Bench Memos

Surplusage and Style in King v. Burwell

Sometimes you come across a legal argument in a brief and ask, “What were they thinking?” (The government’s argument in Hosanna-Tabor Lutheran Church and School v. EEOC that churches have no particular constitutional right to choose their own ministers comes to mind.)

Anyway, here’s one from the Solicitor General’s brief in King v. Burwell (emphasis added):

As the use of that phrase [“established by the State”] in Section 36B and throughout the Act demonstrates, it serves to identify the Exchange in a particular State. Its presence or absence in the Act’s provisions reflects style and grammar—not a substantive limitation on the type of Exchange at issue.

That little gem of statutory interpretation is buried on page 33 of the SG’s brief, under heading I.A.5, at the point in the first section where the reader is just starting to yawn. 

It’s clear why the SG buried it. The argument tries to claim that “established by the State” has no particular meaning, such that the verbiage can be ignored whenever convenient. This contention flies in the face of common sense, not to mention the longstanding interpretive canon requiring courts to construe statutes to avoid surplusage.

“Style and grammar” is the difference between, say, Ernest Hemingway and Charles Dickens, or the difference between the Gettysburg Address as actually delivered by Abraham Lincoln and how Dwight Eisenhower might have delivered it. Under standard principles of statutory interpretation, however, courts take Congress’s actual words quite seriously. As Justice Sotomayor has articulated the rule, courts interpret each statute “so that effect is given to all its provisions, so that no part will be inoperative or superfluous.”

The existence and continued importance of the canon against surplusage is not open to serious question. Back in 2009, then-Justice Souter (himself no textualist) called it “one of the most basic interpretive canons.” Two of the court’s liberals, Justice Breyer and Justice Sotomayor, both relied on it just last term in two 9-0 opinions construing complex statutes. Yet the government still waves it away by arguing, well, the phrase “established by the state” appears some places and not others, so Congress must not have meant anything in particular where it does appear.

What’s more, the SG’s argument turns the canon on its head. The existence of differing wording in various places suggests that the particular word choice in section 36B is not an accident. If Congress says something very specific that it doesn’t say elsewhere, the Court should give careful attention to the wording of the specific instance, not dismiss it as “style and grammar.”

Based on its location in the deepest recesses of the brief, we can surmise that the SG’s office knew how ridiculous the argument was. Maybe one of the other agencies insisted on including it and the SG’s office was trying to minimize the damage to its own credibility. Whatever the reason, it’s a ridiculous argument and the petitioners should call them on it.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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