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Friday, December 23, 2011

Clear Statement(s) and the ACA

In our last episode, I suggested that a few of the courts ruling on the constitutionality of the ACA have, maybe without even realizing it, invented a new constitutional principle, namely, Congress' putative power to disclaim potential constitutional authority for a statute.  Let me go a little Memento on you and flash back one scene.  How did lower courts get to the point where they decided Congress had disavowed the taxing power? 

The evidence is pretty shaky -- basically, it's that one house of Congress (but not both) changed some of the uses of the word "tax" in the statute (but not all of them)  to "penalty".  Oh, and also that 60 Minutes interview with President Obama.  This against the background of a longstanding  Supreme Court rule that Congress didn't have to use the word "tax" to rely on its taxing power, which would seem to make any inference from their omission of that word pretty minimal. 

In fact, the evidence is so thin that I think what's actually happening is that the courts are inventing (contra that Supreme Court rule I mentioned) a new clear-statement rule for invocation of the taxing power.  Barnett has been explicit about this, saying that requiring Congress to tattoo the chest of a statute with the word "tax" somehow creates political obstacles that other words with implicit dollar signs on them (like "penalty," say) don't.  I guess he'd also have to be ok with "duties," "imposts," and "excises" tatoos, too, since those are also words in Art. I Sec. 8, although they don't really seem to support his political theory quite as well.  (Though admittedly who can forget George H.W. Bush's classic "read my lips, no new duties, imposts, or excises" speech?) 

Anyway, let's say that the magic-words rule made sense and wasn't already foreclosed by 150 years of precedent.   Here's the thing.  There's already another clear statement rule that requires the opposite interpretative approach.

 At one time (hey! it's a flashback within a flashback!), the Supreme Court really didn't like overturning Congress.  So they made a rule of interpretation for themselves that said, basically, if there are two permissible readings of a statute, the Court has to pick the one that will make the statute constitutional.    Now do a mental wipe-scene and come back to the ACA.  Let's say you think the ACA is constitutional if Congress called a piece of it a "tax" and unconstitutional if they didn't.  The best evidence against the "tax" reading was delayed 15 minutes by a football game.  So, yeah, it's at least possible that Congress intended it as a tax.  Under the classic avoidance rule, doesn't the Court *have* to interpret the statute as a tax? 



Posted by BDG on December 23, 2011 at 12:31 PM in Constitutional thoughts | Permalink


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TJ, I don't see your point. I don't think I misunderstand anyone. Yes, tautological arguments often are internally consistent. If one insists, contra the Supreme Court and logic, that any statute that relies on the taxing power must use the word tax (and if one further insists on ignoring the 45 uses of that word in Sec. 5000(a)), then sure, the avoidance argument probably doesn't mean that much to you. (And, incidentally, most textualists accept the avoidance principle -- see, e.g., Clark v. Martinez (Scalia, J.))

But that isn't the real target of my argument. If the relevant standard instead is "did Congress intend to rely on or disclaim the taxing power," which is the issue the courts of appeals actually considered (as they did, for example, when they looked at the legislative history of the statute), then avoidance should be very important, no?

Posted by: BDG | Dec 28, 2011 12:30:19 PM

Cool -- thanks for the clarification. Your position makes much more sense now and raises some interesting issues.

Posted by: andy | Dec 24, 2011 12:25:32 AM

I should make clear that, in saying that the Treason clause is a magic word test, I do not mean that say that all textualism consists of magic word tests. So Scalia's dissent in Mistretta is easily distinguishable. There, Scalia is saying that whether an agency is located in the judicial branch is not determined by a magic word test -- just because Congress says "judicial" does not make it so. But Randy is saying whether something is an tax statute (which then leads it to be scrutnized under the Tax Power) is a magic word test. And I am saying that whether something is a Treason statute (to be scrutinized under the Treason Clause) is similarly a magic word test.

Posted by: TJ | Dec 23, 2011 11:56:44 PM

"if Congress passed a statute saying that picking your nose constitutes treason, perhaps Randy Barnett would say that picking your nose is treason (again, I haven't read his arguments)"

Andy, you are misunderstanding my argument, and you misunderstand it the exact same way that Brian misunderstands Randy (or at least why I think Brian misunderstands Randy). If Congress passes a statute saying "it shall be Treason to pick one's nose," the relevant question is not whether picking one's nose would be substantively considered treason by analogy to 18th Century England or some other test for determining what is treason. The question is whether the statute falls under the Treason clause. And, speaking only for myself, this would be easy. Congress is attempting to pass a statute falling under the Treason clause because the text says "Treason." The statute is then unconstitutional under that clause because Art III says that treason shall consist only of levying way against the United States or adhering to its enemies.

Posted by: TJ | Dec 23, 2011 11:46:48 PM

Also, regarding Brian Galle's point that, under the constitutional avoidance canon, "the Court has to pick the [interpretation] that will make the statute constitutional," I'll suggest a nuance that perhaps was not appropriate to dive into in the original short blog post. That is, I'm not sure that the Court has to pick whatever interpretation avoids constitutional problems. Rather, the theory behind the avoidance canon is that, if there are a couple plausible interpretations (one constitutional and one not), we should give Congress the benefit of the doubt and assume the constitutional one was intended. But if Congress clearly intended the unconstitutional result, it's not for a court to turn a blind eye to the statute and manufacture some plausible alternate interpretation.

In practice, courts frequently do bend over backwards to find some constitutionally permissible interpretation, but I don't think that's a sound application of the avoidance canon. Applying that here, I reject the argument that the Court must conclude that the taxing power was implicated, simply because that would save the constitutionality of the statute.

Posted by: andy | Dec 23, 2011 11:35:43 PM

"Nobody disputes that what Randy Barnett has proposed is a magic word test"

OK. I haven't read Barnett's stuff, and perhaps Barnett actually proposes a magic word test. But I don't think it's fair to infer that such a test is consistent with textualism generally. In fact, one leading textualist has explicitly rejected magic word tests. See, e.g., Lockhart v. U.S. 546 U.S. 142 (Scalia, J., concurring).

I think your treason example also does not reflect a textualist approach to interpretation. For example, if Congress passed a statute saying that picking your nose constitutes treason, perhaps Randy Barnett would say that picking your nose is treason (again, I haven't read his arguments), but I doubt that an honest textualist would interpret the Constitution that way. See Scalia's dissent in Mistretta.

In other words, mindless literalism and textualism are different things. They may be the same thing to Barnett (if your summary is correct)but it's a bit of a stretch to say that the textualist philosophy embraces magic word tests, especially in light of the fact that the leading textualist has explicitly rejected them.

Posted by: andy | Dec 23, 2011 11:28:06 PM

"Mindless literalism" is what magic word tests are all about. Nobody disputes that what Randy Barnett has proposed is a magic word test. BDG and I are only fighting over whether the magic word test comes into play at the stage of defining what the statute does, or whether the statute is constitutional.

For example, Article III, Section III gives Congress the power to punish "Treason," but requires at least two witnesses. In addition, Congress has the power to criminialize espionage, which does not require two witnesses. So suppose Congress passes a statute that provides: "A person shall be guilty of Treason if he commits espionage in aid of an enemy with which the United States is at war. Proof under this section shall not require any witnesses, nor a confession in open court."

Under BDG's approach, the Court would be compelled to construe this statute as a espionage statute because maybe Congress really intended this not as a treason statute but as a espionage statute, and as an espionage statute it would be constitutional. My response is that, to a textualist--and to anyone who thinks the Treason clause is a magic word test that pretty much automatically applies if the word "Treason" is used--there is nothing to construe because there is no lack of clarity. And commentator "andy" now says that is mindless literalism, which it might be, but so too are all magic word tests.

Posted by: TJ | Dec 23, 2011 9:48:01 PM

"because Congress didn't use the word tax and so the thing is not a tax."

That seems to describe mindless literalism, not textualism. For example, if Section 1 of the Code (the provision imposing tax liabilities on individuals and setting out rates) were rewritten to impose a "penalty," I think any serious textualist wood look beyond the label and conclude that the imposition was, in fact, a tax. Cf. also Mistretta v. United States (Scalia, J., dissenting) (just because statute states that agency is located in judicial branch does not make it so, for constitutional purposes).

To think about it in reverse, just because the tax code largely imposes "taxes," that does not mean that every imposition is a tax in the Constitutional sense, as opposed to a duty, impost, or excise. This is important because taxes are not subject to a uniformity requirement, although duties, imposts, and excises are. Thus, a nominal "tax" under the IRC must be further examined to determine whether the uniformity requirement applies. I'm not aware of any textualist objection to this approach. So, I don't think textualists follow labels as slavishly as your comment suggests.

Posted by: andy | Dec 23, 2011 3:30:53 PM

Brian, I think you are positing a separation between the thing and the label that misconstrues Randy's argument. In your version, we determine first whether something is a tax by looking to Congress's intent. You then construe Randy to argue for a second step, where we determine whether the tax is constitutional by looking at whether the legislation uses the magic words in labeling. And your critique is that a labeling test contradicts the avoidance canon.

But I think you misunderstand Randy. Randy is--as far as I understand--a textualist. To a textualist, it is completely irrelevant whether Congress might have "intended" something to be a tax, and therefore it is irrelevant whether the court should maybe avoid the constitutional issue by construing Congress's intent to impose a tax when its intent is unclear. To the textualist, there is nothing unclear and nothing to avoid, because Congress didn't use the word tax and so the thing is not a tax.

Posted by: TJ | Dec 23, 2011 1:40:57 PM

I agree that the 'political obstacles' argument in favor of requiring a clear statement is questionable: It accurately reflects the politics of the Republican party in the last 20 years, but I'm not sure it reflects a more longstanding or stable view of how to cabin government power.

At the same time, it's not obvious to me that constitutional avoidance canons apply when the question is whether Congress was acting in its proper sphere of power, rather than when the question is what rule Congress was trying to enact as statutory law. Instead, I would think the relevant reul of interpretation is the presumption of constitutionality. Cf. debates on whether agencies should receive Chevron deference when interpreting its own jurisdiction, see, e.g., http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1213149

Posted by: Orin Kerr | Dec 23, 2011 12:56:57 PM

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