Publication Date



When confronted with constitutional challenges to
Congress's legislative authority, courts must build their
analyses on an interpretation of the statute's language.
Such cases implicate principles of statutory construction
that lay the groundwork for the rulings that follow.
Throughout American judicial history, courts have
favored flexible interpretation to protect Congress's
enactments from constitutional attack. The Supreme
Court's decision in Railway Labor Executives' Association
v. Gibbons dramatically departed from that tradition,
suggesting instead that legislation should be categorized
as a particular type of law to ensure that Congress does
not overstep the boundaries of its enumerated powers.
Although its shift in perspective took time to register,
Gibbons's novel approach, here referred to as a "choice of
clause" analysis, introduced an alternative to flexible
construction with the potential to shake the foundations of
future constitutional cases. Inspired by a recent cycle of
cases that confronted Gibbons's reasoning, this Note
examines the choice of clause analysis and attempts to
understand its place among the canons of statutory
construction. Building on the fundamental differences
between the choice of clause analysis and a long-followed
principle of construction, this Note argues that the choice
of clause analysis should not be given a role in the process
of statutory construction because of the potential for
Gibbons's approach to dramatically reshape the outcomes
of constitutional cases.