Patterico's Pontifications


Textualism Defeats Intentionalism in Ohio; The Rule of Law Says “Thank You!”

Filed under: General — Patterico @ 8:39 pm

Textualists may have suffered a major loss in the Supreme Court last week, but they won a small victory in an Ohio appellate court this week — even though the court (as courts often do) misdescribed what it was doing. It is the intent of this post to explain the issue, describe the court’s resolution, and show how the proper analysis rejects any examination of “legislative intent” in favor of a Scalia/Patterico form of textualism — one that says “we don’t care what the legislature meant; we just care what it said.”

The Washington Post reports that Andrea Cammelleri was cited for parking her truck on a street for more than 24 hours. The relevant ordinance said it was illegal to park “any motor vehicle camper, trailer, farm implement and/or non-motorized vehicle” on a street for more than 24 hours.

Cammelleri argued that her truck is not a “motor vehicle camper” — nor any other sort of vehicle described in the ordinance. The trial court found that the ordinance meant to say “motor vehicle, camper, trailer,” etc. They just forgot the comma, the judge said. But you can’t look at what they actually wrote, the judge said — you have to go with what they intended.

Cammelleri appealed, and the court of appeal ruled in her favor. The court explained “we must read words and phrases in context and construe them in accordance with rules of grammar and common usage.” The court further observed: “According to ordinary grammar rules, items in a series are normally separated by commas.” Since “motor vehicle” and “camper” were not separated by a comma, under ordinary grammar rules, a reasonable citizen reading the law would understand “motor vehicle camper” to be one type of motor vehicle, not including a truck. Therefore, Cammalleri’s truck was not covered by the ordinance, and she did nothing wrong.

So far so good. But where the court went off the rails is in suggesting, as courts often do, that theirs was a search for “legislative intent”: “The paramount concern is determining legislative intent in enacting the statute.”

No, no, a thousand times, NO!

If the rule of law means anything, a statute must be written in such a way that a citizen can understand what his obligations are, according to the written statute.

If I were a judge in this case, and the prosecuting attorney offered to present evidence of the legislators’ intent, I would rule that evidence inadmissible, as being wholly irrelevant to the proper interpretation of the statute.

Let’s say that they offered to have each member of the local legislature come to court and swear on a stack of bibles that they meant for all motor vehicles to be covered. Denied; irrelevant!

Let’s say that they had videos of floor speeches, where every legislator got up and proclaimed how wonderful the ordinance would be, because it would prevent every motor vehicle in the town from parking in the same place for more than 24 hours. Denied; irrelevant!

“We intended for all motor vehicles to be covered!” Lovely; don’t care. “Our purpose was to unclog the streets!” Wonderful; still don’t care!

Why would I refuse to hear such testimony? Because, as a judge, I don’t care what the legislature meant. I don’t care what the legislature intended. I don’t care about the legislators’ purpose. I just care what the legislature wrote.

In short: what the legislators meant doesn’t matter to a judge’s proper interpretation of the text. The legislators’ intentions are irrelevant when it comes to determining the proper way to interpret the text for purposes of enforcing it in court.

The court’s use of the phrase “common usage” here is key. The proper way to examine the language is to discern how a reasonable audience would read the text. That is the only analysis consistent with the rule of law. That is because the government, in arrogating to itself the power to declare obligations on the part of the citizenry, has a duty to make those obligations plain. If they fail to do so, the proper interpretation of their words has zero (zip! zilch! nada!) to do with their unexpressed intent, and everything to do with how a reasonable audience (the citizenry subject to the law) would interpret those words.

Note here that the court does not get to employ the cute, incoherent, meaningless dodge of saying “we are sending this back to the legislature to fix.” They can declare that the legislature has the option of fixing the statute in the future, of course — and indeed the court says in this very case: “If the village desires a different reading, it should amend the ordinance and insert a comma between the phrase ‘motor vehicle’ and the word ‘camper.’”

But — and this is hugely important — the court cannot use that as a way to dodge its duty to interpret the language in front of it. This court had to decide: was Cammelleri guilty or not? Were they going to apply what was written, or apply some secret, poorly expressed intent/purpose to override the plain meaning of the ordinance?

Are we going to go with the text, or with “intent”? The court had to confront that issue and make a decision.

The court did right. It applied plain meaning. It refused to enforce some secret, unexpressed intent or purpose, and went with the text.

In short, even if the judges expressed their ruling with reference to “intent,” this explanation was wrong. One thousand unanimous legislators expressing their intent or purpose could not override the plain language of the statute. Even if the judge believed them, their intent would be irrelevant.

And the court’s result favored textualism over intentionalism or purposivism.

And properly so. For textualism is the only legal interpretive method consistent with the rule of law.


Thanks to Rick W.


King v. Burwell: Intentionalism Trumps Textualism, and the Rule of Law Dies

Filed under: General — Patterico @ 10:32 pm

I’ve not had a chance, due to work constraints, to say much about the King v. Burwell travesty. I’ll just note (if I may toot my own horn for a moment) my warnings five years ago about the dangers of looking to an impossible-to-determine “intent” of a collection of legislators.

In one of those posts, I posited a hypothetical that I think most of you will recognize as eerily prescient: a hypothetical that the legislators who passed ObamaCare intended to legislate a form of coverage that they in fact failed to put in the law:

ObamaCare does not prevent insurance companies from denying coverage to children based on their pre-existing conditions. But (here is the hypothetical) what if every legislator who voted to pass ObamaCare actually intended to prevent insurance companies from denying coverage to children based on pre-existing conditions? (Again, it is a core assumption of the hypothetical that this was indeed the legislators’ intent. It is not a post hoc argument they are making; your working assumption is that they actually did intend to include this concept in the law.)

I noted that if one were foolish enough to apply an “intentionalist” reading of laws, rather than a “textualist” reading, one could simply have judges write protections for children into the law, in accordance with legislative intent. After all, who really thinks Congress wanted to leave children suffering from pre-existing conditions at the mercy of the insurance companies? But this takes the rule of law and throws it right out the window — because it is not fair to require the citizenry to obey secret, unexpressed intentions that they were never told about. Thus, only the text, and the text alone, is the law. That is the only way the rule of law works. As I said in 2010: “How can it be workable to make citizens hostage to legislative intent that cannot be divined from the text of the law by a reasonable audience?”

That hypothetical, decried by some as unrealistic, turned out to be a pretty close parallel to the King v. Burwell case.

I know some readers are convinced that Congress intended to include the words “established by the state” as an expression of federalism. The idea here is that the states were encouraged to establish their own exchanges by a carrot/stick approach. The argument goes that Congress was telling state officials: establish an exchange, and you get the subsidies (the carrot). Refuse to establish an exchange, and your citizenry gets nothing — and you face the wrath of the voters (the stick).

There is much disagreement about this on both sides. The conservatives point to Jonathan Gruber, a central ObamaCare drafter. The lefties note that Gruber was elected by nobody, and they point to a complete absence of any reliable evidence by an actual legislator saying that they wanted to use subsidies to coerce the states. (The famous Baucus statement is pretty ambiguous, even according to Michael Cannon, not to mention the fact that Baucus admitted he didn’t even read the bill.) Frankly, I don’t think the winning position in this murky debate is very clear. Whatever the origin of the “established by the state” language, I think the best explanation of its retention in the final bill is that the legislators foolishly assumed every state would set up an exchange. They guessed . . . poorly.

My own personal opinion is that allowing one’s self to be dragged into the muck of a messy debate about intent misses the point. My view is that arguing about legislative intent is a fool’s errand, because as I said way back in 2010, there really is no such thing as legislative intent:

[L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text.

To those who argue that Congress really intended to include the words “established by the state” to enforce federalism, my question is: what if it were clear that was not Congress’s intent? What if every CongressCreature, upon voting for SCOTUSCare — whoops, I mean ObamaCare — signed an affidavit saying: “Our intent is for subsidies to be available to any citizen regardless of whether they obtained their plan on an exchange established by a state or by the HHS Secretary”? (Understand that the Constitution gives no legal authority to such affidavits; they would just be a road map to learning the legislators’ intent.) Assume further that the legislation that they actually passed said, just like it does today, that subsidies are available for those who obtain their insurance on exchanges “established by the state.”

Would you really feel any different? Really?

This reminds me of a hypothetical I offered in 2010:

Assume you make $50,000 a year. The legislature passes a law imposing a hefty tax on “people making over $100,000 per year.” Since the law does not apply to you, by its plain terms, you do not pay the tax. However, you are convicted after a judge finds irrefutable contemporaneous evidence showing that all legislators who voted for the tax intended to impose it on people making over $10,000 a year. The judge, an “intentionalist,” finds that the intent of the legislature controls, regardless of the plain meaning of the law.

Under the plain language of the law, the tax does not apply to you. Applying the intent of the legislators, it does. Which is the better interpretation?

My view was that the law would not apply to you, because “$100,000″ means “$100,000.” Legislators can say all day long that they meant to say $10,000 — but if they didn’t include that extra zero in the law that was duly passed and signed, the text simply means what it means.

To me, $100,000 means $100,000 — not $10,000. To me, this is as simple as saying “established by the state” means “established by the state” and not “established by the state or the Secretary of Health and Human Services.” You don’t need to get into the legislators’ heads — and it is foolish and indeed dangerous to even try to do so.

But then, I am not an elite lawyer who went to Harvard or Yale and then went on to serve on the Supreme Court of the United States. And I am certainly not an “intentionalist.” I do not ascribe to statutory language mysterious secret meanings that signify the opposite of the common understanding of the public.

I am a simple man. To me, the law means what it says. Nothing more and nothing less.

Don’t say I didn’t warn you. I did. Again and again.

UPDATE: Thanks to Ed Driscoll at Instapundit for the link! I hope new readers (or old occasional readers) will bookmark the main page and remember to come back.


Scott Johnson on the Dangers of Ignoring Plain Text in Favor of Subjective Intentions

Filed under: General — Patterico @ 7:54 am

As I said last night, it is far from clear, but the good guys in the King v. Burwell case may lose. Scott Johnson explains how this results from the left’s placing the “spirit” of a law over its plain meaning, which he calls the triumph of the leftist will (h/t MD in Philly).

As Johnson reminds us, William Brennan once did the same thing with the Civil Rights Act of 1964, which said:

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee…to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

As Johnson notes, William Brennan turned “it shall be . . . unlawful . . . to discriminate against any individual because of his race” into the polar opposite: “it shall be lawful to discriminate against any (white) individual because of his race.” The reason? Forget the words, Brennan said. We have to look at subjective intentions. And the subjective intention of the law was to help blacks.

That would be the same thing as taking the words “established by the state” and treating them as though they did not exist. Progressives say they can do that because of the “spirit” of the law — i.e., the alleged subjective intentions of those who wrote the law. Me, I don’t care whether the people who wrote those words actually intended to limit subsidies to exchanges established by the state or not. That’s what they said, and what they said ends the matter.

To hell with their subjective intentions. Those mean nothing.

There was a time when some conservatives argued that what a legal text “means” depends on the subjective intention of the legislators. That it would be “activism” which “violates the separation of powers” for a judge to ignore subjective “legislative intent” for a purely textual reading. I argued until I was blue in the face against such an interpretation, explaining that it undermines the rule of law if the written word is not interpreted as meaning what it says.

With the advent of Halbig/King, curiously enough, no conservative disagrees with me any more. And that’s a good thing.

It is important to remember: when progressives tell you to ignore the words they wrote in a law, that is how progressives undermine the rule of law. They use an appeal to “intention” to make the words mean whatever they say they mean. This sort of thing, if accepted, means the rule of law disappears.

It’s the only thing we have left, and it’s slipping away, day by day.


White House Response to Halbig Decision: It’s The Intent That Matters

Filed under: General — Dana @ 2:48 pm

[guest post by Dana]

This morning, Patterico posted on the decision in the Halbig case and legislative “intent” versus the plainly clear language of a law:

The decision should drive a stake through the heart of the dangerous philosophy that legislative “intent” can and should trump the clear language of a law. This has always been a tactic of the left. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced. Period. Full stop.

As expected, the White House begs to disagree:

JOSH EARNEST: What I do anticipate, the Department of Justice will do, is they will ask for a ruling from the full D.C. Circuit. as you know, this was a decision that was issued just by three members of the D.C. Circuit. Two of whom ruled against the federal government and one agreed with the government’s position. Now, it’s important for people also to understand that some of the district courts that have thrown out the case have been decided by judges who use some pretty strong rhetoric in doing so. There’s a judge in this case, at the district level, who said there’s no evidence in the statute itself orn (sic) the legislative history of any intent by Congress to support the claims that are made by the plaintiff. In another case that was making the same legal argument, a judge wrote that the theory propounded by the plaintiffs was, quote, not a viable theory. The last thing that is important, and this is — there’s a lot of high-minded case law that is applied here. There’s also an element of common sense that should be applied as well. You don’t need a fancy legal degree to understand that Congress intended for every eligible American to have access to tax credits that would lower their health care costs regardless of whether it was state officials or federal officials who are running the marketplace. I think that’s a pretty clear intent of the Congressional law. This will work the way through the legal process, and we’re confident in the legal case that the Department of Justice will be making.

FOLLOWUP QUESTION: Obviously, as these cases work through the legal system, there could end up being a practical impact on people who are receiving subsidizes. Can the health care law work effectively and continue to, as you say, be affordable for Americans without the subsidizes being available in all states?

EARNEST: We are confident in the legal position we have.

QUESTION: If that the legal position no longer becomes tenable, can the law work if these subsidies are not widely available?

EARNEST: That is a hypothetical that we will maybe entertain at some point.

Video at the link.


Halbig: Textualism Wins, Obama Loses

Filed under: General — Patterico @ 7:20 am

The long-awaited Halbig decision is out, and the result is bad for Barack Obama and his oppressive ObamaCare law. The panel has voted 2-1 that Congress did not authorize subsidies for plans bought on exchanges established by the feds:

Because we conclude that the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges “established by the State,”we reverse the district court and vacate the IRS’s regulation.

I told you on July 7: “I am now convinced that the judges on the panel will rule 2-1 against Obama.” Always trust content from Patterico.

Here’s what the controversy was about. The text of the ObamaCare law makes subsidies available only to one who enrolls in a health plan “through an Exchange established by the State under [section] 1311.” The ObamaCare law says that if a State does not establish the exchange, “the [HHS] Secretary shall . . . establish and operate such Exchange within the State.” The HHS Secretary is not a “State” — as a State is defined in the ObamaCare law as “each of the 50 States and the District of Columbia.” So when the exchange was established by the Secretary, it was not established by a “State.” Meaning subsidies and tax credits are not available.

Plain meaning. Textualism. Ain’t it great?

For now, temper your enthusiasm. The decision will certainly taken up by the entire D.C. Circuit Court of Appeals en banc, and with all the new Obama-appointed judges there, it doesn’t look good for today’s decision to be upheld. (But you never know.) Then the case will be appealed to the Supreme Court, and who knows what they’ll do?

But for now, it’s a good day. Conservatives actually win one for a change.

The decision should drive a stake through the heart of the dangerous philosophy that legislative “intent” can and should trump the clear language of a law. This has always been a tactic of the left. You can’t discern an “intent” from a law cobbled together by hundreds of people with differing opinions — except by reading the words that they ultimately produced. Period. Full stop. Conservatives, I expect, understand that now.

I am still making my way through the opinion. More updates as I read the decision.

UPDATE: Unsurprisingly, the opinion is written by Judge Griffith, with a dissent from Judge Edwards. Judge Griffith focuses primarily on the plain meaning of the language in the law, examining legislative history only as a backup, to show that the legislative history wouldn’t make any difference. The concurrence by Judge Randolph captures exactly what I have been saying here in recent weeks:

As Judge Griffith’s majority opinion—which I fully join—demonstrates, an Exchange established by the federal government cannot possibly be “an Exchange established by the State.” To hold otherwise would be to engage in distortion, not interpretation. Only further legislation could accomplish the expansion the government seeks.

The only way you could get to the interpretation/distortion that Obama advocates is by ignoring the “plain meaning” repeatedly cited by the majority, and by desperately clawing at some “intent” not apparent in the words of the statute.

This is how leftists try to undermine the rule of law. Today, it did not carry the day. We’ll see what happens going forward.


A Halbig F*cking Deal: The Triumph of Textualism Over the “Intent” Argument That Leftists Hope Will Save ObamaCare

Filed under: General — Patterico @ 12:00 am

Last week, citing a post by Allahpundit, I mentioned the case that could kill most ObamaCare subsidies: Halbig v. Sebelius. I have now listened to the oral argument (.mp3 audio download) from the appeal in the D.C. Circuit Court of Appeals, and I am now convinced that the judges on the panel will rule 2-1 against Obama. As the title implies, this is a Big F*cking Deal, and I’d like to go through the highlights of the oral argument to explain why I think so.

A decision could come down any day now, by the way:

To review from my original post on the matter: The law’s plain language says subsidies are available only when a health plan is purchased on an exchange “established by the state under section 1311.” 34 states refused to establish an exchange, after which the HHS Secretary invoked her authority to set up federal exchanges under a different section: section 1321. Then the IRS promulgated a rule that said exchanges set up by the Secretary under section 1321 were actually exchanges “established by the state under section 1311.”

The plaintiffs in the lawsuit say: “state” does not mean “federal government.” The exchanges established by the HHS Secretary under section 1321 are not “established by the state under section 1311.” Making the point even clearer: a “state” is defined in the ACA as “each of the 50 States and the District of Columbia,” they note, and not the federal government.

The Obama lawyers say: oh, come on. Don’t look at the plain language of that one provision. You gotta look at the whole law and the intent of Congress.


That sets the stage for the oral argument, and while I could give you a blow by blow, I want to concentrate on a couple of points that jumped out at me as significant. The plaintiffs, of course, rely on the plain language of the provision, which is the key to the outcome. But they also argue that Congress intended to limit subsidies to plans bought on state exchanges. The main argument made by the plaintiffs along these lines goes like this: Congress limited subsidies to plans bought on state exchanges in order to provide the states with an incentive to create their own exchanges. An interesting exchange along these lines was already reported in a Federalist Society blog post:

Judge Randolph seemed inclined to side with the plaintiffs, while Judge Edwards heatedly disputed with both the plaintiffs and Judge Randolph.

“Your argument makes no sense,” Judge Edwards said. “Who cares who sets up the exchanges?”

Judge Randolph retorted: “Ben Nelson.”

Mr. Nelson was a Democratic senator from Nebraska at the time the Affordable Care Act passed, and he was viewed as the key swing vote — and was seen as wary of expansive federal control of the health care system. . . .

Indeed. Judge Randolph makes a great point: the Democrats needed Ben Nelson’s vote, and he at least purported to be in favor of federalism. To pacify him, the law was set up so that the states would be the ones, in the first instance, that would supposedly set up the exchanges. Indeed, the plaintiffs argue, Congress apparently expected every state to go along — why turn down free money? — just like Congress was so confident that states would accept Medicaid expansion that they didn’t even provide subsidies for people making less than the poverty level, because they assumed (wrongly) that every state would expand Medicaid for those people.

When Judge Edwards argued that absolutely nobody believed that this would be the result, and that this was a recently concocted argument, Judge Randolph noted that Investors’ Business Daily pointed it out in a piece in 2011 (which is admittedly after the passage of the law. You can read that piece here).

There is no question where Judge Edwards stands, as he called the arguments of the plaintiffs “preposterous.” There is also no question that Judge Randolph will vote that there are no subsidies under the federal exchanges; as he said: “If the legislation is just stupid, I don’t see that it’s up to the court to save it.” That leaves Judge Griffith as the swing vote here, and in over an hour of arguments, I didn’t hear him say one thing supportive of Obama’s position. One point you may not have realized: Griffith is the judge nominated by George W. Bush after Miguel Estrada was filibustered into frustrated submission and withdrew his name from consideration.

The most important point I heard Griffith make during the whole argument was this: the states can still set up exchanges after this ruling. The states will have to explain to their citizens that the subsidies they thought they were going to get, they actually won’t get — only because the state declined to establish an exchange. That will put tremendous pressure, not just on Congress to amend the statute (which likely won’t happen), but also on individual states to establish their own exchanges (which probably will happen in several of the 34 states that have to date failed to establish an exchange).

In other words: Judge Griffith will argue that he is not preventing people from getting their subsidies. The states are, by not setting up the exchanges — which they can still do.

(It should be noted that, as the subsidies are removed, many people will, for the first time, be legally excused from the mandate. That’s because the law contains a provision that the penalty, er, tax, will not be imposed on people who can’t afford insurance — defined as people who would have to pay more than 8% of their income for health insurance. As the subsidies disappear, this group of people will greatly expand — removing even more revenue for insurers, and potentially causing the structure of ObamaCare to collapse.)

BOTTOM LINE: After hearing the entire argument, I am convinced that we are about to see a 2-1 ruling against Obama from this panel.


Even if the panel rules the right way, as I expect they will, there is a long road to a final decision, likely beginning with an en banc rehearing:

If the three-judge panel rules against federal Obamacare subsidies, sources close to the case say the administration is very likely to request an en banc ruling — a re-vote taken by the full D.C. Circuit. The math of the overall bench is friendlier to the White House: 7 judges are Democratic appointees and 4 are Republican appointees. Four of the judges were placed by President Barack Obama himself, all during his second term.

Any time you forego plain language in favor of rootless searches for legislative “intent,” you give dishonest leftists an opening. And the brute politics of the makeup of the full en banc panel — together with the malleable “intent” standard that gives those judges a warrant to write their own preferences into the law, and the text of the statute be damned — make a pro-Obama ruling from the en banc court seem likely.

Of course, the matter will likely eventually end up in the U.S. Supreme Court, unless they chicken out and refuse to hear it, which seems to me unlikely. I like our chances there better. Kennedy, often a squish, was a solid vote against ObamaCare in the previous major ObamaCare decision. I know you guys are skeptical about what John Roberts would do, but I think there is a better than even chance that he would choose the textualist approach.

In fact, if the Justices were to be honest, this would be a unanimous decision against Obama in the Supreme Court. Jonathan Adler has collected some recent quotes from the Supreme Court on rewriting statutes to reflect “intent” — and even the lefties are not supportive of the idea . . . in the right case. Justice Kagan said in one opinion: “This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in [the IRS’s] words) Congress ‘must have intended’ something broader.” But that was said in a boring lawsuit about American Indian tribal sovereign immunity. Somehow, I think Kagan will find a different principle applies when Obama’s health care subsidies are at stake.


Once conservatives understand the issues at stake in Halbig, I believe that will be the death knell for the theory that says judges should choose unexpressed intent over the plain language of a statute — at least for conservatives. Choosing unexpressed intent over plain language is how leftists have undermined the rule of law in this country for decades. It must stop. The more conservatives awaken to the issues in Halbig, the better chance we have to make it stop.

Appealing to Congress’s subjective “intent” is the subsidies’ only hope for survival. An appeal to “intent” is the only method leftists have available in this case to twist the words to their purpose. A textualist approach means most ObamaCare subsidies will be found unlawful. There is zero debate: a plain language, textualist approach in this case means Obama loses. That’s why every Democrat rejects a plain language approach in this case, and tortures the text to argue that Congress’s “intent” was to provide subsidies for all. As one of the judges said at oral argument, the legislative history is a “wash” — which at least gives Democrats a fighting chance to argue for their version of “intent.”

Notably, Nancy Pelosi and others have filed a brief (.pdf) in Halbig saying: we really meant to provide subsidies on federal exchanges. If a court elevates subjective intent over the plain language of the law, that court might well give great weight to Pelosi’s brief.

But even if Pelosi is telling the truth, that does not end the matter. Even if we foolishly looked only to “intent” and not to the plain language, the “intent” of everyone who voted would be relevant, I would think. And there’s the rub. Pelosi might have “intended” one thing, and Ben Nelson another. This shows why trying to divine legislative “intent” is a fool’s errand. As I have argued before, legislative intent should not be a judge’s focus in interpreting a law. For one thing, you can’t ever discern a collective “intent” from a collection of different politicians, except by examining what they actually said. That’s why the only reasonable way to resolve the issue is to look at the plain language of the law, and enforce that.

Forget “intent.” Intent does not matter unless it is conveyed in the language of the law. Period. This isn’t just about one result, however important that result is. Original understanding alone preserves the rule of law.

IF YOU WANT TO GEEK OUT: The law is here. Jonathan Adler’s initial post on this is here, and a follow-up is here. The lower court decision ruling for Obama is here (.pdf). Pelosi’s brief is here (.pdf). Adler and Cannon’s amicus brief is here (.pdf). A great Federalist Society blog post on the oral arguments is here. Finally, the oral arguments can be heard here. If all that is not enough, there is a comprehensive list of resources here.

P.S. One more point: properly understood, the IRS rule here is just another example of executive overreach. Congress didn’t make subsidies available on the federal exchanges, so the IRS simply wrote a rule saying they are. This must be rejected — and I think the court will.


Today’s ObamaCare Decision: Scalia’s Textualism Loses to Roberts’s Reinterpretation of Words

Filed under: General — Patterico @ 6:37 pm

The rule of law depends on judges adhering to the words of the law. Textualism is thus critical to the rule of law. Textualism was cast aside today, and we are all paying the price.

Today’s ObamaCare decision boiled down to a fairly simple question: was the mandate a “penalty” or a “tax”? Congress called it a penalty — not once, but multiple times. But Judge Roberts and the four liberal Justices decided to ignore the plain meaning of the word “penalty,” and redefined it to mean “tax.”

Justice Roberts’s motives for doing this are known only to him. But if he had done his job properly, and interpreted the statutory language according to Justice Scalia’s theory of textualism, we conservatives would be celebrating today. Instead, we bemoan the rewriting of a statute in a manner that radically defines the balance of power between the states and the federal government, not to mention the relationship between the federal government and the individual citizen.

I have argued until I am blue in the face that, whatever the merits of trying to divine unexpressed “intent” in the meaning of words in everyday communication, the rule of law requires that the plain meaning of words govern the interpretation of statutes passed by legislative bodies. As I explained in May 2010:

Unlike most legal interpreters, who are willing to look to indicators of legislative intent in cases where the plain language is ambiguous, Justice Scalia rejects any reliance on legislative intent that is not reflected in the plain text.

Textualism, Scalia argues in his book “A Matter of Interpretation,” is what undergirds the rule of law: “It is what makes government a government of laws and not of men.” As he says: “We are governed by laws, not by the intentions of legislators.” This survey of Scalia’s textualist approach summarizes the philosophy well: “[I]f the law does not mean what it says and does not say what it means, citizens are left at a loss concerning how they should conduct themselves.” Justice Scalia has put it more succinctly: “Once text is abandoned, one intuition will serve as well as the other.”

Textualism is the mode of analysis that Justice Scalia employs in today’s decision, whereas Justice Roberts employs a more touchy-feely sort of analysis, which rejects the plain meaning of the words as mere “labels” that can be rewritten to save the statute’s constitutionality:

It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power.

They said “penalty,” in other words, but they didn’t really mean penalty. Roberts expands on the need to ignore those pesky labels:

The joint dissenters argue that we cannot uphold §5000A as a tax because Congress did not “frame” it as such. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels. [But] labels should not control here.

Scalia, by contrast, marshals several arguments in favor of the penalty being construed as a penalty — but the one he keeps coming back to is that Congress called it a penalty:

We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.

. . . .

So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain mini- mum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential cover- age.” Ibid. (emphasis added). And the immediately following provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.”

. . . .

[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and else- where throughout the Act, Congress called the exaction in §5000A(b) a “penalty.”

. . . .

In the face of all these indications of a regulatory re- quirement accompanied by a penalty, the Solicitor General assures us that “neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation,” Petitioners’ Minimum Coverage Brief 61, and that “[i]f [those subject to the Act] pay the tax penalty, they’re in compliance with the law,” Tr. of Oral Arg. 50 (Mar. 26, 2012). These self-serving litigating positions are entitled to no weight. What counts is what the statute says, and that is entirely clear.

. . . .

The last of the feeble arguments in favor of petition- ers that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement.

It makes no sense to go on about “legislative intent” as giving meaning to statutory language, when a) the subjective intent of the lawmakers is diverse and unknowable, and b) most of them haven’t even read the words which their intent supposedly infuses with meaning:

[L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text. . . . What’s more, often the “intent” of the legislators is non-existent, as they simply ratify language written by other people without even reading it.

That is why the rule of law requires that the plain meaning of a statute’s words must govern. If Chief Justice Roberts had simply paid attention to this simple precept — if he had simply adhered to Scalia’s principles of textualism and plain meaning — we wouldn’t be in such a dark place tonight.

UPDATE: This discussion is a bit oversimplified. I explore more of the nuances here.


Napolitano’s Criticism of a Law She Hasn’t Even Read — And the Implications For Applying “Intentionalism” to Legal Interpretation

Filed under: General — Patterico @ 7:27 am

Numerous readers have asked me to weigh in on the recent news that Janet Napolitano and Eric Holder have criticized the Arizona immigration law without even having read it:

Homeland Security Secretary Janet Napolitano, who has been a vocal critic of the new Arizona immigration law, told Sen. John McCain (R-Ariz.) and the Senate Homeland Security and Governmental Affairs Committee Monday that she had not reviewed the law in detail, but nevertheless repeated criticism she made in April on ABC’s “Good Morning America” that the law is a “bad law enforcement law.”

Last week, Attorney General Eric Holder said he hadn’t read the law either, although he too has criticized it. He told the House Judiciary Committee he’d “expressed concerns” about the Arizona law, “on the basis of what I’ve heard about the law” from newspaper and TV reports. Holder has questioned whether the law is constitutional and has said the federal government may challenge it in court.

It is, of course, outrageous to criticize a law you haven’t read — especially if the law simply allows local enforcement of your own federal law enforcement responsibility. Clearly, Napolitano wants no help enforcing immigration laws, because she doesn’t think enforcing immigration laws is any of sort of priority. That is the unsurprising takeaway from this story.

A secondary point, however: look how upset we get that she is merely criticizing the law without having read it. What about all the lawmakers who pass laws in this country without having read them?

And another subsidiary point: what does this tell you about the validity of the arguments of those who would have judges interpret laws according to the intentions of lawmakers who haven’t even read the law?

If Janet Napolitano had been an Arizona lawmaker voting “yea” on the Arizona law — but she hadn’t read it — would her intent matter a good goddamn to the proper interpretation of the law?

I say no.



Scalia: I Don’t Care About Intent; Goldstein: I’ll Be The One to Tell You What You Care About!

Filed under: General — Patterico @ 7:17 pm

Here is Antonin Scalia, a self-declared textualist, on how he feels about legislative intent:

If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

That’s pretty direct, wouldn’t you say? It would take a lot of nerve for someone to read that statement and claim that Scalia cares about legislative intent — don’t you think?

Yet that is precisely what Jeff Goldstein does today, in a remarkable feat of redefining someone’s words to interpret them as meaning the precise opposite of what was intended. Goldstein quotes the above passage and concludes:

What Scalia hasn’t done is dismissed the writers’ intent; he has instead accepted that intent as foundational to his interpretation and then applied the terms of a contract agreed upon by the legislators and the judicial branch, namely, that the legislators will craft their texts in the most conventional way possible; and the judge will interpret that text under the assumption that the legislators have signified conventionally. Without that intent assumed, it makes no sense for Scalia to lay claim to “interpreting” to begin with.

Excuse me. Scalia has indeed dismissed the writers’ intent. How could he possibly have been any more clear? Let’s review again what Scalia said: “If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words.”

What does he have to do . . . shout it from the rooftops? Append a few exclamation points at the end of every sentence? Say: “I really mean what I just said” at the end of every paragraph?

How does Goldstein manage to take Scalia’s stark declaration that he doesn’t care about intent as a declaration that Scalia has “accepted that intent as foundational to his interpretation”? The answer reveals quite a bit about Goldstein’s method of reasoning, which eschews argumentation in favor of aggressive assertions and definitions portrayed as Revealed Truths that need not be justified with argumentation.

This is a blog post, and if you’re not interested in getting down in the weeds, this is a good place to stop. It’s enough for me that you understand that Scalia says he doesn’t care about intent, yet Goldstein casually dismisses Scalia’s crystal clear statement as meaning the precise opposite of what Scalia actually means.

But if you’re interested in how Goldstein reaches such an outlandish conclusion (and it is outlandish), read on — or, if you’re on the main page, click “more” to read further . . .



Still More on Textualism vs. Intentionalism

Filed under: General — Patterico @ 6:53 pm

I promised to respond more directly to Jeff Goldstein’s latest post on intentionalism as applied to legal interpretation. This post is the promised response.

Before I get to the meat of the post, I must again take issue with his title. Goldstein continues to characterize the dichotomy as one between “originalism” and “textualism” — although I have already explained that textualists like Justice Scalia are originalists . . . they merely appeal to original understanding rather than original intent.

Having addressed the title, let me move on to the substance of the post. Perhaps, early on, I can emphasize a point of agreement where Goldstein seems to think we disagree:

But none of that is to say, as Frey contends, that “it wouldn’t matter that the legislators couldn’t point to specific language that a reasonable person would read as including this prohibition,” or that “it wouldn’t matter even if opponents could point to specific language that a reasonable person would read as saying the exact opposite of what the legislators’ intent was.” Of course it matters. Because under those conditions, you’d be hard pressed to get anyone to believe that you intended what you intended — and you have virtually no chance of having your meaning properly reconstructed. Failure to signal what you intend has consequences.

What it doesn’t do, however, is change your meaning — or allow others to tell you what that meaning is.

This is, in fact, precisely how I meant to characterize Goldstein’s position. When I said “it wouldn’t matter” what the words of the law said, in context, I meant “it wouldn’t matter to the meaning” — at least as Goldstein views it. Let’s look at what I said in its full context:

Under Goldstein’s argument, if we assume that this was the intent of the legislators who voted for ObamaCare, then it doesn’t matter what words are in the statute — they mean whatever the legislators intended them to mean. If the legislators intended the law to include a prohibition against denying coverage to children based on pre-existing conditions, then the law does contain that prohibition — no matter how the text reads.

It wouldn’t matter that the legislators couldn’t point to specific language that a reasonable person would read as including this prohibition. It wouldn’t matter even if opponents could point to specific language that a reasonable person would read as saying the exact opposite of what the legislators’ intent was.

As long as we assume it to be the case that every legislator intended to pass such a prohibition, then under Goldstein’s view, their intent controls.

When I say “it doesn’t matter” what words are used, in context, I intend to be restating Goldstein’s argument — and I believe I have characterized it correctly. Namely, Goldstein argues that the particular “marks” used does not determine their meaning — i.e. “it doesn’t matter” (to the meaning) what series of squiggles appear on the paper or the computer screen. All that matters is the intent behind them.

According to intentionalism, if a speaker chooses word “x” or word “y” or word “z” to express concept “a,” he means concept “a” regardless of whether the conventional meaning of “x” or “y” or “z” is “a” or “not a” or something entirely unrelated to “a.”

Thus, it does not matter (to the meaning) what words are used. Sure, it might matter in terms of how well intent is signaled, but that is not what I meant there.

(A bit of confusion is introduced by my conventional use of the word “word,” since Goldstein uses that word to refer to what is linguistically known as a “sign,” while I use it in its conventional sense, to refer to those squiggles on your computer screen, which he would call “marks” unless and until they are imbued with meaning by the speaker. My intent should be clear from context.)

Goldstein claims that I have miscast his positions when I say:

Goldstein argues that there is a distinction between what a law “means” and what a judge does with that knowledge. However, for Goldstein, judges should always enforce laws according to legislative intent, rather than how reasonable people would interpret the text on its own. He argues that, in the hypothetical, the judge should interpret the written text “$100,000″ as meaning “$10,000″ because that is what the legislature meant — and allowing the judge to interpret the term any other way places the power of lawmaking in the judge’s hands.

He takes issue with the above statement for the following reason:

But of course, nowhere did I argue that a judge “should always enforce laws according to legislative intent.” Instead, what I argued was that in order to claim to be interpreting the law in the first place, a judge has to appeal to the intent of those who wrote it (and so created the signs the very act of “interpreting” presupposes must exist). In Frey’s (imaginative, but frankly outlandish) hypothetical, the judge is certain that the lawmakers in question meant what they meant. The dilemma as posited, therefore, is one in which the legislature has failed to signal its intent in a way the law relies upon (and in fact, signaled something else entirely, going by the conventional standards of legal language). And the question then became how should a judge rule.

But “enforcement,” I noted, is a question not of linguistics but of justice. Constrained by the provisions of Frey’s hypothetical — the judge knows the legislators’ intent, and recognizes that they have failed to signal that intent in a way that is consonant with the conventions of legal language — for the judge to rule that the law means something other than what the legislators meant by it is for the judge to replace his intent with theirs. Or, to put it another way, he’d be replacing their text with his own, knowing full well that he is doing so — and using convention as his rationale for privileging his won intent over theirs.

This is activism. Whether it is “good” activism or not is a value judgment — not a linguistic question.

This is what I meant when I said: “Goldstein argues that there is a distinction between what a law ‘means’ and what a judge does with that knowledge.” The former is what he calls the “linguistic question.” The latter is what he calls the “value judgment” — what he has characterized in other places as a question of “justice” or “consequences.”

But I did read his post as taking a position on the value judgment — namely, that it should be in line with the linguistic interpretation. Put more simply, I had read his post to argue that a judge should enforce or apply the law consistent with what he has determined to be the proper interpretation of the law — namely, what the legislature intended, regardless of how a reasonable audience would interpret the meaning of the plain text.

If I interpreted him incorrectly, I apologize. But to show my good faith, let me quote a couple of passages that I read as arguing for enforcement consistent with what Goldstein considers the proper linguistic interpretation.

First we have this:

To ignore “legislative intent” because, as a specialized endeavor, one recognizes the difficulty in reconstructing it, it having come from a variety of (potentially) compromising forces whose individual intentions may sometimes conflict when taken separately, is to ignore where the originating locus of meaning for the law lies.

One may, alternately, choose to privilege the intent of the reader — and so privilege what s/he can do with the (now unattached) signifiers — but to do so is to place the meaning of law not with the lawmakers, but with those instead who read the law.

In other words, laws at that point are “made” by judges, because it is judges at that point who are responsible for turning signifiers into signs, and so writing the text themselves.

If you are okay with that, make it clear that you are. Me, I find that such a maneuver violates the spirit of the separation of powers.

Worse still, it plays into ideas of will to power, consensus meaning, and the inevitable de-legitimizing of the individual — for reasons I’ve outlined several times elsewhere. As a linguistic assumption, it favors progressive ideology, and is at odds with Enlightenment paradigms for establishing “truths” as something outside a mere voting interest.

He elaborated in comments:

For a judge to say “I know what you meant by it, but I say it means something else” is to take the power of the legislature and give it to the judge. In this example, most of us might not balk.

Me, I would. Because the argument for doing so is linguistically faulty. And I don’t want that same faulty linguistic premise – which gives power of meaning to those on the receiving end of an intended message — to gain purchase in far more likely situations than the one provided in this hypothetical.

I interpreted these passages as an argument that judges should always enforce laws according to legislative intent, rather than how reasonable people would interpret the text on its own. Again, if I misapprehended what Goldstein meant, I apologize, and hasten to add that I had no intent to misstate his positions.

Perhaps I should simply ask the question, then: does Goldstein think that a judge can ever be justified in applying or enforcing a law in a way that he knows to be at odds with the legislature’s intent?

Put more generally, in the view of an intentionalist, are there times when interpreters are entitled to *act* as if the speaker meant what a reasonable person would understand them to mean — and consequently, to *act* in a way that consciously disregards what the speaker actually meant?

Future posts will explore this issue in more depth.

P.S. My usual rule for intentionalism posts applies here. No personal attacks whatsoever.

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