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Anita Krishnakumar on Textualism and the Supreme Court's Decision in George v. McDonough
Michael Ramsey

At SCOTUSblog, Anita Krishnakumar (Georgetown): In far cry from usual textualism, court rejects veteran’s attempt to reopen a benefits denial based on legal error.  From the introduction: 

[T]he Supreme Court [last week] ruled 6-3 that a VA benefits decision that was based on an agency regulation in effect at the time the decision was rendered does not constitute “clear and unmistakable error” even if the agency regulation is later deemed to conflict with the text of the relevant benefits statute...

Perhaps the most striking feature of [Justice] Barrett’s opinion for the court (and the two dissenting opinions from Justices Sonia Sotomayor and Neil Gorsuch) is how little it focuses on the text of the relevant statutes. Barrett’s opinion does nod at the text, observing that the modifiers “clear” and “unmistakable” indicate that only a narrow category of errors are covered by the statute. The opinion also cursorily notes that the “statutory structure” suggests a narrow construction of covered errors because the provision creates an exception to the norm of finality for veterans benefits decisions. 

But Barrett quickly sidelines these text-based observations as “general contours” and moves on to her principal argument, which is that “a robust regulatory backdrop fills in the details” of the statute’s meaning. Specifically, Barrett argues that the phrase “clear and unmistakable” error is a term of art — i.e., a term with a specialized legal meaning. In this case, Barrett claims that “clear and unmistakable error” is a phrase that “ha[s] a long regulatory history” and concludes that Congress deliberately codified that longstanding history and meaning when it employed the phrase in the statute at issue. Barrett goes on to explain that longstanding agency practice and precedent establish that the term “clear and unmistakable” error does not encompass subsequent “changes in law” or “changes in the interpretation of law” — and that the Federal Circuit ruling invalidating the agency regulation upon which George’s denial decision was based is a mere “change in the interpretation of the law.”  

The court’s reliance on agency practice — a pragmatic, atextual interpretive source — is surprising, as is its emphasis on Congress’ supposed expectation that that agency practice would be incorporated, or codified, into the relevant statute...

I have a different view.  Rather than thinking of the majority opinion as "atextual," I see it as adopting a legal meaning of the text over an ordinary meaning of the text.  I don't think that background agency practice is a "pragmatic, atextual interpretive source" in this case.  Rather, it is a way of understanding the meaning of the key words in the statute (a textualist inquiry), which (in Justice Barrett's view) adopted their meaning from prior agency practice.  Put another way, as both Justice Barrett and Professor Krishnakumar say, the relevant phrase is arguably a "term of art."  That's not an "atextual" analysis -- its just a way of understanding what the text means when the text adopts a specialized legal term.  (Of course, it's a separate question whether the text should be understood as adopting a specialized legal term or should be given ordinary nonlegal meaning, but that's a debate within textiualism.)