POPVOX Foundation’s Post

Almost every lawyer who has gone to work on Capitol Hill has had that moment of realizing that most congressional staff / Members of Congress don't labor over statutory language the way courts imply they do. The #Chevron decision has me remembering my time studying Law & Government (Admin law focus) at American University Washington College of Law, deep in the weeds of statutory construction while interning with the U.S. House of Representatives Committee on Ways & Means. With this (and related) decisions, it is going to be essential that staff & Members get professional development / training on rules of statutory construction and *defensive drafting.* (Is that a term? If not now it soon will be!)

One of the problems with historians analyzing legal rulings is they often have a very difficult time setting aside (or even admitting) their unspoken assumption that the historical understanding of a law is the correct one. Which always strikes me as odd, given they often (as here) can trace how other laws have had their meanings changed and reinterpreted over the years. Now, this originalist view of interpretation isn't wrong per se, but it is only one view, and, honestly, a pretty lame one. Granted, I'm a radical textualist who believes the law means exactly what it says in modern language (some day I'll write a post on why I think this is the best approach to law), but I at least acknowledge that it's only one possible view. https://lnkd.in/gsb97CEn

Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950 - PDF: https://lnkd.in/geA5FrUw A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The resulting debate between textualists and their opponents—a debate that has dominated statutory interpretation for a generation—cannot be truly understood unless we know how legislative history came to be such a common tool of interpretation to begin with. This question is not answered by the scholarly literature, which focuses on how reliance on legislative history became permissible as a matter of doctrine (in the Holy Trinity Church case in 1892), not on how it became normal, routine, and expected as a matter of judicial and lawyerly practice. The question of normalization is key, for legislative history has long been considered more difficult and costly to research than other interpretive sources. What kind of judge or lawyer would routinize the use of a source often considered intractable? Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

"The times, they are a changin' " in Loper Bright Enterprises v. Raimondo This week the US Supreme Court handed down several decisions that, combined with other recent rulings, could change the US regulatory landscape dramatically. On Friday June 28, the Court issued the most significant of those decisions (Loper Bright), flatly overruling the "Chevron doctrine" that has guided federal regulatory agencies and reviewing courts for more than four decades. That may sound obscure, but the Court's watershed ruling likely will affect everyone subject to federal regulation--which is to say pretty much all of us. My colleagues Samantha Chaifetz, Elizabeth Jonas and I summarize yesterday's ruling and its potential effects in this article. It's worth a read. #LoperBright #Chevron #federalregulation #administrativelaw #SupremeCourt #Chevrondeference #Skidmore #overrule #administrativeprocedureact #SupremeCourtdecision #separationofpowers #LoperBrightEnterprisesvRaimondo #regulatoryinterpretationshiftstocourts

Hey LinkedIn Community, I am thrilled to announce the publication of my latest article titled "Electoral Bonds Unveiled: A Spectacular Saga Of Shattered Expectations" in the esteemed Lawfoyer International Journal of Doctrinal Legal Research, featured in Volume 2, Issue 1! 📚✍️ It's been an incredible journey delving into the intricacies of electoral bonds, unraveling a narrative of expectations, and the realities that lie beneath. This piece represents months of meticulous research, analysis, and dedication to shedding light on a crucial aspect of our democratic processes. I am immensely grateful to the editorial team at LawFoyer for this opportunity and their invaluable guidance throughout the publication process. I invite you all to delve into the pages of LawFoyer, explore the discourse, and engage with the profound discussions surrounding electoral bonds and their implications. Link to the Article:https://lnkd.in/gFTfyvRN #Published #ElectoralBonds #LegalResearch #LawfoyerJournal #AcademicExcellence

How Amendments Affect Constitutional Law Explore the significance of constitutional amendments, their historical context, societal impacts, and future implications through detailed analysis ... https://lnkd.in/deaF6Q8N #ConstitutionalLaw

Adverse Effects of the 26th Constitutional Amendment on ICAs and Writs: The 26th Constitutional Amendment, 2024 has the unintended effect of limiting the availability of ICAs against decisions of writ petitions, due to the structural changes introduced by the 26th Amendment, 2024. Article 202A creates Constitutional Benches in the High Courts which specifies that only these benches (not other benches) will hear cases under Article 199(1)(a)(i) (writ of mandamus or prohibition) and Article 199(1)(c) (enforcement of fundamental rights). It also establishes that petitions under these categories will be transferred to these constitutional benches. Additionally, Article 202A (3) specifically states that no other bench except for the Constitutional Benches will have the power to hear these matters. And Article 202A (5) requires that all pending petitions under Article 199 be transferred to these benches. This restructuring creates a new division in the High Court where only certain judges, sitting in designated Constitutional Benches, will hear these cases. Before the 26th Amendment, writ petitions under Article 199 could be heard by a single judge and an appeal (ICA) under S. 3 of the Law Reforms Ordinance, 1972, could be made against the decisions of these single judges to a larger bench or a divisional bench (DB). Whereas, now, after the 26th Amendment, these writ petitions will only be heard by Constitutional Benches (i.e., a bench of multiple judges), as per Article 202A (3). The Law Reforms Ordinance does not provide for an appeal (ICA) when a decision is made by a larger bench. An appeal is only available when a single judge makes the judgment. Therefore, under the new amendment, since writ petitions under Article 199(1)(a)(i) and Article 199(1)(c) will no longer be heard by a single judge, the right to file an ICA under Section 3(2) of the Law Reforms Ordinance becomes unavailable. This is because Section 3(2) only applies to decisions of single judges, and the petitions will now be heard by multiple-judge benches. The Guardian has termed this Constitutional Amendment as nothing short of a "democratic collapse," reflecting concerns over its implications for judicial independence and the rule of law in Pakistan. This sentiment is echoed across global media outlets, with numerous international publications expressing alarm over the potential erosion of democratic principles in Pakistan. This is just the beginning of many unintended consequences of this amendment that will unfold eventually, with far-reaching impacts on judicial independence and access to justice.

Every attorney should read this.

The New York Times recently cited a report that was issued by SLS's Rule of Law Impact Lab and the Inter-American Dialogue’s Rule of Law Program, "A Threat To Judicial Independence: Constitutional Reform Proposals in Mexico." The report analyzes constitutional reform proposals presented by President Andrés Manuel López Obrador to the Mexican Congress in February 2024, finding the proposals to threaten the country's judicial independence, violate its international legal standards, and undermine the democracy in Mexico. “By politicizing the judiciary, the reform proposals would deny people access to justice,” said Amrit Singh, SLS and Executive Director of the Rule of Law Impact Lab. “Instead of deciding cases impartially and acting as a check on the abuse of power, judges would issue decisions to please powerful constituencies and win more votes. The reform initiatives would endanger the rights of minorities and the rule of law.” Read more here: https://lnkd.in/geb87nRd

Have you ever read the official Laws of the United States? For many of us, the answer is unsettling: probably not. In the work-a-day practice of law, we don’t read or cite the official Laws of the United States. Even the federal courts don’t read or apply them. Instead, we all rely on the abridged and edited consolidation of the official Laws: the United States Code. The text of the United States Code is not what passed both houses of Congress and was signed by the President, as described in the Bicameralism and Presentment Clauses of Article I, § 7 of the Constitution. For that you must pull the Statutes at Large, the official source of the Laws of the United States, and compare the amendatory acts with the enacting acts to determine what the law is. But that’s a lot of work. And so, we have the United States Code. It is the work of the Legislative Drafting Service, a ministerial office within the Senate. (Well, “Legislative Drafting Service” is what it’s called in the Session Laws. In the Code it goes by the name of “Office of the Legislative Counsel.”) Tobias A. Dorsey first raised this strange state of affairs in his classic article, “Some Reflections on Not Reading the Statutes.” It’s a though-provoking article that dances around that timeless jurisprudential question “what is Law?” But we working lawyers have no more time to ponder that question than we do to dig through the session laws. So what should we do about it? If nothing else, it’s a reminder to consider the process through which the Laws of the United States get from the President’s signature to the United States Code on which we rely. Spend a little time reading up on how the United States Code came into existence, how it is organized, and how it is updated. The Office of Law Revision Counsel in the United States House of Representatives has a helpful guide to the United States Code that could be a good place to start: https://lnkd.in/g8DKHH5Z And if you work with any specific statutes, it would probably be worthwhile to pull the Statutes at Large and read them in full. #Laws #UnitedStates #Constitution #Statutory #LawyersofLinkedIn