Miriam Draper 

This October, the Supreme Court will review Murray v. UBS Securities, LLC—a case that created a circuit split involving the Sarbanes-Oxley Act’s (“SOX”) whistleblower anti-retaliation provision.[1] Section 1514A of SOX prohibits employers of publicly traded companies from adversely affecting the employment conditions of employees who report fraudulent business activities.[2]  Congress enacted this provision to give whistleblowing employees of public companies similar protections to those held by whistleblowing federal employees.[3] As noted by the Act’s sponsor, “this distinction does not serve the public good,” especially because “an unprecedented portion of the American public invest[s] in these companies and depend[s] upon their honesty.”[4]

Whistleblower protections for federal employees are codified in the Whistleblower Protection Act (“WPA”) of 1989, which prohibits agencies from retaliating against federal employees who report unethical agency activities.[5] In such an event, the WPA calls for corrective action against the agency if the whistleblowing employee demonstrates that his or her report was a “contributing factor” in the retaliatory action.[6] “Contributing factor” is defined as “any disclosure that affects an agency’s decisions to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure.”[7] Proof that the agency acted with retaliatory intent is not necessary.[8]  Congress reasoned that “[r]egardless of the official’s motives, personnel actions against employees should quite [simply] not be based on protected activities such as whistleblowing.”[9] The burden of proof for the “contributing factor” element of a WPA claim was intended to be light:

“The words ‘a contributing factor’ mean any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. This test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a ‘significant,’ ‘motivating,’ ‘substantial,’ or ‘predominant’ factor in a personnel action in order to overturn that action.”[10]

The WPA nevertheless allows agencies to avoid corrective action if “after a finding that a protected disclosure was a contributing factor, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.”[11]

This “contributing factor” burden-shifting framework appeared again in 2000 when Congress enacted the AIR21 Whistleblower Protection Program to protect whistleblowing employees connected to U.S. aviation operations.[12] Section 1514A of SOX was passed two years later to account for whistleblowing employees of publicly traded companies.[13] It explicitly applies the burden of proof standard set forth in AIR21—i.e., the “contributing factor” burden-shifting framework.[14]

The elements of a prima facie § 1514A claim include: (1) the employee engaged in protected activity or conduct; (2) the employer knew of the employee’s protected activity; (3) the employee suffered an unfavorable personnel action; and (4) the employee’s protected activity was a contributing factor in the adverse action.[15] Once the employee establishes these elements, the employer may skirt liability by asserting “clear and convincing evidence” that the adverse action would have occurred absent the protected conduct.[16]  

In Murray, the Second Circuit diverged from the majority’s standard by adding a sub-requirement to the “contributing factor” element: retaliatory intent.[17] The plaintiff in that case was terminated after he reported fraudulent business practices to his supervisor.[18] The former employee sued his employer under § 1514A, but the appellate court denied relief because the employee failed to demonstrate that his termination was ordered with retaliatory intent in response to his report.[19]

The court extrapolated its “retaliatory intent” requirement through a flawed textual analysis of § 1514A(a). The provision states that employers of publicly traded companies may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of” the employee’s lawful whistleblowing.[20] Even though the plaintiff in Murray was discharged because he reported fraudulent business activities—an action explicitly prohibited in the provision’s language—the court focused its analysis on the plain meaning of “discriminate.”[21] It opined:

“To ‘discriminate’ means ‘[t]o act on the basis of prejudice,’ which requires a conscious decision to act based on a protected characteristic or action.

The statute thus prohibits discriminatory actions caused by—or ‘because of’—whistleblowing, and actions are ‘discriminat[ory]’ when they are based on the employer’s conscious disfavor of an employee for whistleblowing. A discriminatory action ‘because of’ whistleblowing therefore necessarily requires retaliatory intent—i.e., that the employer’s adverse action was motivated by the employee’s whistleblowing. The plain meaning of section 1514A’s statutory language thus compels our conclusion that retaliatory intent is required to sustain a SOX anti-retaliation claim.”[22]

This 2+2=5 analysis is overreaching and misguided. First, the court injects a requisite motive into the ordinary meaning of “discriminate” where one does not otherwise exist.[23] Second, the court ignores the provision’s syntax. The term “discriminate” is embedded in a catchall phrase—“or in any other manner discriminate”—attached to the end of a disjunctive list.[24]  Under the principle of ejusdem generis, the phrase is intended to account for the unenumerated adverse acts that employers may take.[25] “Discriminate” is not an indispensable requirement; it may characterize the class of prohibited actions, but it does not demand malicious motivation from the employer.[26]

To further support its “retaliatory intent” requirement, the court circularly pointed to its analysis of the Federal Railroad Safety Act (“FRSA”)[27] in Tompkins v. Metro-North Commuter Railroad Company.[28] Because FRSA and § 1514A of SOX use similar language, the court reasoned that they should be interpreted identically.[29] Since the Tompkins court extracted a “retaliatory intent” requirement from FRSA, the Murray court also extracted aretaliatory intent” requirement from § 1514A.[30]

However, in Bechtel v. Administrative Review Board, the Second Circuit directly contemplated the elements of a § 1514A claim.[31] In that case, the court applied the majority’s standard and did not require proof of retaliatory intent.[32] Rather than follow this far more analogous precedent, the Murray court criticized Bechtel for failing to “account for the statute’s explicit requirement that the employer’s conduct be ‘discriminat[ory].’”[33] As previously discussed, this point is misguided and overreaching.

The Supreme Court’s decision could significantly impact the public market and whistleblower litigation. Requiring plaintiffs to prove retaliatory intent adds another barrier to whistleblower protections, which may deter employees from reporting fraudulent business activities. The SOX Act was intended to statutorily “encourage and protect those who report fraudulent activity that can damage innocent investors in publicly traded companies.”[34] The majority’s standard advances the objective; it gives employees the confidence to report fraudulent business activities by increasing their chances of recovery through litigation, should their reports adversely affect their employment.[35] In fact, “[s]ince the federal government switched the burden of proof in whistleblower laws, the rate to prevail on the merits has increased from 1–5% annually, which institutionalizes a chilling effect, to 25–33%, which gives whistleblowers a fighting chance to successfully defend themselves.”[36]

The SOX anti-retaliation provision mends the “patchwork and vagaries of current state laws” by giving employees of publicly traded companies nationwide whistleblower protections.[37]  As a remedial statute, it should be liberally construed in the plaintiff’s favor to help advance its beneficial purpose.[38] The majority’s plaintiff-friendly standard is consistent with this notion. Upon review of the Second Circuit’s decision in Murray, the Supreme Court should rid the “retaliatory intent” requirement and instead apply the majority’s standard.

[1] See Murray v. UBS Sec., LLC, 43 F.4th 254 (2d Cir. 2022), cert. granted, 143 S. Ct. 2429 (2023).

[2] 18 U.S.C. § 1514A.

[3] 148 Cong. Rec. S7420 (daily ed. July 26, 2002) (“Although current law protects many government employees who act in the public interest by reporting wrongdoing, there is no similar protection for employees of publicly traded companies who blow the whistle on fraud and protect investors.”).

[4] Id.

[5] See 5 U.S.C. § 2302(b)(8).

[6] Id. § 1221.

[7] 5 C.F.R. § 1209.4 (2013).

[8] See Marano v. Dep’t. of Just., 2 F.3d 1137, 1141 (Fed. Cir. 1993).

[9] Id. (quoting S. Rep. No. 100-413, at 18 (1988)).

[10] Id. at 1140 (quoting 101 Cong. Rec. H5033 (daily ed. Mar. 21, 1989) (explanatory statement on WPA)).

[11] 5 U.S.C. § 1214(b)(4)(B)(ii).

[12] See 49 U.S.C. § 42121.

[13] See 148 Cong. Rec. S7420 (daily ed. July 26, 2002).

[14] See 18 U.S.C. § 1514A(b)(2)(C); 49 U.S.C. § 42121(b).

[15] See Lockheed Martin Corp. v. Admin. Rev. Bd., 717 F.3d 1121, 1129 (10th Cir. 2013); Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010); Halliburton, Inc. v. Admin. Rev. Bd., 771 F.3d 254, 259 (5th Cir. 2014); Feldman v. Law Enf’t Ass’n, 752 F.3d 339, 344 (4th Cir. 2014).

[16] E.g., Feldman, 752 F.3d at 345.

[17] See Murray v. UBS Sec., LLC, 43 F.4th 254, 260 (2d Cir. 2022), cert. granted, 143 S. Ct. 2429 (2023).

[18] See id. at 258.

[19] See id.

[20] 18 U.S.C § 1514A.

[21] See Murray, 43 F.4th at 259–60.

[22] Id. at 259 (citations omitted).

[23] See Haley K. Hurst, Resolving the SOX Act Circuit Split: Contributing Factor, Not Retaliatory Intent 16–17 (May 4, 2023) (unpublished manuscript) (on file with author). The plain meaning of “discriminate” carries a neutral connotation and does not contemplate the actor’s consciousness. See, e.g., Discriminate, The Oxford English Dictionary (2d ed. 1989) (defining “discriminate” as “to distinguish, differentiate”).

[24] See 18 U.S.C. § 1514A(a) (emphasis added); see also 1A Norman Singer & Shambie Singer, Sutherland Statutes and Statutory Construction § 21:14 (7th ed.), Westlaw (database updated 2022).

[25] See 2A Singer & Singer, supra note 24, § 47:17; see also Brief for the United States as Amicus Curiae Supporting Petitioner at 15, Murray, 143 S. Ct. 2429 (No. 22-660) [hereinafter U.S. Brief].

[26] See U.S. Brief, supra note 25, at 15.

[27] 49 U.S.C. § 20109.

[28] 983 F.3d 74 (2d Cir. 2020).

[29] See Murray, 43 F.4th at 261.

[30] See id.

[31] 710 F.3d 443, 447 (2d Cir. 2013).

[32] See id.

[33] Murray, 43 F.4th at 259.

[34] 148 Cong. Rec. S7420 (daily ed. July 26, 2002).

[35] Whistleblowers and Job Safety: Are Existing Protections Adequate to Build a Safer Workplace?: Hearing on Examining Workers’ Memorial Day, Focusing on if Existing Private Sector Whistleblower Protections are Adequate to Ensure Safe Workplaces Before the Subcomm. on Emp. & Workplace Safety of the S. Comm. on Health, Educ., Lab. & Pensions, 113th Cong. 32 (2014) (statement of Thomas Devine, Legal Director, Government Accountability Project).

[36] Id.

[37] 148 Cong. Rec. S7420 (daily ed. July 26, 2002).

[38] See 3 Singer, supra note 24, § 60:1 (8th ed.); see also Hurst, supra note 23, at 23.

12 Wake Forest L. Rev. Online 45

Joshua S. Ha*

“The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.”[1]  That is how Chief Justice Marshall described the rule of lenity in United States v. Wiltberger.[2]  The doctrine is rooted in seventeenth-century England, where it arose to counteract the increasingly widespread imposition of the death penalty for felonies.[3]  The rule traveled to America, and today, courts typically justify the rule on three grounds: (1) fair notice to the defendant, (2) separation of powers, and (3) a presumption in favor of liberty.[4]

Today’s rule of lenity is far removed from its English origin.  Though it remains a tool of statutory construction, it is now employed “at the end of the process of construing what Congress has expressed,”[5] making it difficult to conceptualize as a principle of strict construction.  And even if its utility—as a tiebreaker reserved for instances of “grievous ambiguity”[6]—is extremely limited, it is nonetheless difficult to apply.

This Article argues that we can avoid that difficulty by excluding certain criminal statutes from the rule’s grasp altogether.  In particular, this Article claims that courts erred by applying the rule of lenity to the First Step Act—a statute governing whether already-sentenced criminals are eligible for resentencing.[7]  Part I discusses the history of the rule of lenity in England and argues that the rule strictly construed criminal statutes to frustrate—not discern—legislative intent.  Part II considers the rule of lenity as it is applied today and argues that its placement at the end of the interpretive process is incompatible with the rule as conceived in England.  Part III concludes that there are certain criminal statutes to which no rationale for the rule of lenity applies and that the rule of lenity should therefore not be used when interpreting such statutes. 

I. A History of Lenity

Courts and scholars generally accept that the rule of lenity arose as a response to the severity of English penal law—and specifically, laws carrying the death penalty.[8]  Such laws were commonplace.  Sir William Blackstone noted that it was “difficult to justify the frequency of capital punishment to be found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures.”[9]  Although occasionally the relative mercy of “transportation”—i.e., an arrangement by which the criminal would voluntarily leave the country[10]—might excuse a robber from execution, the death penalty remained pervasive.[11]

The rule of lenity took form against this backdrop.  It is received wisdom that the rule of lenity can be traced to legal developments surrounding the benefit of clergy.[12]  That privilege provided for the “[e]xemption of the persons of clergymen from criminal process before the secular judge” and could be claimed either at the time of arraignment or after conviction.[13]  The benefit of the clergy was once limited to those who had the “habitum et tonsuram clericalem”—that is, the “clerical habit and tonsure.”[14]  But eventually, the benefit was extended to “every one that could read,” though he be “neither initiated in holy orders, nor trimmed with the clerical tonsure.”[15]  Over time, the benefit became widespread, as “learning, by means of the invention of printing, and other concurrent causes, began to be more generally disseminated than formerly.”[16]

Perhaps because it was never meant to extend so far, or perhaps as a favor to clergy dismayed at the loss of this once-exclusive privilege,[17] the benefit of clergy was gradually limited by statute.  In the late fifteenth century, a statute was enacted that permitted a layman to use the benefit only once, whereupon he would be branded.[18]  And it appears that one of the earlier instances of withdrawing the benefit of clergy from an offense altogether was in 1496, when a statute was passed providing that “if any layperson hereafter . . . murder their lord, master, or sovereign immediate, that they hereafter be not admitted to their clergy.”[19]  Instead, that person would “be put in execution as though he were no clerk.”[20]  That practice of removing the benefit of clergy from specific offenses continued, until, at the time of Blackstone, 160 felonies were statutorily exempted from the benefit of clergy.[21]  For those crimes from which the benefit of clergy was withdrawn, the death penalty was no longer easily avoidable.[22]

The classic narrative is that the rule of strictly construing penal statutes was the courts’ response to the widespread elimination of the benefit of clergy.[23]  Whatever the exact mechanics of the rule’s genesis, it was “firmly established” by the mid-seventeenth century.[24]  Thus, while the benefit of clergy itself was completely abolished in 1827,[25] the rule of lenity had already taken on a life of its own.  But while the rule of lenity, and even its impetus, may be straightforward, its exact justification remained unclear.  Was it a good-faith attempt of courts to apply the intent of the legislature, coupled with a disbelief that the legislature could truly desire its strict laws to be liberally applied?  Or was it an instance of judicial obstruction, of courts hampering—by technicality—a legislature that meant what it said?

History tends to support the latter.  The debate is nicely framed by comparing the two most-cited sources as to lenity’s origins: Sir Peter Benson Maxwell and Professor Livingston Hall.[26]  Maxwell was among the first to explicitly link the rule of lenity to the benefit of clergy, and he described the rule of lenity as one faithful to legislative intent.[27]  According to Maxwell, the rule was based on the “reasonable expectation that, when the Legislature intends so grave a matter as the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges,” it “will express [its intention] in terms reasonably plain and explicit.”[28]  Thus, in Maxwell’s view, the rule of lenity is also constrained by the legislature’s intent.  Maxwell’s lenity did not allow “the imposition of a restricted meaning on the words, for the purpose of withdrawing from the operation of the statute a case which falls both within its scope and the fair sense of its language,” because that “would be to defeat, not to promote, the object of the statute.”[29]  In short, “no construction is admissible which would sanction an evasion of an Act.”[30]

Hall thought the rule of lenity served a different purpose.  He described the rule as an offspring of a “conflict . . . between the legislature on the one hand and courts, juries, and even prosecutors on the other.”[31]  The legislature, either from “inertia” or “pressure from property owners,” pursued “a policy of deterrence through severity,” while the courts “tempered this severity with strict construction carried to its most absurd limits.”[32]  In other words, the courts were not using the rule of lenity to determine the legislature’s intent, but rather in direct opposition to whatever policy the legislature was pursuing.  Simply, it was a “veritable conspiracy for administrative nullification.”[33]

Hall’s account of the rule of lenity originating as a tool to counteract the legislature’s purpose appears to be the prevailing one.[34]  It also seems more historically grounded than Maxwell’s theory of the rule of lenity as a means of effectuating the legislature’s purpose.  To start, there is little evidence that the legislature ever intended any of its statutes to be narrowed to oblivion.  English legal reformer Samuel Romilly observed that “[t]here probably never was a law made in this country which the legislature that passed it did not intend should be strictly enforced.”[35]  For support, Romilly noted that even a strange law “which made it a capital offence for any person above the age of fourteen to be found associating for a month with persons calling themselves Egyptians” was vigilantly enforced “down to the reign of King Charles the first.”[36]  According to Romilly, who was writing in 1810, it was “only in modern times that this relaxation of the law has taken place.”[37]

The handful of vignettes from that era also seem to support that the rule of lenity produced results contrary to the legislature’s intent—and, more importantly, that courts were not concerned by that possibility.[38]  One example is the courts’ construction of a 1740 statute on cattle-stealing.[39]  That statute provided that the stealing of “sheep, or other cattle” was a “felony without benefit of clergy.”[40]  As Blackstone tells it, the courts considered the words “or other cattle” to be “much too loose to create a capital offense,” and so “the act was held to extend to nothing but mere sheep.”[41]  It is hard to find in such an interpretation an attempt to give effect to the legislature’s intent.  Perhaps—depending on what else “cattle” might have entailed back then—the phrase “other cattle” might have been narrowed by the explicit reference to “sheep.”  But to render “other cattle” surplusage runs afoul of the spirit of another rule of construction: the command to read a statute in such a way that the “whole may (if possible) stand.”[42]  And sure enough, the legislature passed a law the next year “extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.”[43]  It appears that the phrase “other cattle” was written, and meant, to be expansive.

A more ambivalent example that was closer in time to the rule of lenity’s inception is the judicial treatment of the horse-stealing felony.[44]  During the reign of Henry VIII, a 1545 statute withdrew the benefit of clergy from “the stealing of any Horse Geldinge Mare Foole or Filley.”[45]  After Edward VI succeeded to the throne, a new statute was enacted in 1547 that withdrew benefit of clergy from a long list of felonies,[46] including the “felonious stealing of horses geldings or mares.”[47]  It also purported to abrogate the 1545 statute, providing that “in all other cases of felony, other than such as be before mentioned,” all persons “shall have and enjoy the privilege and benefit of his or their clergy . . . in like manner and form as he or they might or should have done before the Reign of the said late King Henry the Eighth.”[48]  Because the 1545 statute referred to “any Horse” while the 1547 statute referred to horses in plural, Lord Matthew Hale noted that the 1547 statute “made some doubt, whether it were not intended to enlarge clergy, where only one horse was stolen.”[49]

The courts responded by interpreting the 1547 statute to permit the benefit of clergy for stealing a single horse, and the story goes that this is yet another instance of the courts thwarting the legislature’s intent.[50]  But that narrative is significantly weaker here.  For one, the courts had a textual hook in relying on the plural form of “horses,” “geldings,” and “mares.”  And unlike the interpretation of the phrase “other cattle,” here the courts did give effect to the words of the statute (indeed, every letter).[51]  Ultimately, though, it appears that the courts once again failed to effectuate the legislature’s intent.  The next year, the legislature clarified that “all and singuler p[er]son and p[er]sons felonyously takinge or stealinge any horse geldynge or mare shall not be admytted to have or enjoye the p[ri]viledge or benefyte of his or their Clergy.”[52]

Overall, then, in the absence of a systematic study, it seems that the early uses of the rule of lenity largely led to results counter to the legislature’s intent.  Thus, we may consider Maxwell’s conception of lenity as a tool for discerning the legislature’s “true” (as opposed to expressed) intent as a post hoc legitimization of the rule.  Such a lens explains why the rule of lenity has survived the abandonment of previous draconian laws and why the rule now applies to laws that do not impose capital punishment.  An actual wresting of authority from the legislature to enact criminal punishments as it sees fit can only be justified—if at all—by a penalty as drastic as death.  But once the rule was conceived as fitting within the usual judicial system, where legislatures enact and judges faithfully interpret those enactments, it could apply, as Maxwell suggested, regardless of “whether the proceeding prescribed for the enforcement of the penal law be criminal or civil.”[53]

II. Our Rule of Lenity

The rule of lenity thus originated in England.[54]  When Chief Justice Marshall described the rule in Wiltberger as being “not much less old than construction itself,”[55] he could only have been incorporating a rule older than the Republic.  Wiltberger was the first case in which the rule of lenity was explicitly applied by the United States Supreme Court.[56]  It concerned the Crimes Act of 1790.[57]  That Act provided for a crime punishable in federal court “[i]f any person or persons, shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder.”[58]  In another section, the Act provided for punishment “[i]f any seaman, or other person, shall commit manslaughter on the high seas.”[59]  Wiltberger involved manslaughter on a river.[60]

Because the manslaughter provision only referred to the “high seas,” the Court held that “the offence charged in this indictment is not cognizable in the Courts of the United States.”[61]  That holding was reached because “Congress has not . . . inserted the limitation of place inadvertently; and the distinction which the legislature has taken, must of course be respected by the Court.”[62]  Thus, while the language of the rule of lenity appears throughout the opinion, this case seems much more akin to the “horses” example than the “other cattle” one: a strange and arguably wrong conclusion, but a conclusion that at least has a textual basis.[63]  It is fitting that it is unclear how much work this most nebulous doctrine did in the Supreme Court’s first case applying it by name.

Today, our rule of lenity is oft-summarized as “the rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”[64]  And whether a statute is ambiguous is determined by using the other methods of statutory interpretation.[65]  According to the Supreme Court, “the rule applies if at the end of the process of construing what Congress has expressed, there is a grievous ambiguity or uncertainty in the statute.”[66]  It is “reserved for cases where, after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute.”[67]  The rule is not one of general strict construction of penal statutes—where “[t]he statute is clear enough,” we do not “rely on the rule of lenity” at all.[68]  The rule is, in effect, a tiebreaker.

At the same time, the rule of lenity remains a tool of statutory construction—it is just the last one applied.[69]  That is why, where a statute is given a certain meaning on account of lenity, it retains that meaning even in a noncriminal context.[70]  In Leocal v. Ashcroft,[71] the Supreme Court held in the immigration context that a DUI was not a “crime of violence” under 18 U.S.C. § 16.[72]  Under the Immigration and Naturalization Act, if a DUI were a “crime of violence,” then petitioner Josue Leocal would be deportable.[73]  In reaching its conclusion, the Court noted that “[e]ven if § 16 lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner’s favor.”[74]  Even though this case arose in the immigration context, “[b]ecause we must interpret [§ 16] consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”[75] 

That leads to an interesting conundrum where the statute is ambiguous as to a particular criminal defendant but resolving the ambiguity in the defendant’s favor may not benefit criminal defendants generally.  The rule would not fit its name if, to avoid a particular result for one criminal defendant, the rule ended up extending to impose penalties on more defendants overall.  Some courts of appeals have recognized that the rule of lenity must be applied with an eye toward defendants in general.[76]  For instance, in United States v. Olvera-Cervantes, the Ninth Circuit considered the application of U.S.S.G. § 2L1.2, which penalized illegal reentry differently if the previous deportation followed a felony conviction.[77]  The question before the court was “whether the district court should look to the maximum penalty authorized by the state statute under which the defendant was convicted or whether it should look to the maximum penalty authorized by the analogous federal statute.”[78]  The more favorable outcome to Olvera-Cervantes in particular would have been to look to the federal statute, but the court found that “the rule of lenity . . . is of little use here because we do not know whether the defendant’s interpretation of section 2L1.2 would end up benefitting defendants in general.”[79]  Indeed, it is hard to conceive how a court would be able to measure either interpretation’s benefit to defendants, given how federal and state statutes are mutable.

The most straightforward scenario, then, for applying the rule of lenity is when the criminal statute defines conduct and one of the dueling interpretations is narrower than the other.  Such a narrow interpretation, completely included within the broader one, will always be beneficial to criminal defendants overall and would not require any hypothesizing by the court.  This conception of the rule of lenity—as choosing the narrow over the broad interpretation—resembles strict construction.

But it seems well settled that the rule of lenity comes at the end of the analysis.[80]  Only at the end, if two interpretations are in “equipoise,”[81] does the court apply the rule of lenity and therefore choose the narrower construction.[82] Given how few times two interpretations will ever be in true “equipoise,” only rarely will the narrower construction be preferred over the broader one merely by reason of narrowness.  That is a sharp contrast to the rule of lenity described in the early English treatises, which treated the rule of strictly construing penal statutes as a general one.[83]  In that sense, according to our rule of lenity, penal statutes will rarely be strictly construed.

In sum, the rule of strict construction of penal statutes has survived in American law insofar as the rule of lenity embodies a built-in bias (however slight) for the narrower interpretation.  But by giving that bias effect only at the very end of the interpretive process—and only in the limited scenario of “equipoise”—our rule of lenity is significantly less applicable than the historic rule.

III.  Lenity’s Limits: A Case Study on the First Step Act

Given the foregoing, applying the rule of lenity is difficult.  As a prerequisite to even consider its use in a given case, one must first apply all other tools of statutory construction.[84]  Even then, it remains a mystery what counts as “equipoise.” It is therefore unsurprising that in United States v. Hansen,[85] then-Judge Scalia, referring to the rule of lenity, remarked, “It is, quite frankly, difficult to assess the scope of this accepted principle.”[86]  Pessimistic as it may sound, these application problems may prove to be intractable.  Concepts such as interpretive “equipoise” and narrowing constructions have little capacity to be clarified for easy application.[87]

Looking to the rationales given over time for the rule of lenity might be a decent way to boil down those concepts into something more concrete.  Below, this Article considers the three usual rationales provided for the rule of lenity.  This Article concludes that most of them are in tension with the origin of the rule and that none tells us when a statute is ambiguous enough that we must make an assumption in favor of the defendant.  That leads to the final conclusion of this Article: perhaps the rationales for the rule of lenity do not provide clear rules—but when none of the rationales are applicable, the rule of lenity itself should not apply to the criminal statute.

A. Lenity’s Rationales

Courts and commentators generally give three rationales for the rule of lenity.  The first is fair notice; as Justice Holmes observed,


[a]lthough it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.[88]  


The second is the separation of powers:  “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.”[89]  And third, “the rule of lenity serves our nation’s strong preference for liberty.”[90]

The first two rationales are inconsistent with the rule of lenity’s origins.  To start, the fair notice and separation of powers rationales seem to be post hoc rationalizations.  After all, neither logically should have been triggered by the withdrawal of the benefit of clergy.  If the scope of conduct criminalized by a seventeenth-century felony was so uncertain as to raise fair notice concerns, that uncertainty would have existed before the legislature decided to make the felony unavoidably punishable by death.  Indeed, the vagueness doctrine—another doctrine animated by fair notice—applies beyond the penal context.[91]  A similar critique applies to the separation of powers rationale.  The legislature is the only branch empowered to enact any statute, not just criminal ones, and not just criminal ones that may impose the death penalty.[92]  Furthermore, the separation of powers rationale is a particularly odd fit given that the rule of lenity originated to defeat the legislature’s intent.

The preference for liberty, on the other hand, does match the origin of the rule of lenity, at least superficially.  If the death penalty is the most severe deprivation of liberty a state can effect, it makes sense that the rule of lenity only appeared once the benefit of clergy began to be taken away.  Underlying this last rationale is a normative assumption—that the criminal penalty is a severe sanction, and that the state must therefore speak clearly if it wants to deprive a citizen of liberty.[93]  We might question whether those assumptions hold in the context of many cases where the rule of lenity is applicable; if a defendant had committed some sort of morally culpable act (even if that act is not clearly cognized by the criminal statute), a reasonable person might consider it unfair to add another thumb to the scale in the defendant’s favor.[94]  In any event, this rationale is also a relatively good fit with the practice of applying lenity.  As Maxwell described the rule in England, “[t]he degree of strictness applied to the construction of a penal statute depends in great measure on the severity of the statute.”[95]  A few states––and federal courts now and then––seem to do the same when they differentiate between felony statutes and misdemeanor statutes.[96]

But the liberty rationale too is imperfect.  If the liberty rationale is meant to require legislatures to speak clearly, why does lenity only apply when there is grievous ambiguity, as opposed to just ambiguity?[97]  More importantly, a sliding scale of lenity adds yet another variable to an already-unclear equation.  How much stricter should a felony statute be interpreted?  What about a statute that provides a ten-year maximum sentence versus a fifteen-year maximum sentence?  The liberty rationale’s capaciousness makes it a decent justification for the rule.  But it is also a poor guiding principle for the rule’s application.

One might ask, why should we care whether the rationales for the rule of lenity—all of which are widely cited[98]—are consistent with the rule’s origin?  After all, that a rule sprung up in response to a particular confluence of events does not necessarily mean that we should keep the rule bound to that scenario.  Be that as it may, Wiltberger itself described the rule of lenity as not just merely old, but “perhaps not much less old than construction itself,”[99] and courts have consistently picked up on and repeated that phrase.[100]  It would be odd to abandon any attempt to keep lenity moored to its past, considering the courts’ constant reminders of its ancient roots.

In any event, at the very least, it seems that no single rationale can claim supremacy over the other.  And even if one could, each rationale alone does not shed much light on how to apply the rule to a particular statute.  At what point is a statute ambiguous enough to raise fair notice concerns?  Our other doctrine that responds to the need for fair notice relies on such concepts as what a “person of ordinary intelligence” could “reasonably understand”[101]—hardly a hopeful ground upon which to find a clear rule.  As for the separation of powers rationale, scholars have noted that courts are accepted to have, in certain criminal matters, vast discretion.[102]  Thus, if violating the separation-of-powers principle by giving too much discretion to courts in criminal matters is merely a matter of degree, that rationale is also unlikely to lead to any clear rule.

None of this is to suggest that a lack of a clear rule means that lenity should be discarded altogether.  Law does not always give clear rules, and it might be especially odd to require clarity from a doctrine designed to enter the legal analysis in response to ambiguity.  Just because a doctrine cannot be reduced into bright-line rules does not make it invalid—far from it.  Rather, this Article concludes only that, insofar as this Article attempts to find a clear way to apply lenity in at least some cases, there probably will be none based on balancing various of the three rationales for the rule.

B. A Proposed Limit on Lenity

This Article argues that there may be some categories of penal laws to which none of the rationales of the rule of lenity apply, and that lenity should therefore be inapplicable to those statutes.  The rule of lenity has generally been described in terms referring to “penal laws,” without any suggestion that some penal laws might not be proper subjects of the rule.[103]  But considering the rule of lenity’s rationales in order to define a class of statutes to which the rule does not apply is not unheard of.  Emlin McClain, former Chief Justice of the Iowa Supreme Court, in a late-nineteenth century treatise of American criminal law, noted the view that, because the rule “was adopted at the common law in favor of life, or the liberty of the citizen,” it “has never been observed in the construction of statutes enacted for the punishment of mere misdemeanors.”[104]  For that reason, McClain described several categories of criminal law to which the rule was not applied, including “statutes for the prevention of fraud and suppression of public wrong” and “statute[s] relating to procedure.”[105]

With that in mind, one potential limit on the scope of lenity starts with the observation that every rationale for lenity is, in effect, a prohibition on what the legislature can do.  The legislature may not criminalize conduct without providing fair notice to potential defendants.[106]  The legislature may not pass such an open-ended statute that it effectively delegates lawmaking to the courts.[107]  The legislature may not infringe upon a person’s liberty without clearly stating its intent to do so.[108]  Put another way, there are limits to how a legislature may enact a statute used to the detriment of the defendant.  If those are fair characterizations of the rationales underlying the rule of lenity, then the rule should not be applied in instances of legislative grace.

One recent example of so-called legislative grace is the First Step Act of 2018.[109]  Before 2010, distributing 5 and 50 grams of crack triggered mandatory minimum sentences of five and ten years, respectively.[110]  The Fair Sentencing Act of 2010 raised those threshold amounts to 28 and 280 grams.[111]  Eight years later, the First Step Act made already-sentenced criminals potentially[112] eligible for the lower penalties of the Fair Sentencing Act, even though they had committed their crimes before the Fair Sentencing Act was passed.[113]  Eligibility for relief under the First Step Act depended on whether the criminal had committed a “covered offense.”[114]  And a “covered offense” was defined in the First Step Act as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.”[115]

Predictably, the definition of “covered offense” led to questions, often raised by criminals seeking resentencing.[116]  One of the most significant questions was whether the term referred to the actual conduct that the criminal committed or merely the statutory elements of the offense.[117]  That distinction matters for someone who distributed, say, a kilogram of crack.  If actual conduct mattered, then he would not be eligible for resentencing, because someone who sold a kilogram of crack today would be subject to the same penalties as someone who did so before 2010.  On the other hand, if only the statutory elements mattered, then the criminal would be eligible for resentencing because the penalty for selling fifty grams of crack has been modified.

From the beginning, most district courts adopted the categorical approach.[118]  For many of these courts, whether actual conduct mattered depended on what the phrase “statutory penalties for which were modified” was in reference to and what the term “violation” meant.[119]  And time and time again, those courts would invoke the rule of lenity to say that whether a covered offense was committed did not depend on the actual underlying conduct.[120]  Even district courts that reached the conclusion that eligibility for resentencing depended on actual offense conduct dismissed the use of lenity because the statute was unambiguous,[121] not for some other reason.

This Article argues that the rule of lenity should never have applied in construing eligibility under the First Step Act—even if there were a “grievous” ambiguity—because none of the rationales for the rule apply here.  To begin with, the fair notice concern is irrelevant in this context.  Whatever applicability that doctrine has in the sentencing context in general, it has no relevance when discussing a criminal statute that alters the penalties for a crime after the sentence has already been handed down.  To say that fair notice concerns are implicated here would be to say that the criminal should be given the benefit of the doubt in case he was misled by the ambiguous wording of a statute that had not yet been passed.

Neither does it make sense to apply the rule in the name of separation of powers.  In fact, that rationale would suggest that the court should resolve ambiguities against the criminal.  Sentence modifications “are not constitutionally compelled,”[122] and courts themselves “lack[] the inherent authority to modify a term of imprisonment.”[123]  If it is in Congress’s domain, then, to permit resentencing, the separation of powers principle would have courts decline—not expand—the invitation to find the ability to do so unless Congress spoke clearly.

Even the vague preference for liberty rationale is especially weak here because the legislature did speak clearly under the old sentencing regime.  As the Eighth Circuit noted in analyzing a different sentence modification statute, “[n]o new deprivation of liberty can be visited upon [a prisoner] by a proceeding that, at worst, leaves his term of imprisonment unchanged,” when “[h]is liberty is already deprived by virtue of a sentencing which gave him all the process the Constitution required.”[124]

Looking forward, the same analysis may apply—but with less weight—when the statute or rule providing a potential resentencing was in place before the criminal’s initial sentence.  For instance, in United States v. Puentes,[125] the Eleventh Circuit considered whether a district court could reduce a defendant’s obligation to pay restitution under the Mandatory Victim’s Restitution Act (“MVRA”) through Federal Rule of Criminal Procedure 35(b), which provides that “the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.”[126]  The MVRA was enacted after Rule 35(b), and both were in place well before Puentes committed his crimes.[127]  Puentes argued that “[the court is] bound to apply the rule of lenity if [it] find[s] any ambiguity in the [MVRA], Rule 35(b), or the interplay between the two.”[128]  The court assumed for the sake of argument that the rule of lenity could apply to Rule 35(b) but decided that there was no grievous ambiguity that would support applying lenity there anyway.[129]

Putting aside whether lenity should apply to procedural provisions at all, it is a harder question whether lenity should apply here compared to the First Step Act example analyzed above.  Unlike a defendant under the First Step Act, Puentes in theory could have depended on the possibility of a Rule 35(b) sentence reduction at the time of his conduct.  It is true that the fair notice concern is already weak in the sentencing context and the resentencing context is even a step further removed,[130] but at least it would be temporally possible for a defendant to be misled by the wording of Rule 35(b).  It also might make some sense under the framework mentioned above that views lenity as a constraint upon Congress: if Congress wants to deny an avenue for relief available to potential criminals, it must speak clearly.  On the other hand, Rule 35(b) remains an exception to the usual inability to change an already-imposed sentence.  In recognition of that general rule, courts often refer to 18 U.S.C. § 3582(c)(2)—which authorizes sentence-modification proceedings[131]—as an “act of lenity.”[132]  If we consider Rule 35(b) itself to be a similar “act of lenity,” to apply the rule of lenity to it almost seems like double-counting.

So, it may not be as easy as saying all resentencing statutes should be excluded from the rule of lenity.  But at the very least, an approach of narrowing which criminal laws are subject to our rule would be theoretically grounded and simple to administer.  Unlike the usual approach, where courts always must consider “how much ambiguousness constitutes an ambiguity,”[133] once a particular statute is found to be outside lenity’s ambit, a court will no longer need to engage in that last step of the interpretive process at all.


The rule of lenity has largely been unmoored from its English origins.  And though it is an old doctrine that has rarely been questioned, its inconsistent application has prompted even Justice Scalia to suggest that “[i]f [the rule of lenity] is no longer the presupposition of our law, the Court should say so, and reduce the rule of lenity to an historical curiosity.”[134]  Even if a court seeking to apply the rule were to look to what rationales have been used to justify the modern American version of lenity, it would be confronted with three—all distinct, and none perfect.

It seems, then, that the easiest way to clarify the rule of lenity’s application is to start with considering its scope.  Although the rule is taken to mean that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,”[135] this Article argues that the rule’s reference to “criminal statutes” should not be taken hyperliterally.  Especially now that the term “criminal statutes” may fairly be read to mean any statute that touches upon criminal law, the rule of lenity—even in its expanded form—does not reach every such statute.  Where none of the rationales for the rule of lenity apply, that old doctrine should have no role to play in interpreting the statute, atmospheric or otherwise.

      *.   Law clerk to Judge Steven J. Menashi, U.S. Court of Appeals for the Second Circuit, 2021–22, and to Judge Britt C. Grant, U.S. Court of Appeals for the Eleventh Circuit, 2020–21.  J.D., Harvard Law School, 2020; M.A., State University of New York at Stony Brook, 2016; B.S., State University of New York at Stony Brook, 2015.  Thanks to Aaron Gyde, Joshua Hoyt, Aaron Hsu, and DJ Sandoval for helpful comments and advice.  This Article represents the views of the author alone.

      [1].   18 U.S. (5 Wheat.) 76, 95 (1820).

      [2].   Id.

      [3].   David S. Romantz, Reconstructing the Rule of Lenity, 40 Cardozo L. Rev. 523, 526 (2018).

      [4].   Id. at 524–25.

      [5].   Callanan v. United States, 364 U.S. 587, 596 (1961).

      [6].   Chapman v. United States, 500 U.S. 453, 463 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)).

      [7].   First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194; see also Nathan James, Cong. Rsch. Serv., R45558, The First Step Act of 2018: An Overview (Mar. 4 ,2019).

      [8].   Romantz, supra note 3, at 526.

      [9].   4 William Blackstone, Commentaries on the Laws of England 18 (4th ed. 1770).

     [10].   Frederick Howard Wines, Punishment and Reformation: A Study of the Penitentiary System 106 (1910) (“[M]ultitudes of prisoners under sentence of death were given the alternative, of which they hastened to take advantage, of voluntarily leaving the realm, if pardoned.  Herein was the germ of English transportation.”).

     [11].   4 Blackstone, supra note 9, at 18 (“[I]n England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers.”).  In fact, this differing punishment for crimes earned commendation from Blackstone, who remarked that “[w]here men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt.”  Id.

     [12].   Romantz, supra note 3, at 526.

     [13].   4 Blackstone, supra note 9, at 358.  As a historical matter, then, the benefit of clergy was usually claimed after conviction.  As Blackstone observed, “it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also it is more advantageous to the prisoner himself, who may possibly be acquitted, and so need not the benefit of his clergy at all.”  Id. at 359–60; see also McRaney v. N. Am. Mission Bd. of S. Baptist Convention, Inc., 980 F.3d 1066, 1076 (5th Cir. 2020) (Oldham, J., dissenting from the denial of rehearing en banc).

     [14].   4 J. W. Jones, A Translation of All the Greek, Latin, Italian, and French Quotations Which Occur in Blackstone’s Commentaries on the Laws of England 245 (1823).  The clerical tonsure was a hairstyle. See 4 Blackstone, supra note 9, at 360.

     [15].   4 Blackstone, supra note 9, at 360.  It appears that this literacy test was a judicial misinterpretation of the legislature’s extension of the benefit to “secular” clerks.  See Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. Tol. L. Rev. 511, 515 n.22 (2002) (“[That] statute was intended to clarify that benefit of clergy would be afforded to ‘inferior Orders’ of the clergy, as well as bishops, priests, and deacons, but . . . the intent was not to extend clergy to lay persons.” (quoting 2 Sir William Hawkins, A Treatise of the Pleas of the Crown 338 (2d ed. 1724))).  That misinterpretation was arguably deliberate.  See Romantz, supra note 3, at 526 (“As Parliament and the king continued to proliferate capital felonies in the coming centuries, the courts responded by expanding the benefit of the clergy rule to include any citizen who could read.”).

     [16].   4 Blackstone, supra note 9, at 360.

     [17].   William L. Rushton, Shakespeare: A Lawyer 16 (1858) (“[A]s many laymen as clergymen enjoyed this privilege, which excited the jealousy of the clergy, in whose favour, therefore, a further distinction was made . . . .”).

     [18].   That statute was titled “Concerning the allowance of benefit of clergy,” and it provided that “every person, not being within orders, which once hath been admitted to the benefit of his clergy, eftsoons arraigned of any such offence, be not admitted to have the benefit or privilege of his Clergy.”  4 Hen. 7 c. 13.

     [19].   12 Hen. 7 c. 7; see Spector, supra note 15, at 515–16 (“At first, benefit of clergy was stripped from murder and certain particularly nasty cases of robbery, but by the middle of the sixteenth century benefit of clergy had been withdrawn from the most trivial of felonies, including ‘stealing horses,’ pickpocketing, and ‘burning a dwelling or barn having grain therein.’” (footnotes omitted) (citing 12 Hen. 7 c. 7)).

     [20].   12 Hen. 7 c. 7.

     [21].   4 Blackstone, supra note 9, at 18 (“It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death.”).  To be sure, “a large number of capital offenses on the statute book is no test for severity,” but it remains the case that “by the nineteenth century, the government had so limited the [benefit of clergy] that it had fallen into disuse.”  Newman F. Baker, Benefit of Clergy—A Legal Anomaly, 15 Ky. L.J. 85, 111 (1927).

     [22].   Spector, supra note 15, at 517.

     [23].   Romantz, supra note 3, at 527.

     [24].   Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 750 n.13 (1935) (“By the time Hale wrote (he died in 1676), the doctrine of strict construction was firmly established.”); see also 1 William Blackstone, Commentaries on the Laws of England 88 (4th ed. 1765) (“Penal statutes must be construed strictly.”); 2 Sir Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown 335 (1736) (“That where any statute . . . hath ousted clergy in any of those felonies, it is only so far ousted, and only in such cases and as to such persons, as are expressly comprised within such statutes, for in favorem vitae & privilegii clericalis such statutes are construed literally and strictly.”).

     [25].   Baker, supra note 21, at 111.

     [26].   Spector, supra note 15, at 514 n.16 (“Sir Peter Benson Maxwell and [Livingston] Hall were the first to trace the rule of lenity back to the benefit of clergy cases.  Their accounts have been accepted and recited by modern rule of lenity scholars.” (citations omitted)).

     [27].   Id.; Peter Benson Maxwell, On the Interpretation of Statutes 237 (1875).

     [28].   Maxwell, supra note 27, at 237.

     [29].   Id. at 238.

     [30].   Id.

     [31].   Hall, supra note 24, at 751.

     [32].   Id.  Perhaps this state of affairs—presumably not all too displeasing to the legislature, which could reap the benefits of passing such statutes without any of the political downsides—could eventually lead to a “sort of prescriptive validity.”  See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Rsrv. L. Rev. 581, 583 (1989).  After the charade has gone on long enough, “the legislature presumably has [it] in mind when it chooses its language.”  Id.  But that does not clarify the justification for the rule of lenity at its inception.

     [33].   Hall, supra note 24, at 751.

     [34].   See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 198 (1985) (“Faced with a vast and irrational proliferation of capital offenses, judges invented strict construction to stem the march to the gallows.”); Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 897 (2004) (“The rule of lenity has its oldest origins in the efforts of common law courts in the seventeenth and eighteenth centuries to limit the brutality of English criminal law.”); Romantz, supra note 3, at 527 n.12 (“The rule of lenity first developed in England with the decided goal of frustrating the intent of the legislature.  English courts resolved to chart a more humane path despite the legislature’s facility to enact capital crimes.”); Lawrence M. Solan, Law, Language, and Lenity, 40 Wm. & Mary L. Rev. 57, 87 (1998) (“The courts, doing what they could to frustrate the legislative will, developed the principle that penal statutes were to be construed strictly.”).  In fact, as mentioned above, the legislature’s abrogation of the benefit of clergy might have itself been a move in this tug-of-war, a response to the courts’ improper extension of the benefit to all literate citizens in the first place.  See Romantz, supra note 3, at 526–27 (“Keenly aware that the courts were frustrating its legislative prerogative to kill the nation’s criminals, Parliament responded by enacting more and more capital felonies, while excluding increasing numbers of felonies from the benefit of the clergy.”). 

     [35].   Sir Samuel Romilly, Observations on the Criminal Law of England as it Relates to Capital Punishments, and on the Mode in Which it is Administered 5 (1811).

     [36].   Id.

     [37].   Id.; see also id. at 6 (“In the long and sanguinary reign of Henry VIII, it is stated by Hollinshed that 72,000 persons died by the hands of the executioner, which is at the rate of 2,000 in every year.”).  To be sure, Romilly had an agenda of his own, as an advocate for repealing the death penalty for various crimes.  See generally Charles Noble Gregory, Sir Samuel Romilly and Criminal Law Reform, 15 Harv. L. Rev. 446 (1902) (providing an example of Romilly’s advocacy against the death penalty).

     [38].   See e.g., Sir William David Evans, A Collection of Statutes Connected with the General Administration of the Law 29­–30 (Anthony Hammond & Thomas Colpitts Granger, 3d ed. 1836).

     [39].   Id.  Among others, Blackstone and Justice Scalia have referenced the judicial treatment of this statute, the latter somewhat scornfully.  See Scalia, supra note 32, at 582 (“I doubt, for instance, that any modern court would go to the lengths described by Blackstone in its application of the rule that penal statutes are to be strictly construed.”).

     [40].                                                               Scalia, supra note 32, at 582.

     [41].   4 Blackstone, supra note 9, at 88.

     [42].   Id. at 89.

     [43].   Id. at 88.

     [44].   37 Hen. VIII c. 8.

     [45].   Id. (emphasis added).

     [46].   Other felonies from which the benefit of clergy was withdrawn was the “robbing of anny Parsone or parsons in the highe waye or nere to the highe waye,” and the “felonious taking of anny good out of anny pishe Churche or other Churche or Chapell.”  1 Edw. VI c. 12.  That the statute made the distinction between “Parson” and “parsons” might have also cast doubt on whether the term “horses” should be read to also include a single horse.

     [47].   The Statutes at Large from the First Year of King Edward the Fourth to the End of the Reign of Queen Elizabeth 448 (2d ed. 2010).  

     [48].   Id.

     [49].   Sir Matthew Hale Knt., The History of the Pleas of the Crown 365 (2003).

     [50].   See, e.g., Solan, supra note 34, at 87–88.

     [51].   Id. at 88.

     [52].   2 & 3 Edw. VI c. 33.  But even then, the legislature seemed to admit that the initial statute was unclear.  The preface to its clarifying act stated that it was made necessary because “it is and hathe been ambyguous and doubtfull . . . whether that any p[er]son being in due fourme of the lawes found gyltye . . . [of] felonyous stealinge of one horse geldynge or mare ought to be admytted to have and enjoye the priviledge and benefyte of his Clergie . . . .”  Id.

     [53].   Maxwell, supra note 27, at 238–39.

     [54].   Romantz, supra note 3, at 526.

     [55].   United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).

     [56].   Note, The New Rule of Lenity, 119 Harv. L. Rev. 2420, 2422 (2006).

  1. Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 357 (1994).  That statute, according to Professor Kahan, was “the very first piece of criminal legislation enacted by Congress.”  Id.

     [58].   [2 The Justices on Circuit 1790–1794] The Documentary History of the Supreme Court of the United States, 1789–1800, at 529 (Maeva Marcus et al. eds., 1988).

     [59].   Id. at 530.

     [60].   Wiltberger, 18 U.S. at 77.

     [61].   Id. at 99, 105.

     [62].   Id. at 104.

     [63].   See supra text accompanying notes 39–49.

     [64].   Yates v. United States, 574 U.S. 528, 547–48 (2015) (quoting Cleveland v. United States, 531 U.S. 12, 25 (2000)).

     [65].   See generally Valerie C. Brannon, Cong. Rsch. Serv., R45153,  Statutory Interpretation: Theories, Tools, and Trends (2018).

     [66].   Shaw v. United States, 137 S. Ct. 462, 469 (2016) (internal quotation marks and citation omitted); see also United States v. Shabani, 513 U.S. 10, 17 (1994) (“The rule of lenity, however, applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.”)

     [67].   Smith v. United States, 508 U.S. 223, 239 (1993) (alteration adopted) (internal quotation marks and citation omitted).

     [68].   Shaw, 137 S. Ct. at 469.

     [69].   See Reno v. Koray, 515 U.S. 50, 65 (1995) (“The rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” (internal quotation marks and citation omitted)); see also Brannon, supra note 65, at 31 n.317 and accompanying text (“Consequently, most courts will not apply the substantive canons [such as the rule of lenity] unless they conclude that after consulting other interpretive tools, the statute remains ambiguous.”).

     [70].   See infra note 75 and accompanying text.

     [71].   543 U.S. 1 (2004).

     [72].   Id. at 4.

     [73].   See id.

     [74].   Id. at 11 n.8.  This discussion of the rule of lenity in Leocal is dicta.  Clark v. Martinez, 543 U.S. 371, 397 (2005) (Thomas, J., dissenting).  But from the viewpoint of the lower courts, “there is dicta and then there is dicta, and then there is Supreme Court dicta.”  Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006).

     [75].   Leocal, 543 U.S. at 11 n.8; see also Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16 (2011) (“[W]e have said that the rule of lenity can apply when a statute with criminal sanctions is applied in a noncriminal context.”); Martinez, 543 U.S. at 380 (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation.”).

     [76].   See, e.g., United States v. Olvera-Cervantes, 960 F.2d 101, 103 (9th Cir. 1992).

     [77].   Id. at 102.

     [78].   Id. (emphasis in original).

     [79].   Id. at 103; see also United States v. Beck, 957 F.3d 440, 450 (4th Cir. 2020) (noting that “lenity doesn’t support [Beck’s] interpretation,” because his interpretation “would generally be against defendants’ interests”).

     [80].   See Shular v. United States, 140 S. Ct. 779, 787 (2020) (Kavanaugh, J., concurring) (“[A] court may invoke the rule of lenity only after consulting traditional canons of statutory construction.” (internal quotation marks and citation omitted)); id. at 787 n.1 (listing cases).

     [81].   Johnson v. United States, 529 U.S. 694, 713 n.13 (2000).

     [82].   Id.

     [83].   See Maxwell, supra note 27, at 238 (rule of strict construction requires ensuring that no cases outside the “spirit and scope of enactment” fall within a statute).

     [84].   Barber v. Thomas, 560 U.S. 474, 488 (2010).

     [85].   772 F.2d 940 (D.C. Cir. 1985).

     [86].   Id. at 948.

     [87].   See id. (noting that “the Supreme Court’s advice that it only serves as an aid for resolving an ambiguity . . . provides little more than atmospherics, since it leaves open the crucial question—almost invariably present—of how much ambiguousness constitutes an ambiguity”).

     [88].   McBoyle v. United States, 283 U.S. 25, 27 (1931); see also id. (“To make the warning fair, so far as possible the line should be clear.”).

     [89].   United States v. Bass, 404 U.S. 336, 348 (1971); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (“The rule that penal laws are to be construed strictly . . . is founded . . . on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.”).

     [90].   United States v. Nasir, 17 F.4th 459, 473 (3d Cir. 2021) (Bibas, J., concurring).  On this point, courts repeatedly cite to Judge Henry Friendly’s observation of “our ‘instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’”  Id. (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967)); see, e.g., United States v. R.L.C., 503 U.S. 291, 305 (1992) (plurality opinion); United States v. Pembrook, 609 F.3d 381, 391 (6th Cir. 2010); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006); United States v. Latimer, 991 F.2d 1509, 1514 (9th Cir. 1993).

     [91].   Sessions v. Dimaya, 138 S. Ct. 1204, 1244 (2018) (Thomas, J., dissenting) (“[T]he vagueness doctrine extends to all regulations of individual conduct, both penal and nonpenal.”).

     [92].   See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810) (Marshall, C.J.) (“It is the peculiar province of the legislature to prescribe general rules for the government of society.”).

     [93].   See Marinello v. United States, 138 S. Ct. 1101, 1108 (2018) (explaining that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).

     [94].   As one commentator noted:

Two reasons can be found for the decline in importance of the lenity canon.  First, the criminal law has been used more and more, not just to condemn evil behavior, but to regulate economic activity.  Jail sentences and stigmas are less likely to attach, either by law or in practice.  In that setting, a generalized tilt toward the accused loses some of its attraction.  Second, as public concern about crime increases, the inclination to adopt an across-the-board presumption in favor of the accused weakens.

William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation 204 (1999).

     [95].   Maxwell, supra note 27, at 239.

     [96].   See, e.g., Maine v. Millett, 203 A.2d 732, 734 (Me. 1964) (quoting Maine v. Blaisdell, 105 A. 359, 360 (Me. 1919)) (noting that a statute declaring a felony “calls for a more strict construction than one which declares an act to be a misdemeanor”); Mo., K. & T. Ry. Co. v. State, 100 S.W. 766, 767 (Tex. 1907) (“It is a well-established principle of statutory construction that penal statutes must be strictly construed in determining the liability of the person upon whom the penalty is imposed, and the more severe the penalty, and the more disastrous the consequence to the person subjected to the provisions of the statute, the more rigid will be the construction of its provisions in favor of such person and against the enforcement of such law.”).  In United States v. Plaza Health Laboratories, 3 F.3d 643 (2d Cir. 1993), the Second Circuit declined to construe the Clean Water Act (“CWA”) in the same way that it did the Rivers and Harbors Act (“RHA”).  Id. at 647–48.  The court “view[ed] with skepticism the government’s contention that [it] should broadly construe the greatly magnified penal provisions of the CWA based upon RHA cases that did so in the context of strict-liability and misdemeanor penalties.”  Id. at 648.  See generally 1 Wayne R. LaFave, Substantive Criminal Law § 2.2(d) (3d ed. 2021) (footnote omitted) (citing Millett, 203 A.2d 732) (“No doubt some criminal statutes deserve a stricter construction than others.  Other things being equal, felony statutes should be construed more strictly than misdemeanor statutes; those with severe punishments more than those with lighter penalties.”).

     [97].   See, e.g., United States v. Davis, 139 S. Ct. 2319, 2352 (2019) (Kavanaugh, J., dissenting).

     [98].   See, e.g., Massachusetts v. St. Hilaire, 21 N.E.3d 968, 979 (Mass. 2015) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)); United States v. Gallaher, 624 F.3d 934, 941(9th Cir. 2010) (quoting United States v. Bass, 404 U.S. 336, 348 (1971)); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006) (quoting Bass, 404 U.S. at 348)).

     [99].   United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).

   [100].   See, e.g., Dowling v. United States, 473 U.S. 207, 213 (1985); United States v. Boston & M. R.R., 380 U.S. 157, 160 (1965) (“A criminal statute is to be construed strictly, not loosely.  Such are the teachings of our cases from United States v. Wiltberger down to this day.” (citation omitted)); United States v. Canelas-Amador, 837 F.3d 668, 674 (6th Cir. 2016); United States v. Valle, 807 F.3d 508, 527 (2d Cir. 2015); United States v. Parker, 762 F.3d 801, 807 (8th Cir. 2014); United States v. Winchester, 916 F.2d 601, 607 (11th Cir. 1990) (“Lenity, the quality of being lenient or merciful, is an application of the common law principle that criminal statutes are to be strictly construed, a rule which ‘is perhaps not much less old than construction itself.’” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)).

   [101].   United States v. Harriss, 347 U.S. 612, 617 (1954).

   [102].   Spector, supra note 15, at 545–46.

   [103].   See, e.g., Rule of Lenity, Black’s Law Dictionary (11th ed. 2019).  But see, Popkin, supra note 94, at 204.

   [104].   1 Emlin McClain, A Treatise on the Criminal Law as Now Administered in the United States § 83 (1897).

   [105].   Id.

   [106].   Marinello v. United States, 138 S. Ct. 1101, 1106 (2018) (quoting United States v. Aguilar, 515 U.S. 593, 600 (1931)).

   [107].   See United States v. Komzinski, 487 U.S. 931, 951 (1988) (denouncing “the arbitrariness and unfairness of a legal system in which the judges would develop the standards for imposing criminal punishment on a case-by-case basis”).

   [108].   See Marinello, 138 S. Ct. at 1108 (stating that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).

   [109].   Pub. L. No. 115-391, 132 Stat. 5194.

   [110].   21 U.S.C. § 841(b) (2009) (amended 2010).

   [111].   Pub. L. No. 111-220, § 2, 124 Stat. 2372.

   [112].   Under § 404(b) of the First Step Act of 2018, whether a sentence was ultimately reduced remained within the court’s discretion.  See Pub. L. No. 115-391, 132 Stat. 5194, 5222.

   [113].   Id.

   [114].   First Step Act § 404(b).

   [115].   Id. § 404(a).

   [116].   See United States v. Davis, 961 F.3d 181, 183 (2d Cir. 2020).

   [117].   See id.

   [118].   See United States v. King, 423 F. Supp. 3d. 481, 484 (M.D. Tenn. 2019) (“To date, it does not appear that any Court of Appeals has weighed in on the issue, but the vast majority of district court[s] to have addressed the matter have concluded that the count of the conviction controls . . . .”).

   [119].   See, e.g., United States v. Henderson, 399 F. Supp. 3d 648, 653–54 (W.D. La. 2019).  The Supreme Court has since clarified that the phrase “statutory penalties” refers to “a violation of a Federal criminal statute.”  Terry v. United States, 141 S. Ct. 1858, 1862 (2021).

   [120].   See Henderson, 399 F. Supp. 3d at 654; see also King, 423 F. Supp. 3d at 484–85; United States v. Hardnett, 417 F. Supp. 3d 725, 737 (E.D. Va. 2019); United States v. Willis, 417 F. Supp. 3d 569, 575 (E.D. Pa. 2019); United States v. Williams, 402 F. Supp. 3d 442, 448 (N.D. Ill. 2019); United States v. Askins, No. CR-02-00645-001, 2019 WL 3800227, at *3 (D. Ariz. Aug. 6, 2019); United States v. White, No. 99-CR-628-04, 2019 WL 3228335, at *4 (S.D. Tex. July 17, 2019); United States v. Martin, No. 03-CR-795, 2019 WL 2571148, at *2 (E.D.N.Y. June 20, 2019); United States v. Rose, 379 F. Supp. 3d 223, 229 (S.D.N.Y. 2019); United States v. Allen, 384 F. Supp. 3d 238, 242 (D. Conn. 2019); United States v. Pierre, 372 F. Supp. 3d 17, 22 (D.R.I. 2019).

   [121].   See, e.g., United States v. Jackson, No. 03-0642, 2019 U.S. Dist. LEXIS 109993, at *7–8 n.3 (E.D. Pa. June 26, 2019) (“To the extent the Government suggests that the meaning of ‘violation’ in § 404(a) is ambiguous, the Court disagrees.  As a result, the Court’s interpretation of ‘violation’ in the First Step Act is not subject to the rule of lenity, which requires courts to construe ambiguities in criminal statutes in favor of defendants.” (citation omitted)).

   [122].   Dillon v. United States, 560 U.S. 817, 841 (2010).

   [123].   United States v. Jones, 962 F.3d 1290, 1297 (11th Cir. 2020); see also United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir. 2015) (“The law is clear that the district court has no inherent authority to modify a sentence; it may do so only when authorized by a statute or rule.”).

   [124].   United States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013).

   [125].   803 F.3d 597 (11th Cir. 2015).

   [126].   See id. at 598; Fed. R. Crim. P. 35(b).

   [127].   Pub. L. 104–132, §§ 201–11, 110 Stat. 1214, 1227–41 (1996).

   [128].   Puentes, 803 F.3d at 609.

   [129].   Id. at 610.

   [130].   Johnson v. United States, 576 U.S. 591, 630 (2015) (Alito, J., dissenting) (noting that fair notice concerns “have less force when it comes to sentencing provisions, which come into play only after the defendant has been found guilty of the crime in question”).

   [131].   See 18 U.S.C. § 3582(c)(2).

   [132].   Dillon v. United States, 560 U.S. 817, 828 (2010); see also United States v. Padilla-Diaz, 862 F.3d 856, 861 (9th Cir. 2017) (“As acts of lenity, such sentence reductions are not constrained by the general policies underlying initial sentencing or even plenary resentencing proceedings.”); United States v. Maiello, 805 F.3d 992, 1000 (11th Cir. 2015); United States v. Johnson, 703 F.3d 464, 469 (8th Cir. 2013).

   [133].   United States v. Hansen, 772 F.2d 940, 948 (D.C. Cir. 1985).

   [134].   Holloway v. United States, 526 U.S. 1, 21 (1999) (Scalia, J., dissenting).  This statement is especially striking from Justice Scalia, who along with Bryan Garner has been credited with maintaining the rule of lenity’s significance in our law.  See Intisar A. Rabb, Response, The Appellate Rule of Lenity, 131 Harv. L. Rev. F. 179, 180 (2018) (“Justice Scalia and Professor Bryan Garner have helped elevate the rule of lenity by including it in a set of fifty-seven recommended canons of construction in their widely read treatise on interpretation.”).

   [135].   Yates v. United States, 574 U.S. 528, 547–48 (2015) (internal quotation marks omitted).

By Alexander F. Magee

The internet has long been championed as a marketplace of ideas that fosters unprecedented access to different viewpoints and mass amounts of information and media. At least in the eyes of some, Section 230 of the Communications Decency Act (“CDA”)[1] is largely responsible for the internet gaining that reputation, and the Section has therefore become something of a beacon for free speech.[2] In recent years, however, the Section has received considerable negative attention from both sides of the political spectrum, including explicit denouncement from both President Donald Trump and the Democratic Presidential Nominee Joe Biden.[3] What started as dissatisfied grumblings about unfair censorship orchestrated by tech companies, culminated in President Trump enacting an Executive Order in May calling for changes in the Section that would create greater liability for companies such as Facebook, Twitter, and Google.[4]

The CDA was first enacted in 1996 as an attempt to prevent children from accessing indecent material on the internet.[5] The Act made it a crime to knowingly send obscene material to minors or publish the material in a way that facilitates it being seen by minors.[6] Section 230 was conceived in-part as a way to facilitate this prevention goal, by allowing websites to “self-regulate themselves” by removing indecent material at their discretion.[7] While certain parts of the Act were quickly declared unconstitutional in the Supreme Court decision Reno v. American Civil Liberties Union,[8] Section 230 survived to become arguably the most important law in the growth of the internet.

The relevant language in the Section itself is contained in a “Good Samaritan” provision that states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and that the provider shall not “be held liable on account of any action . . . taken in good faith to restrict access to or availability of material that the provider . . . considers to be obscene, lewd, lascivious . . . or otherwise objectionable, whether or not such material is constitutionally protected.”[9] This means Twitter, or a similar site, cannot be held liable for the objectionable material a third-party posts on their platform, subject to limited exceptions.[10] It also means that any action taken by Twitter to remove content they deem to be offensive or objectionable is protected as a way to encourage sites to remove offensive content by allowing them to do so without concern of liability.[11]

President Trump apparently takes issue with this “Good Samaritan” protection. In his May Executive Order, President Trump called social media’s moderation behavior “fundamentally un-American and anti-democratic,” and specifically accused Twitter of flagging and removing user content in a way that “clearly reflects political bias.”[12] President Trump also accused unspecified U.S. companies of “profiting from and promoting the aggression and disinformation spread by foreign governments like China.”[13] To address these concerns, the Executive Order calls for a narrowing of Section 230 protections, making it so that social media companies can be held liable for what their users post or for moderating those posts in a way that is “unfair and deceptive.”[14] Four months later, the Department of Justice proposed legislation aimed at weakening Section 230 protections.[15] The legislation is drafted in the spirit of the Executive Order, with special emphasis being paid to holding platforms accountable for hosting “egregious” and “criminal” content, while retaining immunity for defamation.[16]

Presidential Nominee Biden, for his part, seems to be more focused on holding tech companies liable for misinformation that is spread on their websites. In a January interview, Biden stated that tech companies should be liable for “propagating falsehoods they know to be false.”[17] Biden took particular umbrage with Facebook’s hosting of political ads that accused Biden of “blackmailing” the Ukrainian government, and he further stated that Mark Zuckerberg should be subject to civil liability for allowing such behavior.[18]

For a law that has garnered so much recent controversy, and one the public has taken for granted until relatively recently, it’s worth considering what the implications of removing Section 230 protections would be. Internet advocacy groups have vehemently criticized any Section 230 amendment proposals, and have generally painted a bleak picture of the ramifications of such changes.[19] These groups’ prognostications of the legal landscape without Section 230 protections generally predict social media sites will be facing a legal quagmire. Theoretically, sites would not only be exposed to liability for taking down certain third-party content, but also for not taking down other third-party material, which would effectively create a minefield of liability.[20] Internet Association, a trade association that represents preeminent tech companies such as Amazon, Facebook, and Google, has repeatedly attacked any threat to amend Section 230 as detrimental to the internet economy, and recently invoked the First Amendment as reason enough for social media companies to be able to “set and enforce rules for acceptable content on their services.”[21]

The latest serious threat to Section 230 has come from the FCC. On October 15, FCC Chairman Ajit Pai expressed his intention to move forward with a rulemaking request, stating that, while social media companies have a right to free speech, they do not have a “First Amendment right to special immunity denied to other outlets, such as newspapers and broadcasters.”[22] Several Democrats have challenged the FCC’s motives and overall authority to amend the Section.[23] The FCC, in response, asserts a fairly simple argument. The idea is that their authority rests in the language of the Communications Act of 1934, which in Section 201(b), gives the FCC explicit rulemaking power to carry out provisions of that Act.[24] In 1996, Congress added Section 230 to this Communications Act, therefore giving the FCC power to resolve any ambiguities in Section 230.[25] According to the FCC, two Supreme Court cases, AT&T v. Iowa Utilities Board[26] and City of Arlington v. FCC,[27] uphold their power to amend Section 230 pursuant to Section 201(b).[28]

The FCC’s push towards rulemaking came quickly after conservative-led criticisms of Section 230 reached a fever pitch following the circulation of a New York Post story containing potentially damaging pictures and information about Joe Biden’s son Hunter Biden.[29] Twitter and Facebook removed posts linking the story, on the basis that it contained hacked and private information.[30] The two sites have continuously denied suppressing conservative views[31] but, regardless, the Senate Judiciary Committee voted 12-0 to issue subpoenas to Jack Dorsey and Mark Zuckerberg, the sites’ respective CEOs, regarding their content moderation.[32] In anticipation of their hearings, Dorsey and Zuckerberg continued to passionately defend the Section, while Dorsey committed to making moderation changes at Twitter and Zuckerberg advocated for greater governmental regulation of tech companies in general.[33] Alphabet CEO Sundar Pichai, another tech leader subpoenaed, called Section 230 “foundational.”[34] The hearing took place on Wednesday and, according to early reports, was grueling.[35]

Lastly, on October 13, social media companies started to feel pressure from the Supreme Court. Justice Clarence Thomas voiced his concerns with the Section, stating that “extending §230 immunity beyond the natural reading of the text can have serious consequences,” and it would “behoove” the court to take up the issue in the future.[36] In the face of an impending election, uncertainties abound. However, one thing seems undeniable: Section 230 has never felt more heat that it does right now.

[1] 47 U.S.C § 230.

[2] See Section 230 of the Communications Decency Act, Elec. Frontier Found., https://www.eff.org/issues/cda230 (declaring Section 230 to be “The Most Important Law Protecting Internet Speech”).

[3] Cristiano Lima, Trump, Biden Both Want to Repeal Tech Legal Protections- For Opposite Reasons, Politico (May 29, 2020), https://www.politico.com/news/2020/05/29/trump-biden-tech-legal-protections-289306.

[4] Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020).

[5] See Robert Cannon, The Legislative History of Senator Exon’s Communications Decency Act, 49 Fed. Comm. L.J. 51, 57 (1996).

[6] See id. at 58.

[7] 141 Cong. Rec. H8,470 (daily ed. Aug. 4, 1995) (statement of Rep. Joe Barton), https://www.congress.gov/104/crec/1995/08/04/CREC-1995-08-04-pt1-PgH8460.pdf.

[8] 521 U.S. 844 (1997).

[9] 47 U.S.C. § 230(c)(1)–(2)(A).

[10] For instance, the protection is not available as a defense to sex trafficking offenses. 47 U.S.C. § 230(e)(5).

[11] See Content Moderation: Section 230 of the Communications Decency Act, Internet Assoc., https://internetassociation.org/positions/content-moderation/section-230-communications-decency-act/  (last visited Oct. 24, 2020) (providing explanation of “Good Samaritan” provision).

[12] Exec. Order 13,925, 85 Fed. Reg. at 34,079.

[13] Id.

[14] Id. at 34,081–82.

[15] The Justice Department Unveils Proposed Section 230 Legislation, Dep’t of Just., (Sept. 23, 2020), https://www.justice.gov/opa/pr/justice-department-unveils-proposed-section-230-legislation.

[16] Department of Justice’s Review of Section 230 of the Communications Decency Act of 1996, Dep’t of Just., https://www.justice.gov/ag/department-justice-s-review-section-230-communications-decency-act-1996 (last visited Oct. 23, 2020).

[17] The Times Editorial Board, Opinion: Joe Biden Says Age Is Just a Number, N.Y. Times (Jan. 17, 2020), https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html.

[18] Id.

[19] See New IA Survey Reveals Section 230 Enables Best Parts of the Internet, Internet Assoc. (June 26, 2019), https://internetassociation.org/news/new-ia-survey-reveals-section-230-enable-best-parts-of-the-internet/ (putting forth a survey to show that Americans rely on Section 230 protections to a significant degree in their day-to-day use of the internet). 

[20] See Derek E. Bambauer, Trump’s Section 230 Reform Is Repudiation in Disguise, Brookings: TechStream (Oct. 8, 2020), https://www.brookings.edu/techstream/trumps-section-230-reform-is-repudiation-in-disguise/.

[21] See Statement on Today’s Executive Order Concerning Social Media and CDA 230, Internet Assoc. (May 28, 2020), https://internetassociation.org/news/statement-on-todays-executive-order-concerning-social-media-and-cda-230/; Statement in Response to FCC Chairman Pai’s Interest in Opening a Section 230 Rulemaking, Internet Assoc. (Oct. 15, 2020), https://internetassociation.org/news/statement-in-response-to-fcc-chairman-pais-interest-in-opening-a-section-230-rulemaking/.

[22] Ajit Pai (@AjitPaiFCC), Twitter (Oct. 15, 2020, 2:30 PM), https://twitter.com/AjitPaiFCC/status/1316808733805236226.

[23] See Ron Wyden (@RonWyden), Twitter (Oct. 15, 2020, 3:40 PM), https://twitter.com/RonWyden/status/1316826228754538496; Pallone & Doyle on FCC Initiating Section 230 Rulemaking, House Comm. on Energy & Com. (Oct. 19, 2020), https://energycommerce.house.gov/newsroom/press-releases/pallone-doyle-on-fcc-initiating-section-230-rulemaking.

[24] 47 U.S.C. § 201(b); Thomas M. Johnson Jr., The FCC’s Authority to Interpret Section 230 of the Communications Decency Act, FCC (Oct. 21, 2020), https://www.fcc.gov/news-events/blog/2020/10/21/fccs-authority-interpret-section-230-communications-act.

[25] Johnson Jr., supra note 24.

[26] 525 U.S. 366 (1999).

[27] 569 U.S. 290 (2013).

[28] Johnson Jr., supra note 24.

[29] See Katie Glueck et al., Allegations on Biden Prompts Pushback From Social Media Companies, N.Y. Times (Oct. 14, 2020),  https://www.nytimes.com/2020/10/14/us/politics/hunter-biden-ukraine-facebook-twitter.html.

[30] See id.

[31] See id.

[32] Siobhan Hughes & Sarah E. Needleman, Senate Judiciary Committee Authorizes Subpoenas for Twitter and Facebook CEOs, Wall St. J. (Oct. 22, 2020), https://www.wsj.com/articles/senate-judiciary-committee-authorizes-subpoenas-for-twitter-and-facebook-ceos-11603374015.

[33] See Michelle Gao, Facebook, Google, Twitter CEOs to Tell Senators Changing Liability Law Will Destroy How We Communicate Online, CNBC (Oct. 28, 2020), https://www.cnbc.com/amp/2020/10/27/twitter-google-facebook-ceos-prepared-statements-defend-section-230.html.  

[34] Id.

[35] David McCabe & Cecilia Kang, Republicans Blast Social Media CEOs While Democrats Deride Hearing, N.Y. Times (Oct. 28, 2020), https://www.nytimes.com/2020/10/28/technology/senate-tech-hearing-section-230.html (stating that the hearing lasted for four hours and the CEOs were asked over 120 questions).

[36] Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 592 U.S. ____ (2020) (Thomas, J., in denial of certiorari), https://www.supremecourt.gov/orders/courtorders/101320zor_8m58.pdf.

By Michael Johnston

           The COVID-19 pandemic has fundamentally reshaped American life.[1] As a result of the potentially high mortality rate of unchecked COVID-19 spread, many state and local governments have implemented orders shutting down various public activities, and 95 percent of Americans are under some form of lockdown as of April 7, 2020.[2] However, perhaps reflecting the partisan divide of our times, some Republican politicians have actively opposed taking those precautionary measures.[3] In North Carolina in particular, Republican Lieutenant Governor Dan Forest, who is challenging Democratic Governor Roy Cooper in the November 2020 elections, opposed Governor Cooper’s executive order banning dine-in service in restaurants in March 2020.[4] Lieutenant Governor Forest opposed the order on both procedural and substantive grounds, claiming that Governor Cooper’s action was taken without legal authority and would devastate the North Carolina economy.[5] Lieutenant Governor Forest claimed that Governor Cooper only had the authority to issue the restaurant order with the support of the Council of State, which opposed Governor’s Cooper restaurant order on partisan lines.[6] While Governor Cooper has since issued a stay-at-home order across North Carolina,[7] it is worth analyzing the legal basis of the order banning dine-in service at restaurants, especially because the legality of that order became a politicized issue.[8]

            On March 17, 2020, Governor Cooper issued Executive Order No. 118, which banned dine-in service in restaurants and permitted only take-out and delivery.[9] This action was taken to slow the spread of COVID-19,“flatten the curve” of infection, and reduce strain on the healthcare system.[10] The Governor cited several statutory provisions in support of his authority to issue the order.[11] Specifically, the Governor cited statutes authorizing executive action for the Governor’s Office, the State Health Director, the Emergency Management Division, and the North Carolina Secretary of Health and Human Services.[12]

            Regarding the Governor’s authority, Governor Cooper’s order[13] cited section 166A-19.10 of the North Carolina General Statutes, which provides the general authority of the Governor of North Carolina,[14] section 166A-19.30 of the North Carolina General Statutes, which provides the emergency authority of the Governor of North Carolina,[15] and section 166A-19.31 of the North Carolina General Statutes, which provides further emergency authority for the Governor if a state of emergency is declared pursuant to section 166A-19.30(c) of the North Carolina General Statutes.[16] Section 166A-19.10(b)(4) empowers the Governor to coordinate with the President of the United States during emergencies,[17] and Governor Cooper’s order cited President Trump’s March 16, 2020, guidelines to limit all social gatherings to ten people.[18] Section 166A-19.30(a)(1) empowers the Governor to declare a state of emergency and “utilize all available State resources as reasonably necessary to cope with an emergency.”[19] Section 166A-19.30(c) empowers the Governor to use municipal authority under section 166A-19.31 if the emergency is a statewide issue and local governments have not done enough to address the emergency.[20] Therefore, section 166A-19.31(b)(2) empowers the Governor, during times of statewide emergency, to order restrictions upon the operations of businesses statewide. Governor Cooper declared a state of emergency for COVID-19 on March 10, 2020,[21] and given the statewide threat posed by COVID-19,[22] it is likely that these statutes provide sufficient authority for Governor Cooper to order the closure of dine-in restaurant services.

            Regarding the State Health Director’s authority, Governor Cooper’s order[23] cited section 130A-145 of the North Carolina General Statutes, which provides the State Health Director with broad quarantine and isolation authority,[24] and section 130A-2 of the North Carolina General Statutes, which defines quarantine authority and isolation authority.[25] Section 130A-2(7a) defines quarantine authority as the authority to limit the freedom of movement of persons who have been exposed or are reasonably likely to have been exposed to a communicable disease, while section 130A-2(3a) defines isolation authority as the authority to limit the freedom of movement of persons who are infected or are reasonably likely to be infected with a communicable disease.[26] Section 130A-145(a) empowers the State Health Director to use both quarantine and isolation authority, which the Director used in Governor Cooper’s order to ban dine-in restaurant services.[27] Again, given the rapid spread of COVID-19 around the world[28] and that health officials had identified at least one case of COVID-19 within North Carolina at the time,[29] it was reasonably likely that large gatherings in dine-in restaurants would contribute to the spread of COVID-19. Therefore, the State Health Director used their statutory authority to ban dine-in services.

            Regarding the Emergency Management Division’s authority, Governor Cooper’s order[30] cited section 166A-19.12 of the North Carolina General Statutes.[31] This statute provides the Division with the authority to coordinate with the State Health Director to determine “[t]he appropriate conditions for quarantine and isolation in order to prevent further transmission of disease.”[32] After coordinating with the State Health Director, the Emergency Management Division concluded, per Governor Cooper’s order, that dine-in restaurant service should be banned due to COVID-19.[33]

            Regarding the authority of the North Carolina Secretary of Health and Human Services, Governor Cooper’s order[34] cited section 130A-20 of the North Carolina General Statutes, which provides the Secretary and local health directors with the authority to order the abatement of imminent hazards.[35] Section 130A-2(3) defines imminent hazard to include “a situation that is likely to cause an immediate threat to human life, an immediate threat of serious physical injury, [or] an immediate threat of serious adverse health effects[.]”[36] Section 130A-20(a) empowers the Secretary and local health directors to take action to abate an imminent hazard on private property.[37] Given the rapid threat posed by COVID-19,[38] it is likely within the Secretary’s authority to order the closure of dine-in restaurant services.

            Collectively, the authority of the Governor, State Health Director, Emergency Management Division, and North Carolina Secretary of Health and Human Services justify Governor Cooper’s order closing dine-in restaurant services. It is true that section 166A-19.30(b) of the North Carolina General Statutes, which includes provisions about the regulation of food services and congregations in public places during emergencies, implies that the Governor must have the support of the Council of State to issue emergency regulations regarding restaurants and other public activities.[39] That is likely why Lieutenant Governor Forest argued that Governor Cooper lacked the authority to issue the executive order.[40] However, the other statutes provide more than sufficient authority for Governor Cooper’s order, especially when the order was issued at the recommendation of the State Health Director, the Emergency Management Division, and the North Carolina Secretary of Health and Human Services.   

           In short, during health emergencies, the Governor of North Carolina has broad unilateral authority, especially with the support of other emergency and health officials, and Governor Cooper’s executive order banning dine-in restaurant service was within his statutory authority.

[1] State Action on Coronavirus (COVID-19), Nat’l Conf. St. Legis., https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx (last visited Apr. 13, 2020).

[2] Holly Secon & Aylin Woodward, About 95% of Americans Have Been Ordered to Stay at Home. This Map Shows Which Cities and States Are Under Lockdown., Bus. Insider (Apr. 7, 2020, 3:13 PM), https://www.businessinsider.com/us-map-stay-at-home-orders-lockdowns-2020-3; State Action on Coronavirus (COVID-19), supra note 1.

[3] Ronald Brownstein, Red and Blue America Aren’t Experiencing the Same Pandemic, Atlantic (Mar. 20, 2020), https://www.theatlantic.com/politics/archive/2020/03/how-republicans-and-democrats-think-about-coronavirus/608395/.

[4] Editorial Bd., A COVID-19 Order Just for NC Lt. Gov. Dan Forest: Hush, Charlotte Observer (Mar. 18, 2020, 3:21 PM), https://www.charlotteobserver.com/opinion/editorials/article241298386.html; Lt. Governor Forest Questions Validity of Restaurant Ban, N.C. Lieutenant Governor Dan Forest (Mar. 17, 2020), https://ltgov.nc.gov/news/2020/03/17%20/lt-governor-forest-questions-validity-restaurant-ban.

[5] Editorial Bd., supra note 4.

[6] Travis Fain, Lt. Governor Questions Validity of Governor’s NC Restaurant Ban, WRAL.com (Mar. 17, 2020), https://www.wral.com/coronavirus/lt-governor-questions-validity-of-governor-s-nc-restaurant-ban/19016721/.

[7] Governor Cooper Announces Statewide Stay at Home Order Until April 29, N.C. Dep’t Health & Hum. Servs. (Mar. 27, 2020), https://www.ncdhhs.gov/news/press-releases/governor-cooper-announces-statewide-stay-home-order-until-april-29.

[8] For the purposes of statutory interpretation in this blog post, I will adopt a plain meaning framework. This is because plain meaning analysis is frequently thought to be the best starting point when interpreting statutory text, especially in the absence of caselaw or substantial legislative history. See, e.g., William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 626–29 (1990).

[9] N.C. Exec. Order No. 118 (Roy Cooper, Governor) (Mar. 17, 2020), https://files.nc.gov/governor/documents/files/EO118.pdf.

[10] Id.; Brandon Specktor, Coronavirus: What Is ‘Flattening the Curve,’ and Will It Work?, Live Science,

https://www.livescience.com/coronavirus-flatten-the-curve.html (last visited Apr. 13, 2020).

[11] N.C. Exec. Order No. 118.

[12] Id.

[13] Id.

[14] N.C. Gen. Stat. § 166A-19.10 (2019).

[15] Id. § 166A-19.30.

[16] Id. § 166A-19.30(c); id. § 166A-19.31.

[17] Id. § 166A-19.10(b)(4).

[18] N.C. Exec. Order No. 118.

[19] N.C. Gen. Stat. § 166A-19.30(a)(1).

[20] Id. § 166A-19.30(c); id. § 166A-19.31.

[21] Governor Cooper Declares State Of Emergency to Respond to Coronavirus COVID-19, N.C. Governor Roy Cooper (Mar. 10, 2020), https://governor.nc.gov/news/governor-cooper-declares-state-emergency-respond-coronavirus-covid-19.

[22] Julia Belluz, How Does the New Coronavirus Spread? These New Studies Offer Clues, Vox, https://www.vox.com/2020/2/20/21143785/coronavirus-covid-19-spread-transmission-how (last updated Mar. 8, 2020).

[23] N.C. Exec. Order No. 118.

[24] N.C. Gen. Stat. § 130A-145.

[25] Id. § 130A-2.

[26] Id. § 130A-2(3a); id. § 130A-2(7a).

[27] Id. § 130A-145(a); N.C. Exec. Order No. 118.

[28] Belluz, supra note 22.

[29] North Carolina Identifies First Case of COVID-19, N.C. Dep’t Health & Hum. Servs. (Mar. 3, 2020), https://www.ncdhhs.gov/news/press-releases/north-carolina-identifies-first-case-covid-19.

[30] N.C. Exec. Order No. 118.

[31] N.C. Gen. Stat. § 166A-19.12.

[32] Id. § 166A-19.12(3)(e).

[33] N.C. Exec. Order No. 118.

[34] Id.

[35] N.C. Gen. Stat. § 130A-20.

[36] Id. § 130A-2(3).

[37] Id. § 130A-20(a).

[38] Belluz, supra note 22.

[39] N.C. Gen. Stat. § 166A-19.30(b).

[40] Editorial Bd., supra note 4.

By Sophia Blair

On January 4, 2017, the Fourth Circuit published a criminal case, United States v. Schmidt. Richard Schmidt (“Schmidt”) originally pled guilty to traveling in foreign commerce and engaging in illicit sexual conduct in violation of 18 U.S.C. § 2423(c). However, claiming ineffective counsel, Schmidt argued that he did not, as a matter of law, travel in interstate commerce and was actually innocent of the § 2423(c) claim. The district court agreed, but the Fourth Circuit reversed.

Did Schmidt continue to travel in foreign commerce for the purposes of § 2423(c)?

Schmidt had a history of convictions for sex offenses involving young boys. In 2002, Schmidt fled the United States to the Philippines to avoid arrest for making unauthorized contact with a minor during his parole. While in the Philippines, Schmidt worked as a school teacher but was arrested again for molesting young boys. In 2003, Schmidt left the Philippines for Cambodia where he was again arrested for sex offenses. After raping a young boy following his release, Schmidt was deported to the United States and faced several charges including the § 2423(c) violation.

Schmidt petitioned the court to vacate his conviction because he claimed that his travel in foreign commerce ended during his time in the Philippines. Furthermore, he argued that his flight to Cambodia did not constitute independent travel in foreign commerce under § 2423(c). The issue before the Fourth Circuit was, at what time did Schmidt’s travel in foreign commerce end? The Fourth Circuit held that, for the purposes of § 2423(c), Schmidt continued to travel in foreign commerce when he left the Philippines for Cambodia. Therefore, he violated § 2423(c).

Interpreting § 2423(c) “Travel in Foreign Commerce”

§ 2423(c) was enacted as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT”) of 2003, and was intended to criminalize illicit sexual conduct in foreign places. In order to answer the question before it, the Fourth Circuit had to interpret what “travel” and “foreign commerce” meant for the purposes of § 2423(c). Looking to the Merriam-Webster’s Collegiate Dictionary definition, the court refused to construe “travel” narrowly to mean “en route from one place to another” and instead adopted the broader concept of “movement abroad.” Therefore, a person is still traveling even if they spend a significant amount of time in one place, as long as “the visit is sufficiently transient and contemplates some future departure.” United States v. Jackson, 480 F.3d 1014, 1022 (9th Cir. 2007). Therefore, travel continues until a person returns to their place of origin or permanently resettles elsewhere.

The Fourth Circuit construed “foreign commerce” parallel to the Foreign Commerce Clause to mean “commerce with a foreign country.” Foreign commerce requires a nexus with the United States. As a result, the Fourth Circuit held that “travel in foreign commerce” encompasses movement abroad that maintains some nexus with the United States, though there is no clear standard for what satisfies the nexus requirement.

Schmidt argued that his travel in foreign commerce ended during his stay in the Philippines because he was there for 18 months, obtained a work permit and had a full-time job as a teacher. Additionally, he rented a home and had a local driver’s license. The Fourth Circuit disagreed because his status remained transient, despite Schmidt’s insistence that he never intended to return to the United States. He was using two-month tourist visas, had an “alien employment permit,” maintained assets in the United States, and never purchased any property abroad. He travelled with a U.S. passport and did not make an effort to obtain permanent status in the Philippines or Cambodia. Therefore, Schmidt was traveling in foreign commerce at the time he committed the sexual offenses in Cambodia.


The Fourth Circuit reversed the district court’s judgment and remanded for reinstatement of the judgment of conviction on the § 2423(c) offense.

By Sophia Blair

On January 5, 2017, the Fourth Circuit published an amended opinion for the civil case, Lynch v. Jackson, originally decided on January 4, 2017.

Bankruptcy Court Decision and Appeal to the Fourth Circuit

Gabriel and Monte Jackson (“Jackson”) filed a petition for Chapter 7 bankruptcy relief. Marjorie Lynch (“Lynch”), a Bankruptcy Administrator, moved to dismiss their case as an abuse. Lynch alleged that the Jacksons over reported their expenses when filing for relief because they used the National and Local Standard amounts in their application form instead of their actual expenses, which were lower.

In filing for Chapter 7 bankruptcy, the Jacksons had to fill out a means test because they earned over the median income for a family of their size. The test is used to determine the amount of a debtor’s disposable income, which may reveal abuse if that income is above a certain level and prevent them from proceeding under Chapter 7. The Jacksons followed the instructions of form 22A-2, which says, “Deduct the expense amounts set out in lines 6-15 regardless of your actual expense. In later parts of the form, you will use some of you actual expenses if they are higher than the standards.” The Jacksons used the standard mortgage and car payment expenses, even though both were higher than their actual expenses.

Lynch argued that the official forms were incorrect and that a Chapter 7 debtor was “Limited to deducting their actual expenses or the applicable National or Local Standard, whichever [was] less.” The Jacksons countered, stating the statute was unambiguous. The Bankruptcy Court denied Lynch’s motion to dismiss on the basis that the Jackson’s interpretation comported with the plain meaning of the statute, and both parties filed a request for permission to directly appeal to the Fourth Circuit.

The Fourth Circuit held that they had jurisdiction over the appeal, and granted the appeal with respect to the question: does 11 U.S.C. § 707(b)(2) permit a debtor to take the full National and Local Standard amounts for expenses even though the debtor incurs actual expenses that are less than the standard amounts?

Was there an abuse of Bankruptcy Relief?

The Fourth Circuit held that under the plain meaning of the statute, a debtor is entitled to deduct the full National and Local Standard amounts even though their actual expenses are below the standard amounts.

In order to determine whether the Jacksons abused bankruptcy relief, the Fourth Circuit looked to the plain meaning of § 707(b)(2)(A)(ii)(I) of the statute. This section states: “the debtor’s monthly expenses shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor’s actual monthly expenses for the categories specified as Other Necessary Expenses issued by the Internal Revenue Service for the area in which the debtor resides . . . .”

Where the statute’s language is plain, the Fourth Circuit ends its inquiry after enforcing the statute according to its terms in the context of the overall statutory scheme. See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000); Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989). The court found that the language of  § 707(b)(2)(A)(ii)(I) was clear on its face because it specified that “[t]he debtor’s monthly expenses shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards.” The court relied on the theory of statutory construction that where Congress uses different words in the same statute, they should have different meanings. Here the court distinguished between “applicable monthly expenses” in the first clause of the statute, and “actual monthly expenses” in the second clause. Therefore, the court understood that the”applicable monthly expenses” were the full National and Local Standard amounts.

Additionally, the Fourth Circuit opined that to construe “applicable” and “actual” to have the same meaning would have the absurd result of punishing frugal debtors. A frugal debtor would be punished to for spending less. Relying on Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982), the court sought to read the statute in such a way as to avoid absurd results.


The Fourth Circuit affirmed the bankruptcy court’s judgment to deny Lynch’s motion to dismiss, because the Jacksons had not abused bankruptcy relief by providing the National and Local Standard amounts, instead of their actual expenses in form 22A-2.


By: Mikhail Petrov

On March 23, 2016, in the published civil case of Belmora LLC v. Bayer Consumer Care AG, the Fourth Circuit considered whether the Lanham Act permits the owner of a foreign trademark to pursue false association, false advertising, and trademark cancellation claims against the owner of the same mark in the United States. Bayer Consumer Care AG (“BCC”) owns the trademark “FLANAX” in Mexico and has sold naproxen sodium pain relievers under that mark in Mexico since the 1970s. Belmora LLC owns the FLANAX trademark in the United States and has used it in the United State since 2004 in the sale of its naproxen sodium pain relievers. BCC and its U.S. sister company Bayer HealthCare LLC (which is licensed to sell naproxen sodium pain relievers in the United States under the brand name ALEVE) contend that Belmora used the FLANAX mark to deliberately deceive Mexican-American consumers into thinking they were purchasing BCC’s product.


BCC registered the trademark FLANAX in Mexico for pharmaceutical products, analgesics, and anti-inflammatories. It has sold naproxen sodium tablets under the FLANAX brand in Mexico since 1976. BCC’s FLANAX brand is well known in Mexico and other Latin American countries, as well as to Mexican-Americans and other Hispanics in the United States. Belmora LLC began selling naproxen sodium tablets in the United States as FLANAX in 2004. The following year, Belmora registered the FLANAX mark in the United States. Belmora’s early FLANAX packaging closely mimicked BCC’s Mexican FLANAX packaging, displaying a similar color scheme, font size, and typeface. In addition to using similar packaging, Belmora made statements implying that its FLANAX brand was the same FLANAX product sold by BCC in Mexico. BCC points to evidence that the similarities resulted in Belmora’s distributors, vendors, and marketers believing that its FLANAX was the same as or affiliated with BCC’s FLANAX.

Procedural History

BCC successfully petitioned the U.S. Trademark Trial and Appeal Board (“TTAB”) to cancel Belmora’s registration for the FLANAX mark based on deceptive use. Belmora appealed the TTAB’s decision to the district court. In the meantime, BCC filed a separate complaint for false association against Belmora under § 43 of the Lanham Act, and in conjunction with BHC, a claim for false advertising. After the two cases were consolidated, the district court reversed the TTAB’s cancellation order and dismissed the false association and false advertising claims.

Although the district acknowledged that Belmora’s FLANAX has a similar trade dress to BCC’s FLANAX and is marketed in such a way that capitalizes on the goodwill of BCC’s FLANAX, it nonetheless concluded that the Lehman Act does not allow the owner of a foreign mark that is not registered in the United States, and has never been used in the United States, to assert priority rights over a mark that is registered in the United States by another party and used in United States Commerce. BCC appealed the decision.

Rule of the Case

The plain language of § 43(a) of the Lahman Act does not require, as an element of the cause of action, that a plaintiff possess or have used a trademark in U.S. commerce. Under § 43(a), it is the defendant’s use in commerce — whether of an offending “word, term, name, symbol, or device” or of a “false or misleading description [or representation] of fact” that creates the injury under the terms of the statute.

What § 43(a) requires is that BCC was “likely to be damaged” by Belmora’s “use in commerce” of its FLANAX mark and related advertisements. The Supreme Court recently considered the breadth of this “likely to be damaged” language in Lexmark International, Inc. v. Static Control Components, Inc., (a false advertising case arising from a dispute in the used printer-cartridge market). The Court concluded that § 43(a)’s broad authorization is framed by two background principles. First, a plaintiff’s claim must fall within the “zone of interests” protected by the statute, defined in §45 of the Lanham Act. Second, a statutory cause of action is limited to plaintiffs whose injuries are proximately caused by violations of the statute.

Reasoning of the Fourth Circuit

The Fourth Circuit first addressed the position, pressed by Belmora and adopted by the district court, that a plaintiff must have initially used its own mark in commerce within the United States as a condition precedent to a § 43(a) claim. The Fourth Circuit found that the district court erred in requiring BCC, as the plaintiff, to have pleaded its prior use of its own mark in U.S. commerce when it is the defendant’s use of a mark or misrepresentation that underlies the § 43(a) unfair competition cause of action.

Although the plaintiffs’ use of a mark in U.S. commerce was a fact in common in the foregoing cases, substantial precedent reflects that § 43(a) unfair competition claims come within the statute’s protectable zone of interests without the U.S. commerce precondition. The Supreme Court has pointed out that § 43(a) goes beyond trademark protection, is cases of generic mark and reverse passing off. See Dastar Corp. v. Twentieth Century Fox Film Corp 539 U.S. 23, 29 (2003). These cases illustrate that § 43(a) actions do not require, implicitly or otherwise, that a plaintiff have first used its own mark in United States commerce. If such a use were a condition precedent to bringing a § 43(a) action, the generic mark and reverse passing off cases could not exist. Additionally, the plain language of § 43(a) makes no reference to U.S. commerce. Therefore, neither the Supreme Court in Lexman nor the Lanham Act’s plain language contain an unstated requirement that plaintiff have used a U.S. trademark in U.S. commerce to bring a Lanham Act unfair competition claim.

The Fourth Circuit then examined Lexmark’s two fold inquiry to determine whether BCC can make a § 43(a) claim. The first inquiry is whether the alleged acts of unfair competition fall within the Lanham Act’s protected zone of interests? If so, the second inquiry is whether BCC pleaded proximate causation of a cognizable injury.

BCC adequately pleaded a § 43(a) false association claim for purposes of the zone of interests prong. Lexmark advises that most of the Lanham Act’s enumerated purposes are relevant to false association cases. One such enumerated purpose is making actionable the deceptive and misleading use of marks. Here, BCC lost sales revenue because Belmora’s deceptive and misleading use of FLANAX conveyed to consumers a false association with BCC’s product. Further, by deceiving distributors and vendors, Belmora makes its FLANAX more available to consumers, which exacerbated BCC’s losses.

The Fourth Circuit then turned to Lexmark’s second prong, and concluded that BCC may plausibly have been damaged economically and in its reputation by Belmora’s alleged deceptive use of the FLANAX mark. Therefore, there was enough to conclude that BCC’s injuries were proximately caused by Belmora’s violations of the false association statute.


The Fourth Circuit conclude that BCC is entitled to bring its unfair competition claims under Lanham Act § 43(a) and its cancellation claim under § 14(3). The district court’s judgment was vacated and the case remanded for further proceedings consistent with this opinion.

By Taylor Ey

On March 8, 2016, the Fourth Circuit issued its published opinion in the criminal case of United States v. Burleson, reversing the district court’s decision.  At the trial court, in 2013, Defendant Arnold Burleson pled guilty to the crime of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g).  Because Defendant Burleson had at least three prior felony offenses on his record, and the district court classified those offenses as predicate offenses that triggered automatic mandatory minimum sentencing for the felon-in-possession charge, Defendant Burleson was sentenced to fifteen years in prison after he pled guilty.

Defendant Burleson filed a pro se motion under 28 U.S.C. § 2255 with the trial court, asserting that he pled guilty to a crime he could not commit, and he should not have to complete his prison sentence.  Ultimately, the district court denied Defendant Burleson’s motion.  On appeal, the Fourth Circuit agreed with Defendant Burleson, vacating his conviction and prison sentence, and remanding to the district court with instructions to grant his 28 U.S.C. § 2255 motion.

A Question of Statutory Interpretation

Prior to being charged with this possession of a firearm offense, Defendant Burleson was convicted of North Carolina felony offenses, the last time in 1985.  He was discharged on parole in 1988, and his civil rights were fully restored by operation of state law in 1993.  Two years later, in 1995, North Carolina enacted a law that prohibited all people with felony convictions from possessing firearms, regardless of their conviction date.  See N.C. Gen. Stat. § 14-415.1(a) (1995).  For purposes of sentencing, 18 U.S.C. § 924(e) states that if a person charged has been convicted of at least three “crimes punishable by imprisonment for a term exceeding one year” then the person charged is subject to a mandatory minimum sentence.

Thus, this case required the Fourth Circuit to interpret 18 U.S.C. § 921(a)(20) to determine the time point for looking at a state’s statutes.  This statute defines “crime punishable by imprisonment for a term exceeding one year.”  It states, in pertinent part, that “[w]hat constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held.  Any conviction . . . for which a person . . . has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such . . . restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”  18 U.S.C. § 921(a)(20) (emphasis added).

Defendant Burleson urged the court to conclude that those statutes in effect at the time civil rights are restored should control.  In contrast, the government argued that those statutes in effect at the time of the subsequent § 922(g) arrest should control.  Based on the plain text of the statute, the Fourth Circuit decided that the answer is to look to the statutes in effect at the time civil rights are restored.

Fourth Circuit Precedent & the Statute’s Plain Meaning

The Fourth Circuit found decisions from other circuits persuasive, however, the Fourth Circuit also had its own published precedent upon which it could rely.  According to the Fourth Circuit, the district court improperly relied on unpublished decisions in reaching its decision, and thus gave too much weight to the 1995 North Carolina statute.  Even though North Carolina enacted a law in 1995, nothing at the time Defendant Burleson’s civil rights were restored indicated that he could not possess a firearm or otherwise, which is what is required by 18 U.S.C. § 921(a)(20).  The plain meaning of 18 U.S.C. § 921(a)(20) does not indicate that a state retroactive statute should be included in the evaluation.  Instead, the statute requires just the opposite.  It states “such restoration” which plainly refers back to the time of restoration and does not state “unless current state law expressly provides.”

Reverse, Vacate, and Remand

The Fourth Circuit decided that Defendant Burleson was actually innocent of the crime to which he pled guilty because it was not illegal for him to possess at firearm under 18 U.S.C. § 922(g) at the time he was charged.  Thus, the court reversed the judgment, vacated his conviction and sentence, and remanded to the district court.

By Katharine Yale

Today in Tiscareno-Garcia v. Holder, a published civil case, the Fourth Circuit denied in part, and dismissed in part Rafael Tiscareno-Garcia’s (“Plaintiff”) petition for review of an order of the Board of Immigration Appeals (“BIA”).

Background Leading up to Removal Proceedings and Procedural History

Plaintiff is a Mexican national who was apprehended three times in less than two years for his illegal presence in the United States. Shortly after his last arrest, Plaintiff illegally entered the US again and avoided apprehension for ten years while living in Raleigh, North Carolina.

In November 2010, Plaintiff was arrested during a workplace raid by the Immigration and Customs Enforcement (“ICE”) division of the Department of Homeland Security (“DHS”). Plaintiff was charged with illegal entry in violation of 8 U.S.C. § 1325(a). Illegal entry is a misdemeanor offense and the sentence for such an offense can be no more than six months. Plaintiff pled guilty. Before serving 181 days in prison, DHS served Plaintiff with a Notice to Appear (“NTA”) stating that he was subject to removal. Once Plaintiff was released from prison, DHS began the removal proceedings.

First, the proceedings went before an Immigration Judge (“IJ”). Plaintiff conceded that he was subject to removal, but argued that removal would cause a hardship to his citizen children and that for the ten years he had been living in the US, he was a law-abiding citizen. The government countered that because Plaintiff was incarcerated for 181 days, he was statutorily barred from establishing “good moral character” under § 1101(f)(7).

The IJ agreed with the government’s contention and BIA affirmed, thereby ruling that Plaintiff was ineligible for cancellation of removal. Plaintiff appealed from BIA’s decision.

Should a Conviction for Illegal Entry Preclude a Finding that an Alien is of Good Moral Character?

Plaintiff’s argument below and on appeal was that illegal entry should not be used to defeat a showing of “good moral character” under § 1101(f)(7). He argued that the court is not bound by the plain language of the statute because including illegal entry under § 1101(f)(7) produces an absurd result.

First, the court reiterated that it must first determine legislative intent, according to Chevron. If the intent of Congress is clear, then the court and the agency must uphold the clear and unambiguous intent of Congress. Plaintiff conceded that the statute was clear and unambiguous, but argued that it would not make sense for Congress to bar aliens from applying for cancellation based on an illegal entry conviction, when it was the illegal entry that rendered the alien removable in the first place. His argument was that almost all nonpermanent residents who apply for cancellation of removal could be charged and convicted of illegal entry, and that therefore the relief under § 1229b(b) would be illusory.

The Fourth Circuit recognized that there are “exceptionally rare” cases when the reading of the plain language of the statute would produce an absurd result at odds with congressional intent and that would “shock the general moral or common sense.” However, the court also recognized that it is “more than a little hesitant” to go against what Congress expressed in a clearly written statute.

Nonpermanent Residents who are Convicted for Illegal Entry and Serve the Maximum Sentence of 180 Days are Barred from Showing “Good Moral Character” Under § 1101(f)

Here, the court found that Plaintiff fell short of demonstrating a truly absurd result. The court concluded that the statutory scheme in § 1229b(b) and § 1101(f) was reasonable in providing the benefit of cancellation of removal to some nonpermanent residents and not to others.   The statute does not provide relief to those nonpermanent residents who conduct themselves in a way that is “antithetical to ‘good moral character,’” or those who spend more than 180 days in jail. Plaintiff fell into the latter category.

The court went on to conclude that it was sensible for Congress to use the length of incarceration “as a proxy for seriousness.” Further, not all nonpermanent residents enter the US illegally as Plaintiff contended. Some nonpermanent residents may be lawfully admitted, but later violate the terms of their visas. Others may be convicted of illegal entry, but do not serve the maximum sentence of 180 days that would preclude them from cancellation of removal.

Under the standard articulated in Sigmon Coal, the court only had to find that there were plausible reasons for Congress to intend the result compelled by the statute. The court held that the reasons stated above were plausible reasons for Congress to exclude relief to those nonpermanent aliens who serve six months in jail for an illegal entry conviction.

If a Conviction for Illegal Entry Precludes a Finding that an Alien is of Good Moral Character, when does the Required Ten Year Showing End?

There are two showings that a plaintiff must make to show eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(1): that he or she has been physically present in the US for at least ten years; and that he or she has been a person of good moral character during the ten year period.   Here, the Plaintiff argued that the ten year period should end when the NTA is served. However, the BIA’s position is that the ten year period ends with the entry of a final administrative decision.

The Fourth Circuit found that it did not have jurisdiction to address this claim because Plaintiff did not raise this argument with the BIA.   The Fourth Circuit can only review final orders of removal and here, Plaintiff did not exhaust all administrative remedies with the agency. The court dismissed Plaintiff’s argument that he was not able to address the issue with BIA because his lawyer did not receive the NTA prior to the order of removal. Plaintiff could have raised the claim after his lawyer was instructed to show why Plaintiff was not ineligible for cancellation of removal, and therefore the government’s failure to provide a copy of the NTA to Plaintiff’s lawyer was not a barrier to exhausting all administrative remedies.

The Fourth Circuit denied in part and dismissed in part Plaintiff’s petition for review of BIA’s order.


By Elissa Hachmeister

On Monday, February 2, in the criminal case of United States v. Fatih Sonmez, a published opinion, the Fourth Circuit held that the District Court for the District of Maryland did not abuse its discretion when it rejected the defendant’s proposed jury instructions in favor of a charge tracking the actual statutory language.

Immigration Marriage Fraud Conviction and Proposed Jury Instructions

A jury convicted Sonmez of marriage fraud in violation of 8 U.S.C. § 1325(c), which applies when an individual “knowingly enters into a marriage for the purpose of evading any provision of the immigration laws.”

On appeal, Sonmez contended that the district court erred when it rejected his proposed jury instructions on the elements of the offense under Section 1325(c). Specifically, Sonmez’s proposed instructions required the government to prove that “the only reason the marriage was entered into was to obtain an immigration benefit” and that “the defendant and his US citizen spouse had no intent to establish a life together.” Instead, the trial court instructed the jury that the government must prove “that the marriage was entered into for the purpose of evading a provision of the United States immigration laws.”

Denial of Proposed Jury Instructions Reviewed for Abuse of Discretion

A district court’s denial of proposed jury instructions is reviewed for abuse of discretion; to establish abuse of discretion in this context, a defendant must show that the proposed instructions (1) were “correct,” (2) were “not substantially covered by the charge that the district court actually gave to the jury,” and (3) “involved some point so important that the failure to give the instruction[s] seriously impaired the defendant’s defense.” United States v. Bartko, 728 F.3d 327, 343 (4th Cir. 2013).

Proposed Jury Instructions Were Incorrect Statements of Law

Explaining that it must interpret statutory language as written, see Ignacio v. United States, 674 F.3d 252, 255 (4th Cir. 2012), the Fourth Circuit reasoned that the instructions sought by Sonmez were not supported by the plain language of Section 1325(c), but instead would have changed the elements of the crime.

The Fourth Circuit cited approvingly to the Sixth Circuit’s decision in United States v. Chowdhury, where a similar instruction to the one ultimately given by the trial court, requiring the government to prove that the defendant “entered into the marriage for the purpose of evading the United States immigration laws,” was held proper because it tracked the language of statute. 169 F.3d 402, 406-07 (6th Cir. 1999). Indeed, the majority of circuits that have considered the language of Section 1325(c) have set forth elements consistent with the district court’s instructions to the jury in this case. See United States v. Yang, 603 F.3d 1024, 1026 (8th Cir. 2010); United States v. Darif, 446 F.3d 701, 709-10 (7th Cir. 2006); United States v. Islam, 418 F.3d 1125, 1129-30 (10th Cir. 2005); United States v. Rojas, 718 F.3d 1317, 1320 (11th Cir. 2013).

The Fourth Circuit characterized the Ninth Circuit’s contrary decisions, see, e.g.United States v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002) (requiring as an element of the offense that the government prove that the defendant had no intent to establish a life with his spouse at the time of the marriage), as unpersuasive and imposing “a requirement completely apart from the statutory language.”

Court of Appeals for the Fourth Circuit Affirmed the District Court’s Judgment

The Fourth Circuit affirmed, holding that the district court did not abuse its discretion in declining to give the proposed jury instructions because they were not correct statements of the law.

By: Steven Franklin

Today, in United States v. Carr, the Fourth Circuit held that a defendant can receive the requisite number of Armed Career Criminal Act (“ACCA”) predicate convictions through a consolidated criminal judgment.

A jury found Antoine Charles Carr guilty of possession of a firearm and ammunition by a convicted felon, and possession of cocaine base.  Mr. Carr received a 210-month sentence due to a sentencing enhancement under the ACCA. On appeal, Mr. Carr argued that, because he had multiple convictions that fell under one sentence, he did not have the three predicate convictions necessary for the ACCA to apply.

Under 18 U.S.C. § 924(e)(1), a defendant is considered an armed career criminal if he has “three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” Similarly, under the U.S. Sentencing Guidelines Manual  § 4B1.1(a), a defendant will not be considered a career offender unless two of the convictions have sentences that are counted separately.

However, there is no such language under the ACCA. It simply requires three predicate “convictions.” Mr. Carr attempted to argue that “conviction” and “sentence” are materially indistinguishable, but the Court found this unpersuasive and affirmed the trial court’s decision.

By: Julia Di Vito


On June 17, 2010, the United States Supreme Court overturned more than five-hundred decisions issued by the National Labor Relations Board (“Board”) with one decision.  In so doing, the Court also overturned a decision by the United States Court of Appeals for the Seventh Circuit and affected decisions made by federal courts of appeals in four other circuits.  While this decision is significant in the arena of labor law, it is more significant for its impact on the Court’s future philosophy toward statutory interpretation.

In New Process Steel, L.P. v. NLRB, the Court held that the National Labor Relations Act (“NLRA”)—the enabling statute for the Board—did not allow a two-member group of the Board’s members to exercise the Board’s power to decide cases.[1]  The Board had previously delegated its authority to a three-member group of the five-member Board, and that three-member group continued to decide cases when its membership decreased to two because the third member’s appointment expired.[2]  In New Process Steel, the five-justice majority of the Court held that under the NLRA, the delegated group could only exercise the Board’s authority with three (not two) members and held that all of the orders issued by the two-member group were invalid.[3]

The majority’s decision demonstrates the current trend of formalistic statutory interpretation.  This method of interpretation involves examining the text of a statute to interpret its meaning and ignoring congressional intent, even if the effect of the formalistic interpretation seems contrary to that congressional intent.[4]  The Court in New Process Steel chose to avoid a functionalistic interpretation, in which one interprets a statute by considering both the text and the impact of the interpretation and chose instead an interpretation that best accomplishes the apparent congressional intent.  Justice Stevens wrote the opinion for the majority, despite his personal history of functionalistic interpretation.[5]

This Note considers the impact of New Process Steel on the future interpretative philosophy of the United States Supreme Court.  Part I examines the majority and dissenting opinions of the New Process Steel decision.  Part II explores the historical background of the Board and the NLRA and the circuit split regarding the Board’s delegation policy before the Court’s decision in New Process Steel.  Part III explains three types of statutory interpretation: formalism, functionalism, and Chevron deference.  Part IV analyzes the interpretive methods used by the majority and the dissent in New Process Steel and considers the absence of the Chevron doctrine.  Finally, Part V concludes by examining Justice Stevens’s break from his history as a functionalist and a consideration of the impact of New Process Steel on future Supreme Court statutory interpretation.

I.  New Process Steel, L.P. v. NLRB

In New Process Steel, the United States Supreme Court held that two members of the Board could not exercise the Board’s delegated authority.[6]  This decision invalidated almost six-hundred cases previously decided by two members of the Board over a twenty-seven month period and resolved a split among the federal circuits.[7]

The Board consists of five members appointed for five-year terms by the President and confirmed by the Senate.[8]  The Board members’ terms are staggered, and because the Senate must confirm the President’s appointees, the Board sometimes consists of fewer than five members.[9]

Under the Board’s delegation clause, “[t]he Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.”[10]  The Board’s enabling statute also provides as follows:

A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.[11]

In 2007, the Board had four active members and one vacancy.[12]  On December 20, 2007, these four members delegated to the general counsel the ongoing authority to conduct litigation that would normally require the Board’s case-by-case approval.[13]  They also delegated to three Board members—Wilma Liebman, Peter Schaumber, and Peter Kirsnaow—“all of the Board’s powers, in anticipation of the adjournment of the 1st Session of the 110th Congress.”[14]  Peter Kirsanow’s recess appointment expired on December 31, 2007.[15]

From January 1, 2008 until March 27, 2010, Liebman and Schaumber were the only two members of the Board.[16]  Relying on the language of the Board’s enabling legislation and an opinion by the U.S. Department of Justice’s Office of Legal Counsel, these two members concluded that they constituted a two-member quorum of the three-member delegee group.[17]  Under this delegation, they exercised the Board’s authority and decided almost six-hundred cases.[18]

During this period, the Board issued decisions against New Process Steel, L.P., which challenged the Board’s orders in the U.S. Court of Appeals for the Seventh Circuit.[19]  New Process Steel claimed that two members did not constitute a valid quorum of the Board and thus the decisions against it were not proper; the court of appeals did not agree.[20]  Other employers had similarly challenged the validity of the Board’s decisions during this time period in other circuits, and the circuit courts had come to different conclusions.[21]  The United States Supreme Court granted certiorari to resolve the conflicting decisions.[22]

The Supreme Court held that the delegation to members Liebman, Schaumber, and Kirsanow terminated when Kirsanow’s term ended, and thus the two-member delegee group could not exercise the Board’s authority to decide cases.[23]  The Court reached this decision by interpreting the delegation clause of the NLRA, which is the Board’s enabling statute.  The Court concluded that there were two ways to interpret this clause: either read it to require only that a delegee group contain three members at the time of delegation (and not necessarily during the time the delegee group exercises its power), or read it to require that “the delegee group maintain a membership of three in order for the delegation to remain valid.”[24]

The Court concluded that the proper interpretation was to require the delegee group to maintain three members and supported its conclusion with three reasons.[25]  First, the Court determined that this interpretation was the only way to give meaningful effect to section 3(b) of the NLRA,[26] which is titled “Delegation of powers to members and regional directors; review and stay of actions of regional directors; quorum; seal.”[27]  Under this section, the quorum requirement mandates the participation of three members “at all times” for the Board to act.[28]  Further, this section provides that “[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board,”[29] which the Court held should be read in conjunction with the quorum clause, meaning that vacancies would not impair the Board from acting so long as the three-member quorum requirement was satisfied.[30]  The Court found that, as a whole, section 3(b) meant that a three-member delegee group could still issue decisions with only two members participating “so long as the delegee group was properly constituted.”[31]

Second, the Court reasoned that “if Congress had intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language.”[32]  In 1947, Congress amended the NLRA to increase the membership of the Board from three to five.[33]  Congress also changed the NLRA’s original two-member Board-quorum provision to the current three-member quorum requirement.[34]  The Court found this change significant and noted that it would only contravene the three-member quorum requirement if it found evidence of congressional intent to do so.[35]

The Court’s third reason for choosing this interpretation was the lack of historical practice authorizing a two-member quorum.  Prior to the period at issue, the Board had not allowed two members to act as a quorum of the three-member delegee group.[36]  Previously, the Board’s practice was to reconstitute a delegee group when one group member’s term expired and to stop issuing decisions when the membership fell to two members.[37]  The Court reasoned that this past practice indicated that the two-member group did not possess the Board’s delegated authority.[38]

The Court also provided reasons why interpreting the delegation clause to allow delegation to a group of three members at the time of delegation only—without regard to the delegee group’s subsequent membership—was improper.  It examined the NLRA as a whole and concluded that allowing this type of delegation would undercut the significance of the quorum requirement by allowing two members to act as the Board ad infinitum.[39]  The majority wrote that this interpretation ignored the three-member requirement in the delegation clause, which allows the Board to delegate authority “to any group of three or more members,” because, in effect, the Board was delegating its authority to a group of two members.[40]

The Court also disagreed with the Board’s interpretation of the NLRA.  It recognized that while two members can act as a quorum of a properly delegated group and “participate to transact business in the name of the group,” this fact “does not establish that the group itself can exercise the Board’s authority when the group’s membership falls below three.”[41]  The Court noted that the quorum provisions and the vacancy clause are separate; it read “the quorum provisions merely to define the number of members who must participate in a decision,” and the vacancy clause to determine whether vacancies in excess of the number in the quorum provision have any effect on the entity’s authority to act.[42]  Thus, in the Court’s view, these provisions applied in different situations, and allowing two members to constitute a quorum of a delegee group did not mean that two members could exercise the powers of the Board.

Lastly, the Court dismissed the Board’s other arguments for allowing delegation under the circumstances.  It distinguished the NLRA’s membership group from appellate panels, for which the Court had previously allowed two out of three judges to decide cases in extreme circumstances.[43]  In so doing, it noted “the difference between a panel constituted to decide particular cases and the creation of a standing panel plenipotentiary, which will decide many cases arising long after the third member departs,” and it also noted the “longstanding practice” of allowing two appellate judges to hear cases.[44]  Finally, the Court reasoned that achieving a congressional objective of Board efficiency did not trump the change to the text of the NLRA that required a three-member quorum, and stated that “[i]f Congress wishes to allow the Board to decide cases with only two members, it can easily do so.”[45]

Justices Kennedy wrote the dissenting opinion, and was joined by Justices Ginsburg, Breyer, and Sotomayor.[46]  The dissenting Justices felt that “the statute’s plain terms permit a two-member quorum of a properly designated three-member group to issue orders” and that Congress intended to allow the sort of delegation that was at issue.[47]  The dissent relied on its interpretation of the vacancy clause and noted that the majority had “reject[ed] a straightforward reading that it acknowledge[d was] ‘textually permissible.’”[48]

The dissent disagreed with the Court’s interpretation of the NLRA, criticizing the majority for giving some provisions a greater weight than others.[49]  The dissent also noted that the delegation clause is distinct from the group-quorum provision,[50] but reasoned that allowing a two-member quorum of a delegee group did not render the delegation clause obsolete.[51]  Under the dissent’s interpretation, a quorum of the full Board—which is three or more members—may delegate its authority to a three-member group.  This three-member quorum is required by the Board-quorum provision, which applies “at all times” to the Board acting as a whole.[52]  A delegee group with two members present may act on behalf of the Board, as permitted by the group-quorum provision, which states that “two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.”[53]

The dissent explained that its interpretation also gave effect to the vacancy provision.  The vacancy clause applies to Board members exercising all the powers of the Board and, as the dissent explained, “This clause thus instructs that a vacancy in the Board shall not impair the right of members to exercise the Board’s powers, an authority that members of delegee groups possess.”[54]  Furthermore, “[t]he delegation clause establishes what is required for delegation in the first instance, while the vacancy clause and the group quorum provision allow the delegee group to proceed in the event that a member’s term expires or a member resigns.”[55]  Thus, the dissent’s interpretation allowed three or more members of the Board to delegate authority to a group of three members and allowed two members of that three-member group to constitute a quorum, no matter what happened to the third member.

The dissent also noted that the majority’s interpretation of section 3(b) would allow two members of a delegee group to act for the Board as long as “they [were] part of a delegee group that ha[d] fallen to two members due to any reason other than vacancy.”[56]  The dissent criticized the Court’s conclusion that Congress did not intend to allow two members to act for the Board for extended periods of time but did intend to allow two members to act for the Board temporarily.  To counter the Court’s conclusion that Congress could have expressly allowed for a two-member quorum of a delegee group, the dissent stated that the vacancy clause is an explicit rejection of a three-member requirement in a delegee group.[57]  The dissent pointed out that “Congress could have required a delegee group to maintain three members, but it did not do so.”[58]  The dissent admitted that Congress likely did not intend to allow two members to act for the Board for an extended period but noted that section 3(b) allows two-member quorums of delegee groups in extraordinary circumstances.[59]

The dissent also countered the majority’s third reason in favor of disallowing this delegation—the Board’s historical practice—as the dissent did not find this practice to be significant.  While the dissent noted that the Board did reconstitute three-member panels when one member was absent, it only read from this history that the Board respects the superiority of three-member groups to two-member quorums of those groups.[60]  The dissent also examined the 1947 Taft-Hartley Act, which amended the NLRA to increase the Board’s membership from three to five members.  This amendment also allowed the Board to exercise its powers through three-member groups, which the dissent noted had the purpose of “increasing by 100 percent its ability to dispose of cases expeditiously.”[61]  The dissent concluded that allowing two members of a three-member delegee group to exercise the Board’s powers would further this congressional objective.[62]

II.  Historical Background and the Circuit Split

A. The National Labor Relations Act

The Board was first created in 1935 by the NLRA—also known as the Wagner Act—which was billed as an act “[t]o diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce, to create a National Labor Relations Board, and for other purposes.”[63]  Under this legislation, the Board was “empowered . . . to prevent any person from engaging in any unfair labor practice . . . affecting commerce.”[64]  The Board could carry out this power by initiating and conducting hearings and by issuing orders.[65]

Under the original version of the NLRA, the Board was composed of three members, appointed for five-year staggered terms.[66]  The Act provided that “[a] vacancy in the Board [would] not impair the right of the remaining members to exercise all the powers of the Board, and [that] two members of the Board [would], at all times, constitute a quorum.”[67]  The Act did not include a delegation provision.

Congress amended the NLRA in 1947 with the Labor Management Relations Act, also known as the Taft-Hartley Act.  Congress passed this amendment “to provide additional facilities for the mediation of labor disputes affecting commerce, to equalize legal responsibilities of labor organizations and employers, and for other purposes.”[68]  This amendment changed the membership of the Board so that “the Board [would] consist of five instead of three members.”[69]  The amendment also gave the Board the power to delegate its authority, providing as follows:

The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.  A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.[70]

From the perspective of the amendment’s drafters, the expansion of the Board’s membership was intended to “permit it to operate in panels of three, thereby increasing by 100 percent its ability to dispose of cases expeditiously.”[71]  Thus, the increased size of the Board, combined with its new power of delegation, allowed the Board to more efficiently prevent unfair labor practices.  The delegation and quorum provisions of the Board’s enabling legislation have not been amended since the enactment of the Taft-Hartley Act.[72]

B. Historical Precedent

In the early 1980s, the Board was exercising its authority through a three-member panel.[73]  However, in 1981, before issuing a decision about the employment practices of Photo-Sonics, Inc., one member of the three-member panel resigned.[74]  The remaining two members of the Board issued a decision against Photo-Sonics.[75]  Photo-Sonics challenged the decision, asserting that the decision was—in the words of the circuit court—“unenforceable because it was not made by a properly constituted three-member panel.”[76]

The U.S. Court of Appeals for the Ninth Circuit, in Photo-Sonics, Inc. v. NLRB, concluded that the decision was valid and enforceable.  The court reasoned that the resigning member, John Penello, concurred in the decision before his resignation, so the decision was made by all three members of the panel.[77]  However, the court went on to state that “[e]ven if Penello did not participate, a decision by two members of the panel would still be binding.”[78]  The court interpreted the group-quorum provision to provide that two members constituted a quorum of a delegated three-member panel, so a decision by two members of the three-member panel would be valid, since a “quorum” of two panel members supported the decision.[79]  It also cited cases allowing a quorum of two judges to issue decisions when the third died or became ill.[80]

C. The Circuit Split

After the Board’s membership dropped to two members in 2008, employers receiving unfavorable decisions began challenging the Board’s validity in the federal circuit courts of appeals.  The courts of appeals for the First, Second, Fourth, Seventh, and Tenth Circuits all held that a two-member panel constituted a valid quorum of the Board; only the Court of Appeals for the District of Columbia Circuit did not.  However, these courts relied on different reasons to come to these conclusions.

On March 13, 2009, the United States Court of Appeals for the First Circuit became the first circuit court to uphold the validity of the Board’s two-member panel in Northeastern Land Services, Ltd. v. NLRB.[81]  The court reasoned that the Board’s interpretation of its own enabling statute should be entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[82] and deferred to the Board’s interpretation of section 3(b) of the NLRA.[83]  The court held that section 3(b) expressly authorizes the delegation of decisional authority to a three-member group and that the vacancy clause means that a vacancy may not impair the right of the two-member quorum of the three-member group to exercise all of the powers of the Board.[84]  The First Circuit also found support for this interpretation in a DOJ memorandum and in the Ninth Circuit’s decision in Photo-Sonics.[85]  Finally, the court analogized the Board’s quorum to permissible quorums of other administrative agencies, such as the Securities and Exchange Commission (“SEC”) and the National Mediation Board.[86]

On May 1, 2009, the Court of Appeals for the Seventh Circuit became the next court to issue a decision about the Board’s two-member quorum, and also found the Board’s authority to be valid—in the case that was ultimately appealed to the United States Supreme Court.[87]  The court did not apply Chevron deference to the Board’s interpretation of section 3(b), but instead interpreted the statute itself.  The court first looked to the plain meaning of the text and concluded that the Board had the power to delegate its authority to a group of three members and that the Board could continue to conduct business with a quorum of three members.[88]  Based on this proposition, it held that two members constituted a quorum when the Board had delegated its authority to a group of three members.[89]  In applying these legal principles to the facts of the case, the court found that the Board had met these conditions during the time period at issue.[90]

New Process Steel, the employer challenging the Board’s authority, argued that this interpretation would deprive the NLRA’s delegation clause of its meaning by allowing the Board to delegate its authority to two, not three, members.[91]  The court disagreed, reasoning that the delegation clause and the quorum provisions had to be read independently and that New Process Steel’s interpretation “sap[ped] the quorum provision of any meaning because it would prohibit a properly constituted panel of three members from proceeding with a quorum of two.”[92]  The court noted that Northeastern Land Services, Photo-Sonics, and the DOJ memorandum all supported this interpretation.[93]

The Seventh Circuit then looked at the legislative history of the NLRA.  The court concluded that the purpose of the Taft-Hartley Amendment—which increased the Board’s membership from three to five members—was to allow the Board to hear more cases, so it reasoned that a court should not interpret the statute in a way that would hinder the Board’s ability to hear more cases.[94]  It then distinguished the case at hand from a prohibition on two-judge quorums in the Article III context that had been imposed by the United States Supreme Court in Nguyen v. United States.[95]  The court reasoned that the statute at issue in Nguyen, which gave authority to Article III judges, had no delegation or quorum clauses, and noted that the statute’s legislative history indicated that Congress did not intend to allow delegations to panels of two.[96]  It noted that the Board’s enabling legislation, on the other hand, did include delegation and quorum provisions, and that the legislative history of the Board demonstrated no animus against a two-member quorum.[97]

Finally, the Seventh Circuit analogized the New Process Steel case to other administrative law opinions that had allowed public boards to act despite vacancies.  The court reasoned that in this context, the public board—rather than the individual members—has the authority to act; therefore, so long as the quorum requirements are met, the public board should be able to act.[98]  The court also distinguished the case at hand from one in which an agency, the Interstate Commerce Commission (“ICC”), had asked Congress to amend its enabling legislation to allow a depleted board of members (six of eleven) to act with merely a quorum of its remaining members.[99]  The court noted that this precedent did not apply to the Board since the Board already had statutory authority to let two members act for a three-member group, and that it did not need to ask Congress for permission to do so.[100]  Thus, based on all these reasons, the Seventh Circuit upheld the authority of the Board’s two-member quorum.[101]

On the same day that the Seventh Circuit addressed the issue—May 1, 2009—the U.S. Court of Appeals for the District of Columbia issued a decision that came to the opposite conclusion.[102]  In Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, the court disagreed with the Board’s interpretation of section 3(b) because it eschewed various portions of the statutory language.[103]  To the court, section 3(b) meant that a three-member Board could delegate its power to a three-member group and that this delegee group could act with two members “so long as the Board quorum requirement is, ‘at all times,’ satisfied.”[104]  The court reasoned that the word “except” in the group-quorum provision meant that the delegee group’s ability to act was “measured by a different numerical value,” and that “at all times” meant that there must be three members present before the Board could act.[105]  It went on to state, “Though the delegee group quorum provision is preceded by the prepositional phrase ‘except that,’ Congress’s use of differing object nouns within the two quorum provisions indicates clearly that each quorum provision is independent from the other.”[106]

The court found support for its interpretation in an analogy to agency law.  An agent’s delegated authority ceases “upon the resignation or termination of the delegating authority.”[107]  By extension of this principle, the power of a delegated group of Board members (the collective agent) ceases when vacancies or disqualifications on the Board reduce the Board’s membership below a quorum, terminating the delegating authority.  The court reasoned that section 3(b) confers no authority on the delegated group and that the only authority under which the group could act was that of the Board.[108]  Therefore, the court concluded that when the Board’s membership fell below three, it had no authority to act; thus, a delegee group could not act on its behalf.[109]

The D.C. Circuit distinguished the authorities on which the Seventh Circuit relied when coming to the opposite conclusion.  The court noted that the case allowing the National Mediation Board to act through only one member was very limited and did not apply to the Board, because the Board makes substantive adjudications.[110]  Further, the case allowing the SEC to create its own quorum rule was inapplicable to the Board, because Congress gave the SEC the power to create that rule.[111]  Finally, the First Circuit’s decision in Northeastern Land Services did not influence the court’s decision, because that court decided whether the delegee group was valid after one member left the Board, not whether the lack of a quorum on the Board as a whole invalidated the delegation.[112]  Thus, the D.C. Circuit found the failure to meet the overall Board-quorum requirement of three members to be dispositive and held the Board could not act with two members.[113]

The U.S. Court of Appeals for the Second Circuit tackled this issue on June 17, 2009, and held that the Board had the authority to act during the relevant time period.[114]  Like the First Circuit, this court applied the Chevron analysis and found that the text of section 3(b) was ambiguous regarding whether the properly constituted panel of three members retained jurisdiction when the Board lost its quorum of three members.[115]  The court found the circuit split over the meaning of this provision itself to be evidence of the ambiguity.[116]  Faced with an ambiguous statute, the Second Circuit turned to the statute’s legislative history, unlike the D.C. Circuit, which instead had looked to another area of law.

Like the Seventh Circuit, the Second Circuit noted that Congress increased the size of the Board with the Taft-Hartley Act for the purpose of increasing the Board’s efficiency.[117]  However, the court did not find that legislative history to be dispositive and went on to the second step of the Chevron analysis, which is to ask whether the Board’s interpretation was reasonable.[118]  The court concluded that the Board’s interpretation of section 3(b) was straightforward and promoted efficiency, and so was reasonable enough to be entitled to deference.[119]  Finally, the court critiqued the D.C. Circuit and noted that while that court’s interpretation is also reasonable, under Chevron, the administrative agency’s interpretation is entitled to deference as long as it is reasonable.[120]

On November 20, 2009, the U.S. Court of Appeals for the Fourth Circuit joined the First, Second, and Seventh Circuits in allowing the Board’s two-member delegee group to act.[121]  Like the Second Circuit, the Fourth Circuit applied the Chevron analysis, but it concluded that the text of section 3(b) was plain and unambiguous.[122]  Under the Fourth Circuit’s interpretation, the delegation provision means that the Board can delegate any or all of its power to a three-member group; the vacancy provision means that a vacancy shall not impair the authority of the remaining Board members to act; and the quorum provision means that three members constitute a quorum of the Board, except that two members constitute a quorum of any group designated under the delegation provision.[123]  The court concluded that the Board’s delegation to the three-member group was proper, and that two members made a quorum.

The court rejected the D.C. Circuit’s narrow construction of the statute’s language because “it [was] based on an overly narrow construction of the modifying phrase that directly follows the three-member quorum requirement.”[124]  The court disagreed with the D.C. Circuit’s interpretation of the statutory phrase “except that” and concluded that had Congress desired to write the statute as the D.C. Circuit had read it, then Congress “would have simply omitted the words” from section 3(b).[125]  Finally, the court noted that reading the statute to require the three-member group to cease to exist when one of the members leaves would mean that a two-member quorum could never exist.[126]  Therefore, the Fourth Circuit allowed the two-member group to act.[127]

On December 22, 2009, the U.S. Court of Appeals for the Tenth Circuit—the last circuit to rule on this issue—allowed the two-member group to act.[128]  Like the First, Second, and Fourth Circuits, this court used the Chevron analysis and concluded that the statutory language is not clear on its face.  The court looked at the prior decisions on the issue and concluded that “this very split ‘is evidence of [the statute’s] ambiguity.’”[129]

Proceeding to the second step of the Chevron analysis, the court held that the Board’s construction of section 3(b) was permissible.  It noted that the Board read the phrase, “except that,” as modifying the three-member quorum provision, which the court concluded was a permissible reading.[130]  Thus, the Tenth Circuit joined the First, Second, Fourth, and Seventh Circuits in holding that the Board’s two-member delegee group properly exercised the Board’s authority by continuing to decide cases.

III.  Methods of Statutory Interpretation

Scholars typically divide methods of statutory interpretation into two categories: formalism (also known as textualism) and functionalism (also known as realism).[131]  These types of statutory interpretation differ in their consideration or avoidance of congressional intent and in their adherence to or redrafting of statutory text.[132]  Even when applied to seemingly straightforward statutes, these approaches can yield completely opposite results.

Formalism has been defined as the interpretation of a statute using “deductive logic to derive the outcome of a case from premises accepted as authoritative.”[133]  Formalist judges believe they must adhere to the precise terms of statutory texts and do not look to “legislative intent” when the meaning of a statute is clearly expressed by the text.[134]  These judges do not think they should try to understand Congress’s intentions behind a statute and only support enforcing the clear terms of the statute.  The United States Supreme Court has applied this method of statutory interpretation in recent years, “emphasizing that legislation routinely has unintended consequences and that judges must give effect to the actual commands embedded in clearly worded statutes rather than to the apparent background intent of the legislators who voted for them.”[135]

On the other hand, realism, or functionalism,[136] is not just a blind application of the words of a statute, but enables judges to decide cases so that their outcomes will best promote public welfare and public policy.[137]  Functionalist judges view themselves as agents of Congress and strive to carry out congressional intentions.[138]  Like formalists, functionalist judges will adhere to the words of a statute if those words clearly convey Congress’s meaning.  However, if the statute does not clearly evince congressional intent—due to drafting errors, poor foresight, or limited resources—they will interpret a statute to achieve what they believe is the best result for society.[139]  Under this theory, “If a given statutory application sharply contradicts commonly held social values, then the Supreme Court presumes that this absurd result reflects imprecise drafting that Congress could and would have corrected had the issue come up during the enactment process.”[140]  In this situation, a functionalistic judge will interpret the statute in a way that avoids a socially harmful result—a result that he or she assumes could not be what Congress intended.

A common example used to illustrate the difference between these two approaches involves a local ordinance that states “no dogs in the park.”[141]  A formalist would interpret this ordinance literally and would prohibit a blind person’s guide dog from entering the park because the ordinance states that no dogs are allowed in the park.  However, this formalist would allow a pet tiger to enter the park (assuming there is no ordinance about jungle cats), because a tiger is not a dog.  On the other hand, a functionalist would look at the purpose behind the ordinance and would determine that the ordinance was intended to protect park goers from disruptive pets.[142]  Interpreting the ordinance with that purpose in mind, the functionalist would allow the guide dog to enter the park, but not the pet tiger, even though the guide dog is a dog and the tiger is not.  Therefore, even though the ordinance seems clear on its face, the formalist and the functionalist would interpret it differently.

The United States Supreme Court attempted to take the burden of statutory interpretation off the judiciary when the interpretation of a federal administrative agency’s statute is at issue.  In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Court set up a process under which courts can defer to an agency’s interpretation of its own statute.[143]  “If the intent of Congress is clear,” as evidenced through an unambiguous statute, then the court and the agency “must give effect to the unambiguously expressed intent of Congress.”[144]  However, if the statute is ambiguous and Congress’s intent is not clear, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”[145]  If the agency’s interpretation of the statute is reasonable and permissible, then the court should defer to the agency’s interpretation.[146]  Thus, even though a formalistic or functionalistic approach may factor into the reasonableness of an agency’s interpretation, the Chevron doctrine saves courts from deciding on a method of statutory interpretation when interpreting an administrative agency’s statute.

IV.  The Trend of Formalistic Statutory Interpretation

In New Process Steel, the majority and the dissent of the United States Supreme Court utilized several methods of statutory interpretation.  The majority’s method of interpretation also differed from the various circuit courts’ approaches.  The majority’s use of formalism—and the surprising absence of the Chevron doctrine in both the majority’s and the dissent’s opinions—signals a future of Supreme Court decisions using formalistic, rather than functionalistic, statutory interpretation.

A. Statutory Interpretation in New Process Steel

The majority opinion in New Process Steel is an example of formalistic statutory interpretation.  The majority looked to the text of the NLRA, specifically section 3(b), to determine the meaning of the delegation and quorum provisions.[147]  The Court concluded that its interpretation—prohibiting two members of the three-member delegee group from exercising the Board’s powers—was “the only way to harmonize and give meaningful effect to all of the provisions in § 3(b).”[148]  Thus, to determine the meaning of one provision of section 3(b), it looked at the language of section 3(b) as a whole, and came up with an interpretation based on the meaning of the statute derived from examining the text of the statute.

The majority also refused to infer congressional intent beyond what the text of the statute actually said.  The Court concluded that “if Congress had intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language.”[149]  The majority supported the conclusion that the text of section 3(b) does not allow two members to act for the Board within the plain-meaning definition of “quorum” looking to both legal and English dictionaries.[150]  Furthermore, the majority rejected the argument that Congress amended the NLRA to “keep the Board operating at all costs” and definitively held that the text of section 3(b) does not allow two members of a three-member delegee group to exercise the authority of the Board.[151]

The dissent took the opposite approach by displaying a functionalistic interpretation of section 3(b).  This opinion started by looking at the text of section 3(b) and concluding that “the statute’s plain terms permit a two-member quorum of a properly designated three-member group to issue orders.”[152]  However, the dissent also looked at Congress’s purpose behind enacting section 3(b).  First, the dissent inferred that “Congress did not intend to allow two members to [exercise the powers of the Board] for protracted periods of time” but noted that “unintended consequences are typically the result of unforeseen circumstances.”[153]  Thus, even though Congress did not intend for two members to act for the Board all the time, it had created a mechanism by which two members could exercise the Board’s powers if the need arose.  The dissent also inferred that Congress did not intend for the Board to stop operating entirely for an extended period, even when the Board had only two members.[154]

The dissent next looked at Congress’s intent in amending the NLRA with the Taft-Hartley Act in 1947.  The purpose of this amendment, according to Justice Kennedy, was “to increase the Board’s efficiency by permitting multiple three-member groups to exercise the full powers of the Board.”[155]  The dissent concluded that its interpretation of section 3(b), which would allow the two members of the delegee group to act, furthered that congressional objective.  The dissent, in true functionalist fashion, stated:

[T]he new statutory language in § 153(b) complements the congressional intent to preserve the ability of two members of the Board to exercise the Board’s full powers, in limited circumstances, by permitting the Board to delegate “any or all” of its powers “to any group of three or more members,” two members of which would constitute a quorum.[156]

Therefore, the dissent not only looked at the plain meaning of the text of section 3(b), but also considered the intent of Congress and used an interpretation that was consistent with that congressional intent.

B. Where Is the Chevron Doctrine?

Neither the majority nor the dissent in New Process Steel even mentioned the Chevron doctrine.  This omission is very curious considering that this is a case in which a court is evaluating the validity of an administrative agency’s interpretation of its own statute—the prototypical Chevron case.[157]  Furthermore, four of the six circuit courts to address the two-member quorum of the Board’s delegee group used Chevron deference when deciding the issue.[158]  Counsel for the Board even relied on some of these circuit court decisions in their brief and argued that if the Court found the language of section 3(b) ambiguous, it “should defer to the Board’s understanding of that provision.”[159]

The missing Chevron analysis could indicate Chevron’s inapplicability to agency decisions when an agency is interpreting the reach of its own jurisdiction.[160]  It could also mean that the parties did not focus heavily on that argument.  Neither the Seventh Circuit, which heard the New Process Steel case before it went to the Supreme Court, nor the D.C. Circuit, which was the only circuit court to hold the two-member quorum to be invalid, addressed the Chevron issue.

Either way, the majority and the dissent used this case to illustrate formalistic and functionalistic interpretations, respectively, and neither appeared to find Chevron deference to be necessary or appropriate.  The conspicuous absence of the Chevron doctrine suggests a deliberate choice to use this case to display the Justices’ interpretative philosophies, instead of deferring to the Board’s judgment.  This choice could impact the Court’s future decisions on statutory interpretation, as the Chevron doctrine may continue to be absent from similar cases.

C. The Legacy of Justice Stevens

Justice Stevens, the author for the majority in New Process Steel, had previously been viewed as a functionalist judge.[161]  Historically, Justice Stevens believed that federal courts must discern and apply Congress’s intended meaning, that statutes are often poorly drafted, and if applied literally, may produce outcomes that appear unreasonable in light of the statutes’ purposes.[162]  He “presume[d] that Congress [was] (understandably) error prone in linguistic expression but quite coherent in the substantive framing of policies that serve some overarching purpose.”[163]  As a result of this presumption, Justice Stevens has interpreted statutes to avoid what he viewed as unintended results and has attempted to stay true to the congressional purposes behind statutes.[164]

Justice Stevens seems to have parted with his functionalist past when writing the New Process Steel majority opinion.  There is no doubt that the NLRA was not the most clearly drafted statute, as illustrated by the various interpretations of the statute by six circuit courts and the United States Supreme Court.  Stevens’s jurisprudential history indicates that when faced with a less-than-clear statute, like the NLRA, he would determine whether Congress had misspoken and inadvertently drafted a statute that produced a result contrary to its intent.[165]  One could imagine that, like the dissent from New Process Steel, Justice Stevens could have concluded that Congress did not intend for section 3(b) of the NLRA to prevent the Board from acting for more than two years and would have interpreted the statute in a way that would prevent this type of prolonged shutdown of the Board.

However, Justice Stevens did not follow his own interpretative legacy.  First, instead of inferring that Congress meant that two members could act for the Board under the circumstances presented, he would require Congress to “sa[y] so in straightforward language.”[166]  Next, he ignored the implication that with the Taft-Hartley Act, Congress intended “to preserve the ability of two members of the Board to exercise the Board’s full powers, in limited circumstances,” and that this purpose should be considered when interpreting the text of the NLRA.[167]  Finally, Justice Stevens stated that the majority was “not insensitive to the Board’s understandable desire to keep its doors open despite vacancies,”[168] but then ignored a reading of the text that was “textually permissible in a narrow sense,” which in fact would have helped the Board keep its doors open.[169]  Thus, while Justice Stevens may have a history as a functionalist,[170] he seems to have wanted to leave a final legacy as a formalist.

D. Impact on Future Cases

Because Justice Stevens retired shortly after the New Process Steel decision,[171] his inconsistent interpretative philosophy cannot help predict how he will decide cases in the future.  However, the New Process Steel decision does solidify a trend of formalistic statutory interpretation.  This decision illustrates that the United States Supreme Court will tend to interpret statutes or other documents by looking almost exclusively at the text without considering the impact of the interpretation or the context of the statutory language.  Even if the Court does not cite to New Process Steel when reaching that kind of conclusion, the case’s presence will still be felt.

This shift on the Court is illustrated by Free Enterprise Fund v. Public Company Accounting Oversight Board, decided by the Court eleven days after New Process Steel.[172]  In Free Enterprise Fund, the Court held unconstitutional a provision of the Sarbanes-Oxley Act.[173]  The challenged portion of the statute provided that members of the Public Company Accounting Oversight Board could not be removed at will but instead only “for good cause shown” and “in accordance with certain procedures.”[174]  The Court found that these removal procedures contravened the Constitution’s separation-of-powers requirement and contradicted Article II’s vesting of the executive power in the President.[175]  The Court noted that even if this removal structure was more efficient or convenient than any alternative, “the ‘fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution,’ for ‘[c]onvenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.’”[176]  Thus, the Court ignored the practical benefits of upholding this statute and used a formalistic interpretation when determining the statute’s meaning.

As they did in New Process Steel, the dissenting justices engaged in a functionalistic interpretation.[177]  Justice Breyer, who also joined in the dissent in New Process Steel, wrote the dissenting opinion and stated that “if the Court were to look to the proper functional and contextual considerations, it would find the Accounting Board provision constitutional.”[178]  The dissent also noted that “[w]here a ‘for cause’ provision is so unlikely to restrict presidential power and so likely to further a legitimate institutional need, precedent strongly supports its constitutionality.”[179]  Therefore, the dissent found the statute to be constitutional not based on a reading of its text and the text of the Constitution, but by considering the impact of the statute and its necessity.  Although neither the majority nor the dissent referenced New Process Steel, both decisions were divided into a majority engaging in formalistic interpretation and a dissent engaging in functionalistic interpretation.

As New Process Steel and Free Enterprise Fund illustrate, the dominant interpretative philosophy of the Court will likely dictate how the Court will decide cases in the future.  Although Justice Stevens’s replacement, Justice Kagan, might follow the functionalist model,[180] and Justice Kennedy does not seem to know to which theory he subscribes,[181] formalistic interpretation appears to be the trend for the current Court.  The Court is likely to use formalistic interpretation in future cases requiring statutory interpretation, and these cases can be used to support the notion that statutes can be interpreted by looking only at their text and not considering their context, their impact, or congressional intent.

As a result, New Process Steel will affect more than the nearly six-hundred labor cases it overturned, because it solidified the formalistic approach of the Supreme Court.  It may also encourage independent statutory interpretation by the courts when Chevron deference would have been appropriate in the past.  Overall, New Process Steel may have started out as a case about the jurisdiction of the Board when it only had two members, but it ended up representing the prevailing interpretative philosophy of the current Court.


In New Process Steel v. NLRB, five Justices of the United States Supreme Court decided that the Board lacked the authority to decide cases with only two of its five members present.  The majority based this decision on its interpretation of the Board’s enabling statute, and did so without regard for the overall purpose of the Board, which is to resolve labor disputes.  The four dissenting Justices disagreed with the majority about the interpretation of the Board’s statute, but agreed with four circuit courts of appeals in arguing that the two Board members did have the authority to decide cases.

The present effects of the New Process Steel decision are significant: overturning almost six-hundred cases decided by the Board, reversing a circuit court of appeals decision, and affecting decisions from four other circuit courts of appeals.  However, the future impact of New Process Steel lies in its illustration of the Court’s views on methods of statutory interpretation.  The current majority of the Court prefers to engage in a formalistic approach to statutory interpretation, focusing on the text of the statute and ignoring the purpose of the statute or the impact of the interpretation.  Functionalistic justices are in the minority of the Court, indicating that the trend of formalistic interpretation will continue.  Therefore, this decision is more than just a labor law case; it instead signals a trend in Supreme Court jurisprudence and may be used by the formalistic majority to support statutory interpretations in the future.

[1]. New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2638 (2010).

[2]. Id. at 2638–39.

[3]. Id. at 2638, 2644.

[4]. See John F. Manning, Competing Presumptions About Statutory Coherence, 74 Fordham L. Rev. 2009, 2026 (2006) (discussing the Court’s approach of the past several decades with regard to statutory interpretation).

[5]. See id. at 2009–10.

[6]. New Process Steel, 130 S. Ct. at 2644.

[7]. See id. at 2638–39; see also infra Part II.C.

[8]. See 29 U.S.C. § 153(a) (2006).

[9]. See id. (“Of the two additional members so provided for, one shall be appointed for a term of five years and the other for a term of two years.  Their successors, and the successors of the other members, shall be appointed for terms of five years each . . . .”); see also National Labor Relations Act, Pub. L. No. 74-198, § 3(a), 49 Stat. 449, 451 (1935) (“One of the original members shall be appointed for a term of one year, one for a term of three years, and one for a term of five years, but their successors shall be appointed for terms of five years each . . . .”).

[10]. 29 U.S.C. § 153(b).

[11]. Id.

[12]. New Process Steel, 130 S. Ct. at 2638.

[13]. Id.

[14]. Id. (quoting Minutes of Board Action, Brief for Petitioner at 5a, New Process Steel, 130 S. Ct. 2635 (No. 08-1457)) (internal quotation marks omitted).

[15]. Id. at 2639.

[16]. Id.

[17]. Id. at 2638–39.

[18]. Id. at 2639.

[19]. Id.; New Process Steel, L.P. v. NLRB, 564 F.3d 840, 845 (7th Cir. 2009), rev’d, 130 S. Ct. 2635 (2010).

[20]. New Process Steel, 130 S. Ct. at 2639; New Process Steel, 564 F.3d at 845, 848.

[21]. See infra Part II.C.

[22]. New Process Steel, 130 S. Ct. at 2639.

[23]. Id. at 2640.

[24]. Id.

[25]. Id. at 2640–42.

[26]. Id. at 2640–41.

[27]. 29 U.S.C. § 153(b) (2006).

[28]. Id.

[29]. Id.

[30]. New Process Steel, 130 S. Ct. at 2640.

[31]. Id.

[32]. Id. at 2641.

[33]. Id. at 2638 (citing 29 U.S.C. § 153(a)).

[34]. See id. at 2641.

[35]. Id.

[36]. Id.

[37]. Id. at 2641 & n.3.

[38]. Id. at 2641–42 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 214 (1988)).

[39]. Id. at 2640–41.

[40]. 29 U.S.C. § 153(b) (2006); New Process Steel, 130 S. Ct. at 2640–41.

[41]. New Process Steel, 130 S. Ct. at 2642–43.

[42]. Id. at 2643.

[43]. Id. at 2643–44 (quoting Nguyen v. United States, 539 U.S. 69, 82 (2003) (allowing a two-judge “quorum to proceed to judgment when one member of the panel dies or is disqualified”)).

[44]. Id. at 2644.

[45]. Id. at 2644–45.

[46]. See id. at 2645 (Kennedy, J., dissenting).

[47]. Id.

[48]. Id. at 2646.

[49]. Id. at 2647.

[50]. The dissent divided the quorum provisions into two parts: (1) the Board-quorum provision, which states that “three members of the Board shall, at all times, constitute a quorum of the Board”; and (2) the group-quorum provision, which provides that “two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.”  Id. at 2646.

[51]. Id. at 2648.

[52]. Id. at 2647 (quoting 29 U.S.C. § 153(b) (2006)).

[53]. 29 U.S.C. § 153(b); New Process Steel, 130 S. Ct. at 2647.

[54]. New Process Steel, 130 S. Ct. at 2648.

[55]. Id.

[56]. Id. at 2649.

[57]. Id. at 2648.

[58]. Id.

[59]. Id. at 2649.

[60]. Id. at 2650–52.

[61]. Id. at 2651 (quoting S. Rep. No. 80-105, at 8 (1947)).

[62]. Id.

[63]. National Labor Relations Act, Pub. L. No. 74-198, pmbl., 49 Stat. 449, 449 (1935).

[64]. § 10(a), 49 Stat. at 453.

[65]. See id. §§ 9(c)–(d), 10(b)–(c), 49 Stat. at 453–54.

[66]. See id. § 3(a), 49 Stat. at 451.

[67]. § 3(b), 49 Stat. at 451.

[68]. Labor Management Relations Act, Pub. L. No. 80-101, pmbl., 61 Stat. 136 (1947).

[69]. § 3(a), 61 Stat. at 139.

[70]. § 3(b), 61 Stat. at 139.

[71]. S. Rep. No. 80-105, at 8 (1947).

[72]. See 29 U.S.C. § 153(b) (2006).

[73]. See Photo-Sonics, Inc. v. NLRB, 678 F.2d 121, 122 (9th Cir. 1982).

[74]. Id.

[75]. Id.

[76]. Id.

[77]. Id.

[78]. Id.

[79]. Id. at 122–23.

[80]. Id. (citing TRW, Inc. v. NLRB, 654 F.2d 307 (5th Cir. 1981); Minniefield v. Alabama, 542 F.2d 947 (5th Cir. 1976); Litton Sys., Inc. v. Sw. Bell Tel. Co., 539 F.2d 418 (5th Cir. 1976); Wirth Ltd. v. S/S Acadia Forest, 537 F.2d 1272 (5th Cir. 1976); and United States v. Allied Stevedoring Corp., 241 F.2d 925 (2d Cir. 1957)).

[81]. 560 F.3d 36, 40–41 (1st Cir. 2009), vacated by Ne. Land Servs., Ltd. v. NLRB, 130 S. Ct. 3498 (2010).  This decision was appealed to the United States Supreme Court, but the Court chose instead to hear New Process Steel.

[82]. 467 U.S. 837 (1984); see infra Part III.

[83]. Ne. Land Servs., 560 F.3d at 40–41.

[84]. Id. at 41.

[85]. Id. at 41–42.

[86]. Id. at 42.

[87]. New Process Steel, L.P. v. NLRB, 564 F.3d 840, 848 (7th Cir. 2009), rev’d, 130 S. Ct. 2635 (2010).

[88]. Id. at 845–46.

[89]. Id.

[90]. Id. at 848.

[91]. Id. at 846 n.2.

[92]. Id.

[93]. Id. at 846.

[94]. Id. at 846–47.

[95]. 539 U.S. 69 (2003); New Process Steel, 564 F.3d at 847–48.

[96]. New Process Steel, 564 F.3d at 847–48.

[97]. Id. at 848.

[98]. Id.; see also Falcon Trading Grp., Ltd. v. SEC, 102 F.3d 579, 582 (D.C. Cir. 1996) (upholding SEC quorum rules permitting the SEC to operate with only two of five members); R.R. Yardmasters of Am. v. Harris, 721 F.2d 1332, 1344 (D.C. Cir. 1983) (upholding actions of National Mediation Board taken through only one of its three members).

[99]. New Process Steel, 564 F.3d at 848 (citing Assure Competitive Transp., Inc. v. United States, 629 F.2d 467 (7th Cir. 1980)).

[100]. Id.

[101]. Id.

[102]. Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 470, 476 (D.C. Cir. 2009).

[103]. Id. at 472.

[104]. Id. at 472–73 (quoting 29 U.S.C. § 153(b) (2006)).

[105]. Id.

[106]. Id. at 473 (citation omitted) (quoting 29 U.S.C. § 153(b)).

[107]. Id.

[108]. Id.

[109]. Id.

[110]. Id. at 474.

[111]. Id. at 474–75.

[112]. Id. at 475–76.

[113]. Id. at 476.  While it found the Board’s interpretation to be improper, the court did “acknowledge that the case before [it] present[ed] a close question, and that neither [the DOJ’s] interpretation nor the Board’s desire to continue to function is entirely indefensible.”  Id.

[114]. Snell Island SNF LLC v. NLRB, 568 F.3d 410, 410, 424 (2d Cir. 2009).

[115]. Id. at 419–20.  Even though the statute’s language was ambiguous, the court noted that the Board’s interpretation was entitled to deference.  Id. at 423–24.  It also noted that in light of the text of the statute, the initial delegation was proper, and it did not matter that the Board knew when it delegated to those three members that the panel’s membership would soon decrease to two members.  Id. at 419.

[116]. Id. at 420.

[117]. Id. at 422–23.

[118]. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984).

[119]. Snell Island, 568 F.3d at 423–24.

[120]. Id. at 424.

[121]. Narricot Indus., L.P. v. NLRB, 587 F.3d 654, 660 (4th Cir. 2009), abrogated by New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010).

[122]. Id. at 660 n.3.

[123]. Id. at 659–60.

[124]. Id. at 659.

[125]. Id. at 660.

[126]. Id.

[127]. Id. at 667.

[128]. Teamsters Local Union No. 523 v. NLRB, 590 F.3d 849, 850 (10th Cir. 2009), vacated, 131 S. Ct. 109 (2010).

[129]. Id. at 852 (alteration in original) (quoting State Ins. Fund v. S. Star Foods, Inc. (In re S. Star Foods, Inc.), 144 F.3d 712, 715 (10th Cir. 1998)).

[130]. Id.

[131]. See, e.g., Brian Z. Tamanaha, Beyond the Formalist-Realist Divide 1 (2010).

[132]. Id. at 1–2.

[133]. Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev. 179, 181 (1987).

[134]. John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2390 (2003).

[135]. Id.

[136]. See generally id. (noting that some scholars call this type of interpretation the absurdity doctrine).

[137]. See Posner, supra note 133, at 181.

[138]. See Manning, supra note 134, at 2389.

[139]. Id. at 2389–90.

[140]. Id. (footnote omitted).

[141]. See id. at 2396 & n.26.

[142]. Id.

[143]. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

[144]. Id.

[145]. Id. at 843.

[146]. Id. at 844.

[147]. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2639–40 (2010).

[148]. Id. at 2640.

[149]. Id. at 2641.

[150]. Id. at 2642.

[151]. Id. at 2644.

[152]. Id. at 2645 (Kennedy, J., dissenting).

[153]. Id. at 2649.

[154]. Id.

[155]. Id. at 2651.

[156]. Id. (quoting 29 U.S.C. § 153(b) (2006)).

[157]. See William F. Funk, Sidney A. Shapiro & Russell L. Weaver, Administrative Procedure and Practice 145 (4th ed. 2010).

[158]. The circuits to apply Chevron were the First, Second, Fourth, and Tenth Circuits.  See supra Part II.C.

[159]. Brief for the NLRB at 32, New Process Steel, 130 S. Ct. 2635 (No. 08-1457).

[160]. See The Supreme Court, 2009 Term—Leading Cases, 124 Harv. L. Rev. 380, 380 (2010).

[161]. See Manning, supra note 4, at 2009–26.

[162]. Id. at 2009–10.

[163]. Id. at 2010.

[164]. See, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 462–72 (2002) (Stevens, J., dissenting) (arguing that a narrow reading of the Coal Act produced an incoherent result, which was likely not what Congress intended); W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 134–43 (1991) (Stevens, J., dissenting) (arguing that denying the award of expert fees to the prevailing party in a § 1983 suit was contrary to the congressional purpose of making the prevailing party whole in such litigation); United States v. Locke, 471 U.S. 84, 117–29 (1985) (Stevens, J., dissenting) (arguing that it was understandable that the author of the statute might inadvertently use the words “prior to December 31” when that author intended to refer to the end of the calendar year).

[165]. See, e.g., Locke, 471 U.S. at 117–23.

[166]. New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2641 (2010).

[167]. Id. at 2644 n.6 (quoting id. at 2651 (Kennedy, J., dissenting)) (internal quotation marks omitted).

[168]. Id. at 2644–45.

[169]. Id. at 2641.

[170]. See, e.g., Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

[171]. Robert Barnes, Justice Stevens To Step Down, Wash. Post, Apr. 10, 2010, at A1 (announcing Justice Stevens’s retirement less than one month after the New Process Steel decision).

[172]. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010).

[173]. Id. at 3147.

[174]. Id. at 3147–48 (quoting 15 U.S.C. § 7211(e)(6) (2006)) (internal quotation marks omitted).  Chief Justice Roberts wrote the majority decision, which was also joined by Justices Scalia, Kennedy, Thomas, and Alito.  Justice Stevens joined with the dissent.  See id. at 3146.

[175]. Id. at 3147.

[176]. Id. at 3156 (quoting Bowsher v. Synar, 478 U.S. 714, 736 (1986)) (internal quotation marks omitted).

[177]. The dissent was comprised of Justices Breyer, Stevens, Ginsburg, and Sotomayor.  Id. at 3146.  Unlike in New Process Steel, Justice Stevens joining the dissent seems consistent with his functionalistic track record.

[178]. Id. at 3184 (Breyer, J., dissenting).

[179]. Id. at 3175.

[180]. Brandon J. Almas, Note, From One [Expletive] Policy to the Next: The FCC’s Regulation of “Fleeting Expletives” and the Supreme Court’s Response, 63 Fed. Comm. L.J. 261, 286–87 (2010) (discussing the difficulty in predicting Justice Kagan’s interpretative philosophy).

[181]. Like Justice Stevens, Justice Kennedy switched sides in Free Enterprise Fund and wrote the dissenting opinion in New Process Steel, but joined with the majority in Free Enterprise Fund.

* J.D. Candidate 2011, Wake Forest University School of Law.  The author would like to thank her family, friends, and the members of the Wake Forest Law Review for their support.