Making Our Democracy Work (17 page)

T
O BE SURE
, the dichotomy drawn between text-oriented and purpose-oriented approaches is oversimplified here. Many good judges might consider themselves text oriented even though they sometimes take account of statutory purposes and consequences. Furthermore, purposes and consequences do not unlock the meaning of every ambiguous statutory phrase. Purposes are sometimes hard to determine. And, regardless, purpose cannot produce an interpretation that the statute’s language rules out of bounds. A statute that forbids importing “rocks” does not forbid importing trees irrespective of whether including trees would further the statute’s purposes. Still, the dichotomy exists. Text-oriented judges emphasize the use of language, history, tradition, and precedent while minimizing their use of purpose and consequence as statutory tools. By contrast, purpose-oriented judges view purpose and consequence as particularly useful tools.

W
HAT CAN BE
said against a purpose-oriented approach? Some argue that it is linguistically inappropriate to attribute a purpose to an institution such as Congress, rather than to the individuals who make up that institution. In any event, individual legislators have purposes that can differ wildly from the purpose that a judge would attribute to a statute. Suppose a legislator’s purpose in voting for a bill was to help a party leader. Suppose a legislator voted for an amendment in order to defeat the bill by attaching a “poison pill” that he hoped would sabotage
the bill. Suppose he did not read the bill. Suppose no member of Congress read the bill, or even thought about the particular matter before the Court.
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It is not conceptually difficult, however, to attribute a purpose to a corporate body such as Congress. Corporations, companies, partnerships, municipalities, states, nations, armies, bar associations, and legislatures engage in intentional activities, such as buying, selling, promising, endorsing, questioning, undertaking, repudiating, and legislating. These corporate bodies may have purposes different and separate from those of the individuals who comprise them. A basketball team’s movements can reveal the
team’s
defensive purpose even if each individual player’s thoughts are a mile away. A municipality can promise to build a new baseball stadium with the purpose of attracting a major-league team even if no elected official really wants the team but rather hopes the stadium will never be built and privately intends never to provide the necessary funding. Linguistic and social conventions (complicated but well understood) tell us when and how to attribute purposes to these bodies. Lawyers learn how to ascribe purposes and intentions to Congress. There is no rule of language that forbids our doing so.

Moreover, even if Congress did not consider a matter at all, judges can still ascertain a purpose. Here judges can use an artificial construct that disregards the unhelpful silence of congressional reality in order to produce an interpretation that will help the statute work well (in light of the more general purposes that the judge can find). They can ask what a
reasonable member of Congress would have intended
. This hypothetical question helps judges see the statute as a coherent whole and avoid interpretations that are inconsistent with that more general view. For instance, in the previous example, if the conference report had not confirmed that “costs” meant to include expert fees, the Court could still have looked to the overarching purpose of the statute (to provide a free, appropriate education to disabled children), and the absence of any money-saving purpose, to answer the question.

What if Congress deliberately chooses a vague or ambiguous word to avoid deciding an issue? Members of Congress sometimes disagree on specific terminology, even if they agree on the general need for a
statute. If the disagreement is strong, they may deliberately write vague or ambiguous language to secure the necessary votes to enact the legislation. When a court later interprets the language, it can examine the general need for, and purpose of, the statute. Under these circumstances, is the court not open to the criticism that it is just “taking sides” on the open or contested issue? The answer is no. The court is doing its best to make the statute work in the best way possible, by interpreting the provision in light of the statute’s purposes.

A further criticism is that purposes are sometimes difficult to ascertain. Moreover, purposes can be described at different levels of generality. How should a judge describe the purpose of the education act’s cost reimbursement provision? Is it to help disabled children at any cost? Is it to try to help children while keeping costs within certain bounds? Is it just generally to do a good thing for children?

But what is the special problem about finding the “right” level of generality? Normally, we look to context to decide what purposes the speaker has in mind and which of those purposes is relevant. We do the same with statutes. Three men sailing in a balloon over a Maine potato field are lost. One shouts to a farmer down below, “Where are we?” The farmer replies, “In a balloon.” The joke lies in the farmer’s failure to take account of the balloonist’s purpose as made clear by context. When my wife says, “There isn’t any butter,” I have no problem understanding that she is referring to the refrigerator, not to the corner store.

Why is it
especially
difficult to determine a statute’s purpose? Every time we hear another speak, every time we read a book, we could and often do look for the speaker’s or writer’s purpose. We normally and automatically derive the purposes from the context in which the relevant statement appears. Normally, it is easy to find purpose; sometimes it is not. How does a statute, in this respect, differ from any other writing? The fact that it is
sometimes
difficult to determine a relevant purpose should not lead courts to abandon that effort across the board. Like Pascal’s wager, the effort, where successful, will end up helping the judge. At worst little is lost.

Moreover, we can look at congressional reports, floor statements, and related legislative material, all part of the relevant context, to help determine the relevant purposes. The conference report on the disabilities
education bill and the accompanying votes help make clear that the cost recovery provision was not intended to save money.

The use of legislative history is also criticized. If courts examine congressional documents, reports, floor statements, and the like, in an effort to ascertain purpose, will they give too much power not to the elected legislators but rather to the unelected congressional staffs who write such history? Will those staffs write their own views into law?

If the staff system is working properly, this material will not substitute the views of unelected staff for those of elected representatives. A legislative committee staff circulates drafts of reports to all members of the committee. Elected senators and representatives (directly or through staff) can, and do, object to particular statements in the reports. If a committee member disagrees strongly, he or she can write a different view. Like heads of corporations, trade unions, and the president of the United States, members of Congress must rely on staffs and take responsibility for the staff’s work. In a word, when the staff system works properly, the courts need not fear paying attention to staff work. When the system does not work properly, the cure must lie with Congress, not the courts.

Finally, the most strongly held criticism of purpose-oriented interpretation is that this method allows judges to interpret statutes subjectively. Will the purpose-oriented judge resolve linguistic uncertainty by substituting his or her own subjective policy views—that is, the judge’s own purposes—for those of Congress? This criticism, however, applies to the
mis
use of a purpose-oriented method, not to its proper use. All methods of statutory interpretation are open to misuse. A judge who relies on text alone could misinterpret an ambiguity in order to substitute his own subjective policy views for those of Congress. A judge, when examining precedent, might misread precedent to do the same. The judge’s need to write an opinion explaining his or her reasons for reaching a conclusion helps guard against misinterpretation. And that safeguard works particularly well when the judge uses a purpose-oriented method. In this instance, the judge cannot simply state how he interprets an ambiguity. Rather, he must spell out in detail how he derives relevant purposes, what those purposes are, and how and why he finds that they illuminate the statute’s text.

Why, then, should judges look to purposes and consequences when they interpret statutes? Because they will help ensure democratic accountability. They will tie statutes more closely to the human needs that called them into being. And they will help Congress carry out its own constitutional responsibilities. A court that looks to purposes is a court that works as a partner with Congress. It is a court that helps make the Constitution work better in practice. And it is a court that achieves results that the general public should find easier to accept—even if the court’s conclusions are, as is inevitable, sometimes wrong.

S
OMETIMES THE PURPOSE
-based approach must yield to another principle—the need to interpret statutes in a way that will save them from potential invalidation as unconstitutional. This interpretive principle is an established part of the Court’s practice. The case of
Zadvydas v. Davis
, in 2001, illustrates how this interpretive principle works.
¹⁷

The case involved two aliens. The first, Kestutis Zadvydas, was born of Lithuanian parents in 1948, lived in a German displaced-persons camp, came to the United States at the age of eight, and unfortunately entered into a long career of criminal activity. After he served his prison sentences, the government sought to deport him. But no country would take him, not Germany, which said he was not its citizen, not Lithuania, which had denied him citizenship, and not the Dominican Republic, his wife’s country, which denied that he had any relevant tie. So the government simply kept Zadvydas in custody under the authority of a statute that permits it to keep deportable aliens in custody for ninety days plus some unspecified additional time.
¹⁸

The case also involved Kim Ho Ma, a native of Cambodia who came to the United States in the early 1980s at age seven. He too was convicted of a serious crime, participation in a gang-related shooting. He served his sentence, after which the government sought to deport him. But the United States has no repatriation treaty with Cambodia, so it seemed unlikely that Cambodia would take him. While searching for a country that might take Kim Ho Ma, the government kept him in custody—well beyond the ninety-day removal period.
¹⁹

Both Zadvydas and Kim Ho Ma filed petitions in federal court attacking the constitutionality of the statute that, in the government’s view, authorized their continuing custody. That statute makes clear that the government can hold in custody an “alien ordered removed” for certain reasons (for example, violation of entry conditions, the commission of crimes, and reasons related to foreign policy and security) at least for ninety days while it looks for a country that will take the alien. The statute adds that the alien
“may be detained beyond
the [ninety-day] removal period”
if
the attorney general determines that the alien
is a “risk to the community
or unlikely to comply with the order of removal.” Both detainees argued that the statute, if read literally, would permit the attorney general to hold them in custody forever. The government did not deny that the statute could be read that way. But it said that Congress intended to give the government the authority to hold aliens in custody for as long as the attorney general thought necessary.
²⁰

As interpreted by the government, the statute raises a serious constitutional question. The Constitution forbids the government to “deprive[]” any “person … of … liberty … without due process of law.” Freedom from imprisonment lies at the heart of the “liberty” that the Constitution protects. Imprisonment here is not for a crime (the aliens had served their sentences) but for other reasons, namely, to avoid the risk that the alien will run away or commit more crimes in the future. Reasons of this sort may sometimes justify imprisonment, say, temporarily before a criminal trial or longer if the detained person is mentally ill and a danger to others. But the imprisonment was not necessarily temporary. Furthermore, it involved administrative proceedings that lacked the strong judicial protections that accompany a criminal trial, and the individuals were not unusually dangerous or mentally ill. The Court divided 5 to 4. The majority wrote (in a decision that I authored) that the “serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any [ordinary judicial] protection is obvious.”
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Rather than subject the statute to even a risk of invalidation, the Court interpreted it as authorizing detention only for “a period
reasonably necessary
to secure the alien’s removal.” It said that the statute
(which was silent on the matter) did
not
authorize permanent detention. The Court added that a federal court, reviewing an administrative decision to detain an alien beyond ninety days, should look with suspicion at a period of detention greater than six months. If there is no significant likelihood that a country will take the alien in the reasonably foreseeable future, the judge should order the alien released from detention. The judge could impose other conditions that would help the government keep track of his whereabouts. It might, for example, require the alien to report regularly to immigration officials.
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