Clear statement rule
   HOME

TheInfoList



OR:

In
American law The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as va ...
, the clear statement rule is a guideline for
statutory construction A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
, instructing courts to not interpret a statute in a way that will have particular consequences unless the statute makes unmistakably clear its intent to achieve that result. According to law professor William Popkin, such rules "insist that a particular result can be achieved only if the text…says so in no uncertain terms."Popkin, William. ''Statutes in Court: The History and Theory of Statutory Interpretation'' 73, 201 (1999).


Protecting constitutional structure

Clear statement rules are commonly applied in areas implicating the structural constitution, such as
federalism Federalism is a combined or compound mode of government that combines a general government (the central or "federal" government) with regional governments (Province, provincial, State (sub-national), state, Canton (administrative division), can ...
,
sovereign immunity Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
, nondelegation, preemption, or federal spending with strings attached. This is especially true when there is a strong interest against implicit abridgment of traditional understandings.


Sovereign immunity

Congress can abrogate the states' sovereign immunity in some situations. However, it cannot do so implicitly: it must "mak its intention unmistakably clear in the language of the statute."''
Atascadero State Hospital v. Scanlon ''Atascadero State Hospital v. Scanlon'', 473 U.S. 234 (1985), was a Supreme Court of the United States, United States Supreme Court case regarding United States Congress, Congress' power to abrogate the Eleventh Amendment to the United States Cons ...
'', 473 U.S. 234, 242 (1985).
Conversely, just as purported abrogation requires a clear statement, so too a purported waiver by a state requires a clear statement.


Major questions and nondelegation

The major questions doctrine arises in much the same way as the
nondelegation doctrine The doctrine of nondelegation (or non-delegation principle) is the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is explicit ...
. The Supreme Court has held in recent years that Congress is expected to be clear when it authorizes agencies to regulate issues of national significance. In a January 2022 decision regarding the authority of the
Occupational Safety and Health Administration The Occupational Safety and Health Administration'' (OSHA ) is a large regulatory agency of the United States Department of Labor that originally had federal visitorial powers to inspect and examine workplaces. Congress established the agenc ...
to require private-sector workers to be vaccinated, the Court reiterated that, “We expect Congress to speak clearly” if Congress wishes to empower executive branch agencies to make decisions “of vast economic and political significance.” The Court arguably applied a similar approach in the 2006 case of ''
Hamdan v. Rumsfeld ''Hamdan v. Rumsfeld'', 548 U.S. 557 (2006), is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay violated both the Uniform Code of Mili ...
''. According to Professor
John Yoo John Choon Yoo (; born July 10, 1967) is a Korean-born American legal scholar and former government official who serves as the Emanuel S. Heller Professor of Law at the University of California, Berkeley. Yoo became known for his legal opinions ...
, the Court in that case attempted "to force a clear statement rule upon congressional delegations of authority to the President." Law Professor
Michael W. McConnell Michael William McConnell (born May 18, 1955) is an American constitutional law scholar who served as a United States circuit judge of the United States Court of Appeals for the Tenth Circuit from 2002 to 2009. Since 2009, McConnell has been a ...
has written that a clear statement rule should have been used in the case of ''
Bolling v. Sharpe ''Bolling v. Sharpe'', 347 U.S. 497 (1954), is a List of landmark court decisions in the United States, landmark Supreme Court of the United States, United States Supreme Court Legal case, case in which the Court held that the Constitution proh ...
'' (1954), because "courts should not presume that Congress has delegated the authority to depart from general principles of equal protection of the laws to subordinate agencies without a clear statement to that effect...."


Federalism and preemption

With respect to preemption, Congress ''may'' preempt a field of regulation, "occup
ing Ing, ING or ing may refer to: Art and media * '' ...ing'', a 2003 Korean film * i.n.g, a Taiwanese girl group * The Ing, a race of dark creatures in the 2004 video game '' Metroid Prime 2: Echoes'' * "Ing", the first song on The Roches' 1992 ...
a field ndleaving no room for any claim under state law," but it doesn't have to. When a law is construed to preempt, the result is a broad and indiscriminate extinguishment of substantive and remedial state law, and sensitive to this problem, the Court has occasionally said, in cases like ''
Wyeth v. Levine ''Wyeth v. Levine'', 555 U.S. 555 (2009), is a United States Supreme Court case holding that Federal regulatory approval of a medication does not shield the manufacturer from liability under state law. Facts Vermont jury trial The plaintiff los ...
'' (2009), that it will only find preemption when Congress has clearly expressed preemptive intent. The Court has indicated that preemption of state laws concerning the political activities of the states and their subdivisions requires a more stringent application of the clear statement rule. In '' Bond v. United States'' (2014), the Supreme Court insisted upon a “clear indication” that Congress meant to intrude upon powers normally reserved to the states under the Tenth Amendment, and so the Court did not address whether a treaty empowered Congress to do so.


Federal spending with strings attached

When Congress gives money to states pursuant to the
Taxing and Spending Clause The Taxing and Spending Clause (which contains provisions known as the General Welfare Clause and the Uniformity Clause), Article I, Section 8, Clause 1 of the United States Constitution, grants the federal government of the United States its p ...
, it often attaches conditions. The U.S. Supreme Court has said those conditions must include a clear statement of what the recipient states would be required to do. In the 1987 case of ''
South Dakota v. Dole ''South Dakota v. Dole'', 483 U.S. 203 (1987), was a case in which the United States Supreme Court considered the limitations that the Constitution places on the authority of the United States Congress when Congress uses its authority to influence ...
'', the Court reaffirmed congressional authority to attach conditional strings to receipt of federal funds by state or local governments, but said there can be no surprises; Congress must enable the states "to exercise their choice knowingly, cognizant of the consequences of their participation". This clear statement requirement is in addition to the usual rules that the federal spending must be for the general welfare, the conditions imposed must be related to the spending in question, and the arrangement must not turn cooperation into coercion.


Disfavoring retroactivity

Another area where a clear statement rule operates is with regard to legislation potentially addressing the past, instead of being forward-looking as usual. Statutory retroactivity has usually been disfavored, and is in many instances forbidden by the ''
Ex Post Facto Clause An ''ex post facto'' law (from ) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may criminalize actions t ...
'' of the Constitution.
Landgraf v. USI Film Products
', 511 U.S. 244 (1994).
Therefore:
Absent a clear statement from Congress that an amendment o a statuteshould apply retroactively, we presume that it applies only prospectively to future conduct, at least to the extent that it affects substantive rights, liabilities, or duties.
As the Supreme Court has explained, "a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." Such rules do, therefore, have some life in the area of substantive rights as well as enforcement of constitutional structure.


Avoiding extraterritorial effect

In '' Morrison v. National Australia Bank'' (2010) the Supreme Court established a presumption against extraterritorial effect, so that Congress would have to clearly express itself if it wants U.S. laws to have effect outside U.S. boundaries.


Protecting fundamental principles and the law of nations

According to Professor Popkin, Chief Justice
John Marshall John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
imposed a clear statement rule: "where fundamental values were at stake, statutes would not be interpreted to impair such values, absent a clear statement in the legislation.” Indeed, Marshall wrote in 1805 that, "Where fundamental principles are overthrown, when the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects."
United States v. Fisher
', 6 U.S. 358 (1805).
Marshall also required a clear statement rule to protect
international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
, writing “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” This Charming Betsy Doctrine is from Marshall’s opinion in ''Murray v. The Charming Betsy'' (1804), and Marshall applied a similar principle even earlier, in '' Talbot v. Seeman'' (1801).


Areas where clear statement is not required

American courts do not apply clear statement rules in all areas, however. In many cases, the court has found "implied" prohibitions and causes of action in statutes, a result that would be precluded (or at least hampered) by clear statement rules. For example,
Title IX Title IX is the most commonly used name for the federal civil rights law in the United States that was enacted as part (Title IX) of the Education Amendments of 1972. It prohibits sex-based discrimination in any school or any other educat ...
of the
Education Amendments of 1972 The Education Amendments of 1972, also sometimes known as the Higher Education Amendments of 1972 (Public Law No. 92‑318, 86 Stat. 235), were U.S. legislation enacted on June 23, 1972. It is best known for its Title IX, which prohibited disc ...
prohibits gender discrimination by recipients of federal education funding. Does that bare prohibition also provide an implied cause of action to an individual subject to discrimination? Yes, the U.S. Supreme Court held in ''
Cannon v. University of Chicago ''Cannon v. University of Chicago'', 441 U.S. 677 (1979), was a United States Supreme Court case which interpreted Congressional silence in the face of earlier interpretations of similar laws to determine that Title IX of the Higher Education Act ...
'', 441 U.S. 677 (1979) that it provides an implied cause of action. Does this statutory prohibition on discrimination also imply a prohibition on, and cause of action for, ''retaliation'' against someone who complains of such discrimination? Yes, the Court so held in ''
Jackson v. Birmingham Board of Education ''Jackson v. Birmingham Board of Education'', 544 U.S. 167 (2005), is a case in which the United States Supreme Court held that retaliation against a person because that person has complained of sex discrimination is a form of intentional sex dis ...
'', 544 U.S. 167 (2005). Similarly, the
Age Discrimination in Employment Act of 1967 The Age Discrimination in Employment Act of 1967 (ADEA; to ) is a United States labor law that forbids employment discrimination against anyone, at least 40 years of age, in the United States (see ). In 1967, the bill was signed into law by Pr ...
(ADEA) prohibits age discrimination. Does that also imply a prohibition on retaliation against someone who complains of such discrimination? Yes, the Court held in '' Gomez-Perez v. Potter'', 128 S. Ct. 29 (2008) that a clear statement was unnecessary to prohibit retaliation of that kind.


References

{{reflist Law of the United States Legal interpretation Legal reasoning