When it comes to criminal law, nothing is more important than the language of a statute. From the due process perspective, a law must give notice of what it prohibits. Not just, “well, everybody knows what it means” from zealous advocates of criminality who can’t figure out a way to clearly express their ideas, but want so badly to criminalize something that they are fully prepared to criminalize far more.
It’s easy to fall back on appealing phrases like “the spirit of the law,” which exist in the imagination of those who believe in spirits. Your spirit says something is a crime. Mine does not. And the prosecutor’s spirit says our spirits don’t count anyway, and the only spirit that matters is his.
This is why words matter. Definitions matter. No matter how much it hurts, these are the only tools available to create a law, or we fall subject to the whims of whoever has the biggest spirit. And rarely does that turn out to be us.
On the eve of oral argument in King v. Burwell, a clash of intellect and emotion will reach its zenith. In an homage to canons of interpretation, Michigan lawprof Nicholas Bagley made an impassioned plea in the New York Times for the Supreme Court to ignore the words of the Affordable Care Act.
Tough luck, say the plaintiffs: The harsh consequences of a ruling in their favor should be irrelevant to the justices, whose only job is to interpret the statutory text. In any event, the plaintiffs contend, those harsh consequences are perfectly consistent with what Congress meant the law to accomplish.
But the plaintiffs are mistaken. It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong.
Jonathan Adler questions whether the consequences of plaintiff prevailing will be so dire, likely to soften the blow. I assume the consequences will be devastating, preferring the worst case scenario for the purpose of appreciating the price of the principle. I also assume that Congress can leap into the fray and clean up its mess rather than watch millions of Americans crash and burn, if the Republicans choose not to slaughter their own people to make a cheap point.
Bagley makes his best case:
As the Supreme Court has said time and again, no provision of a statute should be read in isolation. Laws must be read as a whole, with an eye to harmonizing their interdependent parts. That means the court is reluctant to read a stray passage here or there in a way that would destabilize an entire statutory scheme.
Well, not quite. When there is ambiguity in the text, then yes, the law turns to alternatives to give it meaning, and in doing so, strives to harmonize interdependent parts. But when there is no ambiguity, when the words are as straightforward as “established by the state,” the plain meaning doesn’t create a facial conflict; it creates a brutal outcome.
Much as I am in favor of the concept of universal healthcare, and much as I consider Obamacare a botched effort at achieving it, notwithstanding the issue in this case, the concern for criminal law and lawyers is that this case tests whether laws are truly what the words say or what people feel they should mean, despite what the words say.
Adam Liptak provides a recap of the positions in the case:
The law’s defenders add that other provisions in the act, along with its structure and purpose, make clear that it called for subsidies in all 50 states. They add that the subsidies, which are intended to reduce premiums for low- and middle-income people, are vital to the economic underpinnings of the law.
Opponents of the subsidies say it is the text of the law that matters, not what individual lawmakers knew or believed.
“It is extremely doubtful that any senators read the entire bill at the time, and even more doubtful that all but a few senators were even aware of how the exchanges were structured,” said Josh Blackman, a law professor at South Texas College of Law who has filed a brief supporting the plaintiffs.
Substitute current “regulatory” efforts to eradicate such trendy social evils as bullying, hate speech and revenge porn, and consider the implications of laws that no longer mean what they say, but mean what people feel they should mean. It’s the difference between truth and truthiness.
It’s an apologia for poorly drafted law, laws passed without the knowledge and understanding of legislators in a rush to fill a perceived gap as with the USA PATRIOT Act or pretty much any law bearing the name of a dead child. We once were said to be a nation of laws, not men. Are we now to be a nation of press releases about laws, vague and fuzzy words for public consumption meaning whatever we want them to mean?
If the issue before the Supreme Court was how to avoid causing needless economic pain to millions of Americans, the political issue, then the solution would be for the Court to reform the language of the Affordable Care Act and do the job Congress blew. It may be desirable in this particular case, but is it desirable jurisprudence?
What many will be unable to do is separate their politics from their principle. Indeed, that’s been a struggle for quite a while, as clashes between desired outcome and reason keep smacking us in the face and forcing our eyes closed. Are you prepared to turn your back on logic and principle just this one time to achieve a desired outcome, while expecting it to be there for you the next time when sides have switched and different sacred cows will be slaughtered?
And if you need someone to blame for this fiasco, don’t look to the courts or those who don’t share your politics. Look to Congress, who enacted yet another poorly written law because it was too much work to get it right. And ponder whether saving Congress from its own incompetence will prevent the next ACA, or USA PATRIOT Act. You know the answer, painful as it may be.
Then what is your opinion about the outcome in Yates? There, the Court clearly bent the words of the statute, but the result is one a criminal defense lawyer should embrace. And I bet there are a lot of statutes like Yates. The text may not be the criminal defense bar’s best friend. (I’m speaking here only to how certain lawyers should view the text vs. purpose debate, and it does not seem to me like the issue cuts cleanly one way or the other.)
My bias loves the outcome, but Kagan was clearly right as to statutory interpretation. While two additional factors might have come into play, the Rule of Lenity and de minimus non curat lex, Yates is another example of inadequate drafting, the law of unintended consequences and why we shouldn’t criminalize everything under the sun in the quest for the perfect world.
Much as I may hate the outcome, it doesn’t change the principle. Our laws are all screwed up because of careless and thoughtless drafting, overcriminalization and melodramatic pleas to regulate every aspect of human behavior. Making it worse isn’t the cure.
Perhaps what you are looking for is a “reaonable” interpretation of the law. Like reasonable accomodations for the handicapped, reasonable mitigation of workplace dangers, reasonable precautions in handling hazardous materials, reasonable resstrictions on free speech and even reasonable gun laws, “reasonable” seems to mean “a little bit more”. You want a bright-line law, others want anything but so that a reasonable interpretation of a law becomes whatever it is they originally failed to gain through the legalative process. The law evolves, don’t ya know, and it only evolves in one direction – a little bit more.
When it comes to statutory interpretation, words don’t get replaced with the big black hole of “reasonable.”
Do you think a finding of “scrivener’s error” would be appropriate in this case? I’ve read other commentators who’ve mentioned that possibility.
That might have been an option up front, but as a rationale developed (and was supported by Gruber) to explain that this was deliberate, the “oopsy” explanation was lost and nobody has seriously pursued it since, as far as I know.
I can see the matter getting past stage one of Chevron and the court finds that the clear words create ambiguity. But at that point, the stage two determination under Chevron should result in the game being over and the IRS rule permitting states to use the federal exchange upheld. Obamacare survives.
The rest of the howling about post hoc statements by legislators and “experts”, and the “jeez the consequences are too dire” is simply bullshit. The public discussion of this case by pundits has gotten so far afield of the actual legal issue as to just be ridiculous and depressing. At this point I cannot wait for this case to be over. It has consumed way too much of my Twitter feed for months, and most all of it has been garbage by non-lawyers and demagoguing law professors. Make the stupidity stop please.
If only. I’m not sure that the IRS wins on stage two Chevron deference, and I have some concerns about that given how DoE Office of Civil Rights has handled its “Dear Colleague” demands by ramming its political views down everyone’s throats, but that’s a different matter altogether. If there is a way around this, go for it, but not at the expense of unambiguous statutory text or to give Congressional incompetence a pass.
See, now I think for the rule to lose it would have to be at stage one with a finding that the words do not create an ambiguity and mean what they say. Personally, as craptastic as Obamacare is (and it REALLY is), I think that there is, at worst, clearly an ambiguity created. But I don’t see how the argument gets by stage two because the rule is clearly a permissible construction.
The Supremes are going to do whatever they are going to do though, my two cents notwithstanding. I just hope they do not decide it based on all the collateral and/or post hoc crap people have been shouting for months.
So I take it you won’t be joining any protest group to march on the Supremes to show them how serious you are?
Nope, just going to drink to it being over.
I’ll join you. L’Chaim!
300 million Americans and we can’t have the 700 or so federal law makers be required to have studied the law? Or at least a few accelerated weeks on precedent, motions, burdens of proof, functions of briefs, etc.
The judiciary has those requirements, effectively. Maybe that’s why some love textualism and not legislative intent.
The ACA is garbage but it’s less garbage than a country of 500 billionaires coexisting with millions who cannot afford basic preventative or maintenance health services. The end is just making Medicare apply regardless of age. But that’s for 14th amendment scholars not those in the well arguing to federal judges why firing a midget and laughing about it infringes on that amendment, title VII, and human decency.
Midget is shorthand for any 14th Am protected class.
Aren’t you required to give a trigger warning before use of the word “midget”?
Victims of gun-related crimes are harmed by “trigger warnings.” Trigger nomenclature needs to be avoided. Midget isn’t a proper medical term but several judges have found it’s not discriminatory and who am I to argue with a federal judge.
Are you prepared to turn your back on logic and principle just this one time to achieve a desired outcome, while expecting it to be there for you the next time when sides have switched and different sacred cows will be slaughtered?
A man for all seasons:
Legislative intent is important, but it’s important where words are vague (and humans communicate using human language so that happens a lot). If the law says “no vehicles in the park” then courts have to figure out if they really meant to ban rollerskates or tank monuments. But when the law is specific, then it’s really hard for intent to beat the plain reading.
The classic. Thanks.
Similar argument made here: [Ed. Note: Link deleted per rules.]
I just don’t see how SCOTUS can rule that that when the regulations written by the executive branch conflict with the statute written by Congress, the regulation wins. That makes Congress superfluous and the executive all powerful. Literally, an executive without limits.
Nope, just means SCOTUS applied Chevron deference where they found ambiguity. As a criminal atty who occasionally has to defend on criminal or quasi-criminal administrative charges, I am no fan of Chevron deference on several grounds. But, it is there, and such a finding in King would be quite in keeping with it.
I’ve never been a fan of Chevron deference either, but mostly because the underpinnings (agency expertise) are too often secondary to political appointees’ preferences.