The secret principle behind all statutory and constitutional interpretation

We haven't yet discussed the latest legal challenge to Obamacare, which is now in the news thanks to conflicting decisions issued by the DC Circuit and the 4th Circuit on the same day last week.

The issue is that the Obamacare statute says that certain tax credits are available to people who enroll for health insurance on exchanges "established by the State." The act defines "State" to mean a state or territory of the United States, so this raises the question of whether the tax credits are available to people who enrolled on an exchange established not by a state but by the federal government. This is a live issue because many states have not established exchanges, so the federal government has stepped in as a backstop, and the IRS has issued regulations permitting the tax credits for people who enrolled on those federal exchanges.

The court decisions have mostly fallen down along party lines, as has the underlying commentary. Republican judges have found the language of the statute to be unambiguous: the tax credits are authorized only for people who enrolled in exchanges "established by the State" and not by the federal government. Whether or not this was what was "intended" by Congress, there's no real ambiguity in the statute, so it must be applied as written. Besides, this kind of carrot-and-stick federalism is not unheard of—the federal government often puts conditions on its statutes to encourage states to act—so the result is not absurd.

Democratic judges have found plenty of ambiguity in the statute when viewed as a whole, and believe the result—denying affordable health insurance to millions based on a poorly drafted statute—is absurd and clearly contravenes the intent of Congress and the purpose of the Act.

This suspiciously partisan split over the meaning of words has led to some consternation and cynicism. For example, liberal blogger Matt Yglesias:

The deep nature of the division is illustrated by the suspicious way in which legal opinions and policy preferences are lining up on this issue. Essentially everyone who believes the Affordable Care Act was an important step toward securing social justice also agrees that it would be absurd to construe the statute in a manner that’s plainly inconsistent with congress’ goals. And essentially everyone who believes it’s crucially important to give the crucial sentence the most straightforward possible reading rather than defer to the IRS’ efforts to make sense of the law as a whole, also believes that the law is a scandalous boondoggle.

Libertarianish economist Scott Sumner agrees, and goes further:

It’s an embarrassment that the two sides of the debate line up so predictably on a narrow technical issue. It says that intellectuals cannot be trusted to argue in good faith.

That's a bold statement. Can the principles of the Enlightenment be saved from this pit of cynicism and contempt?

I think so. Here's the secret principle behind all good faith legal decision making, including all statutory and constitutional interpretation—a principle that is deeply held by all public intellectuals and by all honest legal scholars, judges and justices of left, right, and center:

Do justice.

Well, okay, you say, but that's a pointless abstraction. Not so. It is the saving grace girding our legal system. Once you realize that people of good faith have profoundly held but deeply opposed conceptions of how to do justice, most of the world's seeming hypocrisy melts away.

Let's take Matt Yglesias, for example. In his post on the new Obamacare challenges, he starts out by stating how frivolous he thinks this legal challenge is:

I'm no lawyer, but from the first time I heard it the theory advanced by the plaintiffs in the Halbig case has struck me as laughably far-fetched and as best I can tell most objective legal observers agree that they are unlikely to prevail.

Reader(s)™ may remember, however, that Yglesias was one of the major proponents of the Trillion Dollar Platinum Coin. In that case, he applied a hyper-textualist reading to the coinage statute to find that it allowed minting of platinum coins of any denomination whatsoever. Now, however, he finds the same analysis (hypertextualism) to be laughably far-fetched. How can these positions possibly be reconciled? Isn't Yglesias just a hypocrite?

Not at all. The cases can easily be reconciled as long as you treat hyper-textualism as a tool to do justice rather than something to be achieved for its own case. In the Platinum Coin case, Yglesias was seduced by hyper-textualism because it provided an opportunity to do what he thought was just: to fund the federal government over what he thought was an insane and probably unconstitutional obstructionism by Republicans. In the new Obamacare case, however, hyper-textualism does a terrible injustice by undoing Obamacare.

There's a common principle here, that everyone can agree with: it is right, proper, and moral to use every tool at one's disposal to do justice. And this makes perfect sense of the partisan judicial split. Republicans are happy to apply a hyper-textualist interpretation of the Obamacare act because they don't think it's a just law—or at least, they don't think undoing it would lead to any profound injustice. Indeed, they probably see it as poetic justice that the law would be undone on a technicality, given the unusual and rushed procedures used to get it passed. Democrats, on the other hand, see the hyper-textualist interpretation as leading to so much injustice as to be practically absurd.

Descriptively speaking, I think there's really an underlying ur-canon of statutory interpretation: apply the plain text unless it seems really unfair or unjust. That's what both the Republican and Democratic judges are actually doing in this Obamacare case, and that's what most judges do most of the time. I don't have a problem with that, and you shouldn't either.

What is the proper method of execution?

Michael Kiefer of the Arizona Republic has a story about witnessing the execution of Joseph Wood on Thursday afternoon. I recommend you read it.

Mr. Wood was supposed to be executed by lethal injection. When most people hear that term, I think they imagine the condemned receiving an injection, quickly passing out and dying. According to Mr. Kiefer, that is not what happened to Mr. Wood.

Judge Posner is Cat Crazy

It is by now well known that Judge Richard Posner is a cat person. It is perhaps somewhat less well known that his love of cats has infected his judicial decision making to an alarming degree.

For example, take Judge Posner's opinion in yesterday's en banc opinion, Markadonatos v. Village of Woodbridge. The case is about whether a town's $30 booking fee imposed on all people arrested—whether innocent or not, whether based on probable cause or not—is a violation of their civil rights.

In typical Posner fashion, he would have decided the case by making up his own interpretation of the ordinance to avoid the constitutional issue, even though no one—not the village police department who actually imposed the fee, not the village lawyers, not the plaintiff, not the district court judge, not one of the three judges who each wrote an opinion for the original panel, etc.—had ever previously raised this interpretation as a possibility, much less argued that it was correct. Even on the full Seventh Circuit court, only two of the other nine judges thought Judge Posner's interpretation was permissible after he thought it up. (The decision in the case is a weird one: there are four different opinions, and none of them carry a majority of votes, so the district court's judgment is affirmed by default.)

Anyhow, one explanation for what was going on with Judge Posner's opinion is that he just couldn't stop thinking about his beloved cat. Basically every legal issue that Posner considers somehow turns into a discussion of cats.

First, we learn of Judge Posner's greatest fear—catnapping. Not a short nap like a cat takes, no, no. Something much more sinister:

The plaintiff’s counsel tells us that the $30 “booking fee” provision is unique among the provisions of the ordinance because it alone imposes a fee for what may be innocent conduct mistakenly believed by police to be illegal. He instances the $15 fee for “release of [an] impounded dog or cat.” But of course a dog or cat may escape the owner’s control, and later be impounded, without fault on the owner’s part. The animal may have been stolen, or have escaped from its home because a careless workman had left a door or window ajar, or been lured from its litter box by a rogue Woodridge police officer with catnip.

I myself have wondered about all those extra compartments on the police officer's standard belt. But it never occurred to me that one of them might be filled with catnip.

Second, we consider the things that Judge Posner's cat likes to jump on:

It’s like interpreting the phrase “my cat enjoys jumping on trampolines and beds” to mean that she enjoys jumping on both things, as opposed to her enjoying jumping only on trampolines and, separately, enjoys beds for reasons unrelated to jumping on them.

So now I imagine this scenario: Judge Posner's cat jumping on a trampoline while he lounges admiringly on his bed, and we soon find out that his cat does indeed enjoy the bed for reasons unrelated to jumping.

A coda to our discussion of religious exemptions?

According to the Washington Post, the Executive Order signed by President Obama to prohibit workplace discrimination against gay, lesbian, and transgendered employees who work for federal contractors (and discussed by Mr. Torvik here) does not contain any religious exemptions for employers who think employing  a gay, lesbian, or transgendered person violates the employer's religious beliefs. In reality, I suspect the issue is more accurately hiring since until today this kind of discrimination by federal contractors was not prohibited.

I hope and that the distinction Mr. Torvik (and others) make between the Hobby Lobby case and employment discrimination. I suppose we will find out in about a year.

Hobby Lobby & Discrimination, part 2

Following up on our earlier discussion (wherein sparks flew), I thought I'd direct your attention to this open letter sent by 50 law professors to President Obama, urging him not to carve out a religious exemption to his expected executive order banning discrimination against gays among federal contractors. It is quite persuasive, and worth a read.

Notably, the law professors' first argument is that Hobby Lobby in no way compels this kind of exemption:

[T]he Supreme Court's opinion in Hobby Lobby and order in Wheaton College do not compel in any way the inclusion of religious exemptions language in an executive order prohibiting discrimination against LGBT employees of federal contractors. Both actions were predicated on the Court’s belief that the government could fully realize its compelling goals of furthering women’s health and equality through other means – because it could arrange for alternative contraception coverage for affected employees, who then would suffer no harm as a result of an employer exemption. By contrast, there is no such alternative here. Exempting religious employers would harm LGBT employees and it would frustrate the Administration’s compelling interests in providing equal rights and protection against employment discrimination for LGBT people, particularly in taxpayer funded situations.

This is essentially the same point made by Professor Althouse, which sparked our discussion.

For the contrary view, see this earlier letter from the Institutional Religious Freedom Alliance. As the law professors' letter notes, however, the IRFA letter cites no authority for its core assertion that religious employers are "free under Title VII to maintain a conduct standard that reflects their religions’ sincerely held beliefs, which include deep convictions about human sexuality." Instead, Title VII merely allows "religious organizations" to prefer people of their own faith in hiring.

Maybe the backlash against helicopter parenting has gone too far

A recent New York Times op-ed extols the supposed virtues of unsupervised childhood. The argument in the op-ed is essentially that letting kids get into a little trouble makes them more well-rounded human beings, leading them to live better lives as adults.

I call bullshit. There's no science, or evidence of any kind, behind this idea that letting kids break their bones and start forest fires is actually good for them, or us. On the contrary, the evidence I'm aware of shows that this generation of youngsters is, in pretty much every way, superior to my generation and all the generations that preceded it. For example, kids these days are shockingly less likely to commit crimes. They are just better people, on average, than we were. I'd be surprised if better and more conscientious parenting weren't part of it, but it hardly seems to be hurting.

Don't get me wrong: I'm all for shooting down helicopter parents and trying to get everyone to chill out and turn it down about five clicks. I'm almost certainly in the bottom (most laid-back) ten percent of parents when it comes to this stuff—not just currently, but in all of human history. Yet the idea that juvenile delinquency is good strikes me as a fairy tale, a romantic conception. Certainly, the burden of proof to provide some evidence should be on people like the op-ed writer to provide something more than a just-so story.

Obviously, it could be that helicopter parenting makes better people but still isn't worth it because it costs too much in other ways. For example, the culture of parenting has changed so much that things Mr. Gillette and I were allowed to do every day back in the 70s and 80s would possibly subject our parents to criminal charges today, and this is creating some collateral damage. For example, I'm sure you've heard the story of the mother who got arrested because she was dropping her nine-year old daughter off at park while she went to work every day. The kid had a cell phone in case of emergency, so she was probably fine.

Even so, this case is a little ... strange. Even when I was growing up, I don't think it was common for parents to drive their kids across town and leave them alone at a park. In my day, parents just left their kids at home with the tv and a Nintendo. That's my America! I can't help wondering why this mother didn't just leave her kid at home. I suppose she could have thought the kid would get bored and just go exploring on her own. Maybe. But home seems like the better option.

One reason why leaving her home might not have been so appealing is that there doesn't seem to be any kind of neighborhood youth culture any more. When I was young, the local youths would gather around the neighborhood after school and during the summer. There was safety in numbers, even if there was more delinquency. Nowadays, since kids aren't let out of the house alone, there just aren't kids hanging around to a hang around with. It's kind of a vicious circle, I guess.

On the bright side, we get a lot less forest fires and broken streetlights. By the way, my frequent use of the example of "forest fire" is in no way an admission that I started a forest fire when I was a kid. Nor is it a denial. But if I did it surely made me the wonderful man I am today.

Lawyering against destiny

When I was spending a few months over at the Minneapolis City Attorney's office, the big issue in misdemeanor criminal defense was "source code" challenges to the Breathalyzer test in DUI cases. The criminal defense bar was arguing that it needed access to the machine's "source code" so that the results could be attacked with a scientific expert witness. In my view, this was a red herring—what mattered was whether the machine worked, something that could be verified with experiments, and it made no difference what assortment of ones and zeroes lived in its guts. (My understanding of "source code" remains murky.)

Anyhow, the state would have gladly turned over the source code if it had it, but of course it did not. The source code was owned by the maker of the Breathalyzer machines, and that company considered it a trade secret. So it was a perfect issue for the DUI attorneys: they could demand the source code, and when it was not forthcoming, move to exclude the evidence of the breath test as a sanction for failing to produce it.

The issue was raised in one my cases, a case that just so happened to be assigned the judge considered to be very pro-defense: Judge Jack Nordby. From the moment of the judge assignment, I knew my chances of success on the source code motion were slim-to-none. But Judge Nordby set a briefing schedule, and I intended to do my best.

Just a few days later, however—well before my brief was even due—the order came down: motion to suppress granted. I suspected that this was a sort of mistake; that Judge Nordby had issued the same order in the dozens of cases where the source code issue had been raised, and his clerk just threw my case in with the rest of them. But I couldn't presume that the judge had made a mistake like this. So I filed an emergency motion to reconsider, asking for at least a chance to be heard. This led to one of the weirder moments in my legal career: the phone rang, and Judge Nordby was on the line. He was calling to apologize: of course he would vacate the order and allow the briefing to go forward.

Which was nice. But, still, I knew I was going to lose. I'd already seen the order! Nonetheless, I wrote a pretty awesome brief. The one good thing about having seen the order in advance was that I could attack Judge Nordby's reasoning directly—I didn't have to guess at which arguments the judge would find most persuasive. And it turned out that Judge Nordby's order was more or less contradicted by his own treatise on criminal procedure. So I was pretty proud of my little brief.

But, still, I knew I was going to lose.

When the hearing came and Judge Norbdy handed down his ruling, he was very kind, complimented the brief, and said that he had seriously reconsidered his decision. But. He was not changing his ruling.

Which brings me to the Seventh Circuit fiasco known as Motorola Mobility v. AU Optronics, a Richard Posner production.  The story is set forth here, and I urge you to follow the link because it is pretty much unbelievable.

In short: there was a district court order, and it was appealed on an interlocutory basis—this means that the order wasn't "final" and wouldn't usually be appealable, but Motorola argued that it should be appealed right away. That request for interlocutory appeal was heard by a "motions panel" of the Seventh Circuit, which granted the motion to allow the appeal. At the same time, however, the motions panel (in an opinion by Judge Posner) decided the case on the merits, and affirmed the district court's order without allowing any briefing or arguments by anyone on this merits.

This was extraordinary, perhaps unique, and ruffled a lot of feathers. Among the feathers ruffled were those of the eagle in Great Seal of the United States, because the issue decided concerned anti-trust law that affects international business and international relations (somehow—I don't pretend to understand exactly how). So when Motorola filed a petition for rehearing in front of all the Seventh Circuit judges, the U.S. Department of Justice filed an amicus brief stating its view that the decision was wrong.

This led to the second round of nuttiness: Judge Posner issued an order, out of the blue, to the Departments of Commerce and State, asking them to submit their own briefs—even though the Department of Justice is ultimately the legal representative of both agencies. The Solicitor General wrote the court to inform it that the previous brief had been submitted on behalf of the United States, and that no agency-specific briefs would be forthcoming. Judge Posner responded with another singular order, ordering the Solicitor General, personally, to name the specific federal officers who had been consulted in preparing the brief, and the nature of the consultation. He was given a week to do so.

Then the panel withdrew that bizarre order the next day. Still, the appeal of the appeal went on. Until now. Today, the motions panel changed its mind, and set a briefing schedule on the merits. So it's like none of that stuff ever happened.

But, still, Motorola knows it is going to lose, right?

They've seen the order. So they are going to spend countless hours preparing briefs, spending god knows how much in legal fees, so that Judge Posner can just issue the same order in six months. What's the point? Just this, I guess: there's some lawyering to be done.

UPDATE:

After some extensive lawyering, Judge Posner—surprise!—affirmed the district court's partial summary judgment (again).

This day in drug-using judges

Everything was awesome until one of them died of a cocaine overdose.

The Criminal Element

Wired has a truly shocking report of deception and lawlessness by the U.S. Marshals service, the Florida State Attorney's office, and local police departments:

Police in Florida have, at the request of the U.S. Marshals Service, been deliberately deceiving judges and defendants about their use of a controversial surveillance tool to track suspects, according to newly obtained emails.

At the request of the Marshals Service, the officers using so-called stingrays have been routinely telling judges, in applications for warrants, that they obtained knowledge of a suspect’s location from a “confidential source” rather than disclosing that the information was gleaned using a stingray.

Once, when a police officer made the mistake of actual describing how the location information was obtained, the State's Attorney issued a stern rebuke with strict orders never to tell the truth again, to ensure "that we may continue to utilize this technology without the knowledge of the criminal element."

When the ACLU made a FOIA request to get to the bottom of what was going on, the U.S. Marshals swept in and seized the evidence:

The release of the emails showing interference by a state attorney and the U.S. Marshals Service comes two weeks after agents from the Marshals Service took the extraordinary measure of seizing other public documents related to stingrays from the Sarasota Police Department in order to prevent the ACLU from examining them.

The documents, which were responsive to a FOIA request seeking information about Sarasota’s use of the devices, had been set aside for ACLU attorneys to examine in person. But hours before they arrived for the appointment to view the documents, someone from the Marshals Service swooped in to seize the documents and cart them to another location.

The police argue that the use of these stingrays without a warrant is unobjectionable "because the devices don’t collect the content of phone calls and text messages, but instead operate like pen-registers and trap-and-traces, collecting the equivalent of header information." Perhaps so, but it is hard to see how this justifies their secret use, or how it justifies lying about using them in sworn affidavits. Or am I over-reacting?

Could the Hobby Lobby case lead to religious exemptions for race discrimination in employment?

Absolutely not.

The Good Ole Days

Minnesota Litigator has an interesting guest post today by retired bankruptcy judge Dennis O'Brien. What struck me was the arc of Judge O'Brien's career. After graduating from William Mitchell in 1974, he practiced at a small firm in Duluth for a couple of years, then went solo as a general practitioner. Just a few years later, in 1983, he applied to become the part-time bankruptcy judge in Duluth. Apparently he was the only applicant--mainly because the structure and jurisdiction of the bankruptcy court was being gutted and in complete disarray. Even so, it is impossible for me to imagine that any similar job for a federal appointment (even one that was doomed to last just six months or less) would not be swarmed with applicants today.