No Taxpayer Standing to Challenge Unconstitutional Executive Expenditures

Hein v. Freedom From Religion Foundation, Inc.

Plaintiffs claim that the President’s Faith-Based and Community Initiatives program violated the Establishment Clause of the First Amendment because they supported religion with money paid by the executive branch general appropriation. Plaintiffs contend that they meet Article III standing requirements because they pay federal taxes. Payment of taxes is generally not enough to meet the requirement that one must have a particularized harm before going to court to have it redressed since “in light of the size of the federal budget, it is a complete fiction to argue that an unconstitutional federal expenditure causes an individual federal taxpayer any measurable economic harm.” Flast v. Cohen recognized a narrow exception whereby a plaintiff had standing to challenge a law authorizing the use of federal funds in a way that violated the Establishment Clause. The question here is whether money paid by the executive branch falls under the same exception to the general rule against taxpayer standing.

The President created the Office of Faith-Based and Community Initiatives to ensure that “private and charitable community groups, including religious ones … have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes” and adhere to “the bedrock principles of pluralism, nondiscrimination, evenhandedness, and neutrality.” No congressional legislation specifically authorized this action or expenditure.

Under Article III a plaintiff “must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” In cases of taxpayer/citizen standing the individual taxpayer’s injury “is not distinct from that suffered in general by other taxpayers or citizens” (known as the Frothingham principle). This rule preserves the principle that U.S. courts do not pass on the constitutionality of an act unless required to do so when the question is raised by an interested party, and the general interest in seeing that tax money is spent constitutionally is not a “personal injury” for Article III purpose unless it causes a real and immediate economic injury to the taxpayer. Flast carved out an exception to this general rule where distribution of federal funds to religious schools under a two part test: (1) the taxpayer must establish a logical link between that status and the type of legislative enactment attacked (expenditures under Article I Section 8 ‘Spending Clause’ and not incidental regulatory expenditures), and (2) the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement (that it infringes a specific constitutional limitation and is not merely outside the powers delegated to Congress). This rule was limited to challenged directed at congressional power.

Here, the expenditures were made out of Executive Branch appropriations for day-to-day activities ($53.8 million). In Valley Forge similar standing was denied, even though the donation of property to a religious institution was arguably authorized by the Federal Property and Administrative Services Act of 1949 (also because it was an exercise under the Property Clause, and not the Spending Clause). In Schlesinger v. Reservists Commission the Court denied standing to prevent members of Congress from unconstitutionally receiving reservist pay, presumably funded through general appropriations for the support of the Armed Services. Also, in United States v. Richardson the Court denied standing to compel the CIA to publish more of its budget (as required by the Constitution) because there was no logical nexus between taxpayer status and failure of Congress to pass a law requiring the CIA to do so. In Bowen v. Kendrick the Court allowed standing where the Adolescent Family Life Act (AFLA) authorized federal grants to private community service groups, including religious organizations because this was a Congressional enactment.

Plaintiffs argue the line between congressional expenditures and Executive expenditures of congressional appropriations is arbitrary and in any case the injury is the same. But Flast drew that line and the Court “must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures.” “The Flast exception has largely been confined to its facts.” The extension plaintiffs seek would “effectively subject every federal action – be it a conference, proclamation, or speech – to Establishment Clause challenge by any taxpayer in federal court.” Flast itself gave too little weight to separation of powers concerns embodied in Article III standing “lowering the taxpayer standing bar to permit challenges of purely executive actions would significantly alter the allocation of power at the national level, with a shift away from democratic form of government.” “It would deputize federal courts as virtually continuing monitors of the wisdom and soundness of Executive action, and that is, most emphatically, not the role of the judiciary.

The lower court suggested drawing the line at actual harm, that is, spending as opposed to mere verbal support of religion, but this neglects the incidental costs of even giving a speech. Plaintiffs offer a test designed to “screen out challenges to the content of one particular speech” (I’m sorry, are you kidding me? We are interpreting the First Amendment, are we not?) by focusing on whether the injury is fairly traceable to the actions challenged.

Justice Kennedy, concurring, says that if Flast were extended as plaintiffs ask “the courts would soon assume the role of speech editors for communications issued by executive officials and event planners for meetings they hold.” “Government officials must make a conscious decision to obey the Constitution whether or not their actions can be challenged in a court of law and then must conform their actions to these principled determinations.”

Justice Scalia, dissenting, argues that the consistency in this case is purchased at the price of “utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently.” “If this Court is to decide cases by rule of law rather than show of hands, we must surrender to the logic and choose sides:” either Flast should apply to all challenges to government expenditures of tax revenues in violation of the Constitution, or Flast should be repudiated. Justice Scalia describes two ‘alternative’ standards that he believes are employed by the Court in place of the particularized injury standard: “wallet injury” and “psychic injury’ (both of which are pretty self explanatory). Cases under the former fail for lack of traceability and redressability while cases under the second violate the rule that redressable injury must be concrete and particularized. He compares the Frothingham rule that wallet-injury is insufficient to the Doremus rule that psychic injury was insufficient (in that case standing was denied plaintiffs who wished to sue to enjoin a state law that required reading the bible at the opening of school sessions). The Flast rule was designed to disqualify one of these two groups. “Did the Court proffer any reason why a taxpayer’s psychic injury is less concrete and particularized, traceable, or redressable when the challenged expenditures are incidental to an essentially regulatory statute (whatever that means)? Not at all.

As for Frothingham, “it is impossible to maintain that the Establishment Clause is a more direct limitation on the taxing and spending power than the constitutional limitation invoked in Frothingham, which is contained within the very provision creating the power to tax and spend” (apparently referring to the limitation that Congress may spend only for the common defense and general welfare). Then in Bowen v. Kendrick the Court allowed a challenge to the Secretary of Health’s disbursement of congressional funds based on their psychic injury. Then in DaimlerChrystler Corp. v. Cuno the Court recognized that by the nature of expenditures in violation of the Establishment Clause the harm would be redressed even if the funds were still spent for a different purpose – expressly recognizing psychic injury. Therefore, Justice Scalia argues, at the first step the Court must decide whether psychic injury comports with Article III. If it does the branch of government which causes that injury is completely irrelevant. If not, Flast should be overruled. Nor can the majority fall back to just applying the law as it is, for better or worse, because the whole point of the as applied challenge in Kendrick was that the Secretary, not Congress, had chosen inappropriate grant recipients. Finally, the argument that the limiting principle in Flast was traceability is vacuous, as they argue that a taxpayer would have standing to challenge the hiring of a single secret service operative, but not a generalized duty on the part of the Secret Service. “If respondents are to prevail, they must endorse a future in which ideologically motivated taxpayers could Ïroam the country in search of governmental wrongdoing and . . . reveal their discoveries in federal court.” The horror!

In an attempt to demonstrate the absurdity of this conclusion, Justice Scalia suggests that Congress could insulate the President from all Flast-based suits by codifying the truism that no appropriation can be spent by the Executive Branch in a manner that violates the Establishment Clause.”

The problem with psychic injury standing, for Scalia, is that the result does not benefit petitioner any more or less than it does the public at large. He also objects to the idea that only the issues being presented, not standing per se, can raise a separation of powers issue, arguing that an expanded role for the courts creates the potential for abuse, distorts the balance of power, and paves the way for government by injunction. Generalized grievances have their remedy in the political process.

Justices Souter, Stevens, Ginsburg, and Breyer, dissenting, agree with Scalia that there is no principled distinction between this case and Flast. Citing Madison, and the historical importance of the Establishment Clause, that the government in a free society may not force a citizen to contribute three pence only of his property for the support of any one establishment of religion. As for separation of powers, there is no difference between judicial oversight of Exeutive and congressional actions. Justice Souter then packs into a single footnote my entire perspective on this case: “The plurality warns that a parade of horribles would result if there were standing to challenge executive action, because all federal actions are ‘ultimately funded by some congressional appropriation. But even if there is Article III standing in all of the cases posited by the plurality … that does not mean taxpayers will prevail in such suits. If these claims are frivolous on the merits, I fail to see the harm in dismissing them for failure to state a claim instead of for lack of jurisdiction. To the degree the claims are meritorious, fear that there will be many of them does not provide a compelling reason, much less a reason grounded in Article III, to keep them from being heard.”

“Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.” – Justice Scalia, dissenting

What is a Violent Felony - Pure Statutory Construction

James v. United States

Under the Armed Career Criminal Act (ACCA) possession of a firearm by a convicted felon carries a 15 year prison sentence if the defendant has three prior convictions ‘for a violent felony or a serious drug offense.” The question here is whether attempted burglary, defined by Florida law as entering or remaining in a structure or conveyance with the intent to commit an offense therein (unless the premises are at the time open to the public or the defendant is licensed or invited to remain therein), is a “violent felony.” This definition is not a violent felony under ACCA because it does not have, as an element, the use, attempted use, or threatened use of physical force against the person of another.

James (Appellant) argues that because Congress included offenses that have as an element the attempted use of physical force (clause (i)), and its failure to include attempted burglary in its enumeration of specifically covered crimes (clause (ii)) categorically excludes attempt offenses. The Court is not convinced because clause (i) is couched in narrow language while clause (ii) is couched in broad language – “…or otherwise involve[e] conduct that presents a serious potential risk of physical injury to another.” Nor is the fact that all enumerated crimes in clause (ii) (burglary, arson, extortion, and use of explosives) are completed crimes convincing. First of all, crimes involving the use of explosives are not necessarily completed crimes. Second, the common feature of those crimes is not their completion, but their risk of bodily injury.

Next, James argues that Congress rejection of a version of clause (ii) that included conspiracy to commit those completed crimes suggests that Congress intended to exclude attempt offenses. However, the expansive language cited in clause (ii) was added by a later Congress, which might have had different motivations.

The elements of the crime of which James was convicted must still independently qualify as a crime involving “conduct that presents a serious potential risk of physical injury to another.” Finding that attempted burglary poses the same threat of confrontation, and thereby, the same threat of physical harm, as its closest enumerated analogue (completed burglary), the Court finds that it fits into the category of clause (ii). Indeed, all courts of appeal, and the federal sentencing commission, have agreed.

James also challenges the law’s application as applied to his case. However, due to the Taylor precedent, and the fact that the nature of the inquiry is already probabilistic, the Court declines to consider the statute as applied. The dissent interprets the law to require at least as much probability as the completed crime, but the text does not support this requirement, and the dissent’s approach does not achieve its stated objective – providing guidance to the lower courts.

Nor does Florida’s inclusion of the cartilage (area around the house) in its definition reduce the danger presented by the elements of the offense. Finally, since the inquiry here is a matter of statutory interpretation, and not impermissible judicial fact-finding, the law does not violate the Sixth Amendment under Aprendi (in short, that the jury must find the facts of all the elements of a crime, not the judge).

Justice Scalia, dissenting, argues for a bright line rule that will give guidance to lower courts. Is driving under the influence more analogous to burglary, arson, extortion, or a crime involving the use of explosives? Nor is Justice Scalia of the opinion that an unenumerated offense that presents less risk than its closest analogue, but more than another enumerated offense, should be excluded for that reason alone. One approach would be to limit ACCA to its enumerated crimes. Another would be to categorically consider attempted crimes to be the same as completed crimes for the purposes of ACCA. Justice Scalia would determine whether the crime in question poses less of a risk of bodily injury than the least risky enumerated crime, which he determines to be burglary. At this point, instead of following the majority, Justice Scalia concludes that attempted burglary categorically poses a less serious risk of potential physical injury to others than completed burglary, and therefore must be excluded from clause (ii).

How “Per-Pupil Expenditures” Actually Means Student Population

Zuni Public School Dist. No. 89 v. Department of Education

Federal law requires a State’s Secretary of Education to calculate the disparity of expenditures per-pupil when determining whether the State’s public school funding program “equalizes expenditures” (for purposes of certain federal grants). However, when doing so, the Secretary is directed to “disregard” school districts “with per-pupil expenditures above the 95^th percentile or below the 5^th percentile of such expenditures,” and shall also take into account special additional costs, such as those borne by geographically isolated districts. Where the greatest measured district per pupil expenditures exceed the least measured district per-pupil expenditures by more than 25%, that state is not eligible for federal grants. The question here is whether the Secretary may identify these disregarded districts by looking to the number of the district’s pupils as well as the expenditure per pupil.

If Congress’ language is ambiguous then there is a gap for the agency to fill and the Secretary’s interpretation must be upheld under Chevron. “The matter here is the kind of highly technical, specialized interstitial matter that Congress often does not decide itself, but delegates to specialized agencies.” Also, the original method was left entirely to the Secretary, and never seems to have been challenged. The Court also finds the Secretary’s method objectively reasonable while it questions the reasonableness of the method based on number of districts alone since the secretary’s method actually excludes outliers while excluding based on the number of districts could exclude a larger or smaller portion of the population depending on the geographic characteristics of the school district lines.

And, finally, the text of the statute: How does “per-pupil expenditures” translate into student population? “A customs statute that imposes a tariff on ‘clothing’ does not impose a tariff on automobiles, no matter how strong the policy arguments for treating the two kinds of goods alike.” N-percentile is defined as a “the value Xn/100 such that n per cent of the population is less than or equal to Xn/100.” Congress did not delineate the relevant population to be divided for the purposes of evaluating “per-pupil expenditures.” Since the population is not defined the Secretary could define it – here he did so on the basis of students, not districts – and any reasonable definition passes Chevron. Where Congress wanted to be more specific, it has been, and the population should be defined based on Congressional intent (apparently, intent to allow ambiguity that can be filled in by the Secretary).

Justice Stevens, concurring, cites then Chief Justice Rehnquist for the proposition that “in rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters, and those intentions must be controlling.” “Justice Scalia’s argument today,” he continues, “rests on the incorrect premise that every policy-driven interpretation implements a judge’s personal view of sound policy, rather than a faithful attempt to carry out the will of the legislature.” He further cites Chevron for the proposition that “if a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” This case is one “in which the legislative history is pellucidly clear and the statutory text is difficult to fathom” (the paucity of comments is a sign of faith in the statute’s sponsors who introduced it on behalf of the administration who implemented this method both before and after the statute was passed, and as for what is left of the law – “any competent counsel challenging the validity of a presumptively valid federal regulation would examine the legislative history of its authorizing before filing suit”)

Justices Kennedy and Alito, concurring, argue that “only if Congress has not directly addressed the precise question at issue should a court consider whether the agency’s answer is based on a permissible construction of the statute.” The plain language is ambiguous, so Chevron deference applies.

Justice Scalia (joined by the Chief Justice, Justice Thomas, and Justice Souter) goes back to his Church of the Holy Trinity lecture: in that case the court said that sometimes “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers,” a proposition with which Justice Scalia humbly differs. Justice Scalia observes the “suspicious order of proceeding” that the majority takes by discussing what the statute does not say before commenting on what it does. Percentile, as used in the statute, refers to a division of some population, and concerns the percentile of “per-pupil expenditures or revenues.” The population at issue here is clear – the local education agency – and it does not suggest that the state may use each student’s individual per-pupil revenue. The only population mentioned in the statute is that of the LEA: “local education agencies with per-pupil expenditures or revenues …”

As for Justice Stevens’ concurrence, “once one departs from [the actual meaning of the text] … fidelity to the intent of Congress is a chancy thing. The only thing we know for certain both Houses of Congress … agreed upon is the text. Legislative history can never produce a ‘pellucidly clear’ picture.” “What judges believe Congress ‘meand’ (apart from the text) has a disturbing but entirely unsurprising tendency to be whatever judges think Congress must have meant, ie., should have meant.” Finally, Justice Scalia argues that the cases that Justice Stevens cites for the proposition that congressional intent is prior to statutory interpretation do not support that proposition at all.

By using this convoluted interpretation the Secretary managed to exclude approximately 26% of New Mexico’s LEAs. “To be governed by legislated text rather than legislators’ intentions is what it means to be ‘a Government of laws, not of men.’”

What Can the FCC Declare to be Unreasonable?

Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc.

The FCC requires telecommunication carriers to compensate payphone operators for free calls (eg. 1-800 calls), and has declared failure to do so “unjust and unreasonable” as it has the power to do under language substantially copied from the Interstate Commerce Act of 1887. “Unjust and unreasonable” practices are statutorily defined as “unlawful” and allow injured person to recover “damages” for “unlawful” charges or practices. Until 1887 reasonableness was a question for the courts, not a commission. Payphone operators are authorized to recover damages in court when they are “damaged.” The question here is whether payphone operators may bring suit when a carrier refuses to pay compensation for free calls.

Where “Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law,” a court “is obliged to accept the agency’s position if Congress has not previously spoken to the point at issue and the agency’s interpretation” is “reasonable.” Chevron. Appellants argue that the law authorizes actions seeking damages only for statutory violations, not for regulations designed to promote the objectives of that statute. Previous cases holding that an agency cannot determine accessibility of courts were based on the text of the enabling statute. Nor does the text suggest that only violations of “interpretive” regulations can amount to unjust or unreasonable practices since this legislation was passed before the interpretive/substantive-regulatory distinction came into existence.

The definition of a “practice” as one that only harms carrier customers, and not carrier suppliers is not supported by the text or history of the legislation. “The long-distance carrier ordered by the FCC to compensate the payphone operator is so ordered in its role as a provider of communications services, not as a consumer of office supplies or the like.” Next, while the FCC has not provided reasons for its determination, those reasons are obvious (and have been elucidated elsewhere). Nor does this determination violate another statutory section (§276), but it rather serves the same purpose. Finally, even if this regulation goes beyond the mandate of §276, it still furthers the same purpose and, therefore, is reasonable under Chevron.

Justice Scalia, dissenting, argues that the Court’s outcome must either be premised on (1) the idea that such practices are independently unreasonable, or (2) that these practices are unreasonable simply because they violate FCC regulations. As for (1), it would be “neither unjust nor unreasonable for a carrier to decline to act as collection agent for payphone companies.” And under (2), the enabling Act only provides a private cause of action for violations of the Act (interpretive regulations) and not mere FCC regulatory actions. Justice Scalia also believes that both the text of the statute explicitly refers to the interpretive/substantive distinction in another section and that this distinction should carry over to the section at issue lest the careful delineations marked in the rest of the law be abolished by a “backdoor” in the section at issue.

Jutice Thomas, dissenting, does not believe that the word “practice,” as used in this statute, extends to business practices, as opposed to activities of telecommunication firms as providers of services. Basically, he says that section (a) sets out the duties and powers of a common carrier, and section (b) requires them to be reasonable (describing them jointly as “practices”). Since section (a) only applies does not set out duties related to the receipt of services from suppliers, whether those are reasonable or not is no matter for section (b). At the same time, since “unjust and unreasonable” is a statutory term, a court cannot abdicate its responsibility to construe that term independently in the name of Chevron deference. Finally, the FCC’s determination is overbroad, he argues, because it regulates both interstate and intrastate calls where the “unreasonable[ness]” portion of the statute only applies to interstate calls.

Is a National Bank’s Subsidiary Regulated as a National Bank?

Watters v. Wachovia Bank, N. A.

The business of national banks is controlled by the National Bank Act (NBA) and the Office of the Comptroller of Currency (OCC) which has the largely exclusive power to audit the banks’ records, to the exclusion of local or state regulation. National banks retain incidental banking powers including opening subsidiaries. This case presents the question of whether Wachovia’s wholly owned state subsidiary is governed by the OCC’s exclusive audit power – really, whether a subsidiary is still a national bank.

National banks are still governed by state laws of general application where they do not interfere with the letter or purpose of federal law but remain free from “any visitorial powers,” defined as “a superior or superintending officer, who visits a corporation to examine into its manner of conducting business , and enforce an observance of its laws and regulations,” except as provided by Federal law. Subsidiaries are distinguished in Federal law from mere affiliates (over which states may exert control) as those entities that can only do business subject to the same terms and conditions as the national bank.

The Court has focused on the operations, rather than the corporate structure, of national banks in defining the scope of the NBA. Waters, the state regulator for Michigan who wishes to assert oversight powers over Wachovia’s subsidiary there, argues that if Congress intended to exempt subsidiaries it would have extended the ban on state inspection to affiliates. However, operating subsidiaries were not authorized until after that law was passed, and operating subsidiaries are a special subset of affiliates (termed “financial subsidiaries”) and retain a more limited set of powers.

Justice Stevens, dissenting, argues that only where laws of general application “forbid” or “impair significantly” the activities of the national bank are they unconstitutional. Stevens recounts an expanding national banking system alongside a shrinking and more heavily regulated state system. The legislation explicitly allowing national banks to own subsidiaries that can engage in activities that the national banks may not, while subjecting them to heightened regulation implied that operating subsidiaries could not. Basically, Justice Stevens points out that whereas the majority draws the line at significant impairment, he and the dissent would draw the line at explicit Federal preemption. Additionally, the Michigan acts, by their terms, exempt “depository financial institutions.” Since operating subsidiaries are created as the negative of what the statute defines (financial subsidiaries) Congress has not demonstrated a “clear and manifest purpose” to preempt state laws, except as it did so explicitly and meticulously.

That being the case, Stevens then addresses whether the OCC can assume the power to displace state law. Congress can do so explicitly, and has not. Even so, OCC has not exerted such control, and even if it did, that interpretation of the law granting it the power to do so is not due Chevron deference, without which it fails on analysis. First it fails statutory construction (above), and second it fails the purpose of the statute, because the value of a subsidiary has nothing to do with federal preemption – it is about operating liabilities.

EPA Rulemaking May Be Inconsistent

Environmental Defense v. Duke Energy Corp.

In the 1970s Congress passed the New Source Performance Standards (NSPS) and Prevention of Significant Deterioration (PSD) amendments to the Clean Air Act, governing modified, as well as new, stationary sources of air pollution. The term “modification” is defined in NSPS as “any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.” This definition is included in the PSD’s definition of “construction” of a new facility, to which that act applies. To put the problem simply, under NSPS the EPA defines “modification” by reference to kilograms of carbon per hour, and under PSD by reference to kilograms per year. The consequence of this disparity is that an increase in hours of production would trigger NSPS requirements but not PSD requirements. Duke Energy fell into this very trap, and the lower court held that PSD must be read with the assumption that pre-modification production hours be maintained. This case concerns whether the EPA must conform its PSD regulations on “modification” to their NSPS counterparts, in light of the Act’s restrictions on judicial review of EPA regulations in the Clean Air Act – that is, whether the EPA’s construction of a statutory term must be uniform.

In Rown Cos v. United States the Court held against various definitions of the term “wages” in tax law. However, “[m]ost words have different shades of meaning and consequently may be variously construed, not only when they occur in different statutes, but when used more than once in in the same statute or even in the same section.” For example, in Robinson v. Shell Oil, the term “employee” was held to have different meanings depending on the section of Title VII in which it is found. The Court synthesizes these two opinions into the principle that a court should rely on “a manifest ‘congressional concern for the interest of simplicity and ease of administration.’” In fact, it suggests that if Congress intended that the terms be defined identically it should have explicitly so required. Incidentally, the regulatory scheme that Congress intended to codify included at least three different definitions of this term.

The statute itself suggests this interpretation in its requirement that there be both a modification and a resulting increase in emissions, and in its preamble where it notes that requiring companies to obtain a permit merely when changing hours of operation would “severely and unduly hamper the ability of any company to take advantage of favorable market conditions.” This purpose indicates that where hours are increased as part of a construction program (a “modification”) this increase does not fall into the exception mentioned above. Since the appeals court “interpreted” these provisions out of conformity with the legislative scheme that court was engaged in judicial review (reaching the validity of the enactments) prohibited when such review “could have been obtained” in the Court of Appeals for the District of Columbia within 60 days of EPA rulemaking.

Thomas, concurring (?), believes that a word, when repeated, and especially when cross-referenced, should be presumed to mean the same thing each time, and that those who would hold otherwise have “the burden of stating why our general presumption does not control the outcome here.”