LESSON 6: HIERARCHY OF LEGAL SOURCES
6.2 Priority of Blackletter Primary Authority
6.2.2 Federal Statute vs. Federal Statute
Annotated Lecture Transcript
Okay, so now you know how judges look at situations where constitutional law conflicts with statutory law.
What happens if a statute conflicts with another statute?
This comes up a lot, because Congress is constantly enacting bills which supersede or modify older statutes with new language that changes legal obligations going forward.
Ø Amendatory Bills vs. New Framework Legislation: In fact, most bills passed by Congress modify existing statutes, rather than creating an entirely new regulatory framework.
o Congress typically regulates an area by first passing a major statute setting up the general regulatory framework, and then fine tunes it over time by enacting new amendatory statutes.
Ø FISA Example: For example, the Foreign Intelligence Surveillance Act of 1978 created an all-new statutory framework for governing domestic surveillance by U.S. intelligence agencies.
o When it was codified, they created a new chapter in Title 50 of the U.S. Code—Chapter 36.
o Many acts since 1978 have modified the provisions contained in the original act.
o The USA PATRIOT Act: The USA PATRIOT Act, for example, did not create a new regulatory framework; rather it simply made changes to a TON of pre-existing statutes like FISA.
§ When this happens, Congress amends the official language of the original act in the Statutes at Large, and later the new language is codified and changes the corresponding code provisions.
§ No new chapter was created in the U.S. Code.
o FISA Amendment Act of 2008: Another example is the FISA Amendment Act of 2008, which also added amended existing language and created a few new sections in FISA—including the controversial section that provided retroactive immunity to telecommunications providers that violated privacy laws by helping the NSA spy on their customers.
o Retroactive Statutes: This retroactive immunity for telecom companies in the FISA Amendment Act of 2008 demonstrates that, while generally disfavored, retroactive statutes are possible under U.S. law, but Congress must make their retroactive effect explicit in the text of the statute.
§ The default rule of statutory interpretation is that statutes will not apply retroactively.
§ This avoids running afoul of constitutional guarantees like the prohibition of ex post facto criminal statutes.
So, back to the original question: What happens if one federal statute conflicts with another federal statute?
Ø The Last-in-Time Rule: The answer is pretty easy: the last in time will control.
o The newer statute will be seen to supersede the older statute if there’s a direct conflict.
o This is known as the Last-in-Time Rule.
The Last-in-Time Rule reflects the default position on all law at the statutory level and below, so all existing administrative regulations and orders would be superseded by a new conflicting statute.
When a new statute overwrites the text of an old statute, the bill will usually say so explicitly, giving instructions for how the existing language in official text of the statute contained in the Statutes at Large is to be modified.
This is what happened in the two examples I gave above, where the USA PATRIOT Act and the Protect America Act modified FISA.
The rules of both the House and the Senate require committees to produce a comparative print illustrating the changes a new bill would make to existing law whenever they decide to report a new bill.
This makes it clear to Members of Congress how the official version of the law in the Statutes at Large is to be modified by the new statute.
Also, when Congress explicitly repeals a statute with a new statute, the new statute will often have explicit language to that effect in a section titled “effect on existing law.”
Courts will sometimes even presume that Congress will make its intent to supersede existing laws explicit within the text of a new statute and will therefore interpret statutory silence on the issue of effect on existing law as evidence of Congress’ intent not to supersede existing statutes.
But what happens if Congress forgets to state explicitly what a new statute’s effect is supposed to be on existing laws?
What if there’s a law on the books Congress forgot about when passing the new statute, and this new statute conflicts with the old one?
Well, again, the Last-in-Time Rule dictates that the latter statute controls.
“Repeal by Implication” refers to the doctrine that a statute does not necessarily need to explicitly repeal an earlier statute in order to supersede its provisions.
As I just said, the Last-in-Time Rule holds that the newest statute controls in the case of a conflict because it represents the most current statement of the will of the Legislature.
Ø CAVEAT: Repeal by Implication is Strongly Disfavored by Courts: Keep in mind, however, that the Supreme Court frowns on repeals by implication.
o Repeals by implication are strongly disfavored by all courts, and will be avoided whenever possible.
o The two statutes must clearly be in conflict with one another, or else courts will try to harmonize the statutes so the two remain in effect at the same time.
Ø Process of Statutory Interpretation for Conflicting Statutes: So, when two statutes appear to conflict and are silent as to their intended effect on one another, courts will first try to interpret both statutes in harmony with one another before resorting to implied rescission.
o If harmonization isn’t possible, however, then the statute that is last-in-time will prevail.
o Courts will generally try hard to harmonize the statutes before resorting to the last-in-time rule.
o Because of all these efforts to harmonize statutes, court decisions that find a statute to have been repealed by implication are exceptionally rare.
o In fact, for the 26-year period between 1976 and 2002, the Supreme Court never once repealed a statute by implication.
Ø Analyzing the AUMF and FISA:
o This strong aversion to repeal by implication applies to all statutes even penal criminal statutes like FISA, which weakens the government’s claim that the joint resolution authorizing the use of force against al Qaeda in Afghanistan was intended to authorize warrantless surveillance of Americans on U.S. soil during the infamous NSA warrantless eavesdropping scandal.
o As with all matters of statutory interpretation, the intent of the legislature will control whether a new statute repeals an older statute by implication.
o The case for repeal by implication in the FISA situation is even less likely because judges are far less likely to find Congress intended to repeal by implication a longstanding statute which it has cautiously preserved through several amendments and revisions.
o At the time of the warrantless NSA surveillance program, FISA had been in effect for 25 years and had been revised and preserved several times by Congress through amendatory statutes.
o Although the case for repeal by implication is clearer in the case of a specific or special statute repealing an earlier general statute is stronger, repeal by implication can even occur in the situation where a general or broad statute conflicts with an earlier special or specific statute.
o The problem is that, since repeals by implication are so strongly disfavored, the newer statute has to speak specifically to the object and purpose addressed by the older statute in order to rescind its provisions.
o This weakens Attorney General Gonzales’ case in the TSP situation.
Sometimes Congress supersedes existing laws more generally with a new statute simply by prefacing the text of the new bill with words like, “notwithstanding any other provision of law…” or “notwithstanding any other provision of this Title,” if they only wish to supersede other conflicting laws contained in the Title in question.
This statement just clarifies that the new law is intended to supersede older conflicting statutes that might seem to conflict with the new provisions presently being enacted.
Courts and commentators sometimes deride this terminology as unhelpful to statutory interpretation.
Ø FISA’s Warrantless Surveillance Emergency Exception: A good example of this kind of blanket change can be found in Section 105(e)(1) of FISA.
o It states:
o "Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General—reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained..”
o The section also requires several other conditions to be met in order for the AG to make use of this emergency power, and I’ve listed them in the footnotes of the annotated transcript of this course.
Ø Crime Spree Caveat: Remember, however, that repeals by implication are strongly disfavored by the Supreme Court.
o So, interpreting language like “notwithstanding any other statute” in a new statute as license to violate older conflicting statutes is incredibly risky business.
o I don’t recommend trying a stunt like that unless you’re the Director of the NSA.
 See Richard S. Beth, Congressional Research Serv., How Bills Amend Statutes (2003), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20617_8-4-2003.pdf (“A bill (or joint resolution) may propose to affect existing law either explicitly, by amending its provisions, or implicitly, by superseding it. Only the first method can directly alter the text of the law, and a bill often may most clearly identify its intended relation to existing law if it is formulated explicitly as amending that law. A proposed amendment to existing law may (1) insert new text, (2) strike text, or (3) strike text and insert new text in its place. (These three forms that amendments to law may take parallel the three forms that floor amendments to a bill may take.) (1) By inserting new provisions, an amendatory bill can supplement existing law. A bill that does not explicitly amend existing law may also have such an effect. (2) By striking out provisions, an amendatory bill can repeal existing law. A bill that does not explicitly strike out any text of existing statutes repeals nothing, but may still have the effect of superseding existing provisions. (3) By striking and inserting, an amendatory bill may make specific alterations or modifications in provisions of existing law. In general, this effect may be possible only through explicit amendment.”).
 FISA Amendments Act of 2008, P.L. 110-261 (July 10, 2008).
 See The Uniform Statute and Rule Construction Act, § 8 (“A statute or rule operates prospectively only unless the statute or rule expressly provides otherwise or its context requires that it operate retrospectively.”); see also 73 Am. Jur. 2d Statutes § 244 (2008) (“The Federal Constitution and the large majority of state constitutions contain no express prohibition of laws which are retrospective in operation. In the absence of such an express constitutional inhibition, retrospective laws are not prohibited as such. Such laws cannot be held invalid unless they violate some other constitutional provision, such as the provisions relating to due process, equal protection of the laws, impairment of contractual obligations, or ex post facto laws. A retrospective law may also be invalid as amounting to an improper assumption of judicial power by the legislature, or as an impairment of vested rights. It should be noted that, as a general rule of statutory construction, no provision of a statute will be construed so as to give it a retroactive effect unless such intent clearly appears from the act itself.”).
 See 73 Am. Jur. 2d Statutes § 245 (2008).
 See Richard S. Beth, Congressional Research Serv., How Bills Amend Statutes (2003), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20617_8-4-2003.pdf (“Amendments to existing law must be made to the official evidence of the law, which is ordinarily a statute as set forth in the bound Statutes at Large. A bill may identify a statute by short title, public law number (e.g., P.L. 101-987), and perhaps citation in the Statutes at Large (e.g., 123 Stat. 456). However, where Congress has re-enacted a group of statutes in codified form (i.e., as a title of the United States Code), further amendments to that law must be made directly to that title (e.g., 50 U.S.C. section 234b). An act that has already been amended by previous subsequent enactments may sometimes be cited in the form, “the XYZ Act of 19 — , as amended.” Specific provisions of an act are identified by section number (or by the designations of other, smaller or larger, subdivisions of the act). When a bill amends an existing statute, section numbers of the bill will not generally correspond to those of the statute being amended. For example, section 102 of a bill may set forth a rewritten version of section 203 of some existing act. In general, in this context, section numbers within quotation marks will refer to provisions of a cited existing law; those having none designate the sections of the bill itself. The short title of a bill that proposes to amend existing law may sometimes identify it as such, for example, “Clean Water Act Amendments of 20 — .” Bills identified as “reauthorizations,” too, generally include amendments to the previous law being reauthorized. They typically extend existing programs either (1) by amending provisions of statute that specify a fixed expiration date (including what are sometimes called “sunset provisions”), or (2) by inserting text covering additional fiscal years into provisions of statute that authorize appropriations for the programs. These “reauthorizing bills,” however, frequently also include provisions making substantive alterations in the programs in question, by amending existing statutory language governing them.”).
 See Richard S. Beth, Congressional Research Serv., How Bills Amend Statutes (2003), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20617_8-4-2003.pdf (“When a bill explicitly proposes to modify or alter provisions of existing law, it generally must identify specific statutory language to be stricken out, and set forth language to be inserted in lieu thereof. It may identify each separate point in existing statutes at which text is to be stricken out and, for each, set forth text to be inserted. Alternately, it may propose to strike out an entire provision, then set forth, to be inserted in lieu, a new text, incorporating all the changes in language desired at every point in the provision. Finally, a bill may simply provide that a specified provision “be amended so as to read” in the way specified by text that follows. These last approaches may make it easier to see the overall effect of the new version, but, at the same time, harder to see what changes would occur from previously existing law.”).
 See Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Abbreviated Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-327_9-2-2008.pdf (“The Protect America Act (P.L. 110-55), which has since expired, granted the Attorney General and the Director of National Intelligence the power, under limited conditions, to authorize gathering foreign intelligence information, including by electronic surveillance, (for up to a year) relating to persons believed to be overseas. In order to exercise that power, the Attorney General and the Director of National Intelligence were required to certify under oath that the collection effort involved: (1) procedures reasonably calculated to assure that the information sought concerned a person outside the United States; (2) communications to which service providers or others had access; (3) a desire, at least in significant part, to gather foreign intelligence information; (4) accompanying minimization procedures; and (5) no electronic surveillance other than that directed at a person reasonably believed to be abroad, 50 U.S.C. 1805b(a)(expired). That having been done or in emergency situations with their oral approval, the Attorney General and Director of National Intelligence might direct the communications providers, or others with access, to immediately assist in the gathering of the foreign intelligence information in a manner least disruptive of service to the target and under confidentiality restrictions imposed by the Attorney General and the Director of National Intelligence. The directive came with the promise of compensation at prevailing rates as well as immunity from civil liability and was enforceable through the contempt power of the FISA court. Recipients were entitled to seek judicial modification of a directive, issued contrary to the statute or otherwise unlawfully, in the FISA court under expedited procedures. The FISA court was also tasked with the responsibility of reviewing the procedures crafted to ensure that the authority was only invoked with respect to persons reasonably believed to be found overseas. Should the court have determined that the procedures were clearly erroneous, the government was free to amend them or to appeal the determination initially to the Foreign Intelligence Surveillance Court of Review and then to the Supreme Court.”).
 See Richard S. Beth, Congressional Research Serv., How Bills Amend Statutes (2003), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20617_8-4-2003.pdf (“Whichever approach is used, House Rule XIII, clause 3(e)(1) (the “Ramseyer Rule”) and Senate Rule XXVI, paragraph 12 (the “Cordon Rule”) require that, when a committee reports a bill amending existing law, it must provide, in its report or otherwise, a “comparative print” showing how the bill would alter that law. This comparative print can be of great aid in ascertaining the intended effect of amendatory legislation.”).
 See Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (“If Congress intends one statute to repeal an earlier statute or section of a statute in toto, it usually says so directly in the repealing act. There are other occasions when Congress intends one statute to supersede an earlier statute to the extent of conflict, but intends the earlier statute to remain in effect for other purposes. This too is often spelled out, usually in a section captioned ‘effect on existing law,’ ‘construction with other laws,’ or the like.”).
 United States v. Fausto, 484 U.S. 439, 453 (1988) (“[It] can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change.”).
 See 73 Am. Jur. 2d Statutes § 279 (2008).
 Rodriguez v. United States, 480 U.S. 522, 524 (1987) (“[R]epeals by implication are not favored … and will not be found unless an intent to repeal is clear and manifest.”).
 See 73 Am. Jur. 2d Statutes § 279 (2008).
 See Richard S. Beth, Congressional Research Serv., How Bills Amend Statutes (2003), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20617_8-4-2003.pdf (“If a bill proposes to enact certain provisions, but does not explicitly amend existing law on the same subject, then the intended relation between bill and law can be ambiguous. The resolution of these ambiguities may come through juridical or administrative interpretation. In the absence of clear conflict between an existing and a new provision, courts normally presume that the two are intended to be read together, and attempt to give both the fullest effect possible. In that case the provisions in the new law would be interpreted as additional to the previously existing ones. By contrast, an earlier enactment may always be superseded by a later one, so that, if a new enactment is interpreted as conflicting with existing provisions of statute, the new provisions may be held to supersede the earlier ones.”).
 See Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (“Not infrequently, however, conflicts arise between the operation of two federal statutes that are silent as to their relationship. In such a case, courts will try to harmonize the two so that both can be given effect. A court ‘must read [two allegedly conflicting] statutes to give effect to each if [it] can do so while preserving their sense and purpose.’ Citing: Watt v. Alaska, 451 U.S. 259, 267 (1981). See also Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001) (reconciling “tension” between the saving to suitors clause and the Limitation of Liability Act); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017-18 (1984) (rejecting a contention that the Federal Insecticide, Fungicide, and Rodenticide Act repealed by implication a Tucker Act remedy for governmental taking of property without just compensation, and reconciling the two statutes by implying a requirement that remedies under FIFRA must be exhausted before relief under the Tucker Act could be obtained). But see Stewart v. Smith, 673 F.2d 485, 492 (D.C. Cir. 1982) (interpreting a statute authorizing agency heads to set maximum age limits for law enforcement officers as an exception to the Age Discrimination in Employment Act). Even though the laws might have been harmonized through a “strained reading,” the court concluded that doing so would thwart the maximum age law’s sense and purpose. The Stewart court relied on legislative history to find a “clear” congressional intent “to employ maximum entry ages as a means towards securing a ‘young and vigorous’ work force of law enforcement officers,” and concluded that furtherance of this policy required “consideration of factors not ordinarily accounted for” under ADEA procedures.”).
 See Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (“Only if provisions of two different federal statutes are ‘irreconcilably conflicting,’ [Watt v. Alaska, 451 U.S. 259, 266 (1981)] or ‘if the later act covers the whole subject of the earlier one and is clearly intended as a substitute,’ [Posadas v. National City Bank, 296 U.S. 497, 503 (1936).] will courts apply the rule that the later of the two prevails.”).
 See Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends, Footnote 150 (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (stating that “the Court rarely finds repeal by implication. As Judge Posner has pointed out, this canon is ‘a mixed bag. It protects some old statutes from . . . inadvertent destruction, but it threatens to impale new statutes on the concealed stakes planted by old ones.’ Citing: Friedrich v. City of Chicago, 888 F.2d 511, 516 (7th Cir. 1989). Judge Posner describes the assumption on which the canon rests — that Congress surveys and envisions the whole body of law before legislating — as “unrealistic”: how could Congress do so, he has questioned, “given the vast expanse of legislation that has never been repealed and the even vaster expanse of judicial and administrative rulings glossing that legislation.” In re Doctors’ Hospital of Hyde Park, 337 F.3d 951, 960 (7th Cir. 2003). On the plus side, the rule serves the “superior values of harmonizing different statutes and constraining judicial discretion in the interpretation of the laws.” Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 109 (1991).”).
 See Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends, Footnote 150 (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (“For an instance in which the Court arguably found repeal by implication, see Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438 (1989) (concluding that Congress had intended to ‘deal comprehensively with the subject of foreign sovereign immunity in the [Foreign Sovereign Immunities Act of 1976],’ and that consequently suit against the Argentine Republic could not be brought under the Alien Tort Statute). But see Branch v. Smith, 538 U.S. 254, 293 (2003), in which Justice O’Connor asserted that the Court last found a repeal by implication in 1975, in Gordon v. New York Stock Exchange, 422 U.S. 659 (antitrust laws impliedly repealed (in part) by Securities Exchange Act).”).
 See 73 Am. Jur. 2d Statutes § 301 (2008).
 See 73 Am. Jur. 2d Statutes § 280 (2008).
 See 73 Am. Jur. 2d Statutes § 281 (2008).
 See 73 Am. Jur. 2d Statutes § 282 (2008).
 See 73 Am. Jur. 2d Statutes § 284 (2008).
 FISA was passed in 1978 and had been amended by several acts during and before the warrantless NSA surveillance program was ongoing. See Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783, (codified as amended at 18 U.S.C. §§ 2511, 2518, 2519, 50 U.S.C. §§ 1801-1812, 1821-1829, 1841-1846, 1861-1862, 1871 (2003 & Supp. III 2006)), amended by Counterintelligence Reform Act of 2000, Pub. L. No. 106-567, Title VI, § 601, 114 Stat. 2850; and Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638.
 See 73 Am. Jur. 2d Statutes § 300 (2008).
 See 73 Am. Jur. 2d Statutes § 286 (2008).
 See Richard S. Beth, Congressional Research Serv., How Bills Amend Statutes (2003), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20617_8-4-2003.pdf (“A bill may be able to avoid ambiguities of this sort if it is formulated as explicit amendments to existing law. Alternately, a bill may preface new provisions being added to law with such a phrase as, “notwithstanding any other provision of law.” Such a phrase tends to imply that the new language is intended to supersede any conflicting provisions of previous law. This broad phrase, however, does not specify which provisions it is meant to refer to, and may therefore have unforeseen consequences for both existing and future laws.”).
 See Yule Kim & George Costello, Congressional Research Serv., Statutory Interpretation: General Principles and Recent Trends (2008), available at https://intelligencelaw.com/files/pdf/law_library/crs/97-589_8-31-2008.pdf (“Congress sometimes underscores statutory directives by requiring that they be undertaken ‘notwithstanding any other provision of law.’ This phrase seldom aids interpretation. It is the statutory equivalent of a parent telling a child ‘I’m serious,’ or ‘I really mean it.’ Despite the admonition, courts and administrators still must determine what the underlying directive means. And, ordinarily, there will still be other provisions of law that apply; the trick is to determine which ones. Courts have recognized these difficulties. One court, for example, ruled that a directive to proceed with offering and awarding of timber sale contracts ‘notwithstanding any other provision of law’ meant only ‘notwithstanding any provision of environmental law,’ and did not relieve the Forest Service from complying with federal contracting law requirements governing such matters as non-discrimination, small business set-asides, and export restrictions.”); see also Oregon Natural Resources Council v. Thomas, 92 F.3d 792, 796 (9th Cir. 1996) (“We have repeatedly held that the phrase ‘notwithstanding any other law’ is not always construed literally . . . and does not require the agency to disregard all otherwise applicable laws.”).
 50 U.S.C. § 1805 (e)(1)(A) (emphasis added).
 50 U.S.C. § 1805 (e)(1) (the full section states: "Notwithstanding any other provision of this title [50 U.S.C. §§ 1801 et seq.], the Attorney General may authorize the emergency employment of electronic surveillance if the Attorney General--(A) reasonably determines that an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; (B) reasonably determines that the factual basis for the issuance of an order under this title [50 U.S.C. §§ 1801 et seq.] to approve such electronic surveillance exists; (C) informs, either personally or through a designee, a judge having jurisdiction under section 103 [50 U.S.C. § 1803] at the time of such authorization that the decision has been made to employ emergency electronic surveillance; and (D) makes an application in accordance with this title [50 U.S.C. §§ 1801 et seq.] to a judge having jurisdiction under section 103 [50 U.S.C. § 1803] as soon as practicable, but not later than 7 days after the Attorney General authorizes such surveillance.").