Congressional Intent Research Articles

The US Preventive Services Task Force in Legal Jeopardy

This work discusses the Braidwood Management Inc v Becerra case and how the intent of Congress, the health of the public, and the law may come into conflict.

The Lack of Victim Protection in the Enforcement of the Trafficking Victims Protection Act

Over the past twenty-two years, United States federal courts have seen many cases regarding forced labor and the importation of goods produced by victims of forced labor trafficking. To resolve these cases, the court must interpret § 307 of the Tariff Act to determine whether victims can recover against their traffickers. Recently, an issue in the interpretation of forced labor has arisen in courts: whether an attempt at importing goods is sufficient to establish a cause of action as a violation of the Trafficking Victims Protection Reauthorization Act’s prohibition on forced labor imports. Courts that interpret forced labor narrowly to exclude attempts at forced labor imports conflict with the congressional intent to protect victims and prosecute traffickers by perpetuating the production of goods made by forced labor, and prolonging harm to victims of labor trafficking, as well as working against the intent of the executive branch.

Unequal Land: Towards Full Recognition of Indigenous People’s Religious Rights

Indigenous people face disparate treatment regarding religious free-exercise claims in the United States court system. Specifically, courts misconstrue native religious practices and hold native religious practitioners to a higher standard of proof than practitioners of mainstream religions in their free-exercise claims. This Article analyzes the history of oppression of indigenous people in the United States and the congressional intent to remedy such oppression through legislation. Further, this Article argues that despite Congress’s efforts to remedy the oppression of indigenous peoples, courts still utilize a problematic analysis of indigenous free-exercise claims. To resolve the inconsistent treatment between native and mainstream religious practitioners, this Article argues that courts should do three things when analyzing an indigenous free-exercise claim: (1) presume indigenous peoples suffer subjective harm from the government action at issue; (2) apply the law through an anti-subordination lens; and (3) broadly construe the Religious Freedom Restoration Act.

The good, the bad, and the ugly of US antitrust

Abstract This article examines the bad and ugly as the US federal agencies seek to rejuvenate competition. The bad is legislative hiatus to update the antitrust laws for the digital economy. The ugly is when courts push their own economic beliefs, without regard for the congressional intent and aims of the antitrust laws. Regardless of who wins, the rule of law (and those most dependent on the antitrust law) suffer. To correct America's market power problem, the article proposes restoring the constitutional balance, where the courts adjudicate, the legislature legislates, and enforcers enforce.

The Political and Social Change Driven by Protest: The Need to Reform the Anti-Riot Act and Examine Anti-Riot Provisions

Objective : to research the right to join in peaceful assembly and petition in the United States of America. Methods : dialectical approach to cognition of social phenomena, allowing to analyze them in historical development and functioning in the context of the totality of objective and subjective factors, which predetermined the following research methods: formal-logical and sociological. Results : the right to join in peaceful assembly and petition is critical to an effective democracy and is at the core of the First Amendment. The assault of peaceful protestors in the pursuit of racial justice is not a new phenomenon, and legislators at the federal and state levels have drafted anti-riot provisions as a measure to target protestors they deem an existential threat to American society. As these provisions have become increasingly prevalent in light of the protests following the murders of Breonna Taylor and George Floyd, they have the likelihood of severely chilling the effect on protestors' right to freedom of expression. Scientific novelty : this Note examines these effects, considering the Anti-Riot Act of 1968’s intent to protect the public from violent protestors and, in light of congressional inaction due to ongoing political polarization, asks whether presidential intervention is warranted. More specifically, this Note determines whether the Act's current interpretation meets Congress's intent or subverts the constitutional right to freedom of expression. This Note contends that while persuasive arguments exist both in support for harsher anti-riot provisions and for a novel approach to address public safety, these arguments tend to rely on anecdotal evidence due to the limited scholarship on this topic. Therefore, this Note argues that the president should establish a commission to comprehensively investigate the recent outbreaks of racially motivated protests before potentially moving forward with executive action. Practical significance : the main provisions and conclusions of the article can be used in scientific, pedagogical and law enforcement activities when considering the issues related to the right to join in peaceful assembly and petition.

Answering the Call for Telephone Consumer Protection Act Reform: Effectuating Congressional Intent Within 47 U.S.C. § 227(B)(1)(A)

This Note analyzes the current state of the civil law surrounding the Telephone Consumer Protection Act (TCPA) and highlights a glaring flaw within the current practice of assigning liability to telephonic solicitors utilizing an automatic telephone dialing system (autodialer): solicitors can be subjected to liability even though their actions are not what Congress intended to prevent. Congress enacted the TCPA in response to unique consumer privacy and public safety concerns. For example, the use of an autodialer created a substantial likelihood that autodialers would call emergency services and could “seize” their telephone lines and prevent those lines from being utilized to receive calls from those needing emergency services. The Federal Communications Commission (FCC) and the judiciary, however, have developed differing interpretations of the TCPA, which created unintentional dangers for businesses properly utilizing telemarketing strategies. These dangers that were left unresolved by the Supreme Court’s ruling in Facebook, Inc. v. Duguid. This fragmented interpretation and application of federal law within various jurisdictions has left callers liable to substantial fines, so long as they use a device that merely has the capacity to act as an autodialer—even if the device did not actually use autodialer functionality. Such a broad interpretation places a heavy burden on companies using technology that does not create the kind of harm against which the TCPA was meant to protect. To effectuate Congressional intent, this Note proposes that the FCC should issue a new interpretation of the TCPA by declaratory ruling that will attach liability to defendants who make use of autodialer functionality, not those who’s devices merely have the capacity to do so. Alternatively, this Note proposes that either Congress amend the TCPA in a manner that better aligns with its goals, or the Supreme Court provide clarification to the lower courts as to how one acquires liability. This change will provide certainty and fairness to businesses, consumers, and the judiciary.

Puerto Rico’s Attempts to Address a Public Health Crisis Struck Down by the United States Court of Appeals for the First Circuit

This RCD discusses a recent decision by the United States Court of Appeals for the First Circuit that struck down Puerto Rico's Act 90-2019, which aimed to regulate pay structures for Medicare Advantage insurers in Puerto Rico. The court found that the provision in Act 90, known as the "Mandated Price Provision," is preempted by federal law. However, the author argues that the court's decision did not adequately consider the congressional intent of the Medicare Advantage Act in weighing the public health crisis in Puerto Rico. The RCD provides background on the Medicare Advantage program and Act 90 and explains how Act 90 aimed to eliminate insurers' practice of paying providers at rates below the CMS's minimum reimbursement rates under the traditional Medicare program. The article concludes that the court's decision inadequately considered the larger purpose of the Medicare Advantage Act and the relevant public health crisis in Puerto Rico.

Examining the Effects of the Tax Cuts and Jobs Act on Executive Compensation*

ABSTRACTAs part of the Tax Cuts and Jobs Act (TCJA), the US Congress repealed a long‐standing exception that allowed companies to deduct executives' qualified performance‐based compensation in excess of $1 million. The purpose of this study is to examine whether Congress achieved its stated objective of reversing a shift in executive compensation away from cash compensation and toward performance pay, which Congress believed led executives to focus on short‐term results rather than the long‐term success of the company. Across a battery of tests, including a difference‐in‐differences design that exploits the staggered time‐series implementation of the deduction limit, we find evidence compatible with the new deduction limit having no effect on executives' salary, performance pay or total compensation, inconsistent with Congressional intent. Our results suggest that taxes are not a first‐order effect of executive pay and that tax regulation could be relatively ineffective at curbing executive compensation.

Extinguishing and Amending the Tax-Deductible Conversation Easements: Protecting the Federal Investment after Carpenter, Simmons, and Kaufman

The Internal Revenue Service‘s victory in Carpenter v. Commissioner represented an important step in the agency‘s ongoing efforts to both address abuses and establish precedent consistent with congressional intent in the conservation easement donation context. While Congress has clearly favored providing a charitable income tax deduction under Internal Revenue Code section 170(h) to encourage the donation of conservation easements, Congress also has been willing to do so only if the easements are "granted in perpetuity" to government and nonprofit holders "exclusively for conservation purposes" and the conservation purposes of such easements are "protected in perpetuity."

Textualism and the Indian Canons of Statutory Construction

When interpreting statutes enacted for the benefit or regulation of Indians or construing treaties signed with Indian nations, courts are supposed to apply any of five specific canons of construction relating to Indian Affairs. Through examining the modern line of Supreme Court cases involving statutory or treaty interpretation relating to Indian nations, this Article demonstrates that the Court has generally been faithful in applying canons relating to treaty interpretation or abrogation. The Court has also respected the canon requiring unequivocal expression of congressional intent before finding an abrogation of tribal sovereign immunity. However, there are two other canons that the Court almost never applies. One, the tribal sovereignty canon, requires clear intent to interfere with tribal sovereign rights; the other, the Indian ambiguity canon, requires statutes to be construed liberally with ambiguities resolved to the benefit of Indians. After reviewing the possible reasons why textualist jurists might be opposed to the use of substantive canons, this Article makes two arguments to remedy any reluctance to using the tribal sovereignty and Indian ambiguity canons. First, these canons have constitutional roots, and as such, even textualists on the Court should not be reluctant to use them. Second, the more established canon concerning abrogation of tribal sovereign immunity should also extend to statutes interfering with tribal sovereign rights. There are no normative reasons to treat abrogation of sovereign immunity differently than other statutory interference with tribal sovereignty.

Treaty Override

This Article explores the conditions under which a U.S. statute overrides an earlier self-executing treaty. Focusing on the often blurred distinction between three types of statute-treaty relationships—reconcilableinconsistencies, textual repugnancies, and conflicts—the Article concludes that, contrary to a common view, there is no contradiction between the 1888 Supreme Court decision in Whitney v. Robertson, stating that in the event of a conflict between a statute and a treaty the later-in-time provision always controls, and the Court’s 1933 decision in Cook v. United States, holding that a later-in-time statute does not override an earlier treaty without a clear expression of congressional intent to override. The Article explains that Cook merely finds no conflict to which Whitney’s later-in-time rule might apply: Together, the two decisions harmoniously stand for the proposition that while typically a later-in-time treaty overrides an earlier repugnant statute, a later-in-time statute overrides an earlier repugnant treaty only if Congress has clearly expressed its intent to override or if not overriding the treaty would render the statute a nullity. Though the Court did not say as much, Cook’s approach is an application of the canon of construction favoring a specific provision over a general one. Reconceptualized this way, Cook cannot be said to give general primacy to treaties over statutes.

APhA, others file federal lawsuit against HHS to close DIR loophole

APhA, others file federal lawsuit against HHS to close DIR loophole

Contextual Textualism: How Legislative History Can Restrain Judges, Revitalize Congress, and Restore the Conservative Legal Movement

In recent decades, Congress has steadily ceded power to the federal judiciary. The judiciary, not Congress, is often left to make important choices about federal policy, in part because Congress leaves it with too little guidance about its policy objectives. The problem has been exacerbated by textualism, which disregards extra-textual clues about Congress's intent. This paper argues that Congress can ameliorate the problem by adopting a Legislative History Act. The Act would direct judges to interpret statutes according to Congress's intent, as expressed in specified legislative-history materials. That direction would give textualist judges a textual hook to consider a much broader range of materials than they consider today. They would have more context for interpreting statutes, and would thus more often adopt interpretations in line with Congress's policy goals.

Employer Sponsored Health Savings Accounts in Bankruptcy

This article studies the unintended consequences of employers electing to not classify their employee Health Savings Account offering as an ERISA covered health plan using a legal research methodology. The article studies interpretative regulatory guidance from the Department of Labor that purports to exclude employer-sponsored Health Savings Accounts from qualification as ERISA plans, if this guidance is consistent with the congressional intent of ERISA, and the consequences of how bankruptcy courts are managing the impacts of these non-ERISA employer sponsored health/retirement plans.

Sentencing Abstention

A primary role of the Supreme Court is to resolve conflicts among the federal courts of appeal. When the split concerns the federal sentencing guidelines, however, the Supreme Court has ceded this role to the U.S. Sentencing Commission, effectively allowing the Commission to act as the court of last resort in this context. As then-Judge Alito recognized, “no other federal agency—in any branch—has ever performed a role anything like it.” This anomaly has largely escaped academic attention because the Court’s abdication comes in the form of certiorari denials, which are buried in the Court’s long order lists. But the consequences of the Court’s refusal to review splits involving federal sentencing policy—referred to here as “sentencing guidelines abstention”—cannot be ignored. Sentencing guidelines abstention perpetuates uncertainty and wide-ranging sentencing disparities, meaning the length of a federal defendant’s sentence will depend on the happenstance of where the defendant is sentenced. The principled and fair administration of justice cannot tolerate such ambiguity and randomness. This Article argues that there is no sound basis for sentencing guidelines abstention. It outlines reasons—grounded in precedent, congressional intent, administrative law principles, and practical considerations—why the Court should reassume its traditional role of resolving federal sentencing guideline splits, provide uniformity and consistency to the federal judiciary, and contribute thereby to the development of a reasoned and coherent federal criminal justice system.

Federalize Medicaid to Fix the Affordable Care Act: For Efficiency, Equity, and Social Justice.

Federalizing Medicaid (thereby eliminating state program variation) is a bold and affordable alternative to Medicare for all (M4A) and proposed ACA public options. Making Medicaid an entirely federal program using Congress' budget reconciliation process will reverse the U.S. Supreme Court ruling that enabled states to reject Medicaid expansion. Such legislation achieves Congress' original intention to create universal entitlements for low-income persons who lack health coverage and concentrate new federal health spending on them (unlike M4A). Arguments for federalizing Medicaid involve state budget relief, efficiency, social justice and the history that created national industries from local and state-based health systems. Theory suggests that liberal democracies are generally more successful when path dependent, building incrementally on existing policies instead of plunging into new, untested innovations no matter how rational. In addition to realizing the congressional intent of the ACA, federalizing Medicaid can be a cost-effective, incremental path to single-payer health coverage.

Interest-Based Incorporation: A Statutory Story of Federalism, Delegation, and Democratic Design

Interpreting statutes is a rare legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This scholarly conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into federal statutes. Statutory incorporation is one of the most common legislative tools employed by Congress and has been used to enact hundreds of federal statutes that affect liberty and property rights across multiple areas of law. Scholars have argued that statutory incorporation should be interpreted according to Congress’s intent to forward goals of federalism that seek to diffuse federal power to the states or as a tool to delegate federal law-making authority to state legislatures. This Article offers an alternative explanation of interest-based incorporation, which displaces the federalism and delegation theories that fall short when held up to the scrutiny of realism. Interest-based incorporation argues that federalism and delegation theories are fictions of congressional intent. By understanding that statutory incorporation is a tool to promote congressional self-interests, interest-based incorporation makes an important contribution at the theoretical and practical crossroads necessary to understand statutory incorporation. As a realist intervention, interest-based incorporation carries important implications for the future of statutory incorporation as well as scrutinizing the fictions that dominate theories of interpretation.

Invention or Interpretation: Textualism & Tracing in § 1957 of the Money Laundering Control Act of 1986

Congress passed the Money Laundering Control Act of 1986 in an effort to cut off the “life-blood” of organized crime by targeting the financial incentives that fuel it. One way in which the Act did this was through § 1957 which prohibits any transaction that consists of criminally derived funds of $10,000 or more, effectively making it a crime to place dirty money in the legitimate financial system. For roughly ten-years following § 1957’s enactment, the government was able to secure a conviction simply by showing that, even when clean and dirty funds had been commingled, § 1957 was violated when the defendant has earned $10,000 from criminal activities proceeds and a $10,000 transaction later took place. This approach did not require the government to actually trace the path of those criminally derived funds. In 1997, the Ninth Circuit changed this following its decision in Rutgard, where it held that the plain meaning of the statute requires that the transaction alleged to have violated § 1957 actually be entirely made up of criminally derived funds, thus requiring the government to prove that the funds in the allegedly criminal transaction were criminally derived.. In doing so, it is argued by critics, the Ninth Circuit has effectively placed a number of criminal transactions beyond the reach of the law where funds are commingled due to the fungibility of money. Unlike the Ninth Circuit, the majority of federal circuit courts have gotten around this seemingly plain meaning by arguing that the Ninth Circuit’s approach is “unworkable” and have placed congressional intent at the forefront of their analysis of § 1957. In their effort to effectuate § 1957, these courts have effectively read out the plain language of the statute. This approach is not only at odds with a textual understanding of statutes, wherein we give the words their plain meaning as they were understood at the time they were passed, the majority’s rule is in contravention to established principles of our jurisprudence with regard to the rule of lenity, and more importantly, due process and the separation of powers. This creates an untenable result. The Ninth Circuit’s approach is textually correct but leaves many criminal transactions beyond the reach of the law. Meanwhile, the majority’s rule pursues a noble end to disrupt money laundering while using textually and constitutionally unsound means in order to do so. This paper seeks a middle way. Because the plain meaning of the statute clearly requires that criminally derived funds are traced in order to secure a conviction, the statutory language should be amended by Congress. In arguing that it is Congress’ job to resolve this split, this paper contributes to the scholarship by breaking with the existing legal and scholarly consensus in advocating for a textual approach to § 1957 and encouraging a legislative rather than legal remedy. This will not only resolve the tension between the majority rule and the text but will also ensure that the judiciary retains its proper role as an interpreter of law rather than an inventor.

The Headless Fourth Branch: Rethinking the Assumptions of Administrative Jurisprudence

AbstractA mismatch exists between the fundamental principles underlying modern administrative jurisprudence and the practical realities of administrative governance as illuminated by social science. This mismatch is most evident in the judicial conceptions of congressional intent, delegation, administrative procedures, and political accountability. As a result, federal agencies have the opportunity to shape the parameters under which courts analyze administrative authority and to capitalize on overlapping delegations of power. Agencies respond by shifting resources toward unorthodox policymaking and legalized personnel, raising questions about what it means legally for federal agencies to be accountable to the judicial and political branches of government. In sum, the mismatch between doctrine and practice presents many avenues for future research and has important consequences for the operation of our separation of powers system.

The Wrongful Death of an Indian: A Tribe’s Right to Object to the Death Penalty

This Essay responds to the execution of Lezmond Mitchell, the only American Indian on federal death row. The execution was carried out on August 26, 2020 over the objection of both members of the victims’ family and the Navajo Nation. This Essay takes the clear position that because the Federal Death Penalty Act of 1994 requires tribal consent to seek the death penalty for murder, or felony murder predicted on robbery or kidnapping, that tribal consent should also have been required before the United States sought the death penalty in a carjacking case. The interpretation by the Ninth Circuit and the decision by the Executive to proceed with the execution undermine tribal sovereignty and are contrary to both congressional intent and statutory interpretation.