Category Archives: statutory interpretation

Must-read Abbe Gluck and Michael Graetz on the severability argument in the health care case.  It concludes:

It’s not clear why the Obama administration has chosen this course. Perhaps it made a strategic choice to raise the stakes of striking down the mandate by asking the court to also invalidate the law’s more popular provisions. Or it may be concerned that, if the mandate alone is struck down, there would not be enough votes in Congress to pass new provisions to compensate the insurance industry for its loss. But as a legal matter, the court should reject the argument.

We believe that imposing the mandate was within Congress’s powers to regulate commerce and that the legislation should be upheld. But if the Supreme Court strikes the mandate down, the rest of the law should stand, and Congress should have to decide what happens next.

Why should an unelected court free the insurance industry from having to do its own political lobbying work in Congress? Why should the court choose whether or not to deny injured and sick Americans health insurance? These crucial decisions must be left to our elected officials, who — unlike the Supreme Court — can then be held accountable for them by the voting public.

Presidential signing statements: Constitutional and institutional implications (Jan. 4).

Seth Barrett Tillman has posted this draft on SSRN.  Here is the abstract:

The Foreign Emoluments Clauseis a constitutional backwater. So much so, that there is no substantial discussion of this clause in any federal adjudication (although the Office of Legal Counsel has regularly opined on it). Backwaters, however, have an unappreciated and significant virtue. They allow us to discuss our precommitments, assumptions, and methodological positions free from the distractions of the great political issues of the day – issues which naturally tend to divide us in ways which may be unconnected to the merits. Simply put, backwaters allow us to freely debate the merits of contestable worldviews. That is what I propose to do here.

Both Professors Zephyr Rain Teachout and Akhil Reed Amar have discussed the Foreign Emoluments Clause in their recent publications. Amar is an originalist, perhaps the most influential American originalist of the late twentieth century; Teachout, although, perhaps, not an originalist per se, regularly writes in an originalist mode – parsing drafting history, text, structure, precedent, and history – in search of a public (or, perhaps, an intended) meaning contemporaneous with ratification. Both Teachout and Amar might be fairly characterized as left-of-center, but both are also clearly in the academic mainstream. Both Teachout and Amar’s publications are actively cited, if not widely acclaimed, and my own view is that citations and public acclaim vastly underestimate the influence of these two scholars. (However, as do all mere humans, both Teachout and Amar stray into some truly puzzling errors from time to time.) Indeed, there are now several publications that cite both Teachout and Amar.

Interestingly, each takes a position in regard to the Foreign Emoluments Clause which is in clear conflict with the position taken by the other. The stakes here involve more than the contours, scope, purpose, and original public meaning of the Foreign Emoluments Clause (which, in itself, is not an entirely minor thing).

If Amar is correct, then Teachout must be wrong, and it follows that Teachout’s views in regard to congressional power to limit election-related speech and spending are (if not flatly wrong) something that must be carefully reconsidered in light of Amar’s contrary position.

On the other hand, if Teachout is correct, then Amar must be wrong, and it follows that Amar’s views in regard to constitutional structure, intratextualism, and the meaning of coordinate language in other constitutional clauses are (if not plainly wrong) something that must be closely reexamined in light of Teachout’s contrary teachings. This paper will explore that conflict, and, then, I will attempt to reconcile the two positions.

Toby Dorsey has posted this draft on SSRN (forthcoming, University of Richmond Law Review:

When the Supreme Court holds that part of an act is unconstitutional and must be stricken, what does it do with the rest? In almost every case, there is an implicit assumption — shared by every party and every Justice — that the rest of the act should stand, preserving as much of the functionality of the act as possible. In politically charged cases, however, the Court applies this functional assumption to most of the act, but then isolates a few provisions and applies a political preference test to those provisions — preserving those provisions only if Congress would have wanted them preserved. The Court’s political preference test is a test that has not been applied consistently and cannot be applied with any certainty. Accordingly, it may be unconstitutionally vague. Regardless, it is unseemly and unreliable. It is also unwise, because the test as formulated by the Court is so open-ended — its consequences so potentially broad — that every case not only allows, but actually invites, an argument that the Court should strike down an entire act. This leaves the entire statute book fraught with uncertainty, because the Court has left open the possibility in every case that it may strike far more broadly than the Constitution requires if there is a political justification for doing so. The Court should discard the political preference test. If part of an act is unconstitutional, the Court should strike that part, and leave the rest alone.

Ward Farnsworth Dustin Guzior and Anup Malani have posted this draft on SSRN.  Here is the abstract:

What role do policy preferences play when a judge or any other reader decides what a statute or  other legal text means? Most judges think of themselves as doing law, not politics. Yet the observable decisions that judges make often follow patterns that are hard to explain by anything other than policy preferences. Indeed, if one presses the implications of the data too hard, it is likely to be heard as an accusation of bad faith – a claim that the judge or other decision-maker isn’t really earnest in trying to separate preference from judgment. This does not advance the discussion, and distracts from the possibility of more interesting explanations. A promising antidote, we believe, lies in empirical study not just of large numbers of judicial decisions collected over time, as previous scholars have done, but of the immediate experience of legal interpretation.

We compile, and here present, rich evidence of what happens when lawyers in training are asked in controlled surveys to distinguish between their policy preferences on the one hand and their own interpretive judgments or predictions about courts judgments on the other. Our findings offer two lessons. First and foremost, they suggest that separating policy preferences from judgments about the meaning of statutes is very difficult. The same is true of preferences and predictions about what courts will do: respondents tend to predict that courts will do what the respondents themselves prefer. The fundamental entanglement of preferences and interpretation raises important questions about the ability of anyone – including judges – to neutrally carry out interpretive strategies meant to generate answers in close cases. Second, however, the results also show that certain ways of framing the interpretive question can reduce the influence of preference on interpretation – though perhaps not its effect on predictions. Instead of simply asking respondents how they would interpret the text of a statute or how the drafters would likely want it applied, it is better to ask respondents how ordinary readers would interpret the statute. This framing of the interpretative question can debias an individual’s interpretation of a statute.

In short, interpretative theories that elevate text alone or give the intent of drafters are both susceptible to contamination by private preferences. To immunize interpretation from these preferences, a theory that asks how ordinary readers would read a statute may be the best prescription.

This looks like a very interesting paper!

Fascinating WSJ article.

The Congressional Research Service has issued this report.