Mastering Statutory Interpretation by Linda D. Jellum

Author:Linda D. Jellum
Language: eng
Format: mobi
Tags: Law, Educational Law & Legislation
ISBN: 9781594603143
Publisher: Carolina Academic Press
Published: 2008-05-14T21:00:00+00:00

3. Repeal by Implication Is Disfavored

New acts should be interpreted harmoniously with existing acts whenever possible. But, sometimes, harmony is simply not possible. When two statutes cannot be reconciled, one possibility is that the later statute repealed the earlier statute either explicitly or implicitly. Judges presume that a legislature would not go through the legislative process without intending to change the law in some way. Thus, every new act should change the status quo, likely modifying existing law, in some way. But while modification is to be expected, outright repeal is not. Normally, when a legislature wants to repeal a statute or a section of a statute, it does so expressly. Thus, in the absence of an express repeal, it is likely the legislature did not intend any repeal at all. When a legislature intends to repeal a statute, it should say so clearly; repeals should not be implied. Hence the canon of negative presumption: repeals—full or partial—by implication are disfavored. This canon rests on the potentially flawed presumption that the legislature was aware of the conflicting, existing law and specifically opted not to repeal it. Hence, this presumption yields if there is evidence that the legislature intended the second statute to repeal the first. For example, if the new statute comprehensively covers the entire subject matter of the existing statute and is complete in itself, then the new statute was evidently intended to supersede any existing statute on the subject. Also, if the new statute is completely incompatible with the existing statute, repeal may be appropriate.

In statutory interpretation cases, this issue arises when a judge finds that a statute conflicts with an existing statute, that the conflict is irreconcilable, and that the legislature did not explain how the conflict should be resolved. If there are two reasonable interpretations, the judge should choose the interpretation that does not repeal the existing statute or any part thereof. If there is irreconcilability, then the second statute is only repealed to the extent of the irreconcilability; if any part of the earlier statute can exist in harmony with the later statute, that part of the earlier statute is not repealed.

Sometimes Congress repeals an existing statute in a later statute, then later repeals the later statute. In the past, courts had held that when this happened, the earlier statute was revived, or effective, again. But Congress and many state legislatures have abolished this old common law canon. 1 U.S.C. §108 (2000). Hence, today, an express or implied repeal of one statute does not revive an earlier statute. The original statute remains repealed. Also, simply because a statute is no longer necessary, it is not repealed. For example, birth control or sodomy laws were not simply repealed as society’s mores changed. Rather, Congress must act to repeal any existing statute. Thus, sodomy laws remain on the books in many states, although they are rarely enforced. Today, these laws are likely unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003).

One of the more famous cases addressing implied repeal is Morton v.

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