Legislation
Class Notes
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.
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
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?