Friday, January 25, 2008

More Tiresome Textualism

Imagine that you're a judge deciding a case brought by a federal prisoner. The prisoner complains that, while he was being transferred from one prison to another, the prison system lost some of his property. He claims $177 as the value of the lost property.

Seems reasonable enough, and, fortunately, Congress, over 60 years ago, passed the Federal Tort Claims Act to make the United States as liable as any private party for torts such as losing someone's property.

But wait! The government (probably spending $50,000 to avoid paying this $177) points out that an exception to the FTCA provides that the United States is not liable for:

"Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer."

Here's the key question: does this statute have anything to do with the case?

If you said, "Gee, this exception seems to be all about customs and excise matters. It doesn't seem to have anything to do with property getting lost in the Bureau of Prisons. It's hard to imagine that Congress would write a statute covering the Bureau of Prisons in this roundabout way," give yourself four points out of a possible nine.

If you said, "The exception covers 'any claim arising in respect of . . . the detention of any . . . property by . . . any other law enforcement officer,' so the clear text of the statute covers the case and that's the end of the matter," you get five points and win.

That is, five out of nine Supreme Court Justices ruled against the prisoner on Tuesday.

Once again, our illustrious Supreme Court gets itself so caught up in parsing text finely that it loses sight of what interpretation is all about.

I don't want to be unfair to the Justices. If you look at the full opinion, you'll see that they gave this one a pretty good try -- recognizing that there were some arguments cutting in the prisoner's favor. And, again, to be fair, there is one more thing I haven't mentioned that makes this a tough case: the statute includes an exception to the exception (passed much more recently) that seems broader in scope.

But the critical point, best expressed in Justice Breyer's dissenting opinion, is that "Congress does not hide elephants in mouseholes." If Congress meant to cover all losses of property by any government law enforcement officer doing anything, that's a pretty big category -- probably bigger by far than the category of officers engaging in customs and excise tasks. It's just not plausible to think that Congress would express its desire in a way that's so focused on customs and excise. The tail would be wagging the dog.

This is not the easiest case. The language does permit the Court's broad interpretation. I'm not saying it's a slam dunk the other way. But the Court should give more consideration to which is the better interpretation, and which interpretation better comports with the evident function that the statute is supposed to play.

In the meantime, hang on to your property when the feds come around. Apparently, if some FBI officer takes a liking to your laptop, there's nothing you can do about it.

1 comment:

Anonymous said...

The Ali decision is not so much a textualism versus interpretation matter as it is a simple usurpation of power through the fallacy of ambiguity.

The FTCA exception appears to exempt customs- and tax-related confiscations and seizures by the respective officers. But the inclusion of the final phrase "or any other law enforcement officer" gives government the pretext to exempt any liability, and effectively nullify the exception.

Such ambiguous construction should be unacceptable in an enlightened, civilized society. When government enforces logical fallacy as truth, a dark age exists. Ali is an example that shows that we are indeed in a dark age.

Language, even at its best, is a poor way to express meaning. Poor language in official matters, such as the FTCA exemption, is of no value except to those who would use it to do what otherwise is forbidden.

An honest Court would throw the exemption, or any statute capable of multiple interpretation, out. Or, at least, allow only the interpretation that gives government the least power and authority.

Sadly, ambiguity is perhaps the very raison d'ĂȘtre of the legal profession and the courts. Without it, there would be little need for the expostulative erudition which seems to be the stock-in-trade of American jurisprudence. There seems to be a relentless search for the next Oliver Wendell Holmsian fallacy-laden "fire in a crowded theater" or "clear and present danger" distracting catch-phrase.

Until we decide as a society to have rational, intentionally fallacy-free text be the rule in legislation and regulation, we will remain n a dark age.

To limit the steady usurpation of power by government, we need a Constitutional Amendment something like, "All laws shall be clearly and simply written. The intent of the legislation shall be explicitly described, and the described intent shall be part of the law. No law shall apply outside its clearly described purpose. The plain language text of the law shall be supreme to any adjudication or regulation extending or giving other meaning to it. Any ambiguous law shall be interpreted to give the least power to government."