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08/04/2017

Asher Steinberg on Textualist Pathologies
Michael Ramsey

At The Narrowest Grounds, Asher Steinberg: Supreme Court 2016 Statutory Term in Review: Textualist Pathologies in Advocate Health Care Network.  From the introduction:

I'm going to do a review of the Court's most methodologically interesting OT 2016 statutory cases, less the ones I've already written on.  I was inspired to write this series of posts by a good column in The Hill by Professor Jonathan Nash [ed.: noted here], who describes Justice Kagan's opinion in Advocate Health Care Network v. Stapleton as a "tour de force in textualist interpretive technique."  I'm not even sure if Advocate Health Care is a good textualist opinion; it seems to turn almost entirely on a basic mistake.  But it is, I think, a very representative opinion of how textualism is practiced today.  Advocate Health Care exhibits three textualist pathologies that we textualists should cure ourselves of:  conflating literal meaning with legal meaning, overconfidence about what a statute literally means, and overaggressive application of the anti-surplusage canon.

All good points; here is the discussion of literal meaning:

Suppose Kagan were right that "a disabled veteran includes a former National Guardsman" literally means that every former National Guardsman is a disabled veteran.  ...   If we think that she's right about literal meaning in the disabled-veteran case, is it necessary that we find that reading "utterly untenable" and conclude it "could not possibly have been what Congress wanted" before we reject the statute's literal meaning?  I don't think so, because literal meaning doesn't exhaust meaning.
 
Suppose the disabled-veteran hypothetical read a little differently.  In light of a dispute in the courts about whether a veteran with PTSD can count as a disabled veteran, Congress amends its disabled-veteran statute to say that "a disabled veteran includes a veteran suffering from PTSD."  Assuming that the statute literally means that disabled veterans include all veterans with PTSD, must we read the statute that way?  I don't think so.  It is possible—the mind doesn't rebel against it—that Congress wanted to protect every veteran with PTSD, however slight.  But maybe what it meant was only that veterans with PTSD can be disabled veterans; they still have to suffer from PTSD badly enough to be "disabled," as the statute elsewhere defines disability, and an extremely mild case of PTSD won't suffice.  This is possibly the more plausible guess about what Congress meant.  But if we follow Justice Kagan, we will have to say that because it's only more plausible than the statute's literal meaning and not absolutely compelled by absurdity doctrine, we're stuck with the statute's literal meaning.

This, I think, is mistaken, because literal meaning isn't all that meaning is.  A statute's meaning can consist of what the statute implies, but doesn't literally say.  For example, if it weren't explicitly addressed, the disabled-veteran statute would literally embrace veterans of any country's armed forces.  But no one would think the statute means that disabled veterans of the Syrian Army receive disabled-veteran benefits.  Limitation to service in the United States' armed forces is implied.  This is a cousin of what linguists call quantifier-domain restriction:  the idea that if you say "everybody will be at the party," the quantifier "everybody" is impliedly restricted to only extend over some "domain" or subset of persons that "everybody" literally signifies, like your circle of friends in the place where you live.

Similarly, when the Court claimed in Yates that "any tangible object" only meant record-keeping objects because the phrase was preceded in a list by words like "record" and "document," the Court was using noscitur a sociis to restrict the domain over which "any" extended, though "any tangible object" literally means any tangible object and definitely does not literally mean any record-keeping object.  I happen to think the Court restricted "any tangible object" in a way that no one would ever use the phrase, literally or otherwise, but I have no objection to restricting the phrase's domain in principle.  We would at least all agree, for example, that if a child's told to pick up "every object" off his bedroom floor, he isn't being told to move the furniture or search for dust mites, though "every object" most definitely includes furniture and dust mites.  To claim that the child really has been told to pick up his furniture and that the only reason he shouldn't is because his parent obviously misspoke and meant to say something like "pick up every object on your floor, except the furniture and dust mites," is quite confused.  The parent expressed herself perfectly well and explicitly exempting furniture was unnecessary; the implicit limitation on "every object," given the communicative context, was not only comprehensible, but all but unambiguous.

If these sorts of domain restriction are part of statutory meaning, not just instances where we determine that what Congress wrote was an absurd mistake, then it seems permissible to limit "a disabled veteran includes a veteran who suffers from PTSD" to "a disabled veteran includes a veteran who suffers from PTSD and is disabled by virtue of it."  We shouldn't have to prove that Congress couldn't possibly have meant what it literally said (assuming that what it literally said was that all veterans with PTSD are disabled); we should only have to show that the better reading of what the statute implies and thus means is that veterans with PTSD must be disabled, just as the Yates Court only had to show that its limited reading of "any tangible object" was the phrase's most likely reading given its context.  ...

...  But if we accept the claim that a definitional clause like "a 'disabled veteran' includes a former National Guardsman" literally means that all former National Guardsmen are disabled veterans, it does seem that we have to acknowledge that definitions of this sort can imply a limiting condition borrowed from the terms they define, e.g., that the disabled-veteran clause implicitly means "a disabled veteran includes a former National Guardsman who is disabled."  To claim instead that we're only sure in that case of what Congress meant to write but mistakenly didn't fails to explain why we so naturally read the clause as if it in fact ended "who is disabled."  By contrast, when Congress famously and absurdly wrote that CAFA appeals had to be filed "not less than seven days" after the appealed order's entry, one didn't naturally read the statute as if it read "not more than seven days"; it was obvious that Congress had meant to write "not more," but no one would have ever claimed that Congress implied "not more" by writing "not less."

While textualists are at times quite cognizant of the fact that literal meaning can be implicitly delimited or modulated by context, at other times—as in this opinion—they seem to believe that a statute means whatever it literally means unless what it literally means is absurd.  That need not be a tenet of textualism.  It would be more correct, and perfectly textualist, to say that a statute means what its language means unless what its language means is absurd and transparently not what Congress meant, and to say that what a statute's language means is not always coextensive with what its language literally means, given that meaning can encompass implication.