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01/25/2018

Justice Gorsuch on Textualism and Federalism in Artis v. District of Columbia
Michael Ramsey

Artis v. District of Columbia, decided by the Supreme Court on Monday, on its face looks like a routine case about a technical aspect of the tolling of statutes of limitations.  But Justice Gorsusch's dissent (joined by Kennedy, Thomas and Alito) is interesting on two counts.

First, Gorsuch shows that a textualist approach can have plenty of nuance.  The relevant statute, 28 U.S.C. 1367, says that when a state law claim is dismissed from federal court, the "period of limitations for" refiling in state court "shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." On first reading the statute, I thought it obviously meant that the state limitations period is suspended (that is, does not run) for the time the case is in federal court.  That's what the majority held.  But Gorsuch's opinion deploys a series of textual and contextual arguments to show otherwise -- rather, it means that the state limitations period does not expire while the federal case is pending and for an additional 30 days.  The dissent demonstrates (a) that there are actually two common meanings of "tolled" and (b) that the one it chooses makes better sense of the statute taken as a whole.

Second, the dissent is very strong on federalism.  This comes up because Justice Gorsuch argues that the majority's reading of the statute appears to exceed Congress' enumerated powers.  He begins:

In our constitutional structure, the federal government’s powers are supposed to be “few and defined,” while the powers reserved to the States “remain . . . numerous and indefinite.” The Federalist No. 45, p. 328 (B. Wright ed. 1961) (Madison); McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). No doubt, the Constitution affords Congress the authority to make laws that are “necessary and proper” to carry out its defined duties. Art. I, §8, cl. 18. But it is difficult to see how, on the Court’s interpretation, section 1367(d) might be said to survive that test—how it might be said to be necessary and proper to effectuate any recognized federal power or how it could be called anything other than an unconstitutional intrusion on the core state power to define the terms of state law claims litigated in state court proceedings.

Several paragraphs of argument follow.  Then:

The Court’s approach isn’t just unnecessary; it isn’t proper either. A law is not “proper for carrying into [e]xecution” an enumerated power if it “violates the principle of state sovereignty” reflected in our constitutional tradition. Printz v. United States, 521 U. S. 898, 923–924 (1997). The word “proper” was “used during the founding era to describe the powers of a governmental entity as peculiarly within the province or jurisdiction of that entity.” Lawson & Granger, The “Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297 (1993). Limitations periods for state law claims fall well within the peculiar province of state sovereign authority. As Chancellor Kent explained, “‘[t]he period sufficient to constitute a bar to the litigation of sta[l]e demands, is a question of municipal policy and regulation, and one which belongs to the discretion of every government, consulting its own interest and convenience.’” Sun Oil Co. v. Wortman, 486 U. S. 717, 726 (1988) (quoting 2 J. Kent, Commentaries on American Law 462–463 (2d ed. 1832)). Described as “laws for administering justice,” time bars are “one of the most sacred and important of sovereign rights and duties.” Hawkins v. Barney’s Lessee, 5 Pet. 457, 466 (1831). And “from a remote antiquity,” they have been the province of the sovereign “by which it exercises its legislation for all persons and property within its jurisdiction.” McElmoyle ex rel. Bailey v. Cohen, 13 Pet. 312, 327 (1839). Our States have long “exercise[d] this right in virtue of their sovereignty.” Ibid.