Tuesday, May 30, 2017
Ambiguity -- the most ambiguous concept in the law of interpretation
Esquivel-Quintana, the decision handed down this morning by SCOTUS, provides a good example of what I call the "Ambiguity of Ambiguity." AOA is important, because most so-called "substantive canons" are triggered by a judicial finding that a statutory term is "ambiguous." If those findings of ambiguity are essentially acts of judicial fiat, then the doctrines that we call "statutory interpretation" is essentially a shell game, because courts can turn canons on and off like a spigot, at will, simply by declaring that some phrase is, or is not, "ambiguous."
Esquivel-Quintana illustrates how interpretative formalism has gotten a bad name among us purposivists. The Court held that the phrase "sexual abuse of a minor" unambiguously excluded Esquivel-Quintana's conviction for statutory rape based on his having sex with his 16-year-old girlfriend when he was twenty-one years old. Being "unambiguous," the phrase barred the Court from invoking either Chevron or lenity. Instead, the Court purported to apply pure textualism, mostly in the form of looking at language from another federal statute, other crimes listed as "aggravated felonies" with "sexual abuse of a minor," and a bunch of state laws.
Think just a moment about why such a decision, although right on the merits, is difficult to take seriously as an interpretation of "unambiguous" statutory text.
First, the Court's declaration that the phrase "sexual abuse of a minor" in 8 U.S.C. §1227(a)(2)(A)(iii) is so plain that it excludes use of lenity seems a bit odd in light of the the Board of Immigration Appeals' reaching exactly the opposite conclusion about what the phrase means. Presumably, competent lawyers who know a lot about immigration law sit on the BIA: How "plain" can a phrase be, then, if SCOTUS and the BIA disagree about what it means?
Second, in what sense is interpretation "textual," if the relevant text mostly comes from extrinsic sources like other state and federal laws? Yes, I know: Those laws serve as a sort of ersatz dictionary with which to construe the operative text of the statute being enforced. But such statutes only serve as a proper dictionary if those other statutes really are in pari materia with the statute being construed. How do we know that the other statute (in this case, 18 U. S. C. §2243, which criminalizes “[s]exual abuse of a minor or ward" but specifically defines such an offense with an age limit) is in pari with section 1227(a)? After all, one could just as easily argue that the absence of a similar age limit in section 1227(a) suggests that Congress "intended" in the latter statute not to define abusive sexual relationships without reference to the omitted age limit. (Put another way, I'll see your "pari materia" and raise you an "expressio unius").
Again, I do not disagree with the holding of Esquivel-Quintana: I think that SCOTUS got the result exactly right. But the opinion's textualist rhetoric illustrates (to my mind, at least) how textualism short-circuits substantive canons that are more likely to reflect sensible statutory readings than the byzantine meandering through the U.S. Code guided by pari materia and similar "textual" canons called for by the textualist' playbook. Rather than pretend that the meaning of "sexual abuse" in a deportation statute should be determined by the meaning of the same phrase in a different statute, why not simply throw in the towel and admit that, if one has to canvas the criminal code to figure out what "sexual abuse of a minor" means, then likely the phrase is ambiguous enough to allow use of lenity?