Notice & Comment

Dead-Hand Control and “Magical Passwords”: Center for Investigative Reporting v. DOJ (Part II)

Can Congress enact a general statute and impose upon future Congress’ the obligation to either expressly acknowledge the general statute before abrogating it or expressly state their desire to depart from it?  This question has reemerged recently primarily due to Judge Bumatay’s dissent in Investigative Reporting v. Department of Justice, 982 F.3d 668 (Dec. 3, 2020).

In Part I of this series, I described the OPEN FOIA Act of 2009, which provides that any future statute permitting the Government to withhold records pursuant to FOIA Exemption 3 must expressly refer to Exemption 3.  Several post-OPEN-FOIA versions of the Tiahrt Rider, which purport to prohibit the Bureau of Alcohol, Tobacco, and Firearms (ATF) from providing firearms trace records, fail to mention Exemption 3.  Judge Bumatay would invalidate express acknowledgement statutes, like the OPEN FOIA Act, as an unconstitutional infringement upon subsequent legislatures.

In this Part, I argue that legislatively-enacted express acknowledgement and express statement provisions resemble the “clear statement’ rules the federal courts have crafted, and assess whether Congress should have any less authority to promulgate such rules.

Clear Statement Rules and Their Rationales

The Supreme Court has established several clear statement rules requiring Congress to express its intent explicitly and unambiguously in statutory text when Congress legislates in derogation of certain interests.[1]   Such clear statement rules, for example, mean that Congress must clearly and unambiguously express its intent:

(1) to make statute retroactive, Landgraf v. USI Film Products, 511 U.S. 244 (1994),

(2) to impugn certain federalism interests, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460, 464 (1991); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985), [2]

(3) to limit the President’s discretion to remove executive branch officials, Collins v. Yellen, No. 19–422, slip op. at 23, 25 (June 23, 2021); Shurtleff v. United States, 189 U. S. 311, 316 (1903), and

(4) to make agency decision’s immune from judicial review, e.g., Guerrero-Lasprilla v. Barr, — U.S. —, 140 S.Ct. 1062, 1069-70 (2020); Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986).[3] 

The insistence upon the clear statement appearing in the statutory text, without the need to consider the legislative history or infer Congress’ intent using other methods, is an artifact of textualists’ insistence upon according primacy to statutory text.[4]  

For the most part, the judicially-crafted clear statement rules protect values or principles enshrined in the Constitution.[5]  While that practice limits the Court’s discretion in establishing clear statement rules, such discretion is hardly eliminated. Discretion remains because the Court selects only a few constitutional values to further by such clear statement rules.  To paraphrase George Orwell’s Animal Farm — All constitutional values are equal, but some constitutional values a more equal than others.[6]

Judicial clear statement rules ensure congressional consideration of important values; they are deliberation-enhancing. Such rules also assist courts in both reconciling conflicting statutes and ensuring that the legislature’s is intent upon infringing upon certain values is clear.[7]  Thirdly, clear statement rules provide a stable background of judicial interpretation that allows Congress to draft statutory text based upon reasonable expectations regarding the judicial construction of statutes.  Landgraf, 511 U.S. at 273.

The Supreme Court has been most explicit in its use of clear statement rules for their democracy-enhancing function in LandgrafLandgraf established a “retroactivity” clear statement rule, namely that the federal courts will not give a statute retroactive effect absent a clear statement from Congress of its intent to make the statute retroactive.

Justice Kennedy, writing for the Court, was quite explicit about the limited constitutional protections against retroactive legislation, despite the constitutional stature of the citizenry’s interest in not being subjected to such legislation. Id., at 266-68 (citing the Constitution’s Ex Post Facto, Contracts, Takings, and Due Process Clauses).   He was equally explicit in grounding the clear statement rule in the desire to enhance the political protections against retroactive legislation, by requiring legislatures to explicitly address the issue.  He explained:

Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits. Such a requirement allocates to Congress responsibility for fundamental policy judgments concerning the proper temporal reach of statutes.

Id. at 272-73.[8]  

Indeed, in Landgraf the Court applied its clear statement rule even though Congress and the President had an irreconcilable difference regarding the retroactivity question. Id. at 255-56.  Congress wanted to leave the retroactivity issue for the federal courts to resolve based on the text of the statute and conflicting statements in the legislative history. Id. at 262-63 & n.15.[9]

The Court has been more subtle with respect to its “federalism” clear statement rules, being far less explicit regarding its deliberation-enhancing goals for that set of doctrines.  However, in Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989), the Court observed that the federalism clear statement rule at issue would “‘assure[] that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.”’

Despite the Court’s reticence in discussing the deliberation-enhancing goals of the federalism clear statement rules, the clear statement rules almost certainly reflect a view that such rules enhance the “political protections” of federalism.[10] They do so by encouraging Congress to protect constitutionally-based federalism values.  Indeed Justices Thomas and Kennedy have been especially vocal regarding the deliberation-enhancing function of the federalism clear statement rules. 

In Kimel v. v. Florida Bd. of Regents, 528 U.S. 62 (2000), the Court determined that the Age Discrimination in Employment Act’s (ADEA’s) incorporation by reference of the Fair Labor Standards Act (“FLSA”) remedial provisions abrogating state sovereign immunity satisfied the applicable clear statement rule.  Accordingly, the incorporation by reference removed the states’ Eleventh Amendment immunity to suit under the ADEA. 

In dissenting from that holding. Justices Thomas and Kennedy argued that such incorporation by reference should be considered insufficient to satisfy the applicable clear statement rule.   They explained that, at least given the sequence of events in Kimel, “such a statute fails to inspire confidence that Congress has deliberated” upon the legislation’s consequences with respect to a critical federalism principle.  Id. at 102 (Thomas, J., dissenting).

Exemption 3’s express acknowledgement provision shares precisely the same deliberation-enhancing purposes underlying the above-referenced judicially-crafted clear statement rules.  The provision seeks to ensure consideration of the transparency interests codified in FOIA whenever a provision allowing agencies to withhold records from the public is proposed.  155 Cong. Rec. S3175 (March 17, 2009)(Sen. Leahy).[11] 

As noted above, clear statement rules serve a second goal.  They make it easier for the court’s to be certain of the enacting legislature’s intent.  Clear statement rules allow courts to find unambiguous meaning in seemingly ambiguous language.  They do so by providing a determinate answer in case of ambiguity — if the statute is ambiguous, Congress has, by definition, failed to meet the clear statement rule, and thus the statute is not interpreted to infringe upon the principle protected by the clear statement rule.[12]

The Supreme Court has explicitly grounded its federalism clear statement rules on this second rationale for clear statement rules.  For example, in Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242-43 (1985), the Court asserted:

Congress’ power to abrogate a State’s immunity means that in certain circumstances the usual constitutional balance between the States and the Federal Government does not obtain. . . . In view of this fact, it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the guarantees of the Eleventh Amendment. The requirement that Congress unequivocally express this intention in the statutory language ensures such certainty.

Comparing Legislatures and Courts

But even if courts impose clear statement rules, particularly to provide an extra measure of protection to constitutional values, should legislatures possess such power to protect constitutional values, as well as non-constitutional values, of their choosing?[13] 

Of course, “interpretation” of laws is an inherently judicial responsibility.  Marbury v. Madison 5 U.S. 137, 146 (1803).[14]  However, the clear statement rules unquestionably go beyond interpreting text or assisting the courts in acting as an “honest agent” seeking to discern probable legislative intent.[15] Clear statement rules often seek to affirmatively structure congressional consideration of issues, and make Congress clearly and openly confront difficult questions before acting.[16]  

If the courts can impose modest clear statement obligations in their role as interpreter,[17] why should legislatures possess any less power to prescribe such rules to ensure that current and future legislation addresses certain issues clearly and unambiguously? Both efforts further legislative deliberation.  But consider two related counter-arguments.

First, interpretation takes place after a statute has been enacted; legislatively-adopted express acknowledgement or express statement rule precede the enactment of the statute to be interpreted.[18] This superficially-attractive distinction is easily rebutted.  Judicially-adopted clear statement rules are adopted, even if not necessarily applied, in anticipation of future legislation, like congressional express statement requirements. 

Second, the temporal relationship between the judiciary and an enacting legislature differs from that between an earlier legislature and a later one.  Because courts have a continuity that a specific legislature lacks (the latter goes out of existence after its session concludes), the judicial interest in giving successive legislatures a stable interpretive background on which to legislate is unique. Nevertheless even this distinction hardly justifies a starkly different view of judicial and legislative express statement rules.  And indeed, if federal courts can adopt background rules of interpretation, surely Congress, at the very least, should have the power to countermand some tupes of judicial rules for interpreting its statutes.

Constitutionally-Inspired Clear Statement Rules

But what of the argument that judicial clear statement rules are generally used to protect interests of constitutional stature.  There is perhaps a greater justification for judicial clear statement rules in such a context.  They enable courts to supplement the protections for constitutional interests that courts leave under-enforced for their own distinctive institutional reasons.[19] But it is not clear that legislatures should hold themselves to the same constraints.[20]

However, the question may be academic with regard to the OPEN FOIA Act express acknowledgement provision. That provision arguably does protect a constitutional (or at least constitutionally-inspired) value.

Both freedom of speech and access to knowledge about the actions the government is taking are foundational to democracy.  As James Madison observed: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”[21]  Though the Constitution does not expressly provide a right of access to government information, it does recognize newsgathering, in the Free Press Clause.  And the Supreme Court has recognized the existence of at least some limited constitutional protections for newsgathering.[22] 

FOIA seeks to enable citizens to exercise freedom of speech in meaningful way and effectively participate in democracy.  So requiring a “clear statement” specifying exceptions to FOIA’s general obligations could easily be viewed as constitutionally-inspired.  Indeed, such a “clear statement” rule is quite consistent with the judicially-developed rule of construction that exemption from FOIA are to be interpreted narrowly. Milner v. Department of the Navy, 562 U.S. 562, 571 (2011); Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1, 7-8 (2001); Department of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976).

The Special Problem With Appropriations Statutes

The Tiarht Amendment is an appropriations rider, and that too has significance.  Appropriations riders, particularly those that seek to contravene substantive legislation, are especially problematic in terms of democratic deliberations.[23]  Appropriations measures must be enacted to keep the government in operation. Thus, provisions that lack majority support are particularly likely to be adopted as a part of such appropriations bills.  Undoutedly, this is one reason why, in general, appropriations provisions are not interpreted to overturn substantive legislation.  E.g., Maine Community Health Options v. United States, —U.S. —, 140 S. Ct. 1308, 1323 (2020).

Indeed, with respect to precluding appropriations provisions from implicitly repealing substantive law, the conflict producing an express acknowledgement provision might not best be viewed as one between present and future legislators.  Instead, it might more readily viewed as a battle over the internal balance of power within Congress. Such provisions may primarily serve to mediate the conflicting interests of legislators who serve on appropriations committees and legislators who serve on committees with jurisdiction over substantive legislation.  Or the provisions may resolve an internal power struggle between the committees generally responsible for FOIA and committees that focus more particularly on specific government agencies that would prefer to withhold certain types of records.


Like express statement statutory provisions, judicially-crafted clear statement rules require clear and unambiguous congressional expression of intent.  The justifications for both are similar.  And the basis of legislative and judicial authority to promulgate such rules, while not identical, do not significantly differ in terms of justifying the practices.  Thus, by calling into question the constitutionality of statutory express statement and express acknowledgement provisions, the court’s call into question their own authority to craft and enforce clear statement rules as well.

In Part III of this series, I will examine the implications of legislation remaining in effect until repealed and the judicial doctrines governing the reconciliation of different statutes enacted at different times.  The analysis will show that express statement and express acknowledgement doctrines, on the whole, add little, if any, to subsequent legislature’s burdens to clearly express their intentions.

[1] Bernard W. Bell, “Using Statutory Interpretation to Improve the Legislative Process: Can it be Done in the Post-Chevron Era?,” 13 J. LAW & POLITICS 105,135-37 (1997).

[2] When Congress seeks to abrogate state constitutional sovereign immunity (i.e., Eleventh Amendment immunity)by imposing monetary liability upon the states, it must do so expressly and unambiguously. Hoffman v. Connecticut Dept. of Income Maint. 492 U.S. 96, 101 (1989);  Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985).

Similarly, when Congress seeks to impose a condition upon a monetary grant to states, it must do so clearly and unambiguously.  South Dakota v. Dole, 483 U.S. 203, 207 (1987); Board of Education v. Rowley, 458 U.S. 176, 190 n. 11 (1982); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). 

And the Court will not construe a federal statute in a way that interferes with areas traditionally regulated by the states, absent Congress’s clear expression that it intends to invade the states’ traditional domain.   Gregory v. Ashcroft, 501 U.S. 452, 460, 464 (1991); accord, Rapanos v. U.S., 547 U.S. 715, 738 (2006).

See generallyWilliam N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 597 (1992)

[3] For this last clear statement rule it may suffice for the clear statement to appear in the legislative history.

The rule of lenity, that criminal statutes are to be construed in favor of the defendant, is, conceptually at least, another clear statement rule. Using Statutory Interpretation, supra note 1, 13 J. LAW. & POL. at 154; WILLIAM D. POPKIN, A DICTIONARY OF STATUTORY INTERPRETATION 34, 191-83 (2007)(POPKIN, DICTIONARY).  However, it is often honored in the breach, and is perhaps at best a weak substantive canon. Id. at 34, 191-93.

[4] Bernard W. Bell, Legislative History Without Legislative Intent: The Public Justification Approach To Statutory Interpretation. 60 OHIO ST. L. J. 1, 52 (1999)Not only do they view statutory text as the exclusive vessel of meaning, they frequently see it as much more determinate (i.e., more often yielding clearer answers) than those who do not share their new textualist approach. Using Legislative History, supra, at 133.

[5] These clear statement rules, which are relatively few in number, are more powerful than the more numerous substantive canons of interpretation.  Such canons come into play to help the Court resolve ambiguous statutes and often serve as just one factor, albeit an important one, in resolving the statutory ambiguity.  Clear statement rules essentially establish principles that a court will not consider Congress as breaching unless Congress enacts a clear and ambiguous statute purporting to do so.  For a discussion of ordinary substantive canons, see WILLIAM D. POPKIN DICTIONARY, supra note 3, at 18-20; Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2114-19 (1990).

[6] Keeping the number of clear statement rules small is critical; the greater the number, the more likely they are to conflict.  When clear statement rules conflict, each loses its decisive power.

[7] Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), establishes another sort of clear statement rule, essentially requiring that Congress express its intent unambiguously if it is to constrain agencies’ interpretation of enacted statutes.  Chevron’s rationale differs from those of the clear statement rules mentioned above.  Indeed, Chevron primarily allocates interpretive authority between competing interpreters, namely agencies and courts; it is not aimed at ensuring congressional consideration of particular principles of special import.

Chevron is more tenuously tied to constitutional principles than other clear statement rules. And, indeed, it directly contravenes the Administrative Procedure Act, which provides that courts should decide all questions of law (including question of statutory interpretation) necessary to review the legality of an agency’s actions.  5 U.S.C. §706 (“[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions”).

[8] Accord, Landgraf, supra, 511 U.S. at 268 (“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”); see also, id. at 267-68, 270. Justice Kennedy noted that this had been the Court’s practice since its early days. Id, at 270-71.

[9] President George H.W. Bush had vetoed the Civil Rights Act Amendments passed by Congress the previous year because it had included an express retroactivity provision. Id. at 256.

[10] When the federalism clear statement rules were becoming entrenched in the early 1990’s, William N. Eskridge, Jr. and Philip P. Frickey, concluded that the deliberation-enhancement theory best explained “what the Rehnquist Court believe[d] itself to be doing with the canons.”  Quasi-Constitutional Law, supra note 2, at 631.  In their view, the canons, especially the “tough” ones [i.e., the clear statement rules], . . . protect important constitutional values against accidental or undeliberated infringement by requiring Congress to address those values specifically and directly.

For classic discussions of the political protections of federalism, see Garcia v. San Antonio Transit Auth., 469 U.S. 528, 547-54 (1985); Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).

[11] A previous version of the OPEN FOIA bill, S. 1181, had been introduced by Senator Leahy in the 109th Congress. That bill had been reported favorably out of the Senate Judiciary Committee, and passed without objection by the Senate, 151 CONG. REC. S7383-S7385 (June 24, 2005)   However, the bill moved no further during that Congress.

[12] See Using Statutory Interpretation, supra note 1,13 J. LAW & POLITICS at 133-37; Dorsey v. United States, 567 U.S. 260, 296 (Scalia, J., concurring) (“the rule of lenity has no application here, because the background principle [i.e, clear statement rule] supplied by §109 serves to remove the ambiguity that is a necessary precondition to invocation of the rule”).

[13] Justice Brennan dissented from doing so. Dellmuth v. Muth, 491 U.S. 223, 238-42 (1989)(Brennan, J., dissenting).

[14] Elsewhere I have argued that the specification of rules of interpretation is not an exclusively judicial prerogative. Bernard W. Bell, Metademocratic Interpretation and Separation of Powers, 2 N.Y.U. J. LEGIS. & PUB. PoL’Y 1, 27-28 (1999).

[15] Legislative History Without Legislative Intent, supra note 1, 60 OHIO ST. L.J. at 8 & n.9 ; Carlos E. Gonzalez, Reinterpreting Statutory Interpretation, 74 N.C. L. REV. 585, 688-89 (1996) (describing the “honest agent” approach to statutory interpretation); see, United States ex rel. Marcus v. Hess, 317 U.S. 537, 542 (1943) (“[s]ound rules of statutory interpretation exist to discover and not to direct the Congressional will.”);

[16] Einer Elhauge suggests that adopting canons of interpretation (and clear statement rules are a strong form of such canons) “to further judicial preferences or values” both “sits uneasily in a democracy” and conflicts with “any conception of the judicial role as being honest interpretive agents.”  EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 151 (2008)

[17] In its role as a constitutional court exercising the power of judicial review, the Supreme Court has pressured, though admittedly not required, Congress to make findings to support Congress’ exercise of its enumerated powers.  U.S. v, Lopez, 514 U.S. 549, 562-63 (1995) (Commerce Clause); Board of Trustee v. Garrett, 531 U.S. 356, 370-72 (2001) (Fourteenth Amendment Section 5 Enforcement powers); Shelby County v. Holder, 570 U.S. 529, 554-55 (2013)(Congress violated federalism principles of equal state sovereignty by not using its factual inquiry to update the section 4 coverage formula under the Voting rights Act).  Of course, since congressional fact-finding does not operate under the same constraints as judicial fact-finding, Congress generally has little trouble providing the necessary factual findings.  See generally, Sierra Club v. Costle, 657 F.2d 298 401 & n.503 (D.C. Cir. 1981) (quoting Remarks of Carl McGowan (Chief Judge, U.S. Court of Appeals, D.C. Circuit), Ass’n of Amer. Law Schools, Section on Admin. Law (San Antonio, Texas, Jan. 4, 1981)). One major difference between judicial and congressional fact-finding is that congressional fact-finding need not be based exclusively on a record of a hearing.

[18] See, Georgia v., Inc. —U.S. —, 140 S.Ct. 1498, 1523 (2020)(Ginsburg, J.,  dissenting).

[19] See Bernard W. Bell, Marbury v. Madison and the Madisonial Vision, 72 G.W. L. REV. 197, 202-204, 217-26 (2003); Quasi-Constitutional Law, supra note 2, at 631, 633 (clear statement rules “are critically important to give meaning to underenforced constitutional norms, especially federalism norms”).

[20] See Board of Trustees v. Garrett, 531 U.S. at 383-385 (Breyer, J., dissenting).

[21] Letter from James Madison to W. T. Barry, August 4, 1822 (applauding the “liberal appropriations made by the Legislature of Kentucky for a general system of Education”).

[22] Branzburg v. Hayes, 408 U.S. 665, 707 (1972)(“news gathering is not without its First Amendment protections”),, Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978)(in a case involving the search of a newsroom, the warrant requirements must be applied “with particular exactitude” when First Amendment interests would be endangered by the search).

[23] See POPKIN DICTIONARY, supra note 3, at 12 (the particularly rigorous application of the presumption against replied appeals to appropriations riders reflects the “desirability” of substantive statutes “meeting some minimal standard of legislative deliberation” and the expectation of “more than raw bargaining” to enact substantive legislation).