Legislation Class Notes 3/11/04


More on National Labor Relations Board


At the end of class yesterday, we were talking about the 1974 amendment to the NLRA.What if you oppose unions on religious grounds?Does this hurt the majorityís position?


What if they give an exemption to the employee there?What if they collectively bargain?There are several different arguments.


Why should you read from this amendment the conclusion that in order to avoid constitutional concerns you must exclude employers?Itís complicated.Basically, the court says that, in an effort to construe this statute to avoid a constitutional problem, you must find out if Congress meant to ďbelly-upĒ to this constitutional issue.But they had no intention of touching First Amendment consequences.You could look at the amendment and get the exact opposite conclusion.


Is the majority being consistent in deciding whether this is an evidentiary matter?What is the basis for the Courtís conclusion that they were going to exclude religious employers?Was it factual or legal?


What about employment?What might an employer put down?There will be rules about reporter objectivity in a union of reporters.


The dissent says that the majority is using the canon wrong.Brennan says it must be fairly possible and reasonable.That reins the judiciary in a little more.That deprives Congress of the ability to learn from or act on the constitutional limits of its own powers.It also leaves statutes susceptible to being rewritten by courts that still want to uphold them.


Brennan says that the majorityís construction is not fairly possible for three different reasons.What reasons?


1.     The actís wording Ė There are express exclusions.There are eight of them.Some of the exceptions are very big.This is a classic expressio unius situation.

2.     The actís legislative history Ė The NLRB has a pattern of including non-profit and religiously associated organizations.What happened in 1947?The Harley bill would have made more exclusions, such as for religious organizations, but that bill didnít pass.

3.     The Courtís own precedents

This seems pretty clearly wrong.The Court seems to willfully ignore what Congress wanted to do.


What about Scalia versus Breyer?Should you have to feel that there are grave constitutional doubts before you decide whether the statute is reasonably clear or not reasonably clear?


Itís not that the canon is divinely inspired, itís just applied.Do you like to update statutes to improve their constitutionality?Or are you an originalist?


There is no unified state of the canon.


Gregory v. Ashcroft


The Missouri Constitution requires mandatory retirement at age 70 for most judges.Was that prohibited by the ADEA?But what about employees on the policy-making level?


Here is the super-strong clear statement canon.If you assume that youíre in the petitionerís position, and you donít want to die soon, you want to make a plain language argument using language canons that under the language of the act, I am clearly an employee and thus someone who should not be subject to mandatory retirement.


Noscitur a sociis!Take the meaning from other things, and then put them into identifications or exclusions.What personal staff have or immediate advisors look like theyíre closely tied to people elected to public office, thus I shouldnít be excluded from this definition.The exceptions are on either side of them.They should work closely with and be accountable to elected officials.In plain language terms, this is an argument that Justice White tries to deflect or derail or respond to.He takes it on by saying that even a traffic court example would end up excluded because the categories are all in some way connected with elected officials.


There are ways to think about this case in terms of linguistic analysis.Then there is a Whole Act Rule argument that is the notion of being in a close working relationship which is true about two kinds of people.The universe of people who work closely with elected officials like these appointed judges who certainly are covered.You donít need to get beyond the language of the statute to come out the way the Court comes out in this case.The canon they are using has some constitutional overtones.


What is Congress doing?What are they doing?What?What?What?Crazy Congress!What about people who are elected or appointed?Why would Congress dictate as to things the voters can only affect themselves?What if youíre not permitted to like these people if you keep them?Thatís crazy!Any rational legislature wouldnít mean this!Why are we talking about these two theories?There are some ample grounds for being able to decide this case without getting to OíConnorís rationale.We could have used the language canons and plain meaning.White is unhappy about the result.Why?Why?Why?


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