Legislation
Class Notes
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 majority’s
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? It’s
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 “belly-up” 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 Court’s
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 majority’s construction is not fairly possible for three
different reasons. What reasons?
1. The act’s wording – 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 act’s legislative
history – 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 didn’t pass.
3. The Court’s 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?
It’s
not that the canon is divinely inspired, it’s 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 you’re in the petitioner’s position, and you don’t
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 they’re closely
tied to people elected to public office, thus I shouldn’t 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 don’t 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 you’re not permitted to like these
people if you keep them? That’s crazy! Any rational legislature wouldn’t 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 O’Connor’s
rationale. We could have used the
language canons and plain meaning. White
is unhappy about the result. Why? Why?
Why?