Friday, February 27, 2015

Fish, Health Insurance, and Overcriminalization: A Comment on Yates v. United States

by Michael Dorf

Wednesday's SCOTUS decision in Yates v. United States  is interesting for what it may say about King v. Burwell--the challenge to the subsidies on federal exchanges to be argued next week--but also, as I'll explain shortly, because of a point made by Justice Kagan in dissent.

In Yates, the Court held that a fisherman who tossed his illegal catch into the sea to prevent federal authorities from confirming his law violation did not violate a statute forbidding the "destr[uction]" of "a tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States  . . . ." Did the Court say that fish are sentient beings, someones not somethings, and thus not tangible objects? I--along with the other vegan bloggers here at DoL--can only wish.

No, Justice Ginsburg--writing for a plurality of herself, Justice Breyer, Justice Sotomayor, and Chief Justice Roberts--said: "A fish is no doubt an object that is tangible; fish can be seen, caught, and
handled, and a catch, as this case illustrates, is vulnerable to destruction." Nonetheless, the plurality found that Congress did not mean for the statutory provision, which was enacted to combat corporate and financial accounting deception, to apply to cases like Yates. The surrounding linguistic context and purposes motivating the Sarbanes-Oxley Act indicate that for purposes of this statute, "tangible object" is best "read to cover only objects one can use to record or preserve information, not all objects in the physical world."

Concurring in the judgment, Justice Alito reached the same conclusion but largely eschewed reliance on the subjective motives of the Congress that enacted Sarbanes-Oxley, focusing more narrowly on the linguistic context.

What are the implications for King? There the question is how much of the broader linguistic context and background congressional purpose should be deemed relevant to construing the seeming limitation of federal subsidies for "an Exchange established by the State." Under the methodology applied by the plurality in Yates, the answer would appear to be "a lot of it." That's important because the vote of one of the conservatives is needed to get to five, and based on his vote in NFIB v. Sebelius, CJ Roberts appears to be the most likely one.

Nor is the Chief's Yates vote a fluke. He is probably the least textualist, most intentionalist of the current conservatives when it comes to statutory interpretation--as also indicated by his opinion for the Court last year in Bond v. United States (as I discussed here and in a column and other posts linked therein). The government should win in King, unless (as I put it last July) textualism runs amok. Yates confirms that CJ Roberts is barely a textualist at all, much less a textualist run amok.

But if Yates is potentially good news for the government about the Chief's statutory interpretation predilections, might it also be unexpected bad news about Justice Kagan--whose vote had almost surely been counted as nearly certain to find that subsidies are available in King? After all, Justice Kagan wrote the Yates dissent for herself and Justices Scalia, Kennedy, and Thomas. She (and they) found that the plain language prevailed.

The short answer is that there really isn't much of a methological dispute between the plurality (plus Justice Alito) and the dissent in Yates. Justice Kagan writes: "I agree with the plurality (really, who does not?) that context matters in interpreting statutes. We do not 'construe the meaning of statutory terms in a vacuum.'" That might seem like a departure from the textualist philosophy of Justices Scalia and Thomas, but it isn't. Justice Scalia has been saying for decades that textualism isn't literalism or strict constructionism. Everyone thinks context matters.

When all is said and done, then, Yates probably doesn't say much about how any of the Justices in King will vote. I predict that any Justices who conclude that subsidies are not available on federally established exchanges will say that this result comports with the context and purpose of the statute as a whole. They'll be wrong, of course, but they'll think they're right, and they certainly won't say the key snippet of text stands in isolation from the rest of the law.

To my mind, what makes Yates an interesting case is the little lecture that Justice Kagan delivers at the end of the opinion. She says that the plurality/majority are driven to what she regards as an erroneous construction of the statute because they understandably want to limit the ill effects of overcriminalization. She writes:
I tend to think, for the reasons the plurality gives, that §1519 is a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I’d go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code. But whatever the wisdom or folly of §1519, this Court does not get to rewrite the law. 
This form of judicial rhetoric is familiar. Indeed, I remarked upon it just last week in my first post on Judge Hanen's opinion enjoining the Obama Administration's deferred action program. The most famous examples appear in constitutional cases--as when Justice Stewart, dissenting in Griswold v. Connecticut, called the state ban on contraception use "an uncommonly silly law." Justice Thomas quoted that language in his dissent in Lawrence v. Texas. In those cases, as in statutory cases like Yates, the protesting judge or Justice reminds the reader that her job is simply to say what the law is--that finding a law constitutional or that it means something unpopular does not imply that the judge or Justice favors the law or its construction on policy grounds.

Familiar though this rhetorical move is, as I said in my first post on Judge Hanen's ruling, it has a doth-protest-too-much ring about it. After all, anybody who is sufficiently sophisticated to read a Supreme Court opinion or other lengthy judicial opinion already knows that judges are supposed to distinguish between their legal judgment and their all-things-considered political judgment. So why the need for the reminder?

The answer, I think, is that the very fact that these cases are contested by other competent jurists belies the claim that "the law made me do it." Did Justice Stewart really think the contraception use ban was silly? If so, why didn't he find a way to agree with Justice Douglas and the Griswold majority? If he really thought the law left him no room for a contrary judgment, wasn't he saying that the Justices who came out the other way were lying? Put differently, "the law made me do it" is only superficially an affirmation of formalism. It is better seen as a formalist expression of the anxieties to which legal realism gives rise.