Legislation Class Notes 3/10/04


More on Muscarello


Last time, we looked at Ginsburg and Breyer’s argument’s about the statute as a whole and found that the rule of lenity was considered a “tiebreaker” by Breyer.  Ginsburg gave more weight to the rule of lenity.


We were asked to think about the three different justifications for the rule of lenity.  For example, what about the “fair notice” concept?  Do we need the fair notice justification for the rule of lenity to help decide this case?  Breyer says that we don’t.


Should it really come as a surprise that if you’re dealing drugs out of your car having a gun in your car will get you five more years?  Breyer is probably right: the fair notice function probably doesn’t add much to this.


What about the mens rea issue?  How can you argue that someone traveling with a gun in a car doesn’t have the mens rea for this crime?  The statute provides that if you are using a gun during and in relation to a crime, you’ll get the extra five years.  Drug dealers are bad dudes!  Do they really need notice?  But maybe they get embroiled in a violent crime.  What about the felony-murder rule?


What about the Second Amendment?  We don’t generally criminalize gun possession.  What’s the policy tag for the rule of lenity?  Courts ought to be very careful to define criminal activity involving gun possession alone because that takes away more civil liberties.  If Congress didn’t adequately or specifically define it, we’re taking away activity that implicates the Separation of Powers aspects of this rule.


Ginsburg was worried about vagueness here!  You have the constitutional right to have a gun in your home or car.  Then all of the sudden a drug deal happens!  Is it fair that you may get five extra years just for having a gun around?  Is Ginsburg right?


What about the word “brandish”?  What does it mean to “brandish” a weapon?


McNally v. United States


The majority looks at the original purpose of the statute.  This is the federal mail statute.  This is simply an expansion of a monetary category.  Did Congress mean to create a whole new category of fraud in 1909?  If so, wouldn’t we have noticed some debate?  But there wasn’t any such debate!  From the point of view of the majority, this is just an expansion of the concepts of the earlier statute.


Stevens, in dissent, says there are two different ways of being guilty of mail fraud.  It could be money or property, or something else.  He argues that the “or” must mean something!  What are the public policy considerations?  What are the rule of lenity considerations that support Justice White in the majority?  Is this a political question doctrine consideration?  Are we going to criminalize hardball politics?  Each party will come out prosecuting the other party!  This is a traditional Separation of Powers problem.  We should be very clear that Congress wants to do things this way before we put it into force.  White felt that if he was wrong, Congress would fix it, and they did, real quick.


Which language canon could you use to get out of this?  What about the presence of the word “or”?  How about “conjunctive versus disjunctive”?  How do you make that a Whole Act Rule argument?  If you make two halves of a prohibitory section duplicative, it doesn’t make sense!  Congress wouldn’t say that we prohibit “A” or “A”!  They say that we prohibit “A” or “B”!


National Labor Relations Board v. Catholic Bishop of Chicago


The NLRB ordered Catholic schools to bargain with unions.  The Board only declines jurisdiction over religious schools when they are completely religious.  The schools were found to be not completely religious because they had some secular classes.  The Supreme Court says that under this rule, in effect, the NLRB could control all church schools.  The Supreme Court overturns the NLRB!


What is the applicable canon?  Here we have the constitutional question doctrine.  We should avoid any construction that would violate the Constitution.  But if we don’t take it the way it’s intended, which other construction do we pick?  Can we just pick any other construction out there in the world?


The majority does a fair amount of rewriting.  The policy norm is valuable, but people are critical of the misuse of this canon.  It creates superlegislative powers for the courts!  If it’s possible something could be wrong, so matter how remote, the court gives itself the power to fix it!


What does the Board suggest?  The Board’s role if a unit has been recognized as a bargaining unit is to figure out what they’re going to be bargaining about, like terms and conditions of employment.  But the school will say that, for example, we can’t give time off for Christmas because we have to take care of the poor on that day.


The position is that we don’t want to look at the record because it’s going to be automatic and has to happen.  It’s almost like a legal conclusion.  But can we avoid this?  Can the Court reconfigure the statute?  The Court looks at the legislative history to try to find a way out of this dilemma.  In 1935, there was no expression by Congress to cover teachers in religious schools.


What about a nurse who opposes unions on religious grounds?  The majority contends that this amendment reflects sensitivity to First Amendment guarantees, supporting its position that Congress would have worried about such things.  Can we argue that the 1974 amendment actually hurts the majority’s position?


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