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May 13, 2015


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Charles Paul Hoffman

I'll skip the obvious example (Alien and Sedition Acts) and instead propose the National Industrial Recovery Act, the one part of the early New Deal that's been disavowed by nearly everyone (Especially the antitrust community). For those unfamiliar, it allowed industries to establish codes of fair competition, including over wages, selling prices, levels of production, etc. Basically, it endorsed cartel formation as a means of combatting the Depression. (Most people are familiar with the Act as one of the early New Deal laws held unconstitutional by the Supreme Court.)

Enrique Guerra-Pujol

How about the ACA for its overly broad view of the Commerce Power?

Perry Bechky

The Chinese Exclusion Act

Paul Boudreaux

Let me play suggest that the “anti-canon” of cases consist of examples of bad policy more than bad jurisprudence. It is telling that all of the anti-canon are cases more than 100 years old – we can’t reach a consensus on what is “bad” in modern jurisprudence.

Turning to the question: By their nature, American statutes tend to be more numerous and narrower in scope, so they tend to seem less significant as signposts for an era, as for example Dred Scott was. Old repealed statues simply aren’t remembered (the Fugitive Slave Act may be an exception) the way that old, discredited cases are.

I’ll offer an example of a statutory term that I believe should be in the anti-canon of statutes, even though it is still good law. The fact that it is only a term, and not a complete statute, highlights its worthiness for an anti-canon because the criticism is about the words and craft of Congress, and not “merely” bad policy. It should be in the anti-canon because of a plethora of reasons that make it a model of bad lawmaking (meaning “statute-making”).

The U.S. Clean Water Act of 1972, 33 U.S.C. § 1251, et seq., hinged upon a regulation of “navigable waters.” The unfortunate choice of this two-word term has led to, and continues to lead to, decades of headaches. First, the term was chosen for reasons for short-term political expediency. Because the Democratic drafters in Congress were concerned about passage and a veto (indeed, Congress ended up overriding Nixon’s veto), they relied on a time-tested and reliable term for the congressional regulation of rivers – “navigable waters” (used in a number of statutes to regulate, to no surprise, navigation) and shoehorned it into the new act, which was decidedly not about navigation. Second, it ran counter to the true purpose of the act, which is the cleanliness of the nations’ waters.

Third, Congress attempted to reconcile the inappropriate term with duties for which it was unfit through an illogical definition. Congress defined “navigable waters” with the even vaguer term “waters of the United States,” apparently in an effort to encourage a wide reach under the commerce power, but without saying so. The stark mismatch between “navigable” and “waters of the United States” has never and will never be resolved adequately.

Fourth, early courts followed the tenor of the times and ordered that the term be interpreted in a way that was unsustainable. In effect, the early courts ordered that the term stretch as far as possible under the commerce power. The courts used linguistic gymnastics to create a cantilevered, unsupportable structure of reasoning. In sum, the courts reasoned: “navigable waters” = “waters in which there is navigation” + “waters in which there is not navigation, but which are covered by the commerce power.” Needless to say, this equation (X = X + not X) would not stand the test of time.

Fifth, it provided a juicy target for the few federalists, after Lopez and Morrison. Justice Scalia cobbled together five votes in 2002 to apply the interpretive canon of avoiding constitutional principles to rip up the old equation. Flummoxed by how to create a new interpretation that could match “navigable waters” with “waters of the United States,” he waited until a later case (in which he got only a plurality) and then turned to a 1956 edition of Webster’s Unabridged that used a “prescriptive” approach (not the 1968 long-haired “descriptive” version that presumably was on many senators’ desks in 1972) to cabin “waters” far more narrowly than any supporter in Congress intended in 1972.

Sixth, it has led to decades of agency attempts at regulation, which are often inconsistent (not surprising) but consistently disapproved by the courts.

As a result, a quick expedience of 1972 has led to a half-century (and counting) of headaches, uncertainties, and failure of an important statute to do efficiently what its drafters intended.

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