Notice & Comment

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

Can Congress enact a general statute and impose upon future Congress’ an obligation to either (1) expressly acknowledge the general statute before abrogating it or (2) expressly state their desire to depart from it?  This series, prompted by Judge Bumatay’s dissent in Investigative Reporting v. Department of Justice, 982 F.3d 668 (Dec. 3, 2020), takes on that question.

Part I discussed the context in which the issue has recently arisen.  The OPEN FOIA Act of 2009, provided that any future statute permitting the Government to withhold records pursuant to Freedom of Information Act (“FOIA”) Exemption 3 must expressly refer to Exemption 3.  But versions of the Tiahrt Rider, which prohibit the Bureau of Alcohol, Tobacco, and Firearms (ATF) from providing firearms trace records, fail to mention Exemption 3.

Part II argued that express acknowledgement and express statement provisions like the OPEN FOIA Act are comparable to judicially-crafted “clear statement” rules, and that Congress should possess no less authority than the federal courts to establish such rules.

In this installment, I discuss the courts’ approach to reconciling conflicting statutes and tease out its implication for the constitutional challenge to express acknowledgement and express statement statutes.

Statutes’ Inherent Longevity and Judicial Resolutions of Statutory Conflicts

In Food & Drug Administration v. Brown & Williamson, 529 U.S. 120 (2000), Justice O’Connor described “reconcil[ing] statutes passed at different times” as a “classic judicial task.” Id. at 143 (quoting United States v. Fausto, 484 U. S. 439, 453 (1988)(Scalia, J.)).  Statutes continue in force indefinitely until abrogated by subsequent legislative action (unless the enacting legislature affirmatively provides otherwise).[1] Thus, by virtue of enacting a statute, legislatures impose upon every subsequent legislature the obligation to clearly express itself in adopting conflicting legislation.[2]  Indeed, “it can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change.” United States v. Fausto, 484 U.S. at 453 (citing Morton v. Mancari, 417 U.S. 535 (1974)).

Courts’ own long-standing interpretive rules, particularly the doctrine disfavoring implied repeal, magnify this effect, by strongly presuming that later statutes do not implicitly repeal earlier ones.[3]  That interpretive rule itself is a type of “clear statement” doctrine.[4] 

Thus a later statute basically must be irreconcilable with an earlier statute before the court will find an implied repeal of that earlier statute.[5] Moreover, if the earlier statute is more specific than the later one, the earlier statute may prevail over the later statute, Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976); Morton v. Mancari, 417 U.S. at 550-551 (1974); THEODORE SEGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW 98 (2d ed. 1874)(SEGWICK).[6]  Thus a later Congress might actually need to expressly repeal a prior statute before its enactment can have an effect that is unencumbered (or “hobbled” as Judge Bumatay might put it)) by prior legislative action.

The presumption against implied is arguably particularly strong with regard to FOIA.  First, the presumption “has special application to important public statutes of long standing.”[7]  By now, FOI has clearly attained such a stature.[8]  Second, “[o]n subjects to which the legislature pays continuous, close attention, such as internal revenue laws, the presumption against implied repeal may have greater force.”[9] This, too, is characteristic of FOIA.[10]

Moreover, if the later legislature wishes to have its legislation interpreted robustly, but nevertheless not obliterate a prior statute, it will, of necessity, have to be precise, given the rule against implied repeal and the canon favoring more specific statutes over more general ones.  Granted, purists might dismiss a later legislature’s inability to express itself with precision as a reflection of a legislative deficiency, like sloppy, inattentive drafting, or an incomplete agreement among the statute’s proponents, which should preclude the legislature’s work from being interpreted robustly. Nevertheless the existence of a prior statute increases the legislature’s burdens. The existence of one or more prior statutes inherently requires later legislators to express themselves more clearly in their own enactments than if the later legislature were writing on a clean slate. [11]

All that said, in at least one respect an express acknowledgement rule does change the court’s long-standing approach to resolving statutory conflicts.  Where an express acknowledgement rule governs, in the absence of a satisfactory acknowledgement of the earlier statute, the earlier statute will govern even if it not the more specific of the two conflicting statutes.  This mandates the opposite result that a court would ordinarily reach.  Both judicially‑crafted rules that would otherwise govern, the specific trumps the general and the later trumps the earlier, would support giving primacy to the later statute.  Indeed, presumably the point of a legislatively-mandated express acknowledgment provision is to encourage uniformity by privileging a general rules over special rules crafted for various specific situations.  Section 559 of Title 5, 5 U.S.C. §559, enacted as a part of the Administrative Procedure Act (APA), is clearly designed to bring some uniformity to the position of administrative law judges.  And Exemption 3 is likewise designed to ensure that FOIA provides the basic standards for reactive disclosure of government records.

The reversal of the standard judicial assumptions used to reconcile statutory conflicts in this one category of circumstances need not prove fatal to the argument that express acknowledgement provisions are constitutional, but that limited abrogation of current judicial practice should, at least, be acknowledged.

Comparing Earlier Legislatures and Contemporary Courts

Nothing in the Constitution precludes legislatures from establishing a rule for courts to use in discerning congressional “intent” when statutes passed by different legislatures at different times conflict.  After all, it is the intent of the legislature, not the judiciary, that governs.  Admittedly it is the later legislature, rather than the earlier one, whose intent is more critical (at least when there is a conflict between them). 

However, a contemporary court is in a better position than the earlier legislature that adopted an express acknowledgement of express statement rule in at least two respects.  The contemporary court can better assess both the precise nature of the statutory conflict and the later legislature’s intent.    The earlier legislature, after all, specified an interpretive rule based on an assumption regarding an unknown future.  In doing so, the earlier legislature may well fail to envision the specifics of a later legislature’s acts. 

A court contemporaneous with the later legislature can consider both the earlier statute (with an express acknowledgement provision) and later statutes with knowledge of the details of both conflicting acts.  And because it will be considering the conflict after the later legislature has acted, it will have insight into the later legislature’s intent (whether it seeks to infer presumed intent or discern its actual intent by consulting legislative history).

Frustrating Congressional Will

The Problem and Two Illustrations

In Part II of this series, I laid out three purposes judicially-crafted clear statement doctrines serve.  Two of the three, the deliberation-enhancing and ambiguity-clarifying functions, apply to express acknowledgement and express statement statutes.   

But the implications of these two purposes can diverge at times, particularly when later legislation fails to satisfy an express acknowledgment provision.  Sometimes a later legislative’s intent to apply its rule, rather than an earlier-enacted general rule, can be clear, even if that intent is not expressed or the general rule is left unnacknowledged.  In such circumstances, the ambiguity-clarifying objective would be satisfied, but the deliberation-enhancing objective might not be.   I will develop this point using two examples.

Take for instance a statute (not a mere appropriations rider) that prohibits the XYZ Agency from disclosing certain records to the public.  The enacting legislature clearly intends to make FOIA inapplicable to such records, otherwise the legislative provision would be an exercise in futility.  In such a case, even under traditional rules of statutory interpretation, the intent to repeal FOIA’s general mandatory-disclosure provisions as to those particular records is clear.[12]  Accordingly, the ordinary presumption against replied appeals would be overcome. 

Even so the statutory prohibition on the XYZ Agency’s release of the records may be some obscure provision, which did not garner attention, enacted as a part of a massive bill.  Accordingly, the prohibition’s implications for FOIA may have been left largely unconsidered.  Though Congress’ intent is clear, Congress has not satisfied the deliberation-enhancing goals of the OPEN FOIA express acknowledgement rule.  There may well be no evidence that Congress has considered the manner and extent to which its decision on transparency in a particular context would undermine FOIA’s overall transparency goals. Those goals include furthering somewhat uniform transparency provisions for all government records.

In this circumstance the ambiguity-clarifying purpose of the express statement or express acknowledgment provision would be served, despite the fact that the later legislature’s intent is only implicit, but the goal of ensuring that Congress deliberated conscious of its actions’ implications for transparency would not have been achieved.

Thus, in the XYZ Agency example, Exemption 3’s express acknowledgement rule would defeat the later enacting legislature’s clear purpose only because the later legislature did not meet the formalistic requirements imposed by an earlier one. 

Now consider a post-OPEN-FOIA statutory provision that authorizes the ABC Agency to provide certain records to specified persons.  In enacting the provision Congress might or might not mean to say anything about access to such records by FOIA requesters.  The statute’s purpose, ensuring specific persons have access to particular information, is not necessarily defeated by refusing to consider the provision an Exemption 3 statute.  In this situation, neither the ambiguity-clarifying nor deliberation-enhancing purposes of Exemption 3’s express acknowledgement provision would be served (at least if a court interprets the statute as implicitly precluding access to the specified files under FOIA).

The ABC Agency situation is not troubling, the latter legislature’s statute would govern the circumstances it directly addresses, and thus have some life. But the XYZ Agency situation is quite troubling.  By strictly enforcing the OPEN FOIA Act’s express acknowledgment rule, a court would completely negate Congress’ clear intent in enacting a statutory provision.  Courts in general hesitate from doing so.  For example, courts will often depart from the text of the statute when they conclude that there has been a scrivener’s error.[13]  And, as noted earlier, courts strive to give every provision, phrase, or word meaning when interpreting a statute.[14] 

So the hesitation to adopt an approach that will lead to the negation of the legislature’s will, based on the failure to satisfy a formality, is justified.  Indeed, one fears that the express acknowledgement provision would, in effect, operate as a trap for unwary legislators that would have added the necessary express acknowledgement had the need to do so been brought to their attention.[15]

How can such concerns be addressed?

Potential Responses

I will offer three potential responses to the challenge posed above.

First, express acknowledgement provisions must themselves be interpreted. Given that such statutes are enacted by Congress to govern itself, congressional practice should be relevant in interpreting the express acknowledgement provision, particularly the actions of the Congress that enacted the express acknowledgement provisions.  Does the express acknowledgement provision apply to later reenactments of statutes that were in effect prior to the express acknowledgement provision’s enactment?  Does the express acknowledgement provision apply to annual riders that were adopted year after year before the express acknowledgement provision was adopted and continued in essentially similar form afterwards?  Does the express acknowledgement provision apply to mulitlaterial assistance treaties?[16] 

The typical text Congress uses in express acknowledgement provisions would seem to suggest that the provisions applies with respect to reenacted statutes, annual riders, and multilateral assistance treaties, but congressional practice, particularly consistent congressional practice, could certainly be considered relevant in construing an express acknowledgement provision.  In this light, congressional enactment of the Tiahrt Rider just two months after adoption of the OPEN FOIA Act might well suggest that Congress did not contemplate that the OPEN FOIA Act provision would apply to yearly appropriations riders that were already well-established, just like the express acknowledgement provision would presumably not apply to already extant statutes.

Secondly, even if a court ultimately concludes that congressional practice is wanting, in limited circumstances a court may possess the discretion to excuse reasonable Congressional misinterpretations of the applicability of an express acknowledgement provision.  While ignorance of the law is traditionally not an excuse, and presumably most particularly with regard to the legislature, that principle has been relaxed in contemporary law.[17] 

Congress may reasonably believe that an express acknowledgement provision is inapplicable.  Or there may be some other reasonable explanation for Congress’ failure to comply with an express acknowledgement provision.  In such circumstances, a court should have the authority to excuse the “later” legislature’s technical default.  But presumably such an option would be available only in the rare instance when it is otherwise clear that Congress intended to create an Exemption 3 exception even though failed to meet the express acknowledgement requirement.

A third answer, and one more focused on Investigative Reporting v. DOJ, relates to the limits on appropriations riders.  It may be the Tiahrt Riders, not the OPEN FOIA Act, that are constitutionally suspect. The Tiahrt Riders may unconstitutionally interfere with a statutorily created entitlement of individual citizens, the right to obtain records from the Government so long as the records are not prohibited from disclosure.[18]  Refusing to provide funds to allow agencies to comply with such an obligation may itself be an unconstitutional use of an appropriations rider.[19]


Even in the absence of an express acknowledgement provision, the statutes enacted by prior legislatures restrain later legislators who chose not to repeal earlier statutes.  In part this constraint results from a long-standing attribute of statutes —they do not merely apply while the enacting legislature sits, but endure until repealed.  The significance of this attribute is magnified by the judicial approach to reconciling conflicting statutes; courts are loath to consider statutes repealed unless a later legislature explicitly repeals them.  Thus, even absent express acknowledgement provisions, earlier legislative action hampers later legislative actions when the subsequent legislature refuses to address the earlier legislation directly and explicitly.  Thus, express acknowledgement statutes do not significantly increase the burdens on future legislatures, certainly not sufficiently to render them unconstitutional.  While giving effect to express acknowledgement provisions might sometimes result in defeating congressional will due to a failure to satisfy formalities, the formalities actually serve a salutary purpose, and there may be means available for courts to avoid invalidating statutes that fail to meet those formalities in certain circumstances.

The final part of this series will discuss an array of additional implications of the argument that express statement and express acknowledgement provisions are unconstitutional and thus cannot limit subsequent legislatures’ freedom of action.

[1] 2 NORMAN SINGER & SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION §34:1 (7th ed.)(hereinafter “SUTHERLAND STATUTORY CONSTRUCTION”)(available to subscribers on westlaw).  We will consider statutes the enacting legislature temporally limits, i.e. laws with “sunset” provisions, in Part IV.

[2] See 1A SUTHERLAND STATUTORY CONSTRUCTION §23:10 (“drafters should expressly designate offending provisions rather than leave a repeal to arise by implication from a later enactment”).

[3] Id. 

William Popkin has expressly distinguished the presumption against implied repeal from the anti-entrenchment principles that is the major focus of this series of blogposts,  WILLIAM D. POPKIN, A DICTIONARY OF STATUTORY INTERPRETATION 197 (2007)(POPKIN, DICTIONARY). However, Prof. Popkin seems to suggest that the distinction is, to some extent, “technical.”

[4] See, e.g., Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987)(“[w]e will not lightly infer that Congress has repealed §§ 1920 and 1821, . . . through . . . any . . . provision not referring explicitly to witness fees…. [w]e hold that absent explicit statutory . . . authorization for the taxation of the expenses of a litigant’s witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920.”); Friedrich v. City of Chicago, 888 F.2d 511, 516 (7th Cir. 1989)

In Friedrich, Judge Posner identified the two major purposes served by the canon against implied repeals: it “provides a mechanical rule for deciding difficult cases and thus makes law simpler and curbs judicial discretion,” and, “encourages legislators and their staffs to do a thorough search of previous statutes before enacting a new one.”  The judicially-crafted plain statement rules are designed to serve the same ambiguity-clarifying and deliberation-enhancing purposes, as noted in Part II of this series.

[5] 1A SUTHERLAND STATUTORY CONSTRUCTION §23:10.  The U.S. Supreme Court has declared that it will not infer a statutory repeal “unless the later statute ‘expressly contradict[s] the original act’ ” or unless such a construction “is absolutely necessary … in order that [the] words [of the later statute] shall have any meaning at all.”  Traynor v. Turnage, 485 U.S. 535, 548 (1988) (quoting Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, (1976))(emphasis added); accord, National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662-63 (2007).

[6] 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, n. 257 (1997); Friedrich v. City of Chicago, 888 F.2d 511, 516 (7th Cir. 1989); see generally, 1A SUTHERLAND STATUTORY CONSTRUCTION §23:15.

[7] 1A SUTHERLAND STATUTORY CONSTRUCTION at 23:10. Thus, there is a strong presumption against repeal of antitrust laws by implication from other regulatory statutes. U.S. v. Southern Motor Carriers Rate Conference, 439 F. Supp. 29, 35 (N.D. Ga. 1977); see, EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 181 (2008).

[8] Oh SNAP!: The Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part III-A) September 23, 2018. FOIA has had a continuous existence since its enactment in 1966, and has been amended 12 times since 1966.  Id.

[9] 1ASUTHERLAND STATUTORY CONSTRUCTION at §23:10 (citing Sylk v. U.S., 331 F. Supp. 661, 664-65 (E.D. Pa. 1971)); ELHAUGE, supra note 7, at 181.

[10] Oh SNAP!: The Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part III-A) September 23, 2018, SectionIII:  Acquiescence in the FOIA Context (discussing congressional commitment to closely monitoring judicial interpretation of FOIA, and congressional revisions of FOIA’s text to overturn federal courts’ interpretations of FOIA).  

[11] The existence of judicially-crafted substantive canons of interpretation may increase the later legislature’s burden even more.  Such canons encode certain policies, such as policies favoring Indian tribes, which are typically long-standing and will generally pre-date the “later” legislature’s enactment of a statute. See, Dead-Hand Control and “Magical Passwords”: Center for Investigative Reporting v. DOJ (Part II), n. 5 (citing POPKIN DICTIONARY, supra note 3, at 18-20, and Cass R. Sunstein, Law and Administration After Chevron, 90 COLUM. L. REV. 2071, 2114-19 (1990).  So to the extent that the “later” legislature seeks to limit the effect of a prior statute in a way that cuts against an existing substantive canon, it may need to craft virtually unambiguous text to give full effect to its intent.

[12] Courts interpret statutes to give every provision, phrase, and word some meaning.  See, e.g., Clark v. Rameker, 573 U.S. 122, 131 (2014)(“‘a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous,’ ” quoting Corley v. United States, 556 U.S. 303, 314, (2009)); Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (courts should avoid construing statutes in ways that “render some words altogether redundant”); United States v. Menasche, 348 U.S. 528, 538-539 (1955); Montclair v. Ramsdell, 107 U.S. 147, 152 (1882)(“[i]t is the duty of the court to give effect, if possible, to every clause and word of a statute”); see generally, John M. Golden, Redundancy: When Law Repeats Itself, 94 TEX. L. REV. 629, 653–54 (2016); Anita S. Krishnakumar, Statutory Interpretation in the Roberts Court’s First Era: An Empirical and Doctrinal Analysis, 62 HASTINGS L.J. 221, 243 n.100 (2010); 2A SUTHERLAND STATUTORY CONSTRUCTION §46.6 (“Courts construe a statute to give effect to all its provisions, so that no part is inoperative or superfluous, void or insignificant, and so that one section does not destroy another, unless a provision is the result of obvious mistake or error”). 

Two scholars have recently argued that the contrary canon, ex abundanti cautela (“abundance of caution”), which they more colloquially dub “the belt-and-suspenders canon,” is more consonant with legislative practice.  Ethan J. Leib & James J. Brudney, The Belt-and-Suspenders Canon, 105 IOWA L. REV. 735 (2020).  In particular, for a variety of institutional reasons, “legislatures can draft statutes to be abundantly cautious rather than to be supremely concise.”  Id. at 735.

[13] POPKIN DICTIONARY, supra note 3 at 234-38. 

[14] ID. at 198.

[15] Friedrich v. City of Chicago, 888 F.2d at 516, 518 (7th Cir. 1989).  In Friedrich, Judge Posner, for a Seventh Circuit panel, noted that the doctrine of implied repeals “threatens to impale new statutes on the concealed stakes planted by old ones,” and that “[t]he canon may therefore cause a forgotten old statute inadvertently to wreck a considered new one.”  Id. at 516.

More specifically, Friedrich involved the question of whether the civil rights fee-shifting statute, in providing for the shifting of “attorneys’ fees” included within such fees the cost of expert witnesses.  The interpretive problem was made particularly difficult by the existence of a long-standing statutes governing compensation for witness fees in federal courts, 28 U.S.C. §§1821, 1920. 

The Court observed that “[t]here is no indication that anyone drew Congress’s attention to the witness fee statute during the deliberations preceding enactment of the civil rights fee statute.”  Id. at 516.  And, the Court concluded, that had someone “told Congress in the deliberations leading up to enactment [of the civil rights fee-shifting statute] that it had neglected to say anything about the shifting of expert-witness fees, Congress would have added language making clear to the most literal-minded that such fees could be shifted.” Id. at 518. 

[16] See, Dongkuk International, Inc. v. U.S. Department of Justice, No. 16-CV-01584, 2016 WL 4543995 (D.D.C. 2016).  Mutual legal assistance treaties (MLATs), governing requests for assistance with criminal investigations, typically provide that the signatories will attempt keep a request for assistance confidential if the nation seeking assistance so requests.  See FOIA Exemption 3’s Clear Statement Rule and the Canon of Repeal by Comprehensive Revision: Everytown for Gun Safety v. ATF (August 22, 2019) n.3.

[17] Model Penal Code §204(3)(“A belief that conduct does not legally constitute an offense is a defense . . . when: (a) the statute . . . defining the offense is not known to the actor and has not been published or otherwise reasonably made available . . .; or (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous”); RESTATEMENT (THIRD) OF TORTS §15(d)(“An actor’s violation of a statute is excused and not negligence if . . . the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public”).

[18] The limited Supreme Court caselaw does not appear to address this issue directly and seems to confirm Congress’ broad powers of the purse.  See, Congressional Research Service, Congress’s Power Over Appropriations: Constitutional and Statutory Provisions 10-16, 57-61 (Report No. R46417 June 16, 2020)(Sam N. Stiff).

But the theory suggested above would not deny Congress the power to generally withhold appropriations from an agency.  Historically, the Executive Branch has distinguished “complete denial of funding for statutory functions,” from appropriations riders attached to appropriations bills.  In the latter situation, “Congress makes budget authority available, but under a rider that dictates how that budget authority may be obligated.”  Appropriation riders are far more subject to attack than complete denials of funding to an agency.  Id. at 57-58.

[19] Indeed, during the 2013 federal government shutdown, the Department of Justice took the position that the shut-down did not modify the statutorily applicable guidelines.  Office of Information Policy, U.S. Department of Justice, Calculating FOIA Response Times After The Government Shutdown (Oct. 29, 2013).  The Office of Government Information Services took a similar position.  Shutdown Didn’t Stop FOIA Clock, THE FOIA OMBUDSMAN (October 24, 2013).

Print Friendly, PDF & Email