from 1969 to 2008, see James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 Duke L.J. 1231, 1258 (2009).

14.

Despite this principle, courts can find it difficult to read particular language as being in harmony with the tenor of other statutory provisions or the overall statutory purpose. Same-day opinions by the Fourth and D.C. Circuits on premium tax credits under the Affordable Care Act (ACA) illustrate different approaches courts may take. Compare King v. Burwell, No. 14-1158 (4th Cir. July 22, 2014) (various provisions of the ACA sufficiently indicate an expectation that tax credits will be available to participants in all health exchanges to cast doubt on whether provision specifically making credits available to participants in state exchanges implicitly denies credits to participants in federal exchanges) with Halbig v. Burwell, No. 14-5018 July 22, 2014) (plain language of the ACA provision making participants in a health exchange 'established by the State" potentially eligible for tax credit unambiguously disqualifies participants in federally established health exchanges).

15.

United Savings Ass'n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988) (citations omitted).

16.

United States v. Boisdoré's Heirs, 49 U.S. (8 How.) 113, 122 (1850). For a modern example of examining statutory language "in place," see Brotherhood of Locomotive Engineers v. Atchison, T. & S.F.R.R., 516 U.S. 152, 157 (1996) (purpose of Hours of Service Act, to promote safety by ensuring that fatigued employees do not operate trains, guides the determination of whether employees' time is "on duty").

17.

Green v. Bock Laundry Machine Co., 490 U.S. 504, 528 (1990).

18.

Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stanford L. Rev. 901, 936 (2013).

19.

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) (Stevens, J., dissenting) (Court presumes that "Congress is aware of this longstanding presumption [disfavoring repeals by implication] and that Congress relies on it in drafting legislation.").

20.

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 there determining that the word "age" is used in different senses in different parts of the Age Discrimination in Employment Act, and consequently the presumption of uniform usage throughout a statute should not be followed.

21.

This report separately addresses "substantive" canons of construction, which often are referred to as "normative" canons or "overarching presumptions." Unlike the linguistic rules that are the "language" canons, the substantive canons derive from broader judicial notions of constitutionalism, federalism, effective judicial administration, and other policy concerns of the courts. Unless they are rebutted, these presumptions can favor particular outcomes.

22.

Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928) (Holmes, J., for Court).

23.

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).

24.

"As is true with most of the statutory interpretation questions that come before this Court, the question in this case is not like a jigsaw puzzle. There is simply no perfect solution to the problem before us." Corley v. United States, 556 U.S. 303, 326 (2009) (Alito, J., dissenting).

25.

Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations omitted). A canon of construction should not be followed "when application would be tantamount to a formalistic disregard of congressional intent." Rice v. Rehner, 463 U.S. 713, 732 (1983).

26.

On occasion, disagreement within a sharply divided Court plays out over whether a term is being used in a specialized sense or in accordance with ordinary meaning. See, e.g., Sullivan v. Stroop, 496 U.S. 478 (1990) (five-Justice majority holding that "child support" in the AFDC statute is restricted to that term's specialized use in the Child Support program under the Social Security Act, while four-Justice minority argues that "child support" in the AFDC statute has a broader, common use meaning). See also Bruesewitz v. Wyeth LLC 562 U.S. ___, No. 09-152, slip op. at 9-10 (February 22, 2011) and Bruesewitz,slip op. at 7-9 (Sotomayor, J., dissenting). At other times, a unanimous Court has interpreted what might appear to be a term of art by its ordinary meaning. See Wall v. Kholi, 562 U.S. ___, No. 09-868 (March 7, 2011) (meaning of "collateral review" in habeas corpus statute analyzed by separate examination of the ordinary dictionary meanings of "collateral" and "review"). In other cases, the Court may view a term's ordinary meaning, technical meaning, and statutory context as all pointing to a single interpretation. E.g., Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. ___, No. 10-1472, slip op. (May 21, 2012).

27.

Saint Francis College v. Khazraji, 481 U.S. 604 (1987). The Court there held that a citizen of Arab ancestry could bring an action under 42 U.S.C. §1981, which gives to all persons certain rights to the extent they are enjoyed by "white citizens": "Plainly, all those who might be deemed Caucasian today were not thought to be of the same race at the time §1981 became law [in the 19th century]." Id. at 610. See also, e.g., Cuomo v. Clearing House Assn., L.L.C., 557 U.S. 519 ( 2009), where the ability of a state to take certain enforcement actions against national banks depended on the meaning of "visitorial powers" when the National Bank Act was enacted in 1864.

28.

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 also Stewart v. Dutra Constr. Co., 543 U.S. 481, 489 (2005) (relying on Dictionary Act's definition of "vessel").

That a word is defined in statute does not necessarily mean, however, that other forms of the word are bound by the definition. Thus, a statutory definition of "person" to include corporations did not govern whether "personal" privacy under the statute covered corporations, and not individuals only: "[I]n ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words." F.C.C. v. AT&T, 562 U.S. ___, No. 09-1279, slip op. at 5 (March 1, 2011) (using "crab" and "crabbed" as an example).

29.

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); 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). 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.

30.

See, e.g., Sullivan v. Stroop, 496 U.S. 478, 483 (1990) (five-Justice majority holding that "child support" in the AFDC statute is restricted to that term's specialized use in the Child Support program under the 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. But see Wall v. Kholi, 562 U.S. ___, No. 09-868 (March 7, 2011) (meaning of "collateral review" in habeas corpus statute analyzed by separate examination of the ordinary dictionary meanings of "collateral" and "review").

31.

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's 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 1984 from the District of Columbia Code.).

32.

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"). See also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (following the same course after finding ERISA's "circular" definition of "employee" to be wanting); Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444 (2003) (same construction of similarly "circular" definition of "employee" in ADA).

33.

"[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)).

34.

Morissette v. United States, 342 U.S. 246, 263 (1952).

35.

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). See also, e.g., Mohamad v. Palestinian Authority, 566 ___, No. 11-88, slip op. (April 18, 2012) ("individual," as used in the Torture Victim Protection Act, does not include an organization).

36.

Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995).

37.

Commissioner v. Soliman, 506 U.S. 168, 174 (1993).

38.

FDIC v. Meyer, 510 U.S. 471, 476 (1994).

39.

E.g., Octane Fitness, LLC v. Icon Health & Fitness, Inc., 572 U.S. ___, No. 12-1184, slip op. (April 29, 2014).

40.

See Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. ___, No. 09-525, slip op. (June 13, 2011), where a five-Justice majority cites the ordinary dictionary meaning of "make" to narrowly interpret "mak[ing] a statement" under SEC Rule 10b-5, and the four-Justice dissent, without dictionary citation and using "everyday" examples, characterizes the majority's interpretation as too restrictive.

41.

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 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 dictionary definition over another may indicate sufficient "reasonableness." Smiley v. Citibank (South Dakota), 517 U.S. 735, 744-47 (1996). See also Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. ___, No. 09-834, slip op. (March 22, 2011) (holding that "filing" a complaint included complaints made orally).

42.

Brown v. Gardner, 513 U.S. 115, 118 (1994).

43.

Smith v. United States, 508 U.S. 223 (1993). Dissenting, Justice Scalia argued for a narrower reading: "[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) (holding that 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).

44.

Abuelhawa v. United States, 556 U.S. 816, 819-20 (2009) (quoting Dolan v. Postal Service, 546 U.S. 481, 486 (2006)) (citations omitted).

45.

The majority in Smith, which construed "use of a firearm" broadly, stated there was a general understanding that drugs and firearms are a dangerous combination and saw no reason why Congress would want to distinguish use of a firearm as a weapon in a drug crime from use of a firearm in barter in a drug crime; according to the majority, both circumstances involved a grave possibility of violence and death. 508 U.S. at 240. The unanimous Court in Abuelhawa, which construed "facilitate" narrowly, stated that a broad reading (which would have led to higher criminal penalties) could be inconsistent with the gradation of similar and more serious offenses. 556 U.S. at 821-23.

46.

Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945). Justice Stevens 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) (Stevens, J., concurring).

47.

See, e.g., Pueblo of Santa Ana v. Kelly, 932 F. Supp. 1284, 1292 (D. N. Mex. 1996).

48.

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).").

49.

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) ("[T]he 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).

50.

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).

51.

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) (Scalia, J., concurring) (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").

52.

"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). See also, e.g., EPA v. EME Homer City Generation, 572 U.S. ___, Nos. 12-1182 and 12-1183, slip op. (April 29, 2014). "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). "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).

53.

See IA Sutherland, Statutes and Statutory Construction §25:4 (Norman J. Singer ed., 6th ed. 2002 rev.).

54.

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.'").

55.

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.").

56.

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 Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 432 n.9 (1995) ("shall" sometimes means "may").

57.

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.

58.

Public Citizen, Inc. v. Mineta, 340 F.3d 39, 54 (2d Cir. 2003).

59.

E.g., Radlax Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. ___, No. 11-166, slip op. (May 29, 2012).

60.

Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228 (1957) (citations omitted). The same principle is used to resolve conflict between two statutes. See, e.g., United States v. Estate of Romani, 523 U.S. 517, 532 (1998) (later, more specific statute governs). See also Morton v. Mancari, 417 U.S. 535, 550-51 (1974) (a general statute will not be held to have repealed by implication a more specific one unless there is "clear intention otherwise").

61.

Bloate v. U.S., 559 U.S. 196 (2010).

62.

See, e.g., Adams v. Woods, 6 U.S. (2 Cranch) 336, 341 (1805).

63.

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 grouped words); Freeman v. Quicken Loans, 566 U.S. ___, No. 1042, slip op. (May 24, 2012) (terms in phrase prohibiting giving or accepting of any "portion, split, or percentage" of a real estate settlement charge unless a service was actually rendered reinforce one another and the conclusion that the prohibition does not cover a loan provider assessing an unearned fee for itself alone).

64.

Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). "The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to Acts of Congress." Id.

65.

11 U.S.C. §523(a)(4).

66.

Bullock v. BankChampaign, 569 U.S. ___, No. 11-1518, slip op. (May 13, 2013).

67.

Graham County Soil and Water Conservation District v. U.S., 559 U.S. 280 (2010). "The substantive connection, or fit, between the terms 'congressional,' 'administrative,' 'and 'GAO' is not so tight or so self-evident as to demand that we 'rob' any one of them 'of its independent and ordinary significance.'" Id. at 288 (citations omitted). The language at issue in Graham County barred qui tam actions under the False Claims Act that were based on certain publicly available government documents, and a broad interpretation of the language effectively limited the circumstances in which private parties could sue to recover funds fraudulently obtained from the government by others.

68.

Schindler Elevator Corp. v. United States, 563 U.S. ___, No. 10-188, slip op. (May 16, 2011).

69.

Beecham v. United States, 511 U.S. 368, 371 (1994). The Court often explains that this and similar canons are only vehicles for ascertaining the correct meaning of otherwise uncertain terms. See 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).

70.

Harrison v. PPG Industries, Inc., 446 U.S. 578, 588 (1980); 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 beyond antitrust and similar laws).

71.

Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001). "Canons of construction need not be conclusive and are often countered, of course, by some maxim pointing in a different direction. The application of the rule of ejusdem generis in this case, however, is in full accord with other sound considerations bearing upon proper interpretation of the clause." Id. at 115. Compare CSX Transportation, Inc. v. Alabama Dept. of Revenue, 562 U.S. ___, No. 09-520, slip op. at 16-17 (February 22, 2011) (a prohibition against "impos[ing] another tax that discriminates" against railroads that followed a list of prohibited property taxes on railroad property held not limited to other property taxes; the prohibition was distinct and independent from the listed property tax prohibitions and not a catch-all that rendered the more specific prohibitions meaningless).

72.

During a five-year period, the Court addressed the scope of the term "violent felony" in the Armed Career Criminal Act in four separate cases. In the ACCA, "violent felony" includes, inter alia, a crime that "is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another" (emphasis added). In James v. United States, a five-Justice majority found that attempted burglary fit within the residual clause because it entails a significant risk of bodily injury, which, according to the majority, is the most relevant common attribute of the listed crimes, and not that they are all completed crimes, as the petitioner had argued. 550 U.S. 192 (2007). In Begay v. United States, the majority found DUI to fall outside the residual clause because it is too dissimilar to the listed crimes, being a crime that need not be deliberate, among other things. 553 U.S. 137 (2008). With somewhat less emphasis on ejusdem generis reasoning, a unanimous Court found failure to report to prison beyond the residual clause in Chambers v. United States, finding the crime to be passive and not aggressive conduct as the listed crimes are. 555 U.S. 122 (2009). Two years later, a majority of the Court in Sykes v. United States found the crime of vehicle flight to carry a level of risk, and a mens rea requirement, comparable to the listed crimes and, therefore, within the residual clause. 564 U.S. ___, No. 09-11311, slip op. (June 9, 2011). Dissenting in Sykes, Justice Scalia reviewed the several tests the Court had derived from its various characterizations of the listed crimes in the ACCA cases and declared the residual clause to be unconstitutionally vague.

73.

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).

74.

United States Nat'l Bank of Oregon v. Independent Ins. Agents, 508 U.S. 439, 454 (1993).

75.

Id. at 462.

76.

See, e.g., Arcadia v. Ohio Power Co., 498 U.S. 73, 79 (1990) ("In casual conversation, perhaps, such absent-minded duplication and omission are possible, but Congress is not presumed to draft its laws that way.").

77.

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).

78.

Barnhart v. Thomas, 540 U.S. 20 (2003). An example of the "rule of the last antecedent" not being strictly followed is Nobelman v. American Savings Bank, 508 U.S. 324, 330-31 (1993). Under a section of the Bankruptcy Code, a bankruptcy plan can modify the "rights of holders of secured claims, other than a claim secured only by [the debtor's residence]." The term "secured claim" is defined elsewhere in the Bankruptcy Code as being limited to the fair market value of the underlying collateral. In this instance, the rule of the last antecedent would link the modifying clause to "claims" and imply that a home mortgage does not cover an amount greater than a home's fair market value. For policy and practical reasons, however, the Court read the modifying clause as saying "other than the rights of holders ofa claim secured only by the debtor's residence." 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.").

79.

253 U.S. 345, 348 (1920).

80.

18 U.S.C. §2259(b).

81.

Paroline v. United States, 572 U.S. ___, No. 12-8561, slip op. at 9 (April 23, 2014).

82.

So too, in another case the Court shied away from "the most natural grammatical reading" of a statute to avoid an interpretation that would have raised a serious issue of constitutionality. 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.

83.

E.g., Flores-Figueroa v. United States, 556 U.S.646 (2009).

84.

Montclair v. Ramsdell, 107 U.S. 147, 152 (1883).

85.

Hibbs v. Winn, 542 U.S. 88, 101 (2004) (quoted in Corley v. United States, 556 U.S. 303, 314 (2009)); 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). In a case analyzing the significance of the adjective "applicable" in a provision of the Bankruptcy Code, the majority opinion relied on the presumption again superfluity to hold that "applicable" had a limiting effect, whereas Justice Scalia, in dissent, observed that "[t]he canon against superfluity is not a canon against verbosity. When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with." Compare Ransom v. FIA Card Services, 562 U.S. ___, No. 09-907, slip op. at 7-8 (January 11, 2011) with Ransom v. FIA Card Services, 562 U.S. ___, No. 09-907, slip op. at 2 (January 11, 2011) (Scalia, J., dissenting).

86.

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).

87.

Ratzlaf v. United States, 510 U.S. 135, 140-41 (1994).

88.

See, e.g., Moskal v. United States, 498 U.S. 103 (1990). Defendant in Pennsylvania sent altered documentation about certain automobiles to Virginia and obtained valid Virginia auto titles incorporating false facts contained in the altered documents. The new titles were then sent back to defendant in Pennsylvania. The federal forgery statute prohibited receipt of "falsely made, forged, altered, or counterfeited securities." Five Justices held that the Virginia titles were "falsely made" even though Virginia authorities were unaware of the misrepresentations contained in them. Dissenting Justice Scalia objected to the Court's straining to avoid holding that "falsely made" is redundant: "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.

89.

Marx v. General Revenue Corp., 568 U.S. ___, No. 11-1175, slip op. at 14 (February 26, 2013).

90.

POM Wonderful LLC v. Coca-Cola Co., 573 U.S. ___, No. 12-761, slip op. (June 12, 2014). See also Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253 (1992) (finding that, despite considerable overlap between two provisions, each addressed matters that the other did not).

91.

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).

92.

Brown v. Gardner, 513 U.S. 115, 118 (1994); Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 329-30 (2000). Cf. Robers v. United States, 572 U.S. ___, No. 12-9012, slip op. (May 5, 2014).

93.

Sullivan v. Stroop, 496 U.S. 478, 484 (1990) ("child support" as used in the Child Support program under the Social Security Act points toward the same use of "child support" in the closely related AFDC program, and thus "child support" as used in the AFDC program does not include OASDI payments under title II of the Social Security Act).

94.

National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 501(1998).

95.

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., 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").

96.

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); Merck v. Reynolds, 559 U.S. ___, No. 08-905 (April 27, 2010) (Scalia, J., concurring) (use of "discovery" alone in one securities fraud statute of limitations provision and the use of "discovery, or after such discovery should have been made" in another securities fraud statute of limitations provision implies that "discovery" in the first provision means only "actual discovery" and does not include "constructive discovery"); 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).

97.

Hamdan v. Rumsfeld, 548 U.S. 557, 578 (2006).

98.

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 provision).

99.

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.").

100.

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's failure to so distinguish with respect to LSD was inadvertent).

101.

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).

102.

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 indirect owner of a corporation, as distinct from a direct owner of shares in 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 included an express overt-act requirement in at least 22 other current conspiracy statutes, clearly demonstrating that it knows how to impose such a requirement when it wishes to do so."). Also Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. ___, No. 12-1036, slip op. (January 14, 2014) (when Class Action Fairness Act authorizes removal of a state case to federal court as a "mass action" if the case was brought by 100 or more persons, only named plaintiffs may be counted; in the same statute, Congress explicitly had included counting "unnamed parties in interest" toward meeting class action thresholds and could have done so under the mass action provision if it so chose.).

103.

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).

104.

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.

105.

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.").

106.

FMC Corp. v. Holliday, 498 U.S. 52, 66 (1990) (Justice Stevens, dissenting, objecting to Court's interpretation of convoluted preemption language in ERISA).

107.

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)).

108.

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).

109.

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) ("[I]t would be surprising, indeed," if Congress had effected a "radical" change in the law "sub silentio" via "technical and conforming amendments.").

110.

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 over tobacco, and to subsequently enacted tobacco-specific legislation that stopped short of conferring authority to ban sale of the product.

111.

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).

112.

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)).

113.

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).

114.

NationsBank v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257 (1995) (endorsing Comptroller of the Currency's interpretation).

115.

Marx v. General Revenue Corp., 568 U.S. ___, No. 11-1175, slip op. (February 26, 2013).

116.

See 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).

117.

For an extensive listing of substantive canons, by type, used in Supreme Court decisions from 1986-2006, along with accompanying case citations, see William N. Eskridge, Jr., Phillip P. Frickey & Elizabeth Garrett, Cases & Materials on Legislation: Statutes & the Creation of Public Policy at Appendix B 29-41 (4th ed. 2007).

118.

For example, in Astoria Federal Savings & Loan Assn. v. Solimino (501 U.S. 104 (1991)), the Court addressed whether a federal cause of action under the Age Act was bound by unreviewed findings of a state administrative board, as might be the case if the common law doctrine of collateral estoppel applied. In this instance, Justice Souter characterized the maxim that judge-made law implicitly continues to apply as an analytical starting point only, one that would give way as statutory context or purpose indicates. The opinion eschewed any formulaic application that would make the maxim dispositive absent a "clear statement" in the statute to the contrary. 501 U.S. at 108-10.

119.

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. 593 (1992).

120.

See Holmes v. Securities Investor Protection Corporation, 503 U.S. 258 (1992).

121.

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)).

122.

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).

123.

Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. ___, No. 10-290, slip op. (June 9, 2011).

124.

E.g., Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 ( 2009) (availability of punitive damages in maritime cases under common law not superseded by Jones Act); Norfolk Southern Railway v. Sorrell, 549 U.S. 158 (2007) (common-law negligence principles continued to apply in action under the Federal Employers' Liability Act); United States v. Dixon, 548 U.S. 1 (2006) (common-law burden on defendant to prove affirmative defense of duress applied in prosecution for firearms-related offenses); Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (continued availability of certain state common law tort remedies after Federal Insecticide, Fungicide, and Rodenticide Act).

125.

See Astoria Federal Savings & Loan Assn. v. Solimino, 501 U.S. 104 (1991).

126.

Compare CSX Transportation Inc. v. McBride, 564 U.S. ___, No. 10-235, slip op. (June 23, 2011) (Ginsburg, J., for the Court) (also citing previous judicial interpretations and the purpose of the statute), with CSX Transportation Inc. v. McBride, 564 U.S. ___, No. 10-235, slip op. (June 23, 2011) (Roberts, C.J., dissenting) (finding lack of requisite congressional intent in the statutory language and opining that if the phrase "in whole or in part" was intended to affect any common law rule, it was to allow actions in cases of contributory negligence, not to relax proximate cause restrictions).

127.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

128.

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 605 (1991). See also Medtronic Inc. v. Lohr, 518 U.S. 470, 485 (1996) ("[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action."). Nevertheless, any presumption disfavoring preemption of state law may go only so far. In PLIVA, Inc. v. Mensing, for example, four Justices characterized the Supremacy Clause phrase asserting federal pre-eminence "any [state law] to the Contrary notwithstanding" as a non obstante provision that "suggests that federal law should be understood to impliedly repeal conflicting state law" and indicates limits on the extent to which courts should seek to reconcile federal and state law in preemption cases. 564 U.S. ___, No. 09-993, slip op. at 15-17 (June 23, 2011) (Thomas, J., plurality opinion).

In contrast to the congressional intent required to support preemption of a state-based cause of action, Congress displaces a potential cause of action under federal common law (i.e., a suit based on judicially declared law) simply by addressing the question at issue in a statute. American Electric Power Co. v. Connecticut, 564 U.S. ___, No. 10-174, slip op. (June 20, 2011) (federal common law suit to abate greenhouse gas emissions as a public nuisance held to have been displaced by the Clean Air Act).

129.

Bond v. United States, 572 U.S. ___, No. 12-158, slip op. (June 2, 2014) (no clear statement from Congress that statute implementing Chemical Weapons Convention was meant to support federal prosecution of a purely local assault crime committed with harmful, but not illegal, chemical compounds).

130.

E.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (continued availability of certain state common law tort remedies after Federal Insecticide, Fungicide, and Rodenticide Act); Rush Prudential HMO v. Moran, 536 U.S. 355 (2002) (5-4 decision finding that Illinois regulation fell within ERISA's preservation of state insurance laws); Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) (preemptive reach of Federal Cigarette Labeling and Advertising Act). Compare Geier v. American Honda Motor Co. 529 U.S. 861 (2000) (despite the inclusion of savings clause preserving liability under common law, the National Traffic and Motor Vehicle Safety Act nevertheless found to have preempted a state common law tort action based on the failure of a car manufacturer to install front seat airbags: giving car manufacturers some leeway in developing and introducing passive safety restraint devices held to be a key congressional objective under the act, one that would be frustrated should a tort action be allowed to proceed) with Williamson v. Mazda Motor of America, Inc., 562 U.S. ___, No. 08-1314, slip op. (2011) (applying same statute as Geier, no conflict preemption found of common law suit based on rear seat belt type, because giving manufacturers a choice on the type of rear seat belt to install was not a "significant objective" of the statute).

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 the Clean Water Act foreclosed the application of state law to an out-of-state source of pollution despite a savings clause in the Act preserving an injured party's right to seek relief under any statute or common law. "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 an out-of-state source." Id. at 484.

131.

Gregory v. Ashcroft, 501 U.S. 452 (1991).

132.

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").

133.

The Eleventh Amendment states that federal courts do not have jurisdiction over suits against a state by citizens of another state or foreign country. By the late nineteenth century, the amendment was understood to mean that a state generally could not be sued without its consent. The primary exception is that Congress may subject a state to suit through an exercise of its legislative authority under section 5 of the Fourteenth Amendment. Section 5 empowers Congress to pass laws effectuating civil rights promoted by the Amendment.

134.

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)).

135.

517 U.S. 44, 73 (1996).

136.

Nevada Dept. of Human Resources v. Hibbs 538 U.S. 721 (2003) (allowing private right of action and money damages against a state for violating the family leave provisions of the Family and Medical Leave Act (FMLA); family leave provisions held to be permissible exercises of Section 5 because they targeted gender discrimination). Compare Coleman v. Court of Appeals of Maryland, 566 U.S. ___, No. 10-1016, slip op. (March 20, 2012) (disallowing a damages suit against a state for violating the personal sick leave provisions of the FMLA; personal sick leave provisions held to be beyond Section 5 authority, because the personal sick leave provisions are not sufficiently tied to curbing discrimination).

137.

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.

138.

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 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.

139.

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)).

140.

United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992); Ardestani v. INS, 502 U.S. 129, 137 (1991) (partial waiver).

141.

Nordic Village, 503 U.S. at 37. For criticism of the rule, see John Copeland Nagle, Waiving Sovereign Immunity in an Age of Clear Statement Rules, 1995 Wisc. L. Rev. 771, 836.

142.

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).

143.

United States v. White Mt. Apache Tribe, 537 U.S. 465, 472-73 (2003).

144.

Lane v. Pena, 518 U.S. 187, 192 (1996) ("To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims."); see also FAA v. Cooper, 566 U.S. ___, No.10-1024, slip op. at 5 (March 28, 2012) ("For the same reason that we refuse to enforce a waiver that is not unambiguously expressed in the statute, we also construe any ambiguities in the scope of the waiver in favor of the sovereign.").

145.

Sossamon v. Texas, 563 U.S. ___, No. 98-1438 (April 20, 2011).

146.

Federal Trade Commission v. Phoebe Putney Health System, Inc., 568 U.S. ___, No. 11-1160 (February 19, 2013) (local government hospital authority not entitled to immunity in consolidating hospital ownership in the area; authorizing statute insufficiently clear).

147.

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).

148.

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). See also Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006).

149.

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.

150.

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.").

151.

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, 501 U.S. 129, 138 (1991); Gollust v. Mendell, 501 U.S. 115, 126 (1991).

152.

Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998) (citing Rust v. Sullivan, 500 U.S. 173, 191 (1991), in which the Court concluded, over the dissent of four Justices, that abortion counseling regulations "do not raise the sort of 'grave and doubtful constitutional questions,' ... that would lead us to assume Congress did not intend to authorize their issuance").

153.

EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros, Inc. v. Filardo, 336 U.S. 281, 285 (1949)) (Title VII of the Civil Rights Act inapplicable to alleged discrimination against employee serving in Saudi Arabia even though employee was a U.S. citizen hired in the U.S. to work for a U.S. subsidiary). See also Microsoft Corp. v. AT&T, 550 U.S. 437, 454-55 (2007) ("The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law."); 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). But see 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).

154.

Morrison v. National Australia Bank Ltd., 561 U.S. ___, No. 08-1191, slip op. (June 24, 2010).

155.

To determine whether a cause of action existed, the courts examined, on a case-by-case basis, the extent to which the alleged conduct affected American markets or investors, the extent to which the alleged conduct took place in the U.S., and related factors.

156.

Morrison v. National Australian Bank Ltd., slip op.at 16.

157.

Kiobel v. Royal Dutch Petroleum Co., 569 U.S. ___, No.10-1491, slip op. (April 17, 2013) (no jurisdiction to hear case brought by Nigerian residents of the U.S. against foreign oil company for allegedly aiding and abetting Nigerian Government in committing atrocities against its people).

158.

28 U.S.C. §1350.

159.

Kiobel, slip op. at 7-9.

160.

Kiobel, slip op. at 6-7 (Breyer, J., concurring).

161.

Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).

162.

E.g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 671 (1986) ("This ['clear and convincing evidence'] standard has been invoked time and again...."); Kucana v. Holder, 558 U.S.233, 251-52 (2010).

163.

Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986) (finding that the method for determining the amount of benefits that is payable under Medicare Part B is reviewable even though the individual determinations themselves are not). 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 construction."); Kucana v. Holder, 558 U.S. 233, 252-53 (2010) (stressing that it is for Congress, and not an executive agency, to determine whether a discretionary agency decision is subject to review, and thus a statutory bar on review of discretionary agency decisions was limited to certain decisions made discretionary by Congress and did not include procedural decisions made discretionary through agency regulation).

See also 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.").

164.

5 U.S.C. §704.

165.

5 U.S.C. §701(a).

166.

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 clear from the purposes of the Civil Service Reform Act, from the entirety of its text, and from the structure of the statutory scheme).

167.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (citing S.Rep. 79-752 (1945)).

168.

Heckler v. Chaney, 470 U.S. 821, 830 (1985).

169.

486 U.S. 592 (1988).

170.

486 U.S. at 601-605. See also Johnson v. Robison, 415 U.S. 361 (1974).

171.

Clearly, the courts and administrative agencies have different interests and different types of expertise, and their respective processes differ in their openness to policy considerations, both in initially interpreting a statute and amending an interpretation over time.

172.

United States v. Home Concrete and Supply LLC, 566 U.S. ___, No. 11-139, slip op. (April 25, 2012), dealt with the unusual circumstance in which an agency and an earlier, pre-modern deference doctrine Supreme Court case disagreed in their interpretation of the same statutory language. A plurality of the Home Concrete Court upheld the earlier judicial interpretation, primarily on its reading that the earlier opinion found Congress had left no interpretive gaps in the statutory language. Concurring in the result, Justice Scalia maintained that the earlier judicial interpretation bound the agency regardless of the earlier opinion's legal reasoning.

173.

Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Chevron extends to interpretations by an agency on the extent of its own jurisdiction. City of Arlington v. FCC, 569 U.S. ___, No. 11-1545, slip op. (May 20, 2013). Absent a textual directive to the contrary, a compact commission overseeing an interstate compact is not reviewed under this deferential model of judicial review. Alabama v. North Carolina, 560 U.S. ___, No. 132, Orig. (June 1, 2010).

174.

Christensen v. Harris County, 529 U.S. 576 (2000).

175.

United States v. Mead Corp., 533 U.S. 218 (2001).

176.

Mead Corp., 533 U.S. at 229.

177.

323 U.S. 134 (1944).

178.

William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretation from Chevron to Hamdan, 96 Geo. L.J. 1083 (2008). One variation of deference analysis comes into play whenever the Court invites an agency to submit an amicus brief interpreting an ambiguous agency regulation. Unless there is reason to believe that the brief is a 'post hoc rationalization" taken as a litigation position, or there is another reason to believe that the brief is anything other than the agency's fair and considered judgment, the Court will defer to the interpretation in the brief if it is not plainly erroneous or inconsistent with the regulation. Chase Bank USA v. McCoy, 562 U.S. ___, No. 09-329, slip op. at 12-14 (January 24, 2011).

179.

Chevron, 467 U.S. at 842.

180.

467 U.S. at 843 n.9.

181.

Id. at 843. Many scholars and courts opine that the "permissible construction," or "reasonable" interpretation, inquiry under this second step of Chevron analysis is essentially the same as determining whether an agency action is "arbitrary, capricious, and an abuse of discretion" for purposes of judicial review under the Administrative Procedure Act, though some question whether the Chevron and APA standards are, or should be, wholly congruent in all cases. See, e.g., Kenneth A. Bamberger & Peter L. Strauss, Chevron's Two Steps, 95 Va. L. Rev. 611 (2009) and authorities cited therein.

182.

See, e.g., Kenneth W. Starr, Judicial Review in the Post-Chevron Era, 3 Yale J. on Reg. 283 (1986).

183.

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).

184.

An extensive study of more than 1,000 Supreme Court cases decided between the issuance of Chevron in 1984 and the end of the Court's 2005 Term concluded that Chevron analysis is but one of a broad array of deference regimes that continue to be applied by Court. William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretation from Chevron to Hamdan, 96 Geo. L.J. 1083 (2008).

185.

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).

186.

Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 457 (2001).

187.

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.") (holding that FCC authority to "modify" statutory filing requirements for communications carriers did not support agency order that filing was optional for all long-distance carriers other than the then-dominant carrier – AT&T). Unlike agency actions taken under vague or imprecise delegations of authority, actions taken under general delegations of authority to make rules and regulations to carry out a statute are due Chevron deference. See Mayo Foundation for Medical Education and Research v. U.S., 562 U.S. ___, No. 09-837 (January 11, 2011).

As to an agency assertion of jurisdiction delegated elsewhere, the Court stated the following in overturning a rule by the Attorney General declaring that use of a controlled substance for physician-assisted suicide is not a legitimate medical practice for purposes of the Controlled Substances Act: "Chevron deference ... is not accorded merely because the statute is ambiguous and an administrative official is involved. To begin with, the rule must be promulgated pursuant to authority Congress has delegated to the official." Gonzales v. Oregon, 546 U.S. 243, 258 (2006).

188.

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000).

189.

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 Federal Food, Drug, and Cosmetic Act, and it was also clear that Congress had not spoken directly to the issue anywhere else in that act. 529 U.S. at 162. 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, 447 U.S. 318 (1980); J.E.M. Ag Supply, Inc. v. Farm Advantage, Inc., 534 U.S. 124 (2001).

190.

Solid Waste Agency v. Army Corps of Engineers, 531 U.S. 159, 172 (2001). In Rapanos v. United States, the plurality opinion took issue with the breadth of the Corps of Engineers' claim to jurisdiction through its interpretation of the term "the waters of the United States": "The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate land ... We ordinarily expect a 'clear and manifest' statement from Congress to authorize an unprecedented intrusion into traditional state authority.... Likewise ... the Corps' interpretation stretches the outer limits of Congress' commerce power.... Even if the term 'the waters of the United States' were ambiguous as applied to channels that sometimes host ephemeral flows of water ... we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity." 547 U.S. 715, 738 (2006).

191.

Smiley v. Citibank (South Dakota), 517 U.S. 735, 740 (1996) (upholding regulation issued more than 100 years after statute's enactment).

192.

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. Under case law prior to Chevron, the Court was more apt to take into account a regulation's longevity, contemporaneity, and other factors in assessing the degree of deference due. See, e.g., National Muffler Dealers Ass'n v. U.S., 440 U.S. 479 (1979).

193.

Christensen v. Harris County, 529 U.S. 576, 587 (2000).

194.

Skidmore v. Swift & Co., 323 U.S. 134 (1944).

195.

Christensen v. Harris County, 529 U.S. at 587.

196.

Skidmore v. Swift & Co., 323 U.S. at 140.

197.

See, e.g., Aluminum Co. v. Central Lincoln Util. Dist., 467 U.S. 380, 390 (1984).

198.

See, e.g., Investment Co. Inst. v. Camp, 401 U.S. 617, 626-27 (1971).

199.

See, e.g., General Electric Co. v. Gilbert, 429 U.S. 125, 142-43 (1976).

200.

William N. Eskridge, Jr., Phillip P. Frickey & Elizabeth Garrett, Cases & Materials on Legislation: Statutes & the Creation of Public Policy at 1225 (4th ed. 2007).

201.

When a repealing act itself is repealed, prior law is not thereby revived unless done so expressly. 1 U.S.C. §108.

202.

United States v. Fausto, 484 U.S. 439, 453 (1988).

203.

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.

204.

Watt v. Alaska, at 266. For an example of securities law being held to preclude enforcement of antitrust law, see Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264 (2007).

205.

Posadas v. National City Bank, 296 U.S. 497, 503 (1936).

206.

Rodriguez v. United States, 480 U.S. 522, 524 (1987) (citations omitted). See also Morton v. Mancari, 417 U.S. 535, 550-51 (1974).

207.

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, 422 U.S. 659 (antitrust laws impliedly repealed (in part) by Securities Exchange Act). Other cases refusing to find a repeal by implication include Hamdan v. Rumsfeld (548 U.S. 557, 593-94 (2006)) and Granholm v. Heald (544 U.S. 460, 483 (2005)).

208.

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).

209.

Pullen v. Morgenthau, 73 F.2d 281 (2d Cir. 1934).

210.

Sutherland, Statutes and Statutory Construction §23:18 (Norman J. Singer ed., 6th ed. 2002 rev.).

211.

Id.

212.

TVA v. Hill, 437 U.S. 153, 190 (1978).

213.

United States v. Will, 449 U.S. 200, 222 (1980).

214.

United States v. Gradwell, 243 U.S. 476, 485 (1917).

215.

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"). Accord Skilling v. U.S., 561 U.S. ___, No. 08-1394 (June 24, 2010).

216.

Ratzlaf v. United States, 510 U.S. 135, 148-49 (1994) (quoting Boyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J., for Court)).

217.

United States v. Santos, 553 U.S. 507, 514 (2008) (Scalia, J., plurality opinion).

218.

The judicial quest to discern whether a penal statute is sufficiently clear can at times appear abstruse in itself. Compare, e.g., the four-Justice plurality opinion and the four-Justice dissent in United States v. Santos. 553 U.S. 507 (2008).

219.

Beecham v. United States, 511 U.S. 368, 374 (1994) (quoting Chapman v. United States, 500 U.S. 453, 463-64 (1991)). Accord, National Org. for Women v. Scheidler, 510 U.S. 249, 262 (1994). See also United States v. Hayes, 555 U.S. 415, 429 (2009).

In Muscarello v. United States, a five-Justice majority eschewed application of the rule of lenity and found that a mandatory sentence for carrying a weapon during a drug crime included having a firearm in a locked glove box or in the trunk of a car while transporting drugs for sale: "The simple existence of some statutory ambiguity ... is not sufficient to warrant application of [the rule of lenity], for most statutes are ambiguous to some degree.... To invoke the rule, we must conclude that there is a 'grievous ambiguity or uncertainty'.... [T]his Court has never held that the rule of lenity automatically permits a defendant to win." 524 U.S. 125, 138-39 (1998). Consider as well the four-Justice dissent in United States v. Santos: "[T]he rule of lenity does not require us to put aside the usual tools of statutory interpretation or to adopt the narrowest possible dictionary definition of the terms in a criminal statute." 553 U.S. at 548 (2008) (Alito, J., dissenting).

220.

United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994). See also Flores-Figueroa v. United States, 556 U.S. 646 (2009).

221.

"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 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").

222.

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). On reading a mens rea requirement into a statute, Justice Scalia has stated that "[i]t is one thing to infer the common-law tradition of a mens rea requirement where Congress has not addressed the mental element of a crime. It is something else to expand a mens rea requirement that the statutory text has carefully limited." Flores-Figueroa v. United States, 556 U.S. 646, 658 (2009) (Scalia, J., concurring) (citations omitted).

223.

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).

224.

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.

225.

United States v. United States Gypsum Co., 438 U.S. 422, 438 (1978) (applying principle to Sherman Act violation).

226.

Flores-Figueroa v. United States, No. 08-108, 546 U.S. 646, 660 (2009) (Alito, J., concurring).

227.

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) (Jay, C.J.) (Constitution's extension of judicial power over controversies between a state and citizens of another state is "remedial, [and] therefore, to be construed liberally").

228.

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 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).

229.

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).

230.

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").

231.

This is not to say, however, that the same fairness considerations that underlie the rule of lenity justify application of the "remedial statute" rule.

232.

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).

233.

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.").

234.

Bryan v. Itasca County, 426 U.S. 373, 392 (1976) (quoting Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918)). Among broader statements of the canon is the following: "statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985).

235.

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).

236.

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).

237.

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).

238.

Carcieri v. Salazar, 555 U.S. 379 (2009). Justice Stevens observes in his dissent the failure of the Court to take this remedial canon into account. Carcieri v. Salazar, 555 U.S. 379, 413-14 (2009) (Stevens, J., dissenting).

239.

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)).

240.

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. 385, 388-89 (1959)).

241.

United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805).

242.

Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528 (1947).

243.

See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (the 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 title").

244.

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).

245.

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)).

246.

Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 175 (2009) (quoting District of Columbia v. Heller, 554 U.S. 570 at 578 n.3 (2008)).

247.

Yazoo and Mississippi Valley R.R. v. Thomas, 132 U.S. 174, 188 (1889).

248.

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).

249.

"[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. 410, 427 (1899).

250.

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).

251.

Sutton v. United Airlines, Inc., 527 U.S. 471, 484-86 (1999) (holding that sisters denied jobs as pilots because of poor, but correctable, eyesight did not suffer from a "disability" under the ADA).

252.

"[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) (emphasis in original).

253.

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's dissent, id. at 54 (Congress intended to protect the parents as well as the tribe).

254.

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 the Vietnam War "should" be considered veterans for purposes of receiving certain welfare benefits).

255.

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 law).

256.

PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 618 (7th Cir. 1998).

257.

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).

258.

Thus, despite the inclusion of a savings clause preserving liability under common law, the National Traffic and Motor Vehicle Safety Act was found to have preempted a state common law tort action based on the failure of a car manufacturer to install front seat airbags: Giving car manufacturers some leeway in developing and introducing passive safety restraint devices was, according to the Court, a key congressional objective under the act, one that would frustrated should a tort action be allowed to proceed. Geier v. American Honda Motor Co., 529 U.S. 861 (2000). 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).

259.

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).

260.

Here, as elsewhere, the Justices vary in their inclination toward reaching beyond "plain meaning" if the language of a savings clause arguably is facially consonant with the broader statutory structure. In Chamber of Commerce of the United States v. Whiting, five Justices straightforwardly adopted the "plain meaning" of a 1986 clause saving state "licensing and similar laws" from preemption by federal employer sanctions, and upheld a later enacted Arizona law suspending or revoking the licenses of businesses found by the state to have employed unauthorized aliens in violation of federal standards. By contrast, two dissenting opinions were troubled that the Arizona sanction was far more severe than that authorized for similar violations under either federal law or state laws in force prior to 1986, and they interpreted the savings law more narrowly to maintain what they perceived as the regulatory balance Congress sought in the 1986 law. 563 U.S. ___, No. 09-115, slip op. (May 26, 2011). See also 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).

261.

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.

262.

See, e.g., Geier v. American Honda Motor Co., 529 U.S. 861 (2000) (despite a statute's savings clause providing that "compliance with" a safety standard "does not exempt any person from any liability under common law," a state common law tort action against auto manufacturer found to be preempted by a federal motor vehicle safety standard giving manufacturers a choice among types of passive restraints to install for front seats). But see Williamson v. Mazda Motor of America, 562 U.S. ___, No. 08-1314 (February 23, 2011) (applying same statute and savings clause at issue in Geier, state common law tort action held not to be pre-empted by federal safety standard giving manufacturers a choice of what type of seatbelts to install for center seats in the back of minivans). The Williamson Court distinguished Geier by emphasizing that the savings clause only preserved a state tort action from being expressly pre-empted by a federal motor vehicle safety standard. However, a state tort action could be barred nonetheless by conflict pre-emption if, as in Geier, the regulatory provision giving manufacturers a choice in selecting safety devices was key to accomplishing the agency's objective to promote safety. See also 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-law claims).

263.

For example, several cases have given effect to the provision of the Mandatory Victims Restitution Act that states a restitution order can be enforced against any property of the person fined under the order, "[n]otwithstanding any other Federal law." E.g., United States v. Hyde, 497 F.3d 103 (1st Cir. 2007) (superseding bankruptcy law); United States v. Novak, 476 F.3d 1041 (2007) (superseding ERISA).

264.

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 limiting construction.

265.

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. 1970). Then, following remand, the same court ruled that compliance with 16 U.S.C. §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).

266.

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.'"

267.

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, the "notwithstanding" phrase is a blunt instrument. The Trans-Alaska Pipeline Authorization Act may be 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).

268.

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.

269.

Marbury v. Madison, 5 U.S. (1 Cranch) 163 (1803) (citing Blackstone's Commentaries).

270.

Texas & Pacific Ry. v. Rigsby, 241 U.S. 39-40 (1916).

271.

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 "central inquiry").

272.

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). See also Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 378-82 (1982) (focusing on contemporary legal context in which Congress legislated, implied right of private action found to continue to exist under language carried over from a prior statute).

273.

"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.

274.

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 §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 §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, 71 Notre Dame L. Rev. 861 (1996).

275.

E.g., Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (federal funding provisions provide no right for private recourse under §1983 absent clear, unambiguous intent to the contrary).

276.

See Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. ___, No. 09-525, slip op. (June 13, 2011) (interpreting liability under SEC Rule 10b-5 for "making" an untrue statement as being confined to the entity with final authority over the content of the statement and whether to release it; preparation of misleading mutual fund prospectus by the fund's administrator held insufficient to make the administrator liable because ultimate legal control over the content of the prospectus lay with the fund).

277.

2B Sutherland, Statutes and Statutory Interpretation, §51.07 (Norman J. Singer ed., 6th ed. 2000 revision).

278.

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.

279.

Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108 (1976)).

280.

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.

281.

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).

One observer stated the following on the Court and severability: "Despite the unambiguous command of severability and inseverability clauses, the Court has repeatedly held that they create only a rebuttable presumption that guides—but does not control—a reviewing court's severability determination.... [T]he Court has chosen instead to focus on extrinsic evidence of legislative intent and on the potential functionality of the post-severance statutory scheme...." Michael Shumsky, Severability, Inseverability, and the Rule of Law, 41 Harv. J. on Legis. 227, 230 (2004).

282.

"A severability clause requires textual provisions that can be severed." Reno v. ACLU, 521 U.S. 844, 882 (1997). See also Hill v. Wallace, 259 U.S. 44 (1922); and Carter v. Carter Coal Co., 298 U.S. 238, 312-16 (1936).

283.

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 §941b(a), 941c, or 941d of this title is rendered invalid by the final action of a court, then all of this subchapter is invalid."

284.

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").

285.

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.

286.

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).

287.

Liesegang v. Secretary of Veterans Affairs, 312 F.3d 1328, 1377 (Fed. Cir. 2002).

288.

Barnhart v. Peabody Coal Co., 537 U.S. 149, 172 (2003).

289.

Barnhart v. Peabody Coal Co., 537 U.S. at 161.

290.

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).

291.

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).

292.

Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006).

293.

E.g., Henderson v. Shinseki, 562 U.S. ___, No. 09-1036 (March 1, 2011) (120-day deadline for filing an appeal to the U.S. Court of Veterans' Appeals, an Article I court, held not to be jurisdictional, especially given the liberal construction due veterans benefits provisions); Reed Elsevier, Inc. v. Muchnick, 559 U.S.154 (2010) (Copyright Act requirement that a copyright holder register a work before instituting an infringement suit held not to bar class action comprising both holders who had registered their work and those who had not); Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (Title VII's cause of action allowing sex discrimination suits against employers having at least 15 employees does not bar suits against smaller employers, but rather is a matter to be raised defensively by the defendant).

294.

See Sebelius v. Auburn Regional Medical Center, 568 U.S. ___, No. 11-1231 (January 22, 2013) and cases discussed therein.

295.

Harbison v. Bell, 556 U.S. 180, 198 (2009) (Thomas, J., concurring).

296.

See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 848 (1992) ("Using legislative history to help interpret unclear statutory language seems natural. Legislative history helps a court understand the context and purpose of a statute.").

297.

Different views on the strictures posed by statutory text are not new. 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 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 459.

298.

See, e.g., Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985) (disagreement over the scope of civil RICO). See also Corley v. United States, 556 U.S. 303 (2009).

299.

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209 (1994) ("The legislative history of the Mine Act confirms this interpretation.").

300.

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." The Court considered the legislative history, nevertheless, and found nothing inconsistent between it and the Court's reading of statutory language.); Toibb v. Radloff, 501 U.S. 157, 162 (1991) ("[E]ven 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).

301.

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) (Scalia, J., dissenting) ("If 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, 454 (1989) ("Where the literal reading of a statutory term would compel 'an odd result,' ... we must search for other evidence of congressional intent to lend the term its proper scope.").

302.

Concurring in Green v. Bock Laundry Machine Co., Justice Scalia agreed on the appropriateness of consulting legislative history for the limited purpose of determining whether what appeared to be an absurd meaning of a key statutory term was indeed considered and intended. Beyond this, however, "[t]he meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated ... I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a different result from the one that these factors suggest." 490 U.S. 504 at 527, 528 (1989) Scalia, J., concurring).

303.

"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).

304.

"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).

305.

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").

306.

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 93. Despite the evident clarity of this language, three Justices dissented.

307.

See generally William N. Eskridge, Jr., Phillip P. Frickey & Elizabeth Garrett, Cases & Materials on Legislation: Statutes & the Creation of Public Policy at 689-798 (4th ed. 2007) (historical survey, with example cases, of theories of interpretation applied by the federal courts and the role of legislative history in them).

308.

See, e.g., Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 547 (1983) ("Because legislatures comprise many members, they do not have "intents" or "designs," hidden yet discoverable. Each member may or may not have a design. The body as a whole, however, has only outcomes.").

309.

E.g., Antonin Scalia, Matter of Interpretation: Federal Courts and the Law 31-34 (1997).

310.

See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring). The complexity and volume of legislative materials also has been said to make use of legislative history malleable and susceptible of supporting any number of outcomes. As an oft-quoted passage in an article by Judge Patricia Wald stated: "It sometimes seems that citing legislative history is still ... akin to 'looking over a crowd and picking out your friends.'" Patricia Wald, Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983) (quoting Judge Harold Leventhal). As to the one-time dominance of the federal bureaucracy in shaping and using legislative history, see Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266 (2013).

311.

See Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992); see also Charles Tiefer, The Reconceptualization of Legislative History in the Supreme Court, 2000 Wisc. L. Rev. 205 (2000) (discussing the "Breyer-Stevens" concept of "institutional" legislative history).

312.

See, e.g., Powerex Corp. v. Reliant Energy Services Inc., 551 U.S. 224, 231-32 (2007).

313.

James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 Duke L.J. 1231 (2009).

314.

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).

315.

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).

316.

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 Scalia).

317.

"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).

318.

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.

319.

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).

Dissenting in Burwell v. Hobby Lobby, Justice Ginsburg recounted the statutory history of the Affordable Care Act to argue for the primacy of preventive health care for women over the religious beliefs of employers. 573 U.S. ___, No. 13-354, slip op. at 3-6 (June 30, 2014) (Ginsburg, J., dissenting).

320.

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).

321.

In Hamdan v. Rumsfeld, the Court examined three provisions of the Detainee Treatment Act. In two of the provisions, Congress had immediately restricted access to the courts by individuals in certain pending military proceedings, but the third provision did not expressly limit access to the courts by individuals in pending proceedings through petitions for writs of habeas corpus. The Court recounted that Congress had adopted its final language only after having rejected versions that would have immediately curtailed habeas relief in pending cases: "Congress' rejection of the very language that would have achieved the result the Government urges here weighs heavily against the Government's interpretation." 548 U.S. 557, 579-80 (2006).

322.

Compare Justice Scalia's plurality opinion in Rapanos v. United States, which saw no significance in Congress's rejection of an amendment to overcome wetlands regulations, to Justice Stevens's dissent, which saw such rejection as evidence of acquiescence. 547 U.S. 715, 749-52, 797 (2006). For a leading example of reading acquiesce into an extended history of congressional rejection of regulatory legislation, see FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

323.

"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).

324.

Pacific Gas & Elec. Co. v. Energy Resources Conserv. & Dev. Comm'n, 461 U.S. 190, 220 (1983) (noting that language had been deleted to insure that there be no preemption); INS v. Cardoza-Fonseca, 480 U.S. 421, 441-42 (1987) (rejection of Senate language limiting the 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 presumed damages").

325.

"[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 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)).

326.

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).

327.

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").

328.

Compare Justice Stevens's 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.").

329.

Sullivan v. Finkelstein, 496 U.S. 617, 628 n.8 (1990). An extensive, long-running record of hearings and statements across subsequent Congresses may, in combination with other factors, weigh in favor of interpreting a statute narrowly. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 147-55(2000).

330.

Sullivan, 496 U.S. at 631 (Scalia, J., concurring in part). Elsewhere, Justice Scalia has stated that "[r]eal (pre-enactment) legislative history is persuasive to some because it is thought to shed light on what legislators understood an ambiguous statutory text to mean when they voted to enact it. But post-enactment legislative history by definition 'could have had no effect on the congressional vote.'" Bruesewitz v. Wyeth LLC, 562 U.S. ___, No. 09-152, slip op. at 18 (February 22, 2011), quoting District of Columbia v. Heller, 554 U.S. 570 605 (2008).

331.

Mackey v. Lanier Collection Agency & Serv., 486 U.S. 825, 840 (1988) (quoting United States v. Price, 361 U.S. 304, 313 (1960)).

332.

F. Reed Dickerson, The Interpretation and Application of Statutes 179 (1975).

333.

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).

334.

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. Additionally, 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."

335.

Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989).

336.

550 U.S. 618 (2007). On January 29, 2009, the Lilly Ledbetter Fair Pay Act of 2009 was enacted as P.L. 111-2. Criticizing the Supreme Court in its finding, the act restarts the statute of limitation clock on compensation claims each time harm is realized from past unlawful discrimination (including each paycheck). Also, the act explicitly extends beyond Title VII to claims under other specified civil rights laws. For an extended discussion of the persistence of more general interpretations beyond narrow congressional overrides, see Deborah A. Widiss, Shadow Precedents and the Separation of Powers, 84 Notre Dame L. Rev. 511 (2009).

337.

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"). See also Farragher v. City of Boca Raton, 524 U.S. 775, 792 (1998) ("[T]he force of precedent here is enhanced by Congress's amendment to the liability provisions of Title VII since the Meritor decision, without providing any modification of our holding."). 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).

338.

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).

339.

Lorillard v. Pons, 434 U.S. 575, 581 (1978).

340.

Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 349-52 (2005).

341.

Lorillard, 434 U.S. 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).

342.

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) (citations omitted).

343.

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's 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). At times, acquiescence and reenactment have been used in tandem. See Zuni Pub. Sch. Dist. No. 89 v. Department of Educ., 550 U.S. 81, 90-91 (2007).

344.

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's "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 (1988).

345.

"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).

346.

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).

347.

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").

348.

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).

349.

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").

350.

Clinton v. City of New York, 524 U.S. 417 (1998).

351.

U.S. Const., art. I, §1.

352.

Signing statements have a long history, but their frequency and intent changed beginning with the Reagan Administration. William N. Eskridge, Jr., Phillip P. Frickey & Elizabeth Garrett, Cases & Materials on Legislation: Statutes & the Creation of Public Policy at 1043-44 (4th ed. 2007). An example from the Obama Administration is found in a statement accompanying the signing of P.L. 113-17, which concerned Taiwan's participation in the International Civil Aviation Organization: "I note that sections 1(b) and 1(c) contain impermissibly mandatory language purporting to direct the Secretary of State to undertake certain diplomatic initiatives.... Consistent with longstanding constitutional practice, my Administration will interpret and implement these sections in a manner that does not interfere with my constitution authority to conduct diplomacy...." 2013 U.S.C.C.A.N. S5, 2013 WL 4405724 (leg. hist.) (July 12, 2013).

353.

See CRS Report RL33667, Presidential Signing Statements: Constitutional and Institutional Implications, by [author name scrubbed].

354.

In a 1986, Samuel A. Alito Jr., then a Deputy Assistant Attorney General in DOJ's Office of Legal Counsel, drafted a memorandum to a Litigation Strategy Working Group on how "to ensure that Presidential signing statements assume their rightful place in the interpretation of legislation.... [I]n interpreting statutes, both the courts and litigants (including lawyers in the Executive branch) invariably speak of "legislative" or "congressional" intent. Rarely if ever do courts or litigants inquire into the President's intent. Why is this so?" He proceeded to review potential obstacles to wider acceptance and proposed a course of action for overcoming them.

355.

A report by a task force of the American Bar Association that was critical of the types of constitutional and institutional assertions being made in presidential signing statements apparently had no objection to the President using signing statements to voice views on the meaning, purpose, or significance of bills. American Bar Association, Report of the Task Force on Presidential Signing Statements and the Separation of Powers Doctrine at 5 (2006).

356.

See, e.g., Frank B. Cross, The Constitutional Legitimacy and Significance of Presidential "Signing Statements," 40 Admin. L. Rev. 209 (1988).

357.

"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." Department of Justice, Office of Legal Counsel, "The Legal Significance of Presidential Signing Statements," 17 U.S. Op. Off. Legal Counsel 131, 136 (1993).

358.

"[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).

359.

See Marc N. Garber & Kurt A. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 Harv. J On Legis. 363, 367 (1987) ("The danger inherent in [an 'executive history' statement] is that its author will graft ambiguities and exceptions onto an act that was not so encumbered during the legislative process...."). Compare Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 Const. Commentary 307, 344-47 (2006).

360.

Zivotofsky v. Secretary of State, 725 F. 3d 197 (D.C. Cir. 2013), cert. granted sub nom. Zivotofsky v. Kerry, No. 13-628 (April 21, 2014) ("The signing statement is irrelevant."); Petition for Writ of Certiorari, Zivotofsky v. Kerry, No.13-628 (November 20 2013); Brief for the Respondent in Opposition, No. 13-628 (February 21, 2014); Brief of Petitioner, No. 13-628 (July 15, 2014). This is the second time the case has been before the Court. See M.B.Z. v. Clinton, 565 U.S. ___, No. 10-699, slip op. (March 26, 2012) (finding that political question did not bar judicial review of statement allowing optional designation on U.S. passport of "Israel" as place of birth of those born in Jerusalem; case remanded). Neither the legal effect nor the persuasive weight of President Bush's signing statement was briefed or argued on the merits.

361.

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 Ga. 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); Department of Justice, Office of Legal Counsel, "The Legal Significance of Presidential Signing Statements," 17 U.S. Op. Off. Legal Counsel 131 (1993).

362.

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 Edwin Meese, III, National Press Club (February 25, 1986). Presidents since Reagan have continued this practice.

363.

See, e.g., Zivotofsky v. Secretary of State, 571 F.3d 1227 (D.C. Cir. 2009) (citing President George W. Bush's signing statement on non-binding nature of a provision authorizing designation of Israel as place of birth on the passport of a U.S. citizen born in Jerusalem), cert. granted sub nom. M.B.Z. v. Clinton, No. 10-699 (May 2, 2011); United States v. Perlaza, 439 F.3d 1149, 1163 (9th Cir. 2006) (citing President Clinton's signing statement to reinforce statement of purpose in the conference report); 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 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).

364.

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 implementation.

365.

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.

What makes a contract a void contract?

A contract may be deemed void if the agreement is not enforceable as it was originally written. In such instances, void contracts (also referred to as "void agreements"), involve agreements that are either illegal in nature or in violation of fairness or public policy.

Is a void contract enforceable quizlet?

A void contract has no legal effect, it would be missing one of the six elements. An unenforceable contract is one the court will not uphold.

Which of the following can void a contract?

Contracts will be voided if there is a mistake or fraud by one of the parties. Contracts may also be voided if a party entered into a contract under duress. Another type of contract that can be void is an unconscionable contract.

What happens if a clause is void?

What Makes a Contract Void? If a court or tribunal rules a contract void, it means the contract has no force or effect, so neither party is bound by it and neither party can rely on it. Usually, this is because: The object of the agreement is illegal or against public policy (unlawful consideration or subject matter)