Sources Of Interpretative Authority Outline

SOURCES OF INTERPRETIVE AUTHORITY

TVA V. Hill: (textualist opinion)

1. Facts: TVA began construction of dam in 1967. By the time this case reached the court, the dam was virtually completed, save shutting the gate. Doing so would likely result in the extinction of the snail darter fish, listed by the Secretary of Interior as an endangered species, pursuant to the Endangered Species Act of 1973. Activists sued to prevent TVA from shutting the gate.

2. Applicable Statutory Language: “All federal departments and agencies shall…utilize their authorities…by taking such action necessary to insure that actions authorized, funded or carried out by them do not jeopardize the continued existence…or result in the destruction of a habitat or modification of the habitat of such species.”

3. Issue: Whether the building of the dam is an action authorized, funded or carried out by the agency.

4. Holding: Regardless of the fact that the dam was nearly complete, shutting the gate was indeed an action authorized, funded or carried out by the agency.

5. (1) Plain Text/Ordinary Meaning

   1. Always the starting point in statutory interpretation because it has been ratified pursuant to the constitutionally mandated processes of bicameralism and presentment (Art. I) and it may be the best empirical evidence of legislative intent.

      1. The constitutional process gives the text a lineage to the people.

      2. Both majority and dissent agree that text is starting point. They disagreed about the ordinary meaning of the operative terms and about the importance of the text relative to other tools of construction.

   2. Sources for determining the meaning of the text:

      1. Dictionaries—Sources of common usage.

      2. Similar Language Used in Previous Law

      3. Ordinary Meaning of Words

         1. Majority held that “actions” is ordinary language (non-technical) that could not be more clear, and includes shutting the gate. Holding otherwise would be ignoring the ordinary meaning of plain language.

         2. Dissenters argued that the meaning of the “actions” was far from plain and could reasonably have been read to apply only proactively; that it was clear, from looking at the surrounding words, that Congress did not intend government action that had been substantially completed (only those in the planning phase).

            1. This is a bad argument—don’t have to include “any”!

6. (2) Purpose

   1. The stated purpose of the Endangered Species Act wasn’t gleaned from the legislative history or non-textual sources, but was written into the Act (preamble).

      1. Statements of purpose that are in the text of a statute are not operative text. Thus they are lower in the food chain but the court still finds them important, as they are still part of what is voted on and printed in the statue books.

      2. Furthermore in this case you didn’t really need purpose to reach the conclusion because you had clear operative text.

      3. However, sometimes the text is unclear and the purpose can only be inferred from something more vague than a stated purpose (statute’s title/newspaper accounts). Making such inferences may risk losing sight of other imputable purposes or the specific deals that got the law passed.

   2. The majority says that the stated purpose demonstrates the “seriousness” with which Congress viewed the issue and that it was clear that Congress wanted it enforced no matter what....

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