Posted by: maroonmaurader | November 29, 2010

Modern Debate and Old Law

I wish to consider a hypothetical situation. There is a somewhat vague older law which arguably may provide a federal agency with some specific power. That power has never been exercised by the agency to date. A controversial bill comes up before the legislature which would explicitly grant that power to the agency. Should the fact that the legislature is explicitly debating granting that power imply that the earlier law is presumed to not grant said power?

If the agency suddenly decided to start exercising that power and it were challenged by a court with debate on the explicit law still ongoing, would it constitute harmful judicial activism to find that the earlier law did in fact provide the currently-debated power?

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Responses

  1. It’s not clearly to me whether you’re focusing on interpretive permissibility or political permissibility. A law is vague just in case there is a set of interpretively permissible constructions that are jointly incompatible. So, a law is vague about whether it confers power P if an interpretively permissible set of constructions of the law is {P,~P}. One interpretation of your scenario / question is this:

    1. At t1 the interpretively permissible set of constructions of L1 is {P,~P}
    2. At t2 Congress considers passing L2, which definitely confers power P.
    3. Does this mean that, at t2, it becomes interpretively mandatory to construe L1 as not conferring power P (i.e. does the interpretively permissible set of constructions change from {P,~P} to {~P})?

    I’m inclined to say no. Political changes aren’t the kind of thing that can affect the interpretively permissible set of constructions of a particular law; only linguistic changes can do that.

    Staying within the interpretive realm, you could tweak your scenario / question again:

    1. At t1 the interpretively permissible set of constructions of L1 is probably {P,~P}
    2. At t2 Congress considers passing L2, which definitely confers power P.
    3. Does this mean that, at t2, it becomes less probable that {P,~P} is the interpretively permissible set of constructions of L1?

    Again, my answer would be no. Not only is Congress’s opinion about interpretive permissibility of no probative value, but Congress’s behavior doesn’t even necessarily mean that Congress thinks it is interpretively impermissible to construe L2 as conferring power P. It could equally want to guarantee that this permissible construction is enacted. Or it could think it is mandatory to construe L2 as conferring power P, and want to pressure the judiciary to adopt that construction one way or another.

    [Legal fun fact: courts tend to defer to agency interpretations of the laws that govern them – there is language in Chevron v. Natural Resources Defense Council authorizing this – so, as a matter of constitutional law, it may be that an agency’s construing the law as conferring P on it would have a bearing on the probably of {P,~P} being the set of interpretively permissible constructions, but not necessarily.]

    Obviously, if your focus is political permissibility there’s a whole different set of considerations, and, I think, it is possible that Congress’s considering making the construction mandatory might have a bearing on the political permissibility of a court’s adopting that construction for the older law. But the devil would be in the details there. I think.


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