Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 33 of 67 PageID 4455
when “federal courts of appeals settled upon a consensus view” and “Congress never modified the relevant statutory text to reject or displace this settled construction.” ECF No. 28 at 39. This purported “consensus view” is that the Comstock Act does not prohibit the mailing of items designed to produce abortions “where the sender does not intend them to be used unlawfully.” Id. This argument is unpersuasive for several reasons.
“Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978). But “[t]here is an obvious trump to the reenactment argument”: “‘[w]here the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction.’” Brown v. Gardner, 513 U.S. 115, 121 (1994) (quoting Demarest v. Manspeaker, 498 U.S. 184, 190 (1991)); see also Milner v. Dep’t of Navy, 562 U.S. 562, 576 (2011) (“[W]e have no warrant to ignore clear statutory language on the ground that other courts have done so.”). Additionally, the presumption only applies when the judicial or administrative gloss “represented settled law when Congress reenacted the [language in question].” Keene Corp. v. United States, 508 U.S. 200, 212 (1993); see also Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 349 (2005) (presumption applies only when the supposed judicial consensus at the time of reenactment was “so broad and unquestioned that we must presume Congress knew of and endorsed it”); Davis v. United States, 495 U.S. 472, 482 (1990); Fed. Deposit Ins. Corp. v. Phila. Gear Corp., 476 U.S. 426, 437 (1986); United States v. Powell, 379 U.S. 48, 55 n.13 (1964).[1]
- ↑ See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 325 (2012) (“But how numerous must the lower-court opinions be, or how prominent and long-standing the administrative interpretation, to justify the level of lawyerly reliance that justifies the canon? What about two intermediate-court decisions? (We doubt it — though some cases have relied on just a single intermediate-court decision.) Or seven courts of first instance? (Perhaps.)”).
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