Senator Kennedy Questions Trump Judicial Nominee on Original Public Meaning (7/28/26)

Recently, Senator John Kennedy (yeah, the folksy speaking one) and a Trump judicial nominee discussed conservative dogma in Constitutional interpretation (dogma that also plays out in statutory interpretation because the Constitution is just a super-statute). The discussion starts here. Many originalists now genuflect to the interpretive God of “original public meaning”—in other words, they look for the meaning of the words as the meaning some imagined public audience contemporaneously with the adoption of the Constitution would have interpreted the words. Senator Kennedy wants to know why the meaning that some imagined public audience might matter more than the meaning the actual framers of the Constitution contemporaneously attributed to the words. Senator Kennedy nails the bankruptcy of this notion of the originalist adventure that has captured the conservative imagination. One of my favorite articles on this theme is Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575 (2011), here.

I write on a Federal Tax Procedure Blog which rarely deals with Constitutional interpretation. This Blog deals mostly with statutory interpretation, but the screwy conservative notions that affect original public meaning play out in statutory interpretation where conservative judges deploy dictionaries more or less contemporaneous with the statute text enactment to divine meaning rather than using the legislators’ own explanations (legislative history).

Side Note: Senator Kennedy (Wikipedia here) received his J.D. (basic law degree) from UVA Law School in 1977 (where he was executive editor of the Virginia Law Review) and thereafter a Bachelor of Civil Law (B.C.L.) from Magdalen College, Oxford, in 1979. He is plenty smart, sometimes masked by his folksy way of presenting himself. But that folksy way can often result in good discussions as above where he bests the judicial nominee spouting conservative dogma.

Two Highly Recommend Articles (One a Draft) on Law Text Interpretation (7/10/26)

I write today to recommend two articles on interpretations of law text—Constitution or statute. Text interpretation is text interpretation. However, text interpretation by originalist/textualist leaning judges considers extra-text “history” leading to ratification of constitutional text in interpreting Constitutional text but reject such history (commonly called legislative history) for interpreting statutory text. (Why that difference I hope you ask?) For originalists in interpretation (often but not always textualists) the permissible tools are those that focus on the original public meaning or some variant of that to some imagined audience including as some fear “Joe the Ploughman” with arguably marginal reading skills generally or for law text. See Jack N. Rakove, Joe the Ploughman Reads the Constitution, or The Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575 (2011), here.

The first article addresses the effects of Loper Bright. Lindsay L. Clayton,  Defending Agency Actions After Loper Bright: Sea Change or the Same Old Beach? 74 DOJ J. Fed. Law. & Prac. no. 2, 49 (July 2026), here. An Appendix for the article is here. Ms. Clayton is Assistant Director in the Civil Division’s Tax Litigation Branch. The article is quite good in assessing the effects of Loper Bright on DOJ’s civil litigation. One would have to assume that, prior to publication in the DOJ’s house organ, the contents were vetted and approved by at least some of the attorneys in DOJ responsible for positions before the courts.

Some comments on Ms. Clayton’s articles:

The article repeats (pp. 50-51) the Loper Bright claim:

The decision criticized Chevron for requiring courts “to ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment” and for “demand[ing] that courts mechanically afford binding deference to agency interpretations.”

I believe that Loper Bright claim was false or, in any event, overstated what Chevron actually did. My claim is that Chevron allowed judges to apply (not defer to) an agency interpretation only where they were interpretive equipoise (same as ambiguity) where they could not decide whether the agency interpretation or the opposing interpretation was best or not best. In that zone of equipoise, courts were simply applying the agency interpretation as a default rule, like the rule of lenity; there were not deferring to an agency not best interpretation. I develop my claim further in an article for publication in the ABA Tax Lawyer sometime in the near future. But consider:

• For a succinct statement addressing Chevron’s meaning of reasonable interpretation and the latitude it gave courts to apply their own best meaning. See Jon Newman (respected 2d Circuit Judge), On Reasonableness: The Many Meanings of Law’s Most Ubiquitous Concept, 21 J. App. Prac. & Process 1, 83 (2021), here (“It would probably be too cynical to suggest that [under Chevron] the courts are just accepting agency interpretations with which they agree and rejecting those they disfavor, but in some cases that almost seems to be what is happening. Clearly there is no one meaning of “reasonable” in the context of Chevron deference.”)
• Judge Newman’s insight is consistent with empirical research of large data sets of cases that commoted about Chevron but none said or reasonably implied that the court deferred to a not best agency interpretation. Rather, Judge Newman was saying that the court determined a best interpretation and applied that interpretation or were in  interpretive equipoise. For my research, see Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure Blog 4/2/22; 4/3/22), here; and Chevron Step Two Reasonableness and Agency Best Interpretations in Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here. 
• Following through on my claim, the question is what courts do after Loper Bright do when they face ambiguous statutory text where they cannot honestly say that the agency interpretation or the opposing interpretation is the best? I cover that issue in my article addressing interpretive equipoise in percentage ranges, but just think about that. Keep in mind that Loper Bright cannot responsibly command or be interpreted to command that there cannot be ambiguity after applying all the tools of statutory interpretation.

CFC Invalidates GILTI Gap-Filling Regulation That Avoided Textual Statute Inconsistency (7/7/26)

In Keysight Technologies, Inc. v. United States, ___ Fed.Cl. ___ (7/2/26), the Court held invalid a Treasury Regulation designed to plug a gap in the statutory text. The opinion may be found: CFC here, TN here, GS here.

The Court opens with this sentence projecting the outcome (Slip Op. 1):

When Chevron fell, so too did the presumption that statutory ambiguity favors the agency. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

If that were not clear enough as to where it is going, the Court opens the next paragraph (bold face supplied by JAT):

This controversy relates to the Treasury’s self-inflicted fix of a mismatch between foreign subsidiaries with fiscal- or calendar-year tax filing requirements that Congress quietly built into the global intangible low-taxed income ("GILTI") statutory scheme.

And the next paragraph (bold face supplied by JAT):

The Treasury’s antipathy for this inconsistency resulted in the Secretary promulgating Regulation 1.951A-2(c)(5) ("the Regulation").

I won’t parse the quoted text any further (although my bold face may imply something).

The technical issue was whether Treasury could, by interpretive regulation, fix what appears textually to be a timing glitch producing materially different tax result based on differences in tax years between calendar year taxpayers and fiscal year taxpayers. As the Court says (Slip Op. 2): “Enactment of the TCJA created an inconsistency between treatment of certain taxpayers depending on whether they were fiscal-year or calendar-year filers.”

Basically, the taxpayer argued that it, as a fiscal year taxpayer, was entitled to a benefit that a calendar year taxpayer could not achieve. Without wallowing around in the details, it appears to me that an intuitive view of how Congress enacts tax legislation, one can fairly infer that Congress did not intend the result that the regulation sought to forbid and the Court blesses. Congress appears to have had no specifically articulated intent on the precise issue, but Congress generally does not make such distinctions to permit disparities between otherwise similarly situated taxpayers.

Interesting Concurring Opinion on Canons (or Maxims) of Statutory Interpretation (5/29/26; 6/1/26)

In Flight Options LLC v. United States, 177 F.4th 709 (6th Cir. 2026), CA6 here and GS here, the Court reversed a district court holding that Flight Options, a fractional-share jet company, was liable for withholding tax in the amount of $39 million on fixed fees it charged to pay for the overhead and management of its clients' private jets. The tax involved was the

7.5% excise tax on the “amount paid for” domestic “transportation by air,” 26 U.S.C. §§4261(a), 4262(a)(1), what the statute called a “ticket tax” at all relevant times of this dispute, id. §4261(e)(1)(C), (e)(5) (2012).

Although I do not plan to deal with the substantive merits of the withholding tax in issue, basically a high-level overview is that the tax is easily calculated, collected, and paid over for the travel that most of us experience on commercial airlines where the price of the ticket is all in for cover all associated costs to the airline of providing the air transportation (included quite indirect costs of management and even paying lawyers). Private-jet companies operate differently, not including all costs in a single fare but separately calculating and charging for its costs and profit. So, Flight Options, calculated, collected, and paid over only that ticket tax related to “usage charges for each flight a client takes, not to fixed fees it charges its clients for overhead and management of its fractional jet business.” The latter charges are the types of charges that commercial airliners build into the ticket fare and thus are, for commercial travel, subject to the ticket tax. In effect, the IRS attempted to require private-jet providers to include some of those charges in the base to which the ticket tax, and thus withholding obligation, applied, thus making the ticket tax more comparable in impact between commercial providers and private-jet providers. (Added 4:50 pm: To put that another way, for a pro rata tax, private-jet flyers pay less than commercial-jet flyers. Think about that.)

The Court of Appeals (Judge Sutton for a unanimous panel) rejects the IRS position the district court sustained. Of course, the issue is to apply the ticket tax designed with the commercial-jet model where all-in costs are included in the ticket price subject to the tax. As noted above, the private-jet providers separately state their costs (with separately stated costs including profit). The effect of the Court’s holding is that private-jet providers get a competitive advantage relative to commercial-jet providers. The Court confers that competitive advantage by deploying the favorite interpretive tool of literalist textualists—Dictionaries. Using those vaunted tools, the Court’s parsing of the tax indicated to the Court that the text was uncertain as to the liability—ambiguous, if you will—and thus it is improper to hold a third-party withholder for a liability that is uncertain. In the process the Court deployed two canons, called “relevant taxpayer canons”: (i) the Pro-Taxpayer Canon, called a general canon, that interprets uncertainty in tax liability in favor of the taxpayer and against the IRS; and (ii) a related canon, called a "specific canon," that to hold a party charged with collecting the tax for the IRS must have “precise and not speculative” instructions in the statute (meaning in his telling that ambiguity is resolved in favor of the putative withholder).

Fifth Circuit Claims a Pro-Taxpayer Canon When the Court Should have Interpreted the Exemption in the Statute Fairly or Applied the Anti-Taxpayer Canon (1/27/26)

I posted much of the information in this blog entry at the bottom of the immediately preceding blog: Fifth Circuit Knows a Limited Partner When Reads It (1/24/26; 1/27/26), here. I decided that the information should not be buried in the prior blog but should be lifted into it’s own blog entry. So here it is. For context, yesterday’s blog was about the Fifth Circuit’s opinions in Sirius Solutions, L.L.L.P v. Commissioner, ___ F.4th ___ (5th Cir. 2025), CA5 here and GS here, which held that the limited partner exception in § 1402(a)(13) does not apply to earnings allocated to a nominal limited partner even though providing services to a limited partnership. Please note that I bold-faced exception because that the majority and the dissenting opinions agree it is an exception to the general rule of taxation. (In view of this blog entry, I have eliminated the information from the bottom of the prior blog entry.)

I ask readers to consider seriously footnote 8 of the majority Sirius majority opinion  spanning Slip Op. 23-24):

  n8 Even if the IRS and Tax Court’s arguments had persuasive authority, they would at most establish ambiguity. But that is not enough for the Government’s passive investor rule to prevail. It is a “longstanding canon of construction that if the words of a tax statute are doubtful, the doubt must be resolved against the government and in favor of the taxpayer.” United States v. Marshall, 798 F.3d 296, 318 (5th Cir. 2015) (quotation omitted).

First, Loper Bright claims (I think nonsensically) that courts can always interpret out ambiguity in the statute. See e.g., Chevron, Loper Bright, and Statutory Ambiguity (Federal Tax Procedure Blog 1/8/26; 1/9/26), here.  If there is genuine ambiguity where the court is unable to determine the best interpretation between two or more interpretations within the zone of ambiguity, the court will need a tie-breaker which artificially resolves the ambiguity to decide the case. Chevron offered such a tie-breaker, but Loper Bright rejected Chevron without substituting any other tie-breaker. Of course, the alleged "longstanding canon of construction the majority claims in footnote 8 could supply a tie-breaker in the majority's imagination. I address here the validity of the majority's claim of this "pro-taxpayer" canon of construction.

Canons of statutory construction  are “rules of thumb that help courts determine the meaning of legislation.”  They are said to “limit judicial discretion and render statutory meaning more predictable.”  E.g., Jonathan H. Choi, The Substantive Canons of Tax Law, 72 Stan. L. Rev. 195, 228-229 (2020), here. On the other hand, they are said to be “readily manipulable and [frustrate] the policy preferences of Congress.”  Karl Llewellyn famously observed that “there are two opposing canons on almost every point.”  

A variation on the theme is that maxims, which may function like canons, might be viewed as minims because they reveal so little and are "singularly unhelpful when it comes to deciding cases." United States v. Ingredient Technology Corp., 698 F.2d 88, 94 (2d Cir. 1983)

Professor Choi notes that the opposing canon  (called an anti-taxpayer canon) is to construe exemptions from tax against the taxpayer who cannot show that the statute requires the exemption. (See Choi, pp. 251-254.) Furthermore, Choi notes that the pro-taxpayer canon is not now in vogue. (See Choi, pp. 253-254, quoting Scalia and Garner arguing for applying the fair meaning of statutes; in any event, the anti--taxpayer rule for tax exemptions, "has been sufficiently widely validated and cited that, in my view, its place among the substantive canons is secure" and "the courts have widely embraced this canon." So, the mere fact that the majority felt the need, albeit in a footnote, to use the dubiously applicable pro-taxpayer canon instead of a fair meaning of the statutory exemption or the anti-taxpayer rule, is suspect.

Fifth Circuit Knows a Limited Partner When Reads It (1/24/26; 1/20/26)

Most readers of this blog will already have heard of or even read the opinions (majority and dissenting) in Sirius Solutions, L.L.L.P v. Commissioner, ___ F.4th ___ (5th Cir. 2025), CA5 here and GS here, Basically, the majority held that the limited partner exception in § 1402(a)(13) does not apply to earnings allocated to a nominal limited partner. Bottom-line that interpretation means that partners providing services to a partnership can escape the Social Security and Medicare tax on income they allocate to their limited partner interests even though that income is really the return on their personal services. The Tax Court held otherwise in the Tax Court phase of Sirius, based on Soroban Capital Partners LP v. Commissioner, 161 T.C. 310 (2023).

I do not plan to get deeply into the merits of the majority and dissenting opinions. Two reasonable articles are Jon Endean, Reflections on the Fifth Circuit’s Ruling on Limited Partner Exception (TaxProf Blog 1/21/26), here; and Maureen Leedy, Fifth Circuit Reverses Tax Court on Limited Partner Self-Employment Tax (ThomsonReuters 1/21/26), here.

On the merits, I do say that, it seems to me, the difference between the majority and the minority is that the majority is not practical in being a faithful agent to Congress and the minority, like the Tax Court, is more practical in being the faithful agent.

JAT Comments:

1. I think it relevant, at least at the margins, that the two judges in the majority are Trump appointees and the judge in the minority is an Obama appointee.

2. The differences in statutory interpretation driven by ideologies and, for the majority, simplisms is stark. A good example is the majority’s claim “legislative history is generally of dubious value in statutory interpretation” and the follow-through that “where, as here, textual arguments yield a clear answer, judges must stop.” (Slip Op. 19; cleaned up with internal quotations marks and citations omitted.) I think originalists have beat that horse beyond its ability to persuade; why is not Congress’ view of the legislation it enacted relevant to interpreting the legislation? If one takes the view, as I do, that interpreting the law is an exercise like fact-finding (see Chevron, Loper Bright, and Statutory Ambiguity (Federal Tax Procedure Blog 1/8/26; 1/9/26), here)), then why would not relevant evidence be considered for whatever persuasive value it might have?

Statutory Interpretation as a Continuum and Equipoise in the Continuum (12/20/25)

Continuing on my exploration of AI (I am still a novice), I asked several AI tools about ambiguity and continuum of confidence in statutory interpretation as a way to think about when ambiguity does not permit a court to determine the best interpretation to the required confidence level (in percentages say 51%, 60%, 67%, etc.). I offer here the best of the AI outcomes (from MS CoPilot) with both text and footnotes indented and then make a few comments.

Below is a polished, law‑review‑style Part II that builds naturally on your Part I. It is structured, argumentative, and footnoted in proper Bluebook form. If you want, I can later add subparts (A, B, C), case studies, or integrate it into a full article.

II. The Ambiguity Continuum in Judicial Practice

Courts frequently describe statutory text as either “clear” or “ambiguous,” but this binary framing masks the far more nuanced reality of interpretive practice. In actual adjudication, judges encounter not a dichotomy but a continuum of ambiguity, ranging from provisions whose meaning is overwhelmingly apparent to those whose linguistic indeterminacy leaves multiple interpretations equally plausible.¹ Judicial methodology—whether textualist, purposivist, or something else—does not eliminate this continuum; rather, it structures how judges navigate it. Understanding this spectrum is essential to explaining why interpretive disputes persist even when judges purport to apply the same tools.

A. The Myth of Binary Clarity

The conventional judicial rhetoric of “plain meaning” suggests that statutory clarity is a threshold condition: either the text speaks for itself or it does not.² Yet linguistic theory and empirical studies of judicial behavior demonstrate that clarity is rarely self‑evident.³ Even seemingly straightforward provisions often contain latent ambiguities that become visible only when applied to specific factual contexts.⁴ As Justice Kagan has observed, “we’re all textualists now,” but textualism itself requires judges to make fine‑grained judgments about how much clarity is enough.⁵

These judgments are not mechanical. They depend on context, background assumptions, and the judge’s own interpretive priors.⁶ A provision may appear clear to one judge because she reads it against a particular linguistic or structural backdrop, while another judge—equally committed to textual fidelity—may find the same provision ambiguous.⁷ The very act of declaring a statute “clear” is thus an interpretive conclusion, not an objective fact.

B. Degrees of Ambiguity and the Use of Interpretive Tools

As ambiguity increases along the continuum, courts predictably rely more heavily on interpretive tools to resolve uncertainty. Textual canons, for example, function as probability‑adjusting heuristics: they shift the likelihood of one interpretation over another by appealing to linguistic conventions, structural coherence, or background norms.⁸ Legislative history, when used, serves a similar function by providing additional evidence about how Congress likely understood the statutory language.⁹ Substantive canons—such as the rule of lenity, the presumption against retroactivity, or federalism clear‑statement rules—operate at the far end of the continuum, where ambiguity is so deep that ordinary interpretive tools fail to produce a dominant reading.¹⁰

More on United States v. Boler (8/25/24)

Yesterday, I wrote a blog entry on United States v. Boler, 115 F.4th 316 (4th Cir. 2024). Fourth Circuit Applies Auer/Kisor Deference to Include in Guidelines "Loss" the Commentary Inclusion of "Intended Loss" (Federal Tax Procedure Blog 8/24/24), here. (The blog entry was cross-posted on my Federal Tax Crimes Blog, here.) I think there is more that can and should be said about Boler. This post will be more of a “notice” post (like the fabled notice pleading lawyers at least of my generation learned about early in our law school careers).

1. The structure of the Federal Sentencing Guidelines. The 2023 version of the U.S. Sentencing Guidelines is here. The Guidelines (with accompanying Commentary and Policy Statements) are promulgated by the U.S. Sentencing Commission which is “a bipartisan, independent agency located in the judicial branch of government, was created by Congress in 1984 to reduce sentencing disparities and promote transparency and proportionality in sentencing.” See website here. So, we know at the outset that it is a strange creature in our constitutional framework—the only agency located in the judicial branch. 

JAT Side Note: Readers of this blog will surely have some passing acquaintance with the difficulty going back to the 1940s of determining precisely what the Tax Court was, even though the statute said since its earliest days (then the Board of Tax Appeals) that the Tax Court was an independent agency in the Executive Branch. As I have noted, the nature of the Tax Court was an issue was much discussed with more heat than light in the 1940s, including in the consideration of the APA; the Supreme Court in Dobson v. Commissioner, 320 U.S. 489 (1943), reh. den., 321 U.S. 231 (1944), a unanimous opinion authored by Justice Jackson, the most tax procedure savvy Justice ever, held that the Tax Court was an agency rather than a court and applied Chevron-like deference to its statutory interpretations. I cover these issues in John A. Townsend, The Tax Contribution to Deference and APA § 706 (SSRN December 14, 2023), pp. 5-23)   https://ssrn.com/abstract=4665227.

2. Guidelines treated as Legislative Rules; Commentary Treated as Interpretive Rules. As an agency, albeit a Judicial Branch agency, the issue underlying Boler was the authority of the Guidelines and the Policy Statements and Commentary. In Stinson v. United States, 408 U.S., 36 (1993), GS here, the Court treated the Guidelines as analogous to legislative rules which make law pursuant to Congress’ delegation and treated Commentary as an interpretive rule interpreting the law (the law being the Guidelines). The Court said (p. 44-45, cleaned up to omit most case citations):

Although the analogy is not precise because Congress has a role in promulgating the guidelines, we think the Government is correct in suggesting that the commentary be treated as an agency's interpretation of its own legislative rule. The Sentencing Commission promulgates the guidelines by virtue of an express congressional delegation of authority for rulemaking, and through the informal rulemaking procedures in 5 U. S. C. § 553, see 28 U. S. C. § 994(x). Thus, the guidelines are the equivalent of legislative rules adopted by federal agencies. The functional purpose of commentary (of the kind at issue here) is to assist in the interpretation and application of those rules, which are within the Commission's particular area of concern and expertise and which the Commission itself has the first responsibility to formulate and announce. In these respects this type of commentary is akin to an agency's interpretation of its own legislative rules. As we have often stated, provided an agency's interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945). 

Bowles v. Seminole Rock is the predicate for Auer deference which I now call Auer/Kisor deference because of the authoritative treatment of Auer deference in Kisor v. Wilkie, 588 U.S. 558 (2019). As I discussed in yesterday’s blog on Boler, the issue was the application of Auer deference to Guidelines’ Commentary (Application Note) defining the Guidelines term “loss” to include “intended loss.”

3. Did Auer/Kisor Deference Survive the Demise of Chevron. One of the issues I presented in yesterday’s blog was whether Auer/Kisor deference survived the demise of Chevron deference. I just want to make a few bullet points about that issue.

Fifth Circuit En Banc Reverses the Bump Stock Regulation By Wobbling Around Statutory Interpretation Issues (Including Chevron) (1/8/23)

In Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023) (en banc), CA5 here and GS here, the Fifth Circuit reversed the prior panel opinion and held that the ATF bump stock regulation interpreting the term "machinegun" to include a so-called bump stock. The holding, one of statutory construction, may be stated as follows: 

• "A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of "machinegun" set forth in the Gun Control Act and National Firearms Act." (Slip Op. 3)
• But, even if the statutory term machinegun were not unambiguous, the statutory term "machinegun" is not ambiguous enough to include bump stocks as a permissible interpretation because of the rule of lenity when criminal consequences might attend, requiring ambiguities to be resolved in favor of the citizen potentially subject to those criminal consequences.

In the course of these core holdings, the en banc majority, concurring and dissenting opinions delve into many topics that I have discussed in connection with the bump stock cases related to Chevron and Chevron-related issues (in a broad sense). I collect at the end of this blog in paragraph 16 some of my earlier Federal Tax Procedure blogs on these issues arising in prior cases involving the bump stock regulations.

I address several key points in the various opinions (the en banc majority, the concurring, and the dissenting opinions).

1. I state at the outset that I believe this commotion about bump stocks is inherently political. Those judges fearing the administrative state (at least in their rhetoric landing them a place on a court) are more likely to reach the decision the en banc majority reached. Those judges whose rhetoric does not include fear of the administrative state and believe that administrative agencies can enrich our society and make it work better are less likely to reach the decision the en banc majority did. Both sides can pull up soundbites masquerading as reasoned decisionmaking to justify the result they prefer. At the end of the day, I think the real issue is whether there can be a symbiotic relationship between Congress, the Executive, and the Courts which together act reasonably to make our system work.

2. The en banc majority main holding is that the meaning of the statutory term "machinegun" is plain and unambiguous. In the Chevron framework, that would be a Step One determination that stops the Chevron analysis. There have been many words spent in addressing precisely what is meant by plain meaning and unambiguous to avoid the Chevron framework (or, equivalently, stopping the Chevron analysis at Step One), but I think the en banc majority's claim is that the other courts finding ambiguity means that those other just missed the meaning of the term that is so plain to this en banc majority. Everyone can agree that, when enacted in the 1930s, the statutory term machinegun did not include a bump stock which did not then even exist. But once they began to exist around 2000, I don't think it is so plain that the statutory term machinegun should not include bump stocks. This seems to be an eye of the beholder thingy, with political implications (which is what originalism is about).

3. At least in less political analysis, determining whether the statute is plain requires the use of the normal tools of statutory construction. Rhetoric aside, the normal tools of statutory construction include Skidmore respect for an agency interpretation. Skidmore v. Swift & Co., 323 U.S. 134 (1944). None of the en banc opinions cite Skidmore. (Note in this regard that Skidmore is not deference as many so-called smart judges and scholars mislabel it.  See Really, Skidmore "Deference?" (Federal Tax Crimes Blog 5/31/20; 2/14/21), here.

Professor Yin Article on the Tax Legislation Process and Legislative History (12/17/22)

George Yin, a retired UVA law professor (bio here) has published an article that takes on some of the conventional wisdom of jurists and scholars who reject or are at least suspicious of legislative history as useful for statutory interpretation. Those jurists (including most prominently the late Justice Scalia) and scholars often are considered textualists, although that is a broader category than those who reject or are suspicious of legislative history. Yin calls the subcategory “new textualists” or sometimes just textualists.  Yin’s article is George K. Yin, Textualism, Textualism, the Role and Authoritativeness of Tax Legislative History, and Stanley Surrey (December 4, 2022). Law and Contemporary Problems, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4286174.

Here is the SSRN Abstract description of the article:

When Stanley Surrey died in 1984, the school of thought sometimes known as the “new textualism” that has gained such influence in the United States over the last three decades had not yet emerged. Surrey would have been very interested in this development. As revealed in his recently published memoirs, he had extensive first-hand experience with the tax legislative process and recognized early on the connection between that process and statutory interpretation. He would have been surprised by some of the assumptions about the process underlying the new textualist claims as well as recent empirical findings about the process reported by scholars.

This essay aims to fill in some of Surrey’s missed engagement. Drawing on his memoirs and other sources, the essay describes aspects of the tax legislative process—the preparation of tax statutes and legislative history—of significance to statutory interpretation and the positions of the new textualists. Importantly, the description is at the granular level at which Surrey experienced it, material not generally included in standard political science or legal scholarship on the topic. After considering the on-the-ground realities of the tax legislative process, this essay contends that in interpreting tax statutes, courts should rely upon both textual canons and other common tools of judicial interpretation (questioned by recent scholar-empiricists) and legislative history (questioned by textualists). The essay also explains why, contrary to the claims of textualists, committee reports are authoritative evidence of statutory meaning.

Yin’s article is particularly directed to interpretation of federal tax statutes (i.e., principally the Codes in 1939, 1954 and 1986 iterations). Yin is former Chief of Staff of the Joint Committee on Taxation, which is heavily involved in the tax legislative process and in producing legislative history. He knows the process and knows that the claims these textualists make about legislative history are not true for tax legislation.

The process Yin describes for tax legislation--but apparently perhaps to a lesser degree for other legislation-- involves both tax legislation experts (the JCT) and each House’s legislative counsel who bring statutory drafting expertise to the table that the tax Committees and their members usually lack.

I have written on the use of legislative history before. See the following that I think relate to the topics in Yin’s new article:

What is the Best Interpretation for Purposes of Determining a Not Best Interpretation for Chevron Deference? (10/21/22; 11/8/22)

Last week, I participated in a panel at the ABA Tax Section Fall Meeting in Dallas. The panel was offered by the ABA Tax Section Teaching Taxation Section. The program was titled “Classification of Tax Regulations and the APA.” The panel participants were Les Book (moderator), Kristin Hickman, Gil Rothenberg, and me. The program dealt in part with some issues that Professor Hickman and I have engaged in the past. On those issues, Hickman and I continue to engage without agreement. 

I say "without agreement," but in fact Hickman and I did agree (i) on the starting point that, at the enactment of the APA in 1946, the APA permitted both legislative rules (must be notice and comment regulations) and interpretive rules (including, although not required, notice and comment regulations such as Treasury used for interpretive rules adopted as regulations) and (ii) that for well after the APA, the category of interpretive notice and comment regulations was alive and well, without controversy. Our point of continuing disagreement is whether something has changed that original meaning of the APA, so that notice and comment regulations that do no more than interpret ambiguous statutory text no longer exist but are now legislative regulations. That disagreement is not the focus of this posting but may underly some of the analysis in this posting.

In the panel discussion, I repeated my recent claim that Chevron deference is inapplicable if the agency interpretation is the best interpretation. The corollary to this is that Chevron’s domain in an outcome determinative sense involves only deference to “not best” agency interpretations. We only touched on that issue lightly in the panel, but one panelist questioned whether "best interpretation" was a meaningful concept. (Added 10/25/22 11:00am:  On Chevron's domain as limited to not best interpretations, see e.g., Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (“Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading  differs from what the court believes is the best statutory interpretation.”).)

I thought it might be helpful to say further what I mean by “best interpretation.”  The best (or most persuasive) interpretation is the interpretation which the court would apply based solely on interpretive tools in the absence of an agency interpretation or, if there is an agency interpretation, in the absence of Chevron deference. The court’s job in statutory interpretation is to determine and apply the best interpretation of the statute to the facts before the court. (BTW, it is important to note that courts cannot legislate, so courts’ exercise of interpreting a statute to determine the best interpretation is not legislative.  See Is Statutory Interpretation a Legislative Act When Agencies Do It But Not When Courts Do It? (Federal Tax Procedure Blog 4/8/22; 10/23/22), here.). 

If the agency interpretation is that best interpretation, the court applies that interpretation because it is the best interpretation and not because it is deferring to the agency interpretation. Of course, in determining the best, most persuasive interpretation, the court should consider respectfully the agency interpretation. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (Skidmore respect is not deference (although frequently mislabeled as deference) and applies at Chevron Step One as well as in generally determining the most persuasive interpretation.) See Really, Skidmore "Deference?" (Federal Tax Procedure Blog 5/31/20; 2/14/21), here. Deference—real deference--is only outcome determinative if the court invokes Chevron to apply a “not best” interpretation over the court’s own best interpretation.

That best interpretation concept is simple and, I think, irrefutably true. There will always be a “best interpretation” so defined because, in the absence of an agency interpretation, it is the interpretation the court would apply to decide the case. In deciding whether or not to apply Chevron deference to an agency interpretation, a court will have to know what the best interpretation is (i.e., what the court would do without deference to the agency interpretation). How else could a court determine whether an agency interpretation is “reasonable” or “permissible” even though not best (the requirement for Chevron deference)?

The Reasonable Standard—Parody, Statutory Interpretation, and Chevron (10/9/22)

Many readers of this blog will likely already have heard about the Onion’s Amicus Brief on the petition for certiorari in Novak v. City of Parma (Sup. Ct. No. 22-293), Supreme Court docket entries are here; Novak’s petition for certiorari is here; the Onion’s Amicus Brief is here. The Onion (Wikipedia here) is a satirical medium, often parodying serious newspapers.  The Novak case arises from Novak’s parody on Facebook of a local police department’s web page. For the parody, Novak was arrested, indicted, prosecuted but acquitted of disrupting public services. Novak then sued the City and two investigating officers. The Sixth Circuit held that the City and the investigating officers had qualified immunity from suit. Novak v. City of Parma, 33 F.4th 296 (6th Cir. 2022) 6th Cir. here and GS here. Novak petitioned for writ of certiorari. The questions presented in the petition are:

1. Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected.

2. Whether the Court should reconsider the doctrine of qualified immunity.

 These are important questions. 

 In defense of parody, The Onion filed its Amicus Brief in defense of parody.  The Brief is well written, serious, and, on its points, persuasive (I think).  Highly recommended. In part relevant to posting here, Onion’s Amicus Brief argues (pp. 10-12) for the “reasonable reader” standard—whether a reasonable reader would understand the offering to be parody without an express disclaimer. 

Beyond being an entertaining and hopefully persuasive argument, the reasonable reader test offers an opportunity to address briefly the reasonable concept in other legal contexts relevant to this blog; Often, when a case outcome is determined by some “reasonable” conduct, what is reasonable is left to the judgment call of the judge or jury without any clear definition without any clear guidance as to what reasonable means.

The Onion's reasonable reader construct caught my attention because I just addressed the standard in discussing statutory interpretation in the Working Draft for my Federal Tax Procedure Book. One interpretive strategy I describe is:  “much in vogue now, is often called “original public meaning” or sometimes just original or ordinary meaning that some imagined reasonable person (or reasonable audience) at the time of enactment would have attached to the text.”  The footnote to that statement in the Working Draft is:

Guest Post on Procedurally Taxing Blog and Jack Cummings' on the APA Legislative-Interpretive Distinction (6/15/22; 6/16/22)

I posted a guest blog on the Procedurally Taxing blog site:  More On The Confusion Surrounding The Difference Between Legislative And Interpretive Rules (Procedurally Taxing Blog 6/14/22), here. The posting arose from a comment I made on the prior day’s PT blog entry by Les Book, Update on CIC Services And More On The Legislative vs Interpretive Rule Difference (Procedurally Taxing Blog 6/13/22) here. Rather than approve my comment to that earlier blog, Les suggested I offer it as a guest blog rather than a comment. So, that was the genesis of my guest blog. I thought Tax Procedure Blog readers might like to review the PT Blog entry.

I recommend Les Book’s predicate blog as context for my guest blog. In referring PT readers to my article, Les commends Jasper L. (Jack) Cummings' Letter of 4/7/22 to Editor, Tax Notes (4/18/22), here (Copyright 2022, reprinted with permission of the author and Tax Analysts).  (See Jack's bio here.)  Jack is a prolific commentator in this area of the law; over the years, Jack has substantially contributed to my education and I have cited him both in my Federal Tax Procedure Book and in articles.  I too commend Jack’s letter succinctly refuting the claim by many that penalty implications from interpretations make the interpretations legislative rather than interpretive.  One of the key points in Jack’s argument succinctly states the distinction between the APA categories of legislative rules (requiring notice and comment regulations) and interpretive rules (not requiring notice and comment regulations but often promulgated with notice and comment regulations). Here is the key discussion:

             The straightforward way to determine whether Congress has granted an agency the power to make the law is to look at the statute. If the statute says, in effect, “We’re unsure what the rule should be, so you write it,” then the rule is legislative. If the statute says, for example, that a taxpayer can deduct ordinary and necessary business expenses, and then the agency wrote a regulation stating its views on those words, those views would normally be considered to be interpretive. Many courts have shown that they’re perfectly capable of accepting or rejecting the IRS view on the meaning of those words. Put another way, if a statute states a standard that a court can interpret, then the agency’s view on that meaning is interpretive and a rule stating that view need not be issued with notice and comment.

Exactly!  Jack's statement is a variation of the distinction made before and after the enactment of the APA and still carried forward by those who are not confused by the false claims that rules interpreting ambiguous statutory text can be legislative in character rather than interpretive in character for APA purposes.  I cover all of this in my article in a lot more words.

Added 6/16/22 2:15pm:

Professor Kristin E. Hickman, bio here, has written a vigorous response in opposition to my guest post on the Procedurally Taxing Blog and my predicate writings leading to that blog.  Kristin E. Hickman, It’s Time To Let Go:  Treasury Regulations Are Not Interpretative Rules (Procedurally Taxing Blog 6/16/22), here.  Professor Hickman and I disagree.  I address all of her claims points in the article.

Is Statutory Interpretation a Legislative Act When Agencies Do It But Not When Courts Do It? (4/8/22; 10/23/22)

I recently wrote on the Sixth Circuit’s important decision in Oakbrook Land Holdings, LLC v. Commissioner, 28 F.4th 700 (6th Cir. 2022), CA9 here and GS here. See Sixth Circuit Creates Circuit Conflict with Eleventh Circuit on Conservation Easement Regulations (Federal Tax Procedure Blog 3/15/22).  I was reading today Bryan Camp’s great discussion on this case in Lesson From The Tax Court: Penalty Approval In Conservation Easement Cases (Tax Prof Blog 4/4/22), here.  In concluding the post, Professor Camp offered this comment:

Comment: I said Judge Guy’s concurrence in Oakbrook was “ironic.”  Here's why.  Judge Guy thought the regulation was what is called a "legislative" regulation and was not an "interpretive" regulation.  While Treasury had followed the proper APA process for issuing an interpretive regulation, that process was not proper for issuing a legislative regulation.  So Judge Guy said the regulation was inoperative because it had not been validly issued.  Ok so far.  But then Judge Guy ends up construing (oh! dare I say "interpreting") the statutory language at issue.  The irony here is that Judge Guy totally agrees with the regulation on how the term “perpetuity” in the statute should be interpreted.  So the taxpayer loses.  But I doubt Judge Guy would say he was “legislating” from the bench!  Nah!  He was just “interpreting.”  Cuz that's what a court does, doncha know. Thus the irony: when Treasury does the same thing as a Court does in a regulation suddenly it’s a legislative act and not an interpretive act.  But when the Court does it, it’s just...well...interpretation.  Go figure.

This caught my attention because that precise point has bothered me.  As I note in my article, central to Professor Hickman’s argument that Treasury regulations which do no more than interpret ambiguous statutory text are legislative regulations.  This argument is embraced in many court opinions.  Indeed that is the argument I tilt against in my article John A. Townsend, The Report of the Death of the Interpretive Regulation Is an Exaggeration (SSRN last revised 12/15/21), here..  I address Professor Camp’s point at several places in my article, but the following are two most pertinent here:

First, pp. 5-6, footnotes omitted and emphasis supplied):

    At a high level, the key difference I have with Professor Hickman’s claim hinges upon whether regulations that only interpret statutory text within the range of reasonable interpretations of the statute from enactment of the statute are  legislative regulations rather than interpretive regulations. Professor Hickman claims that interpreting is legislating. If that claim is true, regulations that only interpret statutory text are legislative, must be adopted with Notice and Comment, and must be prospective in application. My opposing claim is that such Treasury regulations are interpretive regulations which the APA specifically exempts from the Notice and Comment requirement although they may be adopted with Notice and Comment (and usually are by the Treasury) and can apply retroactively. The interpretations in such regulations operate within the same interpretive space as judicial opinions. When courts interpret, they are not legislating, for our constitution does not authorize courts to legislate. When agencies interpret within that interpretive space pursuant to explicit or implicit authority to interpret ambiguous statutory text, they also are not legislating.

Statutory Interpretation: Best vs. Least Bad (1/23/22l 1/25/22)

I have stated my definition of deference as follows: 

Deference is a court applying a reasonable agency interpretation of ambiguous statutory text despite the court's belief that there is a more reasonable interpretation of the ambiguous statutory text. That's it.

See John A. Townsend, The Report of the Death of the Interpretive Regulation Is an Exaggeration 70 (SSRN last revised 12/15/21), here. This requires that the court actually determine the best interpretation and then defer to a lesser agency interpretation

Some state that Chevron deference can include a court applying a reasonable agency interpretation without the court having to struggle with the issue of the best interpretation. I divide reasonable agency interpretations into two relevant categories:  (i) the best interpretation, which is perforce reasonable; and (ii) an interpretation that is less than the best but still reasonable (whatever that means). Category (i) involves no deference; Category (ii) involves deference. If the court stops at determining that the agency interpretation is reasonable without determining the best interpretation, the court may or may not have deferred to a less persuasive agency interpretation.

These Categories and ones I discuss in my article Postscript (separately available here) depend upon the potential for a "best" interpretation. In Polselli v. United States Dep't of the Treasury-IRS. 23 F.4th 616 (6th Cir. 1/7/22), CA6 here and GS here, although not in a Chevron context, the dissenting judge stated the concept of the best interpretation as: "the least bad interpretation."  For purposes of Chevron analysis, I think the best and the least bad interpretation are the same. The term "least bad interpretation" may be catchy, but I think the term best (or better) interpretation is more appropriate for statutory interpretation.

I discuss Polselli (although not in the Chevron context) in my earlier blog. 6th Circuit Holds Summonses in Aid of Collection Do Not Require Notice to Taxpayers Or Others (Federal Tax Procedure Blog 1/13/12, here); see also Leslie Book, Polselli v US: Circuit Split on Notice Rules For Summonses to Aid Collection (Procedurally Taxing 1/20/22), here.

Added 1/25/22 9:30am:  

Whirlpool's BS Tax Shelter Fails in the 6th Circuit; on Statutory Interpretation and Legislative History (12/7/21; 2/22/22)

In Whirlpool Fin. Corp. v. Commissioner, 19 F.4th 944 (6th Cir. Dec. 6, 2021), CA6 here and GS here, affirming 154 T.C. 142 (2020), here, Whirlpool tried to smoke a tax shelter, of the bullshit variety, first past the IRS then past the Tax Court (Judge Lauber) and the Sixth Circuit (Judges Kethledge and Norris in the majority on the panel). Whirlpool failed, a well-deserved failure; Whirlpool earned the failure. Basically, through smoke and mirrors Whirlpool attempted to give the appearance that it had successfully shifted profits offshore, thus avoiding U.S. tax.

I won’t get into the technicalities of how Whirlpool hoped to avoid (or evade) U.S. tax. Judges Lauber (Tax Court) and Kethledge (6^th Circuit) handle that discussion well. Besides, that maneuver does not implicate tax procedures.

I write because of how Judge Kethledge addressed the issue of statutory interpretation. I have included statutory interpretation both in my Federal Tax Procedure Book and in my blog entries here. Judge Kethledge presents himself as an originalist, which for present purposes is a textualist requiring that the words of the Constitution or statutes when the words were adopted or ratified. See e.g., the Wikipedia entry for Judge Kethledge here.

The concern I address is what the words mean when adopted or ratified. One thing textualists claim to eschew when determining the original meaning of the words is legislative history. Judge Kethledge genuflects to that claim. For example in a review of his book, Lead Yourself First: Inspiring Leadership Through Solitude, by Raymond M. Kethledge and Michael S. Erwin, here, the following is stated (emphasis supplied):

In a recent speech, he recalled learning one trick of the Washington trade, namely that young staffers write legislative history — which is not part of any law but which some judges will apply if they like it better than the law — often with no oversight whatsoever from the senators themselves. It is therefore no wonder that he has never relied upon legislative history to interpret statutory language.

In Whirlpool, however, it appears that relying on legislative history is precisely what Judge Kethledge does to derive a specialist meaning for some of the statutory text.

My observation is that textualists (basically the same category as originalists) such as Judge Kethledge eschew legislative history except when they don’t. They ignore legislative history when doing so supports the outcome they desire and then deploy legislative history when it supports the outcome they desire. Certainly, in Whirlpool, Judge Kethledge relies on legislative history to determine the outcome. Enough  said.

 JAT Notes (Other):

Mayo -- the other Mayo -- reversed by CA8, Sustaining Regulations Interpretation (5/13/21)

In Mayo Clinic v. United States, 2021 U.S. App. LEXIS 14143 (8th Cir. 5/13/21), here, the Eighth Circuit reversed the district court’s invalidation of a regulation’s test for meeting the “qualified organization” requirement that turned upon being an educational organization under § 170(b)(1)(A)(ii).  Reg. § 1.170A-9(c)(1) defined a charitable organization as one whose “primary function is the presentation of formal instruction” and whose noneducational activities “are merely incidental to the educational activities.”  As stated by the Court, the district court “held that the Treasury Regulation is invalid ‘because it adds requirements — the primary-function and merely-incidental tests — Congress intended not to include in the statute.’”

A quick digression, I wrote on the district court opinion:  District Court Invalidates Interpretive Regulation at Chevron Step One (Federal Tax Crimes Blog 8/8/19; 3/11/19), here.  I concluded as follows:

I don't think the Court's reasoning is compelling.  The conclusion may be right.  I just don't think the reasoning articulated by the Court compels the conclusion that the statutory text does not offer sufficient ambiguity to permit the interpretation adopted by the IRS.

In reversing the district court, the Eighth Circuit panel did not adopt my implicit reasoning—that there was sufficient ambiguity in the statute to permit Chevron space for reasonable interpretations at Chevron Step Two.  (Although, if Chevron is conceptualized as a single step, all the work really could be done at Chevron Step One but I won’t go down that detour here.)  Rather, the Eighth Circuit panel stops at Step One because it found that the regulation was permitted by the unambiguous text of the statute, at least the unambiguous text as the Eighth Circuit panel interpreted the text.  (Because the regulations test is  not compelled by the statutory text and requires interpretation for it to be compelled, that means, in  my mind, that there is interpretive space in the statute; if there is interpretive space, then the court or the agency may fill that interpretive space, but if the agency has done it, the interpretation, is usually tested at Step Two)

Of course, at Chevron Step One, the usual tools of statutory interpretation apply to determine whether the statute is ambiguous and whether the interpretive regulation is within the scope of the ambiguity.  I gather what the Court did was to apply those interpretive tools to determine that there was no ambiguity and thus no remaining interpretive space under the Chevron Framework because the regulation was consistent with that unambiguous interpretation.  If that is true, then it seems to me that it is the statute that is the law and not the regulation, consistent with traditional distinctions between legislative and interpretive regulations.  Hence the interpretive regulation which is then consistent with the unambiguous statutory text (as interpreted) becomes the law and per se the regulation interpretation a is valid interpretation of the statute.  (Compare the Treasury’s adoption in some interpretive regulations of language mimicking the statute; what work and what validity do the regulations have in that context?)

 Two things further on Chevron:

Citing History in Support of Statutory Meaning (8/30/20)

This is an interesting post on history of legislation in arguing for or explaining the legislation.  Eugene Volokh, TMH (Too Much History), a Form of TMI: Advice for Law Students and Young Lawyers (The Volokh Conspiracy 8/23/20), here.  Professor Volokh laments that, in arguing or just stating a position, writers often provide too much history rather than stating what the law (statute) is. 

An excerpt (longer):

One should generally resist this temptation. Judges are busy people, whose main goal is to figure out the law that is currently applicable to these facts, and then to apply it. The history is sometimes relevant to understanding current law, but often it's not. Give no more history than necessary to show the current law; and that's often zero history, especially if there's a solid binding precedent you can quote for the current rule.

My sense is that such TMH often stems from what I call the "data dump" impulse: You've done a lot of research, learned a lot (including the history of how the law developed), and now you feel like putting it all down on paper. That's fine—but once you write it down, go back over it in your editing passes, and delete everything that's not really necessary to proving and applying the current rule.

Of course, sometimes there's Not Enough History; sometimes understanding how the law developed helps explain what some ambiguous term means, and how it applies in this case. (Perhaps, for instance, you might think that the judge could be distracted by the Gertz principle, which he might already know; if so, you might note that Dun & Bradstreet limited Gertz to speech on matters of public concern.)

But even then, I suggest stating the current rule at the outset, which may help you see just what history you need to include to supplement the current precedent. And in my experience, TMH is much more common in law students' work than Not Enough History.

JAT Comments:

Supreme Court Case on Statutory Interpretation (6/16/20; 6/24/20)

In Bostock v. Clayton County, 590 U.S. ___, ___ S.Ct. ___ (6/16/20), here, the Supreme Court Justices took up a public intramural debate that I describe as “what is it about sex that you don’t understand?”  That’s a bit flip.  The debate the Justices engaged in was about the prohibition in Title VII of the Civil Rights Act of 1964 against discrimination “because of * * * sex.”  (There are some other prohibited categories such as race, color, religion, etc., but the one in issue in Bostock was “sex.”)  Essentially, debate was among three conservative justices of the Court—Gorsuch for the majority of six with dissents by Alito and Kavanaugh.  Justice Gorsuch’s opinion attracted both Chief Justice Roberts and the liberal Justices (Ginsburg, Breyer, Sotomayor and Kagan, so I suspect that his opinion reflects some of their influence as well, but the opinion is very much Gorsuch in style).  The dissenting opinions are, in my view, hyperbolic, perhaps reflecting some disappointment that the conservative compadre, Justice Gorsuch, didn’t see the case as they did.

Bostock was not a tax case.  I discuss it on the Federal Tax Procedure Blog because it offers insight into an issue I do discuss in the Federal Tax Procedure book–statutory interpretation.  (See Practitioner Edition  pp. 9-14; and Student Edition pp. 6-9; since I have substantially revised that discussion, I offer for download here the discussion as revised to today from the working draft of the 2020 editions that will be published in August 2020.)  As I note, there are two key approach categories to statutory interpretation – textualism and purposivism.  Those are broad categories with much blending in between, but proponents of these approaches to statutory interpretation claim that their use of their preferred approach makes them more faithful agents to Congress which enacted the statute.  Generally, politically conservative judges are textualists, and politically liberal judges are purposivists (at least relative to each other, with some crossover from time to time).  Influenced by Justice Scalia, even politically liberal judges have trended toward textualism–e.g., Justice Kagan famously proclaimed in 2015 that “we’re all textualists now.”  That claim was hyperbolic but not much, as purposivist judges drifted toward the textualist camp.  But even textualist judges have a broad field to play in between pure textualism and textualism bordering on purposivism.

In Bostock, all of the judges authoring the opinions are political conservatives firmly in the textualist camp.  Hence, to see them fight about statutory interpretation is noteworthy.  I won’t try here to sort out the dynamics of what exactly happened.  I just state it in overview.

Justice Gorsuch for the majority concluded that the statutory word “sex” was broad enough to cover the type of discrimination in issue–discrimination against homosexuals or transgender.  Justices Alito and Kavanaugh, in separate opinions, concluded that the word sex was not used that way in the statute because there was no expectation, at the time of enactment, that the word was so used.  There is much subtlety in those broad statements of position which I just won’t get into here.  Rather, I offer some comments that are relevant to my discussion of the statutory interpretation issue in the Federal Tax Procedure book editions.

1.  The opinions agree that the touchstone of statutory interpretation is the “ordinary public meaning” (sometimes called original public meaning, particularly in constitutional interpretation; but imported to statutory interpretation because constitutional interpretation is really statutory (perhaps super-statutory) interpretation).  (See Gorsuch Slip op. 4; Alito Slip Op. 23 (stating issues as "How would the terms of a statute have been understood by ordinary people at the time of enactment?"); and Kavanaugh ("The ordinary meaning that counts is the ordinary public meaning at the time of enactment."); on treating constitutional and statutory interpretation the same, see Evan D. Bernick, Envisioning Administrative Procedure Act Originalism, 70 Admin. L. Rev. 807, 834 (2018).  What does ordinary or original public meaning mean?  The competing Justices have different views on that but the standard is the same.  At least as formulated, the ordinary or original public meaning is the meaning some hypothesized reader or hearer of the statutory text at the time of enactment would have ascribed to the text.  That is the be contrasted with the meaning that the drafters or speakers of the text (Congress) intended the text to mean.  I discuss some of the subtleties in that approach in the attached revised version (see particularly footnote 44.)

It's All About Interpretation (6/4/20)

I have written often on statutory interpretation (including subsets related to deference to agency interpretation).  Statutory interpretation is a related topic to constitutional interpretation.  For example, originalism has its principal application to constitutional interpretation, but the originalist interpretive strategy can apply equally to statutory interpretation.  And, interpretation applies equally to biblical interpretation.  As my favorite Hebrew Bible scholar, James Kugel, says, it is all about interpretation.  Kugel says that it is not about what the original author(s) (or redactors in the current lingo) meant, it is how it is interpreted at the critical moment in time – in the case of the Bible when the Jewish community decided that the text was canonical for them (long after, in most cases, it was written (or finally redacted)).  (His principal anecdote proving his point is the Hebrew Bible book Song of Songs (Song of Solomon in the Christian New Testament).  That process of going from original writing through the redaction and community adoption process took a long time, often hundreds of years.  And then, once canonical, it is about how the community of faith interprets it over time to meet the community needs.  (Great midrash about how the text can expand or change in interpretation over time, a process that can equally apply with constitutional and statutory interpretation.)

There was no (or little) lapse of time between writing and adoption of the constitution and statutes, where the two are roughly contemporaneous (although both get reinterpreted over the years to meet the needs of the community).  At any rate, I thought this offering, here, from John Sexton, a prominent legal scholar and force of nature, talking about his seminar at NYU might be interesting to readers of this blog.  The reading list for Sexton's course is here,

Disclosure:  I am a long-time Brooklyn Dodgers fan.  And a long-time John Sexton fan (he interviews John Sexton).  And when those two flow together in an interview with Bill Moyers to talk about the confluence of baseball, particularly baseball through the Brooklyn Dodgers, and religion, particularly with sacred texts such as the Bible and the Constitution, well that is irresistible .

This comes up as I am considering offering a course at my Church on Sexton's book, Baseball as a Road to God, here.

BTW, it strikes me that there is a further parallel at least for statutory interpretation.  The analog with Chevron deference is that the religious community, in whatever form, often "defers" to interpretations offered by their rabbis, priests, pastors, shamans or whatever, rather than making its own individual interpretations de novo (as a lawyer would say) or sola scriptura as Martin Luther might say.  The analog is imperfect, but, I think, worth considering.