Before the final cases of the Term overtake us, it is worth pausing a moment on the connection shared by three cases handed down earlier this month, each about radically different subjects, but giving rise to the same misunderstandings about statutory interpretation: Bond (about the reach of the Chemical Weapons Convention Implementation Act to a wife’s attempt to injure her husband’s lover); Pom Wonderful (a deceptive labeling dispute between two drink makers); and Abramski (about the straw purchase of firearms).
In each of these cases, the Court considered well-worn interpretive principles to get it out of the interpretive jam—the federalism canon in Bond; the harmonization canon in Pom Wonderful; and the rule of lenity in Abramski. What is surprising about the cases is that they have, in fact, surprised anyone, as they have, given how utterly common these principles are. Also noteworthy is the way in which Court itself in these cases seems to be having a much more explicit debate about the nature of these presumptions and what triggers them it typically does.
Start with Bond. Some commentators were eagerly anticipating a major foreign affairs/treaty power opinion. Instead, many were aghast that the Court avoided the hard constitutional questions raised by the case by applying a mundane principle of statutory interpretation. Others were even more infuriated that the Court allegedly “invented” the interpretive principle that it used for this case. Commentators (see, e.g., this piece in the National Review) cheered on Justice Scalia for opposing application of this brand new “federalism presumption”—the rule that ambiguous federal statutes be construed not to intrude on traditional state domains. In fact, that principle is neither new, nor does Justice Scalia oppose it. The principle is a first-cousin of the presumption against preemption (which has been around at least since the 1930s) and was itself announced in Gregory v. Ashcroft, 501 U.S. 452 (1991) (joined by Justice Scalia) and applied in case after case since then. The canon is so common that not teaching it would be malpractice in any statutory interpretation course. The worlds of statutory interpretation and constitutional law are too inextricably intertwined at this point for any Court-watchers to be surprised about the existence of these interpretive presumptions or their decisive power in major, constitutional-law-implicating cases.
What Justice Scalia was objecting to was not the canon’s existence but what triggers it. His argument was that the statute was not sufficiently ambiguous to trigger the canon’s application. That’s the important doctrinal question that comes out of the Court’s opinion—whether federalism or any of the other 100 common policy presumptions of statutory interpretation—require ambiguity to trigger them or whether they can swoop in, armed with the mantle of quasi-constitutional law, even if the text is clear.
Abramski raises the same exact issue, in the opposite presentation. This time it was Justice Scalia who was arguing for the application of a canon—there, the rule of lenity. But the majority (through Justice Kagan this time) clarified the statute for itself using other tools—this time, statutory history and purpose—and so did not need the rule of lenity. Like Bond, this is a fight about when the many different interpretive presumptions that are already in play apply any individual case. As I have previously elaborated, the Court remains woefully inconsistent about these matters. Justice Scalia himself recently co-authored a 500-page treatise that passes judgment on many of the canons but fails to discuss any system of applying them, any way to make their application more consistent or even what they are. Most commentators (not I) emphatically resist the idea that these interpretive presumptions are some kind of judge-made law (indeed, that feeling is part of what is driving the outrage about Bond). But anyone following these cases should question whether it can really be said anymore (if it ever could have been said) that these rules are not deciding cases, are not in fact judicial creations and are not precedential. The canons of constitutional avoidance, lenity, federalism and many more decided not only these cases but also the vast majority of statutory cases ranging from the health reform case to the Enron case. Isn’t it time to reevaluate their legal status and their importance?
A brief word about Pom Wonderful. Writing for the majority, Justice Kennedy framed the case as resting on a potential conflict between the Lanham Act and the Federal Food, Drug and Cosmetic Act. As he described it (internal citations omitted):
“[T]his is a statutory interpretation case and the Court relies on traditional rules of statutory interpretation. That does not change because the case involves multiple federal statutes. Nor does it change because an agency is involved. Analysis of the statutory text, aided by established principles of interpretation, controls.
A principle of interpretation is “often countered, of course, by some maxim pointing in a different direction.” It is thus unsurprising that in this case a threshold dispute has arisen as to which of two competing maxims establishes the proper framework for decision. POM argues that this case concerns whether one statute, the FDCA as amended, is an “implied repeal” in part of another statute, i.e., the Lanham Act. POM contends that in such cases courts must give full effect to both statutes unless they are in “irreconcilable conflict”… Coca-Cola resists this canon and its high standard. Coca-Cola argues that argues that the case concerns whether a more specific law, the FDCA, clarifies or narrows the scope of a more general law. The Court’s task, it claims, is to “reconcil[e]” the laws….”
The Court does not need to resolve this dispute. Even assuming that Coca-Cola is correct that the Court’s task is to reconcile or harmonize the statutes and not, as POM urges, to enforce both statutes in full unless there is a genuinely irreconcilable conflict, Coca-Cola is incorrect that the best way to harmonize the statutes is to bar POM’s Lanham Act claim.” Slip at. 8-9.
What is so bizarre about Pom Wonderful, and the reason I include it in this post, is first, that Justice Kennedy begins the opinion with an almost elementary lesson in statutory interpretation—noting that conflict between canons is typical, and that “traditional canons” (whatever those are!) control in all statutory cases regardless of how many federal statutes or federal parties are involved. This seems to be quite a basic statement for the Court to feel compelled to make, and one it should not need to make in an era in which the vast majority of cases the Court decides involve one or more federal statutes and the potential application of the canons. Even so, and this is the second puzzling aspect of Pom Wonderful, Justice Kennedy then completely avoids answering the very question he presented–namely, how we are to resolve the recurring issue of canon conflict. Instead, he adopts a purposive and functional approach that discounts the canons altogether—but, really, implicitly favors the rule of preferred by Pom Wonderful.
Where are we in the so-called “statutory interpretation wars”? Commentators for years have been arguing that the big fights between textualism and purposivsm are over. That may be true when it comes to questions about those two interpretive philosophies, but, as this Term has showed us, we have a long way to go before we arrive at any kind of doctrinal stability, much less a coherent approach to the endeavor.
Cross-posted at Balkinization