Tag Archives: statutory interpretation

Some Brief Thoughts on Gorsuch’s Opinion in NFIB v. OSHA

There is much to say about the Court’s opinions in NFIB v. OSHA staying the Occupational Safety and Health Administration’s emergency rule requiring employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.” But I’d like to focus in this post on how stunningly atextual Justice Gorsuch’s concurring opinion (and for that matter, the per curiam opinion) was. Gorsuch’s concurring opinion in particular is almost entirely about the major questions doctrine—which he formulates as a rule that “We expect Congress to speak clearly if it wishes to assign to an executive agency decisions of vast economic and political significance.” The major questions doctrine is a substantive policy canon that limits the delegation of power from the legislative to the executive branch. It is not a textual canon but, rather, a normative one—as are all substantive canons at bottom. (Justice Scalia himself recognized this, calling such policy canons “dice-loading rules” that are “a lot of trouble” to “the honest textualist” in his influential Tanner Lectures, later published as a book.).

But textualists, and other jurists, have long relied on substantive canons to tip the scales in statutory cases; so what is truly stunning about Justice Gorsuch’s opinion is not its invocation of the major questions doctrine, but its complete lack of any accompanying textual analysis. Usually, when the Justices invoke a substantive canon, they also at least attempt to analyze the statute’s text—even if only to conclude that the text is ambiguous, thereby (conveniently) necessitating recourse to a substantive canon. But neither Justice Gorsuch’s opinion nor the per curiam opinion in NFIB v. OSHA attempts even the pretext of such textual analysis. There is no careful parsing or discussion of the ordinary meaning of the OSH Act provision that authorizes OSHA to issue “emergency” regulations upon determining “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” There are no dictionary definitions of the statutory terms “emergency,” “substances,” “agents,” “physically harmful,” or “new hazards.” One must look to the dissenting opinion authored by Justices Kagan, Breyer, and Sotomayor for such close textual analysis of the relevant OSH Act language and accompanying dictionary definitions. The closest either the per curiam or Justice Gorsuch’s concurring opinions comes to any textual analysis of the operative statutory terms is a handful of ipse-dixit sentences in the per curiam opinion that repeat (and italicize) the term “occupational”—the implication being, presumably, that that term so obviously does not apply to hazards from a highly transmissible infectious disease that spreads when individuals come into close contact with each other, as happens regularly at indoor workplaces, as to eliminate the need for any analysis.

Aside from its lack of close textual analysis, Justice Gorsuch’s concurring opinion also incongruently invokes a number of decidedly atextual interpretive tools and methods of argument that textualists (and originalists) usually denigrate. Most notably, Justice Gorsuch points to the inaction of the present-day Congress in the two years since the pandemic began as evidence of a lack of legislative intent to authorize OSHA (or any federal agency) to issue a vaccine mandate. Textualists usually deplore such uses of legislative inaction to infer statutory meaning and deny the relevance of legislative intent altogether—moreover, in keeping with their originalist focus on the ordinary meaning of statutory terms at the time the statute was enacted, they reject any references to what contemporary legislators might think a statute means. If this weren’t bad enough, Justice Gorsuch then cites a 2021 Senate resolution disapproving the regulation at issue, a form of subsequent legislative history, or “statutory history” as I and others have called it, that is in fundamental tension with textualism’s theoretical critique of legislative history. (Problems, from a textualist point of view, with reliance on the Senate resolution include that it was adopted by only one chamber of Congress and was not signed into law by the President—thereby failing to meet the bicameralism and presentment requirements articulated in Article I, Section 7 of the Constitution.) All of this is done, again, in lieu of closely parsing the text enacted by the Congress that drafted and passed the OSH Act in 1970.

Last, Justice Gorsuch’s opinion makes a distinctly functionalist argument against the validity of OSHA’s regulation, observing that since the emergency provision of the OSH Act at issue was enacted some 50 years ago, “OSHA has relied on it to issue only comparatively modest rules addressing dangers uniquely prevalent inside the workplace, like asbestos and rare chemicals.” This appeal to past practice again, is strikingly at odds with the formalist, text-based approach that textualist jurists usually take to such administrative law questions.

So what to make of the Court’s, and especially Justice Gorsuch’s, total abandonment of textual analysis in this case? I am not cynical by nature and typically resist partisan, cynical readings of the Court’s statutory cases, but it is hard to view this case as anything other than a sign that at least in high-stakes political cases, the conservative Justices on the modern Roberts Court no longer feel the need to follow a textualist or formalist approach to statutory interpretation even as a pretext to justify reaching their preferred interpretive outcomes.

Share this:

Statutory Interpretation Case Decided Today

Today the U.S. Supreme Court handed down a unanimous decision in Terry v. United States, interpreting the First Step Act.

Scotusblog commentary is here and begins as follows:

Justices reject sentencing reductions for some crack-cocaine offenders

The Supreme Court unanimously ruled on Monday that people convicted of certain low-level crack-cocaine offenses are not eligible for sentencing reductions under the First Step Act, a 2018 law that made some criminal-justice reforms retroactive. Justice Clarence Thomas wrote the opinion for the court in Terry v. United States.

In my view, the most interesting thing about the Court’s opinions is Justice Sotomayor’s lengthy footnote explaining that she refuses to join Part I (i.e., the facts and background section of the opinion!) because “it includes an unnecessary, incomplete, and sanitized history of the 100-to-1 ratio [for crack versus powder cocaine sentences].” The footnote is noteworthy both for its frank acknowledgment of the racial implications of the ratio and because of how rare it is for individual Justices to refuse to join Part I of a statutory interpretation opinion. Indeed, Justice Sotomayor’s refusal calls to mind another memorable Part I in a statutory interpretation case that two majority-opinion-joining Justices refused to sign onto: Justice Blackmun’s majority opinion in Flood v. Kuhn, the baseball case that famously began with a Part I that was essentially an Ode to Baseball. Thomas’s Part I in Terry v. United States is no Ode to the 100-to-1 ratio, but it joins Justice Blackmun’s Part I in Flood as a rare example of a background section that offended sufficiently to prompt judicial distancing.

Share this:

Legislation News

Court limits definition of “violent felony” in federal gun-possession penalty


A fractured Supreme Court on Thursday narrowed the scope of a key phrase in the Armed Career Criminal Act, ruling that crimes involving recklessness do not count as “violent felonies” for the purpose of triggering a key sentencing enhancement.

Justice Elena Kagan announced the judgment of the court and wrote an opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor and Neil Gorsuch. Justice Clarence Thomas did not join Kagan’s opinion but concurred in the result. That means that five justices rejected the federal government’s more expansive interpretation of the term “violent felony” and handed a victory to a criminal defendant who argued that the sentencing enhancement did not apply to his conduct.

The case, Borden v. United States, involved a provision of ACCA that imposes a 15-year minimum sentence on anyone convicted of being a felon in possession of a firearm if the person has three or more prior convictions for a “violent felony.” The term “violent felony” is defined, in relevant part, as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Nothing terribly noteworthy in the case. What I was most struck by is the snark level in Justice Kagan’s plurality and Justice Kavanaugh’s dissenting opinions. This is not polite disagreement; it’s vehement, in-your-face disagreement. Unfortunately, this seems to be increasingly par for the course for the Court (in its statutory cases at least). I’ll also just note the plurality’s emphasis on grammar rules — i.e., the fact that the “against another person” phrase modifies the “use of force” phrase. It feels, anecdotally, like the Court is placing more and more emphasis on grammar-based arguments lately.

Share this:

Two new statutory interpretation decisions issued today

The Supreme Court today issued two short opinions interpreting two very different statutes:

United States v. Palomar-Santiago (Immigration statutes)

and Territory of Guam v. United States (CERCLA)

Both opinions were unanimous and highly textual in their analysis. Palomar-Santiago, authored by Justice Sotomayor, relied heavily on the use of the word “and” while the Court’s opinion in Guam v. United States opinion, authored by Justice Thomas, relied heavily on the “interlocking language and structure of the relevant text” and other whole act rule type arguments. Justice Thomas’ opinion in Guam v. United States also, notably, invoked the belt-and-suspenders canon that James Brudney and Ethan Leib have written about to reject competing whole act rule (superfluity) arguments.

It’s early, but some analysis and coverage of the opinions can be found here:


Unanimous court revives Guam’s Superfund claim against U.S. Navy

The Supreme Court on Monday sided with Guam in its dispute with the federal government over the cleanup costs of toxic waste on the island. Justice Clarence Thomas wrote the opinion for a unanimous court just four weeks after oral argument in the case.

Court rejects non-citizen’s challenge to “unlawful re-entry” charge

The Supreme Court on Monday unanimously ruled against a non-U.S. citizen who was contesting his indictment for unlawful re-entry into the country. The case, United States v. Palomar-Santiago, involved Refugio Palomar-Santiago, a Mexican citizen who obtained lawful permanent residency in the United States in 1990. Eight years later, he was deported on the basis of a California conviction for driving under the influence. But after his deportation, the Supreme Court ruled in Leocal v. Ashcroft that, under the relevant federal statute, DUI convictions do not provide grounds for the removal of people like Palomar-Santiago.

The Washington Post:

Supreme Court: Guam can pursue $160M dump cleanup lawsuit

The Supreme Court says the U.S. territory of Guam can pursue a $160 million lawsuit against the federal government over the cost of cleaning up a landfill on the island. The justices on Monday unanimously overturned a lower court decision that had said Guam had waited too long to pursue the claim.

Bloomberg News:

Top Court Revives Guam’s Superfund Cost Claim Against U.S.

Guam may pursue a Superfund cost recovery claim against the federal government for a $160 million landfill cleanup as its action was timely, the U.S. Supreme Court said Monday in a significant victory for the territory. In a unanimous decision, the justices reversed a lower court and said Guam isn’t time-barred from pursuing the claim. “We are thrilled with the Court’s decision in favor of Guam today, which paves the way for the United States to pay its fair share for the cleanup of the Ordot Dump,” Latham & Watkins lawyer Greg Garre, representing Guam, said in an email.

Law & Crime:

Supreme Court Justices Again Unanimous Twice in the Same Day

The Supreme Court of the United States handed down two unanimous decisions Monday — making the total a whopping four 9-0 decisions in a week’s time.

Share this: