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1 1 (December 4, 2023)

handle is hein.crs/govenpl0001 and id is 1 raw text is: Congressional ______ R' fesearch Service Clear Statement Rules, Textualism, and the Administrative State December 4, 2023 A clear statement rule is a judicial presumption that courts should not interpret a statute a certain way unless Congress made a clear statement requiring that outcome. In the Supreme Court's October 2022 term, a number of opinions considered whether various judicial rules of statutory interpretation qualified as clear statement rules. One significant example is Justice Barrett's concurring opinion in Biden v. Nebraska arguing that the major questions doctrine should not be considered a clear statement rule. Debates over clear statement rules have implicated broader questions about statutory interpretation, administrative law, and the roles of courts versus the political branches in making and interpreting policy. Textualist jurists have long argued that the judiciary can limit itself to its proper role as a faithful agent of Congress by focusing on the text of statutes. Clear statement rules, however, are often deployed to give legal weight to extra-textual values like the separation of powers, sovereign immunity, or federalism. Clear statement rules may thus require judges to adopt an interpretation they believe is second-best to protect those values. The debate over clear statement rules, therefore, is in part a debate over whether certain interpretive presumptions may be used to identify the best meaning of a statute, or alternatively, to overcome the meaning that may be suggested by other, more text-focused tools of interpretation. That question, in turn, may influence which judges and justices are likely to use those rules-certain textualists may be less willing to use clear statement rules, while judges who apply different interpretive methodologies may feel comfortable using them if they agree with the underlying value judgments. The major questions doctrine, for example, seemingly has been applied in a way that reflects the concerns of some justices over the authority wielded by federal agencies. This Legal Sidebar explores the nature of clear statement rules and discusses the implications of this growing debate. Defining Clear Statement Rules In statutory interpretation, clear statement rules are a subset of the canons of construction: judicial presumptions about how Congress writes laws. Linguistic canons are presumptions about how Congress (or ordinary speakers) use language, while substantive canons embody judicial presumptions for or against certain outcomes. Clear statement rules are a type of substantive canon. Substantive canons represent value choices that a court imposes on the statute. To illustrate, one group of clear statement rules seeks to protect federalism. Courts will require a clear statement before finding Congressional Research Service https://crsreports.congress.gov LSB11084 CRS Legal Sidebar Prepared for Members and Committees of Congress

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