3 posts categorized "Games"


Jonah Gelbach on Isolated Textualism and the Halbig Litigation
Michael Ramsey

I've been mostly avoiding much comment on the Halbig (Affodable Care Act subsidies) litigation, on the ground that I don't intend to read the entire Affordable Care Act, but this post is too ill-conceived to pass up.

At Balkinization, Jonah Gelbach (U. Penn. Law School) guest-posts The Methodological Absurdity of Isolated Textualism: Halbig, King, and How Not To Read. His central point is that the plaintiffs' case in Halbig depends on "isolated textualism," that is, reading "one little bit at a time, with no consideration of the rest of the law."  This, Professor Gelbach says, is an approach "that is not just indefensible, but which, outside the particulars of the Halbig and King litigation, no one does defend."

Gelbach provides the following analogy:

To see why, let’s ask what would happen if we applied ... isolated textualism to the Internal Revenue Code generally, by considering how much tax would have been owed by a married couple filing jointly and having $17,000 in taxable income in 2013.

The opening sentence of the U.S. Internal Revenue Code, 26 U.S.C. 1(a), imposes a tax of 15% on the first $36,900 in “taxable income” of married couples who file joint tax returns. ... Using [the challengers'] approach to reading text—one little bit at a time, with no consideration of the rest of the law—the couple owes 15% of their taxable income, and that’s it. 
But that’s not the tax the IRS would have sought to collect. To understand why, all you have to do is what any law student taking Federal Income Taxation should learn on day one: keep reading. Subsequent parts of 26 U.S.C. 1 operate jointly to create an additional tax bracket that applies a tax of 10% of the first $17,850 of a married-filing-jointly couple’s taxable income (see this IRS page). Consequently, no one suggests the IRS is behaving unlawfully when it collects less than 15% in taxes from such couples. ...
Gelbach supposes this to be a knockdown argument (he has several other similar examples), but I am unpersuaded.  Of course, no textualist suggests that a single textual provision should be read without considering the rest of statutory text.  See Scalia & Garner, Reading Law, pp. 167-169 ("Whole-Text Canon").  And where (as in Gelbech's examples) there is a general rule followed by a direction to treat a specific instance separately, the specific direction is treated as an exception to the general rule (even if it is not expressly so stated).  Scalia & Garner, Reading Law, pp. 183-188 ("General-Specific Canon").
In Halbig, the plaintiffs claim that because the health care subsidies are available only on "an Exchange established by the State" they cannot be available on the exchange (healthcare.gov) established by the federal government.  Gelbech faults this argument for not reading the rest of the statute.  But Gelbach's complaint, and his tax code analogies, work only if there is something else in the text of the ACA that contradicts the language on which plaintiffs rely.
Maybe there is.  (I haven't read the statute and don't intend to).  But Gelbach in his post does not point to anything.  So I assume there isn't.  And if there isn't, his entire argument falls apart.  The plaintiffs' case doesn't depend on "isolated textualism"; it depends on the propositions that (a) one provision of the statute says that subsidies are only available on state exchanges, and (b) no other provision of the statute says otherwise.
That's not to say that the plaintiffs' position is necessarily correct, but I don't see the fundamental textualist flaw Gelbach claims to have uncovered.


A Partial Defense of the Majority Opinion in Bond v. United States
Michael Ramsey

Chief Justice Roberts' majority opinion in Bond v. United States has been sharply criticized (see here and here), so I'll say few words partially in its favor. The case has seemed odd from the beginning because the federal statute at issue implements the Chemical Weapons Convention and (as the majority says) the local misuse of household chemicals does not seem the type of activity that is likely to implicate an international treaty.  As the majority puts it:

To begin, as a matter of natural meaning, an educated user of English would not describe Bond's crime as involving a "chemical weapon."  Saying that a person "used a chemical weapon" conveys a very different idea than saying the person "used a chemical in a way that caused some harm."  The natural meaning of "chemical weapon" takes account of both the particular chemicals that the defendant used and the circumstances in which she used them.

When used in the manner here, the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare.  The substances that Bond used bear little resemblance to the deadly toxins that are "of particular danger to the objectives of the Convention."  Why We Need a Chemical Weapons Convention and an OPCW, in Kenyon & Feakes 17 (describing the Convention's Annex on Chemicals, a nonexhaustive list of covered substances that are subject to special regulation).  More to the point, the use of something as a "weapon" typically connotes "[a]n instrument of offensive or defensive combat," Webster's Third New International Dictionary 2589 (2002), or "[a]n instrument of attack or defense in combat, as a gun, missile, or sword," American Heritage Dictionary 2022 (3d ed. 1992).  But no speaker in natural parlance would describe Bond's feud-driven act of spreading irritating chemicals on Haynes's door knob and mailbox as "combat."  Nor do the other circumstances of Bond's offense-an act of revenge born of romantic jealousy, meant to cause discomfort, that produced nothing more than a minor thumb burn-suggest that a chemical weapon was deployed in Norristown, Pennsylvania.  Potassium dichromate and 10-chloro-10H-phenoxarsine might be chemical weapons if used, say, to poison a city's water supply.  But Bond's crime is worlds apart from such hypotheticals, and covering it would give the statute a reach exceeding the ordinary meaning of the words Congress wrote.

It's true, as Justice Scalia says in concurrence, that the statute defines "chemical weapon" in a way that appears to vary sharply from the phrase's ordinary meaning.  But according to the majority, it is appropriate to consider "the dissonance between [the] ordinary meaning and the reach of the definition."  As the majority says,

...[W]e have doubts that a treaty about chemical weapons has anything to do with Bond's conduct.  The Convention, a product of years of worldwide study, analysis, and multinational negotiation, arose in response to war crimes and acts of terrorism.  See Kenyon & Feakes 6.  There is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond's common law assault.

That seems enough to create an ambiguity, or at least an oddity, such that the majority's invocation of a presumption against Congress upsetting the state/federal balance may be appropriate.

Where I think the majority goes astray, though, is in its focus on the statute rather than the Convention.  The majority says:

Fortunately, we have no need to interpret the scope of the Convention in this case.  Bond was prosecuted under section 229 [of the implementing statute], and the statute--unlike the Convention--must be read consistent with principles of federalism inherent in our constitutional structure.

That seems wrong on two counts.  First, the statute's language in relevant part closely tracks the Convention's language.  Surely what Congress wanted to do was to fully implement the Convention.  To ask what Congress intended is to ask what the Convention intended.  If the Convention reached very broadly into local matters, Congress would want to do so as well.  There is no reason to think -- given the parallel language -- that Congress wanted to do less than the Treaty called for.  And indeed the majority seems to see this, for despite its disclaimer, it repeatedly returns to the purpose and context of the Convention.

Second, I think it's wrong to say that the Convention, unlike the statute, need not "be read consistent with principles of federalism."  The U.S. Senate gave its consent to the Convention.  If Congress is presumed not to upset the state/federal balance by legislation absent a clear statement, why should this presumption not also extend to the Senate (a part of Congress) when it approves treaties?  Further, treaties should be subject to a related presumption that they do not reach matters of purely local concern.  As Justice Thomas says in his concurrence, a treaty is by definition an agreement on matters of international concern.  That category may be somewhat hard to define (especially in the modern context in which some matters occurring entirely within a sovereign nation nonetheless attract intense international interest).  But however defined, it seems plain that Bond's actions were not of international concern.  I cannot imagine that any nation would show any interest in how the U.S. treated her offense.

In sum, I think the proper focus is the Convention, not the statute.  The statute was designed to cover whatever the Convention covered.  But the ambiguity the majority identifies in the statute is a product of a parallel ambiguity in the Convention, which also appears to define "chemical weapons" broadly and in a counterintuitive way.  The Convention, if read as the government would read it, would reach matters not of international concern and would upset the state/federal balance with respect to local crime.  In this context, it is plausible to say that is not what the Senate understood itself to be approving. 

(For my earlier assessment of the case, somewhat along these lines, see here).

UPDATE: At Re's Judicata, Richard Re has an interesting take on the majority opinion's implications for federalism: Bond and the Doctrine of One Last Chance.


The Origins of an Independent Judiciary in New York, 1621-1777
Mike Rappaport

Scott D. Gerber (Ohio Northern University - Pettit College of Law) has posted The Origins of an Independent Judiciary in New York, 1621-1777 (Social Philosophy & Policy, Vol. 28, p. 179, Winter 2011) on SSRN. Here is the abstract:

One of the central features of the U.S. Constitution is its establishment of an independent judiciary, in which the federal courts constitute a separate branch of the national government, federal judges enjoy tenure during good behavior, and their salaries cannot be diminished while they hold office. In "The Origins of an Independent Judiciary in New York, 1621-1777," Scott D. Gerber explores the development of the concept of judicial independence in New York State and traces its influence on the drafters of the federal constitution. Gerber recounts New York's judicial history through four periods. From 1621 to 1664, the territory was administered by the Dutch West India Company under a charter from the Dutch government. During this period, the Company established "schout" courts in various parts of the territory, courts made up primarily of mayors and aldermen, whose members exercised both legislative and judicial power. In 1664, the Dutch ceded control of the territory to England, and from 1664 to 1685 New York was under the authority of James, the Duke of York, brother of Charles II, the King of England. In contrast with the earlier period, legislative and judicial powers were divided. The duke established a judicial system consisting of: town courts (with jurisdiction over minor civil disputes); a court of sessions (with jurisdiction over more significant civil disputes, as well as noncapital criminal cases); and a court of assizes, which handled capital cases and appeals from the lower courts. After the death of Charles II in 1685, the Duke of York became King James II, and New York became a royal colony. This period (from 1685 to 1776) saw the establishment of county courts of common pleas, as well as a supreme court whose justices were appointed by the colony's governor and served at his pleasure. Finally, during the early state period, after the adoption of the New York Constitution of 1777, significant steps were taken toward increasing the independence of the judiciary. Judges of the supreme court and the county courts were selected by a council of appointment-rather than by the governor-and they held office during good behavior (though they faced an age limit of sixty years). The history of the judiciary in New York, Gerber concludes, represents a slow and imperfect progress toward the ideal of judicial independence, an ideal that would become more fully realized with the institution of an independent federal judiciary in the United States Constitution of 1787.