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 contex 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. 


Tantallonblog said...

Isn't it just the case that the consequences illustrate the ambiguity of the language, or that the language used is unreasonable? What am I missing?

Marty Lederman said...

What's happening in Bond is, I think, a version of bringing Holy Trinity purposivism in through the back door. The Chief is right, of course -- the Bond incident is not the sort of thing that the treaty-makers (or Congress) had in mind, or would have cared about had they contemplated it. Yet Scalia is also right that of course it falls within the plain meaning of the way in which the treaty and statute define "chemical weapon." (The definition was written broadly so as to be sure not to omit any truly important cases -- but with the effect of encompassing many that the drafters would not in a million years have intended to reach. Most of the time that's not a problem, because of prosecutorial discretion that limits 99% of all "chemical weapons" prosecutions to the "core" cases. But occasionally . . . )

What is one to do in such a case? It is no longer kosher in the Supreme Court to simply invoke Holy Trinity -- there has to be at least the pretense that the Court is "interpreting" the statutory language, or resolving ambiguity. And so the Chief falls back on the fact that this incident sure doesn't seem like a prototypical use of a "chemical weapon" -- after all, John Singer Sargent would never have bothered to depict it! -- and thus finds ambiguity in the statutory term itself, even though there is none in the definition of that term. (You say, Mike, that "a good argument can be made for the majority's view even on textualist grounds." But wouldn't you agree that that's so only if one ignores the statutory definition and focuses myopically on the chosen term? And, if so, don't you need a purposivist justification for privileging the latter and virtually ignoring the former? Paul Clement tried gamely to make a textualist case using the definition; but for understandable reasons, that gambit got no takers -- and for consequentialist reasons! (i.e., limiting the statute to "warlike" uses would obviously not cover many cases the treaty-makers and Congress intended to cover).)

Perhaps this is as it should be. For all the usual reasons, the Court is not inclined to revive Holy Trinity purposivism overtly -- there remains the need to be able to invoke at least the pretense of "interpretation" of the words of the statute. But make no mistake -- Holy Trinity lives.

Michael C. Dorf said...

Marty, thanks for this. I had thought about discussing Holy Trinity in the post but determined not to because, as with "vehicles in the park", I didn't think I had anything to add to the large body of literature discussing it. But since you ask, I want to be clear that my post is not directed to the question of whether the consequences of construing "chemical weapon" to cover Bond are of the sort that really do introduce ambiguity into the meaning of an otherwise seemingly unambiguous term--only that this general phenomenon is possible. Temperatures near absolute zero are very cold, according to the plain meaning of the term "very cold", but the medical context of my hypothetical example suggests that "very cold" does not include "extremely cold". Now, I suppose you can say that the same move is available in Holy Trinity: Context shows that "labor" does not include the work of a minister, even though its plain meaning would seem to include that. If so, then yes, I agree that my resort to context is a backdoor way of applying Holy Trinity, albeit without the resort to intentionalism. Put differently, the textualist arguments against intentionalism may work against intentionalism but they do not distinguish textualism very much from purposivism, at least once allows for accounting for context, as textualism purports to do. So I agree with the commentators who say that by now the theoretical differences between textualism and purposivism have been substantially blurred. What remains is more in the nature of a disposition: Justices Scalia, Thomas, and Alito are (in general) disposed to give less weight to context than their less textualism-disposed colleagues.

Joe said...

The "disposition" cited at the end of the last comment reminds me that though some criticize the likes of O'Connor or Breyer for their in effect balancing tests, there is a certain honesty to them.

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Cicy said...

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.

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