Wednesday, June 04, 2014

Why Can't Consequences Create Ambiguity?

by Michael Dorf

My latest Verdict column discusses Monday's SCOTUS ruling in Bond v. United States, in which the Court avoided deciding a question about the scope of the Treaty Power, instead deciding the case on statutory construction grounds, as I more or less predicted it would in my post about the case back in January. Readers of that earlier post won't be surprised to learn that I'm not fond of the separate opinion of Justice Scalia, in which he says that he would overrule Missouri v. Holland. I'm even less fond of the separate opinion of Justice Thomas, in which he says he would limit the scope of the Treaty Power to those covering 18th century ideas of international affairs. And perhaps surprisingly, I'm not especially happy with the majority opinion by CJ Roberts (joined by Justice Kennedy and the liberals). I say that the Chief Justice may have planted a time bomb--a freestanding plain-statement rule for federal laws that regulate in areas of traditional state regulation.

Here I want to put those issues aside to address a question of statutory construction that divides CJ Roberts and the majority, on one hand, from Justices Scalia, Thomas, and Alito, on the other. The majority says that reading the Implementation Act's definition of chemical weapon literally would have counter-intuitive and far-reaching consequences. With some characteristic snark, here is how Justice Scalia, after quoting the majority, characterizes that position.
Just ponder what the Court says: “[The Act’s] ambiguity derives from the improbably broad reach of the key statutory definition . . . the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so . . . .”  Imagine what future courts can do with that judge-empowering principle:  Whatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous!
I take Justice Scalia to be making a textualist point here: Whether language is ambiguous is a function of that language, not of its consequences. Is that right?

There is a certain common sense to Justice Scalia's point. Suppose that a visibly drunk customer asks a bartender for a "shot of tequila." The bartender thinks that it is a very bad idea for the customer to have another drink. Perhaps state law would make the bartender civilly or even criminally liable for acts committed by the customer if she serves him any alcohol given his inebriated state. Nonetheless, there is no ambiguity in the words used by the customer. "Tequila" doesn't mean "nonalcoholic tequila" (yes there is such a thing) just because the person asking for it happens to be drunk--either as a matter of the words as widely used or the speaker's semantic intentions. Perhaps in a world in which nonalcoholic tequila were widely consumed, the word "tequila" would be ambiguous, but in our world, the word simply means tequila with alcohol. The deeply serious consequences of complying with the drunken customer's request do not render the meaning of that request ambiguous.

Nonetheless, there are circumstances in which the "deeply serious consequences" of construing a word in a certain way can create ambiguity even though the word is not, in common usage, ambiguous. At this point it would be customary to talk about vehicles in the park, but virtually any set of examples will do.

Suppose you sprain your ankle and the doctor tells you that you should ice it. "I don't have any ice in my freezer," you tell the doctor. "That's okay," she says. "Use anything that is very cold." If you went to your freezer and got out a bag of frozen spinach, which you placed on your ankle, you would be following the doctor's directions. But if you went to a chemistry lab and obtained some object chilled to close to absolute zero, you would not be following those directions, even though the object counts as "anything" in ordinary parlance, and near absolute zero counts as "very cold." Here the context clues you in that certain meanings that are literally encompassed within the language are excluded by your purpose: The doctor wants you to reduce swelling, not to freeze your skin off.

Do these principles change when we're talking about legislation rather than ordinary conversation? They might, although that may cut against Justice Scalia's position. In my doctor example, you could ask a clarifying question: "Hey doc, that's great. So can I chill my ankle to close to absolute zero?" And the doctor can answer: "No, you idiot."

But given the conventions of separation of powers, there is usually no opportunity to ask the legislature what it meant when construing its language in a particular case. Thus, one might think that it's the judge's job to try to figure out what the legislature actually meant, even more so than it is the job of a patient (who has the luxury of asking follow-up questions) to try to figure out what the doctor meant.

At this point, it's tempting to see the disagreement between the majority and dissent through the lens of textualism versus other methods of statutory construction. That debate does flavor the disagreement, but I think that a good argument can be made for the majority's view even on textualist grounds. One doesn't have to resort to subjective intentions (intentionalism) or to some ostensibly objective notion of the law's purpose independent of its language (purposivism). As Justice Scalia has often said, textualism is not literalism; it allows for considerations of context. And part of context is the problem that the legislature is addressing. Thus, the deeply serious consequences of reading a statutory definition in the way that its text unambiguously seems to suggest could be a clue that maybe there's a better way to read the language.

In short, I think the best way to understand CJ Roberts is as saying that context can create ambiguity where text alone would not. Putting aside the question whether the majority correctly applied that general principle in Bond, Justice Scalia seems mistaken (even assuming his own interpretive premises) in questioning the general principle.