Don’t forget the statutes

Opinion by Chelsea Priest
April 23, 2015, 8:01 p.m.

Although the public often pays the most attention to the constitutional issues that come before the Supreme Court, much of the Court’s docket each term is taken up interpreting the laws that Congress has passed–answering questions about what they mean, how they interact, and how to read them. This process, conducted in state and federal courts across the country, is called “statutory interpretation.” Occasionally, Congress manages to write a straightforward law. But far more frequently the statute will be full of ambiguous meanings, unexpected situations or structural uncertainties that require a court to determine the meaning of the law.

Statutory interpretation cases are often extremely interesting. Lawyers have a well-deserved reputation for loving words, and that is on full display when arguing questions of interpretation, whether it is interpretation of statutes or of private agreements.

A conventional toolbox of arguments–the so-called “canons of interpretation”–can be used to argue for one conclusion or another. In a seminal article from 1950, law professor Karl Llewellyn argued that every canon has a counter-canon, a “parry” to each “thrust.”  More recently, Justice Scalia co-authored a 600 page book on interpretive canons that explores techniques of interpretation, illustrated by some of the real-life examples that courts have faced: For example, if you trade a gun for drugs, are you “using a gun” in a drug transaction? Or, somewhat more absurdly, is a “burrito” a “sandwich”? The latter question arose in a Massachusetts case called White City Shopping Center, LP v. PR Restaurants, LLC, where a shopping mall made an agreement with Panera not to enter into a lease agreement “for a bakery or restaurant reasonably expected to have annual sales of sandwiches greater than ten percent (10%) of its total sales.” When the mall leased space to Qdoba, a Mexican restaurant, Panera sued.

Interpretation questions have all the appeal of word games, with the added joy of contemplating strange, metaphysical questions like “what is a sandwich,” or, taking some of the more famous contract law cases, “what is a chicken?” and “what is a cow?” But as amusing as some of the questions are, they can be highly contentious and have important results. This term, the Court has many statutory interpretation cases, but we’ll highlight two: one that was decided earlier this term, and one that was argued just this week.

In Yates v. United States, which was argued in November and decided in February, the Court was called upon to determine whether a red grouper is a “tangible object” within the meaning of the Sarbanes-Oxley Act. Sarbanes-Oxley, passed in the wake of the Enron, WorldCom and Tyco financial scandals of the early 2000s, imposes criminal liability on anyone who “knowingly” destroys “any record, document, or tangible object” with the intent to impede a government investigation. Mr. Yates, a commercial fisherman, was fishing off the coast of Florida when state fish and wildlife agents caught him red handed with red snapper that were below the legal size limit. Instructing him to keep the snapper onboard and turn them over when he reached port, the agents later discovered that Yates had ordered his crew to throw some of the fish overboard and replace them with larger specimens. The government prosecuted him under Sarbanes-Oxley for destroying evidence, and his case made it all the way up to the Supreme Court, where the Justices split 4-1-4 on whether the statute contemplated fish along with records, documents and tangible objects.

In opinions that were swimming in fish puns, the Justices disagreed on how to read the text of the statute. Four determined that the best reading of “tangible object” incorporated the context in which it is found, and thus that the term referred to objects  that were like “records” or “documents”–anything used to record or preserve information. Justice Alito joined in their reasoning, with a few caveats, in a separate concurring opinion. Four other Justices dissented and argued that the ordinary meaning of “tangible object” meant any object capable of being touched, and that the design of Sarbanes-Oxley suggested that Congress intended for the statute to have “a wide range.”

This past Tuesday, the Court heard argument in McFadden v. United States. The case deals with the requirements of a federal drug law called the Controlled Substance Analogue Enforcement Act, which, in combination with other drug laws, provides that a person may not “knowingly” distribute an “analogue” to a controlled substance–one whose chemical structure or effect on consumers is “substantially similar” to a prohibited drug.  McFadden, who was convicted for selling bath salts and telling customers they were “like” cocaine or methamphetamines, argues that the statute’s “knowing” requirement means that the government must prove defendant knew the chemical structure and effect of the drug analogue. The government advances what it calls the “knowledge-of-regulated-status approach,” arguing that the defendant need not know the chemical structure of the drug, only that the substance was regulated and would have a stimulant, depressant or hallucinogenic effect. Both parties disagree with the court below, which effectively read the “knowing” requirement in the statute out of existence.

It is remarkable how simple language can quickly become ambiguous, and it highlights the vital importance of well-reasoned court decisions interpreting statutes. In both Yates and McFadden, the linguistic questions the Court was called to interpret have very real effects on the lives of the defendants and many others to come. King v. Burwell, this year’s case on the Affordable Care Act, is a statutory interpretation question as well; the Court is being asked to consider how to read particular language about health insurance exchanges, which has big implications for whether federally established exchanges will remain effective. The Burwell decision is likely to be announced in June, and lawyers have been reading Yates, and will no doubt read McFadden, with an eye towards guessing how the Court plans to read one of the biggest statutory cases of the term.

Michael Mestitz is the president of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s managing editors. Contact them at mmestitz ‘at’ and cayres ‘at’

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