The Supreme Court's New Implied Repeal Doctrine: Expanding Judicial Power to Rewrite Legislation Under the Ballooning Conception of 'Plain Repugnancy'

Abstract

This article presents a historical, public policy and analytical critique of the United States Supreme Court's revision of the implied repeal doctrine in Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264, 127 S. Ct. 2383 (2007). The article takes a historical perspective to demonstrate the sound public policy rationale for the more traditional approach to this canon of statutory interpretation. The article analyzes the decision against the backdrop of more than 400 years of English and American courts traditional application of this doctrine to avoid judicial intrusion into the legislative prerogative. It is argued that the Court's revision of the implied repeal doctrine ignores the long and steady history of the doctrine; that the Court's new approach is bad law and bad policy; and that the Court should move to restore the traditional doctrine fully and clearly.

Keywords: implied repeal, antitrust, regulation, plain repugnancy, separation of powers

JEL Classification: L40, L43, L50