Monday, July 28, 2014

A Text So Clear It's Invisible

by Michael Dorf

My latest Verdict column discusses last week's dueling D.C. Circuit and 4th Circuit opinions respectively invalidating and affirming the authority of the IRS to extend refundable tax credits to people purchasing health insurance on federally-established, as opposed to state-established, exchanges. I note that the DC Circuit relies on textualist arguments, which leads me to explain what textualism is and its virtues, such as they are. I note that moderate textualism has been largely accepted but argue that the DC Circuit applies an extreme version of textualism. I contend in the column that what makes the DC Circuit version of textualism extreme is, among other things, the fact that it arrogates to the court the power to decide when language is sufficiently clear to foreclose the IRS interpretation of the statute.

Here I want to suggest that my column is perhaps too generous to Justice Scalia in accusing the DC Circuit of implementing a more extreme version of textualism than the version he has championed over the years. I won't go through his statutory construction opinions one by one in order to try to show that he too is really a textualist extremist. Instead, I want to focus on one particular oddity of Justice Scalia's constitutional jurisprudence. It is, I think, inadvertently revealing of how he thinks about text--and perhaps also says something more generally about textualism (in both statutory and constitutional cases).

Not long ago, I was very honored to accept an invitation to join the editorial team of one of the leading constitutional law casebooks, currently edited by Jesse Choper, Dick Fallon, Yale Kamisar, and Steve Shiffrin. For the next version (available for academic year 2015-16), Fred Schauer will take over Professor Shiffrin's parts of the book and I'll take over Professor Kamisar's, which include the materials on abortion. I have thus been going through various cases and I came across a tidbit to which I had not previously paid sufficiently close attention. It's a remarkable footnote that appears in Justice Scalia's dissent in Planned Parenthood v. Casey.

The majority opinion (which was a majority on this point, although a plurality in some other respects) explained why the Court thought that the Fourteenth Amendment's Due Process Clause could be understood to protect a right to abortion notwithstanding the argument that in 1868 (and for years later), there was no well-established tradition recognizing a right to abortion. The majority said that such a tradition is not a necessary condition for recognition of a constitutional right. If it were, the majority said, then decisions like Loving v. Virginia--which recognized a right to interracial marriage even though there was no traditional protection for interracial marriage--would be wrong. Justice Scalia responded (in his footnote 1) as follows:
The Court's suggestion . . . that adherence to tradition would require us to uphold laws against interracial marriage is entirely wrong. Any tradition in that case was contradicted by a text--an Equal Protection Clause that explicitly establishes racial equality as a constitutional value.
Whatever one thinks about the broader disagreement over abortion rights, that is a mind-blowing whopper of an error. Justice Scalia said in that footnote--as I have heard him say on other occasions--that the "text" of the Equal Protection Clause "explicitly establishes racial equality as a constitutional value."

Here is the text of Section 1 of the Fourteenth Amendment, including its Equal Protection Clause:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
One can say that the original purpose or intention or expectation of the people who drafted and ratified the Equal Protection Clause was that it would establish racial equality--although even then one would need a fairly elaborate account of why one should look to their general purposes, intentions, or expectations regarding "racial equality" rather than their largely contrary specific purposes, intentions, or expectations regarding interracial marriage in particular. But at least we can make sense of the so-called "semantic originalist" or "new originalist" argument that the general understanding prevails as against the concrete but unenacted intentions or expecations.

By contrast, the claim that the text of the Equal Protection Clause explicitly establishes racial equality is, as Justice Scalia himself would say, entirely wrong. The Equal Protection Clause says nothing whatsoever explicitly about race.

So why did Justice Scalia think and say otherwise--and not just in a casual conversation but in a published dissent in the U.S. Reports that was presumably vetted by law clerks with the capacity to read the Constitution and joined by three other Supreme Court Justices with that same capacity?

I honestly don't know the answer to that question but I'd bet that if his blatant error were pointed out to him, Justice Scalia would at first deny the obvious. If faced with a persistent objector, then perhaps Justice Scalia would grudgingly admit that the text does not explicitly say anything about race but that given the overall historical context, it should be construed to imply a principle of racial equality. And then, in a few days he would forget all about the conversation and go back to holding the false belief that the text of the Equal Protection Clause explicitly establishes racial equality.

If that is right--and the psychological literature on motivated cognition says that something like this probably would happen--then we have a pretty damning criticism of textualism more broadly. After all, here we have a Supreme Court Justice writing for himself and three others in a momentous case but making an obvious mistake about the content of an extremely well-known constitutional provision--finding clear text where there is no text. That suggests that the outcomes judges are inclined to reach on normative grounds routinely influence whether they find that the authoritative text they are construing is clear.

I am not saying that it's impossible to make a judgment about whether a text is clear without resort to normative considerations. But I do think that where the stakes are ideological and/or high--as in Halbig and Casey--a judge's normative druthers are likely to play a substantial role in whether he finds the controlling text to be clear.

23 comments:

Joe said...

I have seen others do something similar in this context. There appears to me at times a confusion between textualism and originalism.

There is also a repeated insistence that the Equal Protection Clause is merely about race. As noted, there are ways to suggest it is primarily (even the Slaughterhouse Cases majority wasn't absolutist there) about race. I think this can be shown as wrong to the extent it is used to block out other applications.

Still, going by text same sex marriage is as protected as interracial marriage. Going by text basic control of family planning is protected. As noted in Meyer and Pierce, control over family is a traditional "liberty."

And, that would be protected either by due process or the Privileges or Immunities Clause. If we rest merely on "text," it is quite possible. But, Scalia et. al. is applying it with some additional stuff in mind.

He is doing a bit of looking over the shoulders of party-goers himself, to allude to a reference some might recognize.

Jackolee Ferguson said...

This is a pretty flimsy "gotcha." Are you seriously suggesting that the plan text of the equal protection clause does not prohibit legal discrimination on the basis of race?

Matt J said...
This comment has been removed by the author.
american maid said...

@Jackolee

No, he is saying that it does not explicitly refer to race, meaning that there is no mention of race in the text.

I'm grateful that the text does not explicitly mention race, or even worse specifically refer to former slaves, because it makes the protection more inclusive. In law school I often found myself embracing textualism when arguing about the scope of the EPC with conservative classmates who had suddenly discovered purposivism. Where do it say that it only applies to former slaves? Where does it say that it only applies to race? No where.

andy grewal said...

The court "arrogates" the power to perform statutory interpretation and determine the meaning of the law? From whom?

Joe said...

I contend in the column that what makes the DC Circuit version of textualism extreme is, among other things, the fact that it arrogates to the court the power to decide when language is sufficiently clear to foreclose the IRS interpretation of the statute.

Sounds like "from whom" here applies to the "IRS" or perhaps the executive department in general.

andy grewal said...

So agencies do not only have the authority to fill gaps in the statutes, but also enjoy the power to definitively determine whether a gap exists in the first place. Interesting. I guess we can get rid of courts entirely in regulated contexts. Or maybe we can create a sort of reverse Chevron, where judicial determinations at step one bind an agency only when they are reasonable.

Joseph Simmons said...

How is the textualism vs. purposivism argument impacted by facts showing that a textualist reading was intended? For instance, there are the 2012 statements from Jonathan Gruber, called "Architect" of the ACA, that the subsidies are intended to be limited to the state exchanges - contradicting his current statements. There is video of Baucus expressing that the subsidies are limited to state exchanges. These public statements at least obliterate the assertion that this was simply a typo.

The 4th Circuit concluded that if an alternative reading is plausible, then there is ambiguity sufficient for Chevron deference. The revelations of intent and knowledge expressed by Gruber and Baucus undermine that alternative reading but should courts nonetheless grant Chevron deference because the IRS's reading is plausible under the text and in accordance with a larger purpose? How much does a lesser purpose of the law matter (incentivizing states to establish exchanges)?

Granted the above facts weren't part of the DC opinion and I appreciate your explanation for the DC's reasoning.

Jackolee Ferguson said...

@ american maid

That is why I characterized his argument as "flimsy" rather than completely groundless. Granted, there is no explicit reference to race in the plain language of the statute. But to conclude from this that there is no textualist argument that the EPC prohibits discrimination on the basis of race is to create a towering strawman unworthy of even a grade school debate team.

Dan Baker said...

Jackolee: That is not what Prof. Dorf is pointing out. He is stating that Justice Scalia is wrong when he claims "that the 'text' of the Equal Protection Clause 'explicitly establishes racial equality as a constitutional value.'" (emphasis in original on "explicitly") The TEXT of the EPC does NOT contain the word "race" or "racial". In addition, although Prof. Dorf glosses over it, the issue is that Scalia and his ilk usually claim that the EPC ONLY prohibits legal discrimination on the basis of race, when, if they were truly "textualists", they could not legitimately make such a claim.

Joe said...

So agencies do not only have the authority to fill gaps in the statutes, but also enjoy the power to definitively determine whether a gap exists in the first place.

It might be helpful to read the article, but anyways, don't read it to take away judicial review which at times rightly "arrogates" foreclosing certain action.

Interesting. I guess

This language often is used in comments to "guess" what isn't really warranted

we can get rid of courts entirely in regulated contexts.

as I was saying

Or maybe we can create a sort of reverse Chevron, where judicial determinations at step one bind an agency only when they are reasonable.

This might be worthy of examination though again reading the whole article might help to clarify Prof. Dorf's position.

Jackolee Ferguson said...

@ Dan Baker: Dorf's criticism is only worth the time he spent writing it up if he thinks that the fact that EPC does not include the words "race" prevents Scalia from maintaining that the plain language of the EPC prohibits racial discrimination. I do not see how he can do this without arguing against a caricature of textualism that precludes textualists from drawing simple logical inferences from the text. If a text requires equal treatment of all persons, then, a fortiori, it requires equal treatment of all persons of all races. Unless we are being pedantic, I don't see how you can be more explicit than that.

andy grewal said...

The full article is a little bit more subtle, stating that textualism "substitutes the views of judges for those of democratically accountable officials." How, at Step One, the substitution of a judge's view for an agency's view arrogates power remains beyond me. (Does Congress "arrogate" executive power when it performs its core function, that is, when it enacts broad legislation?)

Mike's objections seem to be about the result reached and the quality of analysis employed. I don't think anything about this legislation requires judicial abdication to agencies regarding threshold issues of statutory interpretation. It's the judge's job to determine whether the statute creates a gap, and the performance of that task arrogates power from no one.

Joseph Simmons said...

Jackolee Ferguson makes a valid point. And as Joe says, there is some confusion between textualism and originalism.

It seems to me that Scalia is accusing the Majority of offering an extreme textualist reading in its interracial marriage analogy, rather than doing so himself.

Professor Dorf restates Scalia's footnote as "the 'text of the Equal Protection Clause "explicitly establishes racial equality as a constitutional value."

However, Scalia doesn't say that. "The text of" (used by Prof. Dorf) implies the individual words of the clause. Scalia only refers to "a text," that being the Equal Protection Clause. He says that the Clause contradicts the proffered tradition argument.

Can the text-as-a-whole "explicitly" establish a constitutional value? Note that Scalia is not saying a/the text explicitly forbid anti-miscegenation laws. The obvious rebuttal is that a text can say nothing "explicitly" but by its literal words and that whether Scalia were referring vageuly to a "constitutional value" or specifically to anti-miscegenation laws, he would be just as wrong. Perhaps Scalia's use of the word "explicitly" is too artful or not artful enough. At the very least, we can say that if Scalia strives to be an extreme textualist, he did a poor job in that instance.

We know that as an originalist, Scalia tries to hew close to the originally drafted meaning and purposes of various clauses. That could very well explain his word choice.

JD said...

One would have to read all of Professor Dorf's writing, which appear to be voluminous, to determine if he was consistent about HIS feelings about textualism or whether his argument is passed on political considerations as well. I have to admit that I have not read many other of Professor Dorf's writings and it has been four decades since I finished law school and had the time to digress in to the semantics of judicial interpretation being textual or purposeful.
It must be remembered that the ACA in particular, but generally, was a very political law and the textual view might indeed have been an intentional compromise written in the law, despite the impact it had. There were many members in Congress who wanted to make sure that only the states who agreed to participate got the benefits supposedly passed on by the law.

tjchiang said...

I fully agree with your last paragraph, but I don't think that someone who is into textualism for textualism's sake (rather than in service of a political agenda) would find that a damning criticism. Rather, the very fact that you can say that Scalia's argument is clearly wrong under textualism's own principles is proof that textualism produces the kind of objective answers that lie at the heart of its appeal. To a committed textualist, the fact that no judge actually applies textualism in a consistent principled manner is an indictment of judges, not an indictment of textualism.

Joe said...

"There were many members in Congress who wanted to make sure that only the states who agreed to participate got the benefits supposedly passed on by the law."

What benefits? There are a range and they aren't only tied to this one provision. As shown, e.g., at Balkanization, I'm unsure where these "many members" are.

Was this post linked somewhere else?

JHW said...

Isn't this just the original meaning/original expected application distinction? I don't think that's the same as the textualism/purposivism distinction. Yes, one way to narrow the reach of the Fourteenth Amendment is to say "The legislative purpose was to protected freed slaves." But this is not Scalia's argument. His argument is something like: we know that (1) people in 1868 thought it extended to race and (2) people in 1868 couldn't have thought that it extended broadly to other categories like sex and sexual orientation, because plenty of legal discrimination based on those categories long outlasted the Fourteenth Amendment. A view like Scalia's seems to take this as just the 1868 public meaning of "equal protection", just as, for him, the specific punishments objected to in 1791 constitute the 1791 public meaning of "cruel and unusual punishment."

That's textualist; it doesn't depend on legislative history or purpose. It's also a bad argument, and it gets him into trouble in even this very context, because you could use the same argument to argue that equal protection doesn't mandate interracial marriage. And it seems to be losing sway with many originalists (especially as to sex discrimination) and maybe even with Justice Scalia himself, whose most recent statements about the constitutionality of sex discrimination don't depend on that historical argument.

Shak Olreal said...

One can say that the original purpose or intention or expectation of the people who drafted and ratified the Equal Protection Clause was that it would establish racial equality--although even then one would need a fairly elaborate account of why one should look to their general purposes, intentions, or expectations regarding "racial equality" rather than their largely contrary specific LOL Boosting
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