Legislation Class Notes 4/9/04


We will have class Tuesday here at 11 AM.  Brudney missed the chance to sell the Legislation Clinic to us.  He does so now.


White’s opinion in BankAmerica


White noted that Mann and Webb/Shirley didn’t disagree about whether the new language prohibited bank-insurance company interlocks.  What they did disagree upon was whether the original House version would have prohibited such interlocks.  The issue for White is: what does the statute mean without the “other than banks” language?  It means that bank-insurance company interlocks are covered!  Without that language, you just can’t be a director of two or more banks engaged in commerce.


With that in mind, we were asked to think about what the implications would be for the four approaches we’ve talked about.  Where would each of the justices come down in this case?  What is true about commerce today that wouldn’t have been true 50, 60, or 70 years ago with respect to banks?  We have an evolving understanding of what commerce is.  Commerce has become a more expansive concept, and things that in pre-1937 terms weren’t part of commerce now are part of commerce.


President Wilson signs this bill.  He says in this bill, “Thank goodness.  I can sleep at night now because I put an end to bank-insurance company interlocks.  Signed, Woodrow Wilson.”  Should we credit that statement as evidence of what the statute means?  What are the president’s powers with regard to legislation?  The president can sign bills.  The president can veto bills.  Anything else?  The president pushes an agenda.  The president can propose a bill, lobby for a bill, lobby for a change, or other stuff.  However, the act of the veto, introducing legislation or having emissaries testify mean that Congress has the ability to sort of “talk back”.  A veto can be overridden.  Bills can be modified or not.  The problem of a signing statement is that it’s a “last shot”.  It’s a gloss on what the president thinks he’s signing when Congress’s work is already finished.  The Reagan Administration was hot on these statements even though their counsel said that legislative history is a terrible thing.  Many people thought that it was troubling that the president could spin legislation without the possibility of more dialogue.


Montana Wilderness Association v. United States Forest Service


This is about statements by sponsors or drafters of legislation.  Sponsors of legislation tend to get preference as the most knowledgeable members in regard to a bill.  But colloquies can be manipulative.  Here, environmentalists are seeking to block construction of roads by Burlington Northern.  Here is another checkerboard grant!  Burlington Northern is the defendants here.  Why is the 1980 statute important even though it hadn’t been passed at the time of the district court decision?  It’s not Burlington Northern that’s appealing.  The case will either rise or fall on the 1980 statute, even though it was never litigated in the district court at all.


Does § 1323 apply to the whole country, or only Alaska?  The National Forest Service is not defined in the text.  In isolation, it looks like we’re talking about the whole country.  The name of the Act is the “Alaska Lands Act”.  The title refers to Alaska.  What else about the statute as a whole gives more information?  We have an act that is 50-100 pages long where every other section refers to Alaska.  How can we say that the only two paragraphs that are silent refer to the whole country?  What is true about public lands?  Is there a definition about public lands?  They are defined as only being in Alaska.  But the National Forest Service is not defined in the act.  Whether you call this “Whole Act” or “expressio unius”, why wouldn’t we attribute some meaning to the fact that Congress defined everything else, but not the National Forest Service?  Isn’t there something ambiguous here?  The judge in this case doesn’t marshal this argument.  Maybe he is a “soft textualist” by nature.  The judge goes through the rest of the statute to figure out whether there could be a different meaning here.  From our point of view, there could be a different meaning if we took “expressio unius” seriously.


But now we get to legislative history.  This section was added by the Senate Energy Committee.  But how much do we credit a statement after the bill has been sent to the president?  Did the member say anything during the course of the debate?  The casebook authors are sheepish.  Should the presence of a “Dear Colleague” letter written and sent while the bill was about to be debated on the Senate floor have any effect?  What’s a “Dear Colleague” letter?  If someone is proposing a bill, they will send a letter around saying why they think you should or shouldn’t vote for it.  Is that the only reason why a Senator or Representative might send around a “Dear Colleague” letter?  How are these letters handled when they come into a member’s office?  Do the Congressmen even read these things?  Who else might be seeing these letters?  Maybe the mailroom will see these letters.  There thousands of “Dear Colleague” letters circulated during each legislative session.  Most are preprinted and say something that might be substantive, but needless to say that people don’t really pay attention to them.  They’re also not specially recorded anywhere!  Once they’re written, they’re at the mercy of whoever files them.  There is a serious access problem as to whether courts or litigants can ever find them!


People are making broad statements about what § 1323 is without knowing that things are defined as applying to Alaska only!  That disqualifies a lot of what Seiberling and Weaver said.


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