Jacob discusses an Albion College resolution that attempts to amend its faculty handbook to permit a bunch of firings, as follows:
RESOLVED that exercising the authority of the Board of Trustees under the Charter of 1857, the Faculty Handbook is amended effective immediately in all ways necessary to
permit the reduction of 15 full time equivalent (FTE) existing faculty positions, which may include tenured faculty positions, by the beginning of the 2010-2011
They still haven’t acted.
has no actual amendments contained within its language. The thing about written legal documents is that they contain actual words– and amending them requires substituting other actual words, or else specifying which original words are being deleted. You can’t simply declare a policy goal.
If the Faculty Handbook posed an ex ante obstacle to the firings, then I can’t see that that obstacle has been removed.
But I’m not so sure. Traditionally, we understand that a legislative act implicitly repeals all prior provisions of law (except for superior law, i.e., statutes can’t repeal constitutional principles) just to the extent those provisions are contrary — that’s one of those principles of statutory construction that is so venerable it has a latin name, “lex posterior derogat priori.” If we think that ordinary principles of statutory construction apply to faculties amending their handbooks, then we’d be obliged to say that had the faculty of the college in question wanted to, they could have simply added “15 FTE positions, including tenured positions, may be eliminated by the 2010-2011 academic year” to the handbook, and that would have carried out all necessary amendments.
But it follows from that proposition that legal text can be amended in general — i.e., that the content of a legislative amendment can be “any text that contradicts the following.” Because that’s the kind of amendment that happens when we apply the lex posterior.
But then it seems like Jacob is committed to the claim that this kind of general amendment can only be made implicitly — i.e., that you can make a general repeal of provisions of law contrary to some proposition P only by specifying some rule that in fact declares P to be the case. And that seems much more implausible than the way he originally stated the point. After all, if a legislative body has the power to carry out a general repeal, why shouldn’t it be able to do so without putting something in the place of the repealed text?
Two other considerations also suggest that this kind of amendment is effective. First, those construing a legislative utterance probably ought to defer to the conscious use of the explicit performative. Second, legislators can have coherent reasons for repealing parts of a document that are contrary to some power they want exercised without either explicitly granting permission in that document to exercise that power or repealing every single piece of contrary text in specific. For an easy example, suppose that they think that the entity in whose benefit the repeal is conducted has the inherent power to carry out the act they’re permitting, and their concern is only to cautiously remove all legislative barriers to that act? For example: I can easily see a twisted and sheeplike Congress passing some law that says something like “all provisions of law that might be construed to forbid the president from ordering coercive interrogations are repealed,” both to be sure they catch any inconvenient anti-torture laws that might be lying around and to nonetheless implicitly affirm the position that the president has inherent power to torture as commander in chief except insofar as there is legislation to the contrary.
(Why am I posting on this thing that is probably totally uninteresting to most people? Because it’s AM and I’m not ready to get out of bed yet, plus I feel guilty for neglecting this blog, plus because Jacob’s post doesn’t permit comments.)