Clear statement rule
Encyclopedia
In American law, the clear statement rule is a guideline for statutory construction, instructing courts to not interpret a statute in a way that will have particular consequences unless the statute makes unmistakably clear its intent to achieve that result. Such rules "insist that a particular result can be achieved only if the text (and not legislative history) says so in no uncertain terms." Popkin, Statutes in Court 201 (1999).
Such rules are commonly applied in areas implicating the structural constitution, such as federalism
- sovereign immunity
or preemption
, for example - where there is a strong interest against implicit abridgment of traditional understandings. For example, while Congress can abrogate the states' sovereign immunity in some situations, see Seminole Tribe v. Florida
, 517 U.S. 44 (1996); Alden v. Maine
, 527 U.S. 706 (1999), it cannot do so implicitly: it must "mak[e] its intention unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon
, 473 U.S. 234, 242 (1985). Preemption is another area susceptible to clear statement rules. Congress may preempt a field of regulation, "occup[ying] a field[ and] leaving no room for any claim under state law," Pollit v. Health Care Service Corp., 558 F.3d 615 (7th Cir. 2009), but it doesn't have to. When a law is construed to preempt, the result is a broad and indiscriminate extinguishment of substantive and remedial state law, and sensitive to this problem, "the Court has on occasion"--Wyeth v. Levine
, for example—expressed support for a clear statement rule: it will find preemption only when Congress expresses preemptive intent clearly in the statute." Kendall, Redefining Federalism 49 (2005).
Some argue that Chief Justice John Marshall imposed such a rule: "where fundamental values were at stake, statutes would not be interpreted to impair such values, absent a clear statement in the legislation," Popkin, at 73, and the court more recently applied a similar approach in Hamdan v. Rumsfeld
, 548 U.S. 557 (2006). Similarly, a clear statement rule governs exceptions to the rule that legislation must be considered as addressed to the future, not to the past." Greene v. United States, 376 U.S. 149, 160 (1964). Because "statutory retroactivity has long been disfavored," and is in many instances forbidden by the ex post facto clause of the Constitution, see Landgraf v. USI Film Products, 511 U.S. 244 (1994), "[a]bsent a clear statement from Congress that an amendment should apply retroactively, we presume that it applies only prospectively to future conduct, at least to the extent that it affects substantive rights, liabilities, or duties." United States v. Seale
, 542 F.3d 1033 (5th Cir. 2008) (internal quotation marks omitted). As the Supreme Court explained in Landgraf, "a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." Such rules do, therefore, have some life in the area of substantive rights as well as enforcement of constitutional structure.
The court does not apply clear statement rules in all areas, however. In many cases, the court has found "implied" prohibitions and causes of action in statutes, a result that would be precluded (or at least hampered) by clear statement rules. For example, Title IX prohibits gender discrimination by recipients of federal education funding. Does that bare prohibition also provide an implied cause of action to an individual so discriminated against? Yes, the court held in Cannon v. University of Chicago
, 441 U.S. 677 (1979). Does the prohibition on discrimination also imply a prohibition on, and cause of action for, retaliation against someone who complains of such discrimination? Yes, the court held in Jackson v. Birmingham Board of Education
, 544 U.S. 167 (2005). Similarly, ADEA prohibits age discrimination. Does that also imply a prohibition on retaliation against someone who complains of such discrimination? Yes, the court held in Gomez-Perez v. Potter
, 128 S. Ct. 29 (2008).
Such rules are commonly applied in areas implicating the structural constitution, such as federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
- sovereign immunity
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
or preemption
Federal preemption
Federal preemption refers to the invalidation of US state law when it conflicts with Federal law.-Constitutional basis:According to the Supremacy Clause of the United States Constitution,...
, for example - where there is a strong interest against implicit abridgment of traditional understandings. For example, while Congress can abrogate the states' sovereign immunity in some situations, see Seminole Tribe v. Florida
Seminole Tribe v. Florida
Seminole Tribe of Florida v. Florida, 517 U.S. 44 , was a United States Supreme Court case which held that Article One of the U.S. Constitution did not give the United States Congress the power to abrogate the sovereign immunity of the states that is further protected under the Eleventh Amendment...
, 517 U.S. 44 (1996); Alden v. Maine
Alden v. Maine
Alden v. Maine, 527 U.S. 706 was a decision by the Supreme Court of the United States about whether the United States Congress may use its Article One powers to abrogate a state's sovereign immunity from suits in its own courts, thereby allowing citizens to sue a state without the state's...
, 527 U.S. 706 (1999), it cannot do so implicitly: it must "mak[e] its intention unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon
Atascadero State Hospital v. Scanlon
Atascadero State Hospital v. Scanlon, , was a case decided by the Supreme Court of the United States regarding Congress' power to abrogate the sovereign immunity of the states....
, 473 U.S. 234, 242 (1985). Preemption is another area susceptible to clear statement rules. Congress may preempt a field of regulation, "occup[ying] a field[ and] leaving no room for any claim under state law," Pollit v. Health Care Service Corp., 558 F.3d 615 (7th Cir. 2009), but it doesn't have to. When a law is construed to preempt, the result is a broad and indiscriminate extinguishment of substantive and remedial state law, and sensitive to this problem, "the Court has on occasion"--Wyeth v. Levine
Wyeth v. Levine
Wyeth v. Levine, 555 U.S. 555 , is a United States Supreme Court case holding that Federal regulatory approval of a medication does not shield the manufacturer from liability under state law.-Vermont jury trial:...
, for example—expressed support for a clear statement rule: it will find preemption only when Congress expresses preemptive intent clearly in the statute." Kendall, Redefining Federalism 49 (2005).
Some argue that Chief Justice John Marshall imposed such a rule: "where fundamental values were at stake, statutes would not be interpreted to impair such values, absent a clear statement in the legislation," Popkin, at 73, and the court more recently applied a similar approach in Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
, 548 U.S. 557 (2006). Similarly, a clear statement rule governs exceptions to the rule that legislation must be considered as addressed to the future, not to the past." Greene v. United States, 376 U.S. 149, 160 (1964). Because "statutory retroactivity has long been disfavored," and is in many instances forbidden by the ex post facto clause of the Constitution, see Landgraf v. USI Film Products, 511 U.S. 244 (1994), "[a]bsent a clear statement from Congress that an amendment should apply retroactively, we presume that it applies only prospectively to future conduct, at least to the extent that it affects substantive rights, liabilities, or duties." United States v. Seale
United States v. Seale
United States v. Seale is a federal criminal case in the United States, in which Ku Klux Klan member James Ford Seale was prosecuted and convicted for his role in the racially motivated murders in 1964 of two black teens....
, 542 F.3d 1033 (5th Cir. 2008) (internal quotation marks omitted). As the Supreme Court explained in Landgraf, "a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." Such rules do, therefore, have some life in the area of substantive rights as well as enforcement of constitutional structure.
The court does not apply clear statement rules in all areas, however. In many cases, the court has found "implied" prohibitions and causes of action in statutes, a result that would be precluded (or at least hampered) by clear statement rules. For example, Title IX prohibits gender discrimination by recipients of federal education funding. Does that bare prohibition also provide an implied cause of action to an individual so discriminated against? Yes, the court held in Cannon v. University of Chicago
Cannon v. University of Chicago
Cannon v. University of Chicago, 441 U.S. 677 , was a United States Supreme Court case which interpreted Congressional silence in the face of earlier interpretations of similar laws to determine that Title IX of the Higher Education Act provides an implied cause of action.-Facts:Plaintiff Geraldine...
, 441 U.S. 677 (1979). Does the prohibition on discrimination also imply a prohibition on, and cause of action for, retaliation against someone who complains of such discrimination? Yes, the court held in Jackson v. Birmingham Board of Education
Jackson v. Birmingham Board of Education
Jackson v. Birmingham Board of Education, 544 U.S. 167 , is a case in which the United States Supreme Court held that retaliation against a person because that person has complained of sex discrimination is a form of intentional sex discrimination encompassed by Title IX.- Background :Roderick...
, 544 U.S. 167 (2005). Similarly, ADEA prohibits age discrimination. Does that also imply a prohibition on retaliation against someone who complains of such discrimination? Yes, the court held in Gomez-Perez v. Potter
Gomez-Perez v. Potter
Gomez-Perez v. Potter, 553 U.S. 474 , was a United States Supreme Court case holding that federal employees can assert claims for retaliation resulting from filing an age discrimination complaint...
, 128 S. Ct. 29 (2008).