Saturday, September 8, 2018

Judge Kavanaugh, Supreme Court Nominee, on Constitutional and Statutory Interpretation (Including Chevron) (9/8/18)

This week's confirmation hearings for Judge Kavanaugh, Trump's nominee to the Supreme Court, covered some issues that are near and dear to tax procedure enthusiasts.  Two are:

1.  Originalism.  

Judge Kavanaugh pronounced that originalism is “constitutional textualism, meaning the original public meaning of the constitutional text.”  So, as articulated, that would be the public meaning at the time the constitutional provision in issue was included in the constitution.  That is a stark statement of originalism.  In fact, originalism has many shades, some of which permit other considerations in interpreting the constitutional text.  For example, Judge Kavanaugh himself qualified his definition by saying that the original public meaning is “informed by history, tradition and precedent.” I think he means that he is willing to consider something that may not be exactly the original public meaning.  I think that, with that caveat, all justices and perhaps all judges are originalists.

I transcribed the quotes in the above paragraph from the video clip Will Baude, The Best Parts of the Kavanaugh Hearing (The Volokh Conspiracy 9/5/18), here.

Since the analog for originalism is textualism, I have revised my discussion in the working draft for the next edition of the Federal Tax Procedure Book.  Most of the revisions are to some footnotes, so I include the text and some of the footnotes at the end of this blog.

2.  Chevron.

Judge Kavanaugh is not a fan of Chevron deference to agency interpretations.  I generously quoted and cited from Judge Kavanaugh's article, Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) ,in my paper IRS Guidance – Rulemaking and Deference to IRS Statutory Interpretationhere,, so I won't get into that right except to note that, at the end of the article, I discussed the political / ideological winds against Chevron, concluding that ridding statutory interpretation of Chevron deference may be a bad idea whose time has come.  If Chevron meets its end or substantial retreat, I am sure Judge (presumably then Justice Kavanaugh) will make his contribution.

I also recommend to readers this informative commentary posted during the hearings:  Cary Coglianese, The Ambiguity in Judge Kavanaugh's Chevron Critique (The Regulatory Review 9/6/18), here.  A key excerpt:
Despite his overarching criticism of Chevron, Judge Kavanaugh does acknowledge that actually “Chevron makes a lot of sense in certain circumstances”: 
It affords agencies discretion over how to exercise authority delegated to them by Congress. For example, Congress might assign an agency to issue rules to prevent companies from dumping “unreasonable” levels of certain pollutants. In such a case, what rises to the level of “unreasonable” is a policy decision. So courts should be leery of second-guessing that decision. The theory is that Congress delegates the decision to an executive branch agency that makes the policy decision, and that the courts should stay out of it for the most part. That all makes a great deal of sense. 
Perhaps senators and the rest of us will be forgiven for thinking that what makes great sense to Judge Kavanaugh sounds an awful lot like the Chevron doctrine.

(1) Textualism.

Some jurists, Justice Scalia was the most vocal, give primacy to the statutory text and are reluctant to look beyond the statutory text (for example, to the legislative history) for assistance in determining how the statutory text should be interpreted.n1  The public meaning of the text n2–the plain or normal meaning–at the time of enactment sets the proper boundary for statutory interpretation, n3 subject perhaps only to the use of linguistic canons of interpretation. n4  They disdain any search outside the text for any “intent” of Congress. n5  They may discern what they often call the “plain meaning” to statutory text and its context in the enacted legislation (or related enacted legislation including the “statutory history” n6); in such cases, they profess to give little or no credence to broader legislative context, including legislative history (such as Committee Reports) which is a broader category than statutory history, because, they reason, only the statutory text was enacted by Congress, n7 and any reference to extraneous materials (including, most prominently, legislative history n8) “greatly increases the scope of manipulated interpretation, making possible some interpretations that the traditional rules of constructions could never possibly support.” n9

Textualists often even resort to a current dictionary or, more frequently, one in use at the time of the enactment of the statute to support their view of what the statutory text would have meant (or should have meant) to the Congress enacting the text and the people the text is intended to govern.

If context is relevant at all to textualists, it is internal context (i.e., context in the enacted statute rather than context determined from sources external to the statute) and objective context. Having said that, of course the search for plain or ordinary meaning is external to the statute’s text, for the text itself does not tell us what the plain or ordinary meaning is. n10

Footnotes (note that these are not the same numbers as will appear in the next publication):

   n1 Justice Scalia’s impact on statutory interpretation by focus on the text of the statute, to the exclusion of external sources, has been described as effecting a “a massive and enduring change in American law.”  Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (the article is a book review of Robert Katzmann, Judging Statutes (Oxford Univ. Press 2014) (which advocates a broader approach to interpretation, including specific use of legislative history); Judge Kavanaugh strongly defends Scalia’s approach to statutory interpretation).

   n2 The “public meaning” rubric has a lot of nuance, but it’s use, perhaps without nuance, is a word that is currently in the ascendancy, at least with the conservative wing of the Supreme Court.  See Wisconsin Cent. Ltd. v. United States, ___ U.S. ___, 138 S. Ct. 2067 (2018) (Justice Gorsuch for the majority referring to “the statute’s original public meaning”); and Lucia v. SEC, ___ U.S. ___, 138 S. Ct. 2044, ___ (2018) (Justice Thomas with Justice Gorsuch dissenting, “I would resolve that question based on the original public meaning of ‘Officers of the United States’.”).  For further nuance, the public meaning to textualists also evidence the presumed subjective intent of the legislators, thus offering a sort of objective insight into the subjective intent of the legislators.  See John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79-80 (2006) (“Textualists thus look for what they call “‘objectified’ intent—the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.”).

   n3 Related to textualism in statutory interpretation is originalism in constitutional interpretation.  Originalists in constitutional interpretation use the textualist interpretive strategy of looking to the meaning, perhaps public meaning, of the constitutional text at the time the Constitution or amendment was approved. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U.L. Rev. 109, 114 (2010) (“Textualists in statutory interpretation tend to be originalists in constitutional interpretation. “).  As Judge Kavanaugh said in this confirmation hearing on 9/5/18, originalism is “constitutional textualism, meaning the original public meaning of the constitutional text.”  See Will Baude, The Best Parts of the Kavanaugh Hearing (Volokh Conspiracy 9/5/18) (the incorporated video clip has it and I transcribed it from the video clip).  Judge Kavanaugh did qualify by saying that the original public meaning is“informed by history, tradition and precedent.”  Some have called originalism “fundamentalism,” evoking bibilical the literalist notion that the meaning of biblical text is fixed, ascertainable and timeless.”  See Peter J. Smith & Robert W. Tuttle, Biblical Literalism and Constitutional Originalism, 86 Notre Dame L. Rev. 693 (2011) (citing e.g., (p. 694 n.1 ) Cass Sunstein as a proponent that originalism “bears an obvious resemblance to religious fundamentalism,” (Cass R. Sunstein, Radicals in Robes, at xiii (2005)) and noting similarities and differences between originalism and biblical fundamentalism/literalism.)   Of course, there are many shades of originalism (and fundamentalism/literalism) but I think the foregoing captures the core meaning, even when some like Judge Kavanaugh add some qualification which might depart from the literal statement of originalism.

   n4 I discuss canons of interpretation beginning on p. ?, but note here that linguistic canons are simply rules of thumb as to how the English language works or should work.  For example, expressio unius est exclusio alterius means when one or more things of a class are expressly mentioned others of the same class are excluded unless there is some textual signal that the mentioned items are simply examples of the larger class, so that all within the larger class are included.

   n5 This has been referred to as intent skepticism which sweeps beyond strict textualism.  See generally John F. Manning, Inside Congress' Mind, 115 Colum. L. Rev. 1911, 1912-1913 (2015) (noting that intent skepticism “also underlies most of textualism’s competitors.”); John F. Manning, Statutory Interpretation: Why Does Congress Vote on Some Texts and Not on Others, 51 Tulsa L. Rev. 559 (2016) (“legislative ‘intent’ is not a fact in the world to be discovered, but rather a construct to be built out from a political or constitutional theory of what should count as Congress's decision.”).

   n6 Statutory history is “the formal changes in the [statute] made by the legislature when it enacts new laws and amends them over time.”  William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution 204 (Foundation Press 2016); see also Jonathan H. Adler, Justice Sotomayor looks at ‘statutory history,’ not ‘legislative history’ (The Volokh Conspiracy 11/14/17).  Textualists who disdain legislative history generally are comfortable with statutory history because statutory history is the objective consensus action of Congress rather than the more subjective legislative history not enacted by Congress and thus not a reliable guide, they assert, to Congress’ consensus as to meaning of the text Congress did enact.
Related to the statutory history genre is consideration is drafting history--changes of the text of a bill as it moved through the legislative process; textualists find drafting history more palatable than, for example, traditional legislative history (such as committee reports).  See James J. Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 Wm. & Mary L. Rev. 681, 688-689, 715-716 (2017).  Those authors also note (p. 721; see also 743-744) that the Supreme Court’s references to such drafting history do not contain the type of diminutive qualifiers that often accompany references to committee reports and other lesser forms of legislative history.

   n7 A good Scalia soundbite is: “the only language adopted in a fashion that entitles it to our attention is the text of the enacted statute.”  E.g., Zedner v. United States, 547 U.S. 489, 509–10 (2006) (Scalia, J. concurring).  Earlier in his career while on the D.C. Circuit Court of Appeals, Justice Scalia so pronounced by quoting a marvelous floor dialogue between Senator Armstrong and Senator Dole, then Chair of the Finance Committee, in which Senator Dole denied having written or even read or even knowing whether any Senator wrote or even read the Committee Report and denied that the Report had been voted on by the Committee.  Hirschey v. F.E.R.C., 250 U.S. App. D.C. 1, 777 F.2d 1, 7 n.1 (D.C. Cir. 1985) (Scalia, J., concurring) (quoting 128 Cong. Rec. S8659 (daily ed. July 19, 1982)). Senator Armstrong concluded the dialogue with the following comment: “[F]or any jurist, administrator, bureaucrat, tax practitioner, or others who might chance upon the written record of this proceeding, let me just make the point that this is not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.”  Moving past this type of soundbite, some scholars forego reliance on legislative history for more weighty reasons such as “Article I's bicameralism and presentment requirements.” E.g., John F. Manning, Putting Legislative History to a Vote: A Response to Professor Siegel, 53 Vand. L. Rev. 1529 (2000).  And still other scholars argue that legislative history or other non-text tools might be “relevant” in understanding meaning and question whether the plain meaning rule justifies not considering relevant evidence of meaning: “Information that is relevant shouldn't normally become irrelevant just because the text is clear. And vice versa, irrelevant information shouldn't become useful just because the text is less than clear.”  William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. Chi. L. Rev. 539, 540 (2017).

   n8 Legislative history is different from statutory history discussed above in n. 6.

   n9 Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts xxviii (2012); John F. Manning, Inside Congress' Mind, 115 Colum. L. Rev. 1911, 1925-1926 (2015) (“textualists fear that its [legislative history] gives judges too much discretion to push their own preferred outcomes”).  A logical consequence of devotion to the text to the exclusion of other sources is that legislative history becomes irrelevant.  Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U.L. Rev. 109, 113 n.6 (2010) (citing Justice Scalia and Professors Eskridge and Manning).  Indeed, Justice Jackson  famously said (United States v. Public Utilities Comm’n of Calif., 345 U.S. 295, 319 (concurring) “I should concur in this result more readily if the Court could reach it by analysis of the statute, instead of by psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them.”).
     But, inconsistently it seems to me, even the most ardent textualists – Justice Scalia in particular – have no problem relying on the Constitution’s “legislative history” – specifically the Chronicles of the Convention and, even more tenuously, the Federalist Papers to assist in interpreting the Constitution.  See also William N. Eskridge, Jr., Interpreting Law: A Primer on How to Read Statutes and the Constitution 212-214 (Foundation Press 2016); see also e.g., Judge Kavanaugh’s discussion of the Federalist Papers in the video clip at Will Baude, The Best Parts of the Kavanaugh Hearing (Volokh Conspiracy 9/5/18); is it fair to assume that Judge Kavanaugh’s careful study of these statements of some founding fathers' “intent” does not affect his interpretation of the Constitution?; at a minimum he brings that knowledge to the task of determining the public meaning of the original Constitution .  And, perhaps even more importantly, there is pretty good anecdotal evidence that circuit judges (and by extrapolation, Supreme Court Justices) actually do specifically consider, in the foreground or in the background, legislative history in their deliberations.  Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. R. 1298, 1324-1327 (2018) (noting that in the sample, most conservative judges, even the most text-centric, consulted legislative history and concluding that the issue of use of legislative history “is no longer interesting and should be put to rest.”).

   n10 The political dimension of textualism is beyond the scope of the text.  But I do note, that if applied rigorously, textualism does not pick conservative or liberal sides in a political debate.  Although textualism is commonly associated with conservative judges (perhaps because of their dislike for the administrative state), its rigorous application can be deployed in favor of liberal interpretations as well.  E.g., Alexander Volokh,  Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U L. Rev. 769, 775 (2009) (“observers may conclude that textualism has a substantial conservative bias, when in fact its bias may only be slight (or, as I explain later, possibly nonexistent)”.); and Scott A. Moss, Judges' Varied Views on Textualism: The Roberts-Alito Schism and the Similar District Judge Divergence that Undercuts the Widely Assumed Textualism Ideology Correlation, 88 U. Colo. L. Rev. 1 (2017); but see Peter J. Smith & Robert W. Tuttle, Biblical Literalism and Constitutional Originalism, 86 Notre Dame L. Rev. 693, 745 (2011) (stating the popular narrative that originalism, the textualism counterpart in constitutional interpretation, is neutral and apolitical, citing Office of Legal Policy, U.S. Dep't of Justice, Original Meaning Jurisprudence: A Sourcebook 4 (1987), but that “originalists seem quite aware that their approach is likely to lead to results that are inconsistent with elite values.;” elite may be a euphemism for liberal or at least somewhat liberal).

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