Legal Docket: Small words, big issues

NICK EICHER, HOST: It’s Monday morning, October 9th and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Nick Eicher.

MARY RECHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

And it is good to be back in the swing of things as the U.S. Supreme Court began its new term last week. The justices have accepted thirty-four cases so far for review. Ultimately I expect around twice that number yet to be accepted, give or take. And whatever the number turns out to be, we will cover them all here.

EICHER: So, two oral arguments today, and I love it that the first one turns on a question of grammar!

REICHARD: Yes, basically. Lawyers might say it’s about statutory construction and interpretation. Turns out, lawmakers who write laws don’t always write well or clearly.

EICHER: Maybe the Three Stooges can help illustrate grammar problems. Here’s a clip from an episode where they’re building an airplane, but it was too big.

They couldn’t get it out of the garage. So Moe hands Curly a saw, who goes to work on one of the wings.

MOE: Don’t saw the wings! You saw the garage!

CURLY: I see the garage. But I don’t saw the garage. You are speaking incorrectly. You are moidering (sic) the King’s English!

REICHARD: “Moidering” the King’s English! Supreme Court justices don’t want to do that! Now, they aren’t contending with “see”or “saw.” Rather, they contend with what Congress meant with the words “and” and “or.”

Too easy for the Supreme Court, you say? Well, the lower courts disagree on what it means. That’s why it’s at the high court now!

Of course this dispute is no laughing matter. The law in question is the First Step Act. President Donald Trump signed that one back in 2018. The aim was to reduce mass incarceration. In particular, those convicted of low-level, nonviolent drug crimes and those without a long rap sheet.

Specifically, the First Step Act gives judges the ability to be more lenient in sentencing—with conditions.

The defendant must not have a long criminal history, a previous serious offense, and a prior violent offense.

I see the problem: the word “and.” Condition A, condition B, and condition C.

REICHARD: Correct! (Nick, I’ve often said you have an honorary J.D.)

EICHER: Thank you, professor.

In this case, we have a convicted meth dealer named Mark Pulsifer. He received the statutory minimum penalty of 15 years for a subsequent drug offense.

But Pulsifer says the First Step Act qualifies him for a lesser sentence. He says he qualifies because he doesn’t meet all three of those requirements, all bundled together as you say, condition A, B, and C. His lawyer, Shay Dvoretzky:

DVORETZKY: The natural reading is that ‘and’ means ‘and.’ It joins together enumerated criteria. To be safety valve eligible, a defendant must not have (A), (B), and (C), all three. That's what ordinary grammar says and the surrounding text confirms.

The government needs ‘and’ to mean ‘or’ or it needs the court to insert the words ‘does not have’ into the statute three times. But asking for a rewrite isn't statutory interpretation.

REICHARD: The federal government disagrees that “and” means “and” in the statute. Assistant to the Solicitor General, Frederick Liu argues it actually means “or.”

In that way of reading the law, Pulsifer is not eligible for a reduced sentence. You’ll hear Liu mention “points.” That refers to a system that designates the seriousness of the crime.

LIU: What’s inexplicable about Petitioner’s reading is that it would disqualify only those defendants with a rare combination of characteristics, including a prior violent offense of exactly two points. So a defendant convicted of a violent offense would actually prefer to receive a longer sentence worth three points to avoid being disqualified. That makes no sense.

EICHER: To try to make it make sense, Justice Elena Kagan lobbed a hypothetical at Dvoretzky, the lawyer for the drug dealer.

KAGAN: So you’re going in for a medical test and you receive something from the hospital, and it says, to receive this test, the patient should not, and then, you know, it has a list of things that the patient shouldn’t do, and it says the patient shouldn’t eat any food, drink any liquids, and smoke. So I’m going to assume…that you’re not a smoker. Do you feel perfectly able to eat and drink as much as you want?

DVORETZKY: No. And that is a situation where I would hear that “and” to be an “or”...

More or less conceding the point on the hypothetical, but saying the statute is different.

KAGAN: Obviously, because the context tells you that it's an "or" rather than an "and," that -- and -- and -- and the reason that it's different from an example like "drink and drive," is there's something that connects those two things so that we know that the harm comes from the relationship between the two, whereas, in this case, we know that the harm follows from any one of the things. So either way you’re using context to establish meaning, aren’t you?

Questioning the government’s argument, Justice Ketanji Brown Jackson:

JACKSON: I appreciate that ‘and’ can sometimes mean ‘or’ but this is not a conversation. This is a statute. And it’s a criminal statute with huge implications for the lives and well-being of the people who come through the system. And so I guess what I’m trying to understand is why the imprecision in this statute, the fact that you say that there are two textually grammatically possible readings. Why doesn’t that count against the government?

REICHARD: She’s referring to the Rule of Lenity. That says if a criminal statute isn’t clear, then it must be read in favor of the defendant. And if the judges of multiple appellate courts can’t figure it out, how’s a defendant supposed to figure it out? Now it’s up to the justices to do that.

EICHER: And. we wish them well.

On to our second argument: this one involving the Consumer Financial Protection Bureau. You’ll hear it by the initialism: C-F-P-B, and you’ll hear it a lot.

REICHARD: Right, that agency was the brainchild of Senator Elizabeth Warren. Here she is last November at the Senate Committee on Banking, Housing, and Urban Affairs, throwing shade at her political opponents along the way:

WARREN: So since it was created by Congress just over 10 years ago, the Consumer Financial Protection Bureau, the CFPB, has forced financial institutions to return more than $13 billion directly to people they cheated. This is government that works for the people, literally. Now, the banks don't like losing $13 billion. They don't like being forced to shut down scams. So they and their Republican friends attack the CFPB. And the latest attack has come out of the Republicans “go-to” court, the Fifth Circuit Court of Appeals. This Court has ruled that the CFPB’s funding structure is unconstitutional, because it does not receive annual appropriations from Congress.

EICHER: Here’re the facts of the case now before the Supreme Court.

A group of lenders was unhappy about a rule CFPB made in 2017. The rule had to do with payday lenders trying to withdraw money from borrowers’ bank accounts. Specifically, what happens after they make two attempts and fail, because there’s not enough money in the borrower’s account.

So the lenders sued the CFPB, arguing the rule is void because they say the agency is unconstitutional.

REICHARD: Right, they say the CFPB’s funding is all wrong, saying it should get money allocated by Congress, not straight from the Federal Reserve as it does now.

Lawyer for the lenders Noel Francisco argued that Article I of the Constitution means annual appropriations, not a perpetual funding source:

FRANCISCO: Look, everybody knew what was going on in 2010. The 2010 Congress knew that there would come a time when future Congresses didn't look so favorably upon the CFPB, and they wanted to insulate a future CFPB from political pressure from a future Congress, and that's precisely why they adopted the funding regime that they adopted. But future Congresses are supposed to have the ability to check the President through a continuing power of the purse. It's meant to be a continuing check on executive power.

EICHER: But US Solicitor General Elizabeth Prelogar argued that history is on the side of the CFPB:

PRELOGAR: The first Congress did exactly this with the very first agency it created, the Customs Service, and the same is true for other founding-era agencies, including the Post Office, the National Mint, the Patent Office, revenue officers, and the National Bank. The CFPB's appropriation fits squarely within this unbroken line of historical practice.

A strong argument that seemed to convince most of the justices. But like any good lawyer, Francisco didn’t give up:

FRANCISCO: One of Congress's most important checks on executive power is its power of the purse. That's why Alexander Hamilton said that the unification of sword and purse was the very definition of tyranny. This case reflects precisely that feared unification. The government agrees that Congress couldn't just authorize the executive branch to spend whatever it wants. But that's effectively what Congress did here. If it can do that, then it can authorize the President to spend whatever he deems reasonably necessary as long as he doesn't exceed $10 trillion, and that would work a sea change in the separation of powers.

He fielded a lot more questions than did the government lawyer defending CFPB. And not exactly the helpful sort of questions to give him hope for a win.

For example, this from Justice Clarence Thomas on the funding method:

THOMAS: I get your point that this is different, that it’s unique, that it’s odd, that they’ve never gone this far. But not having gone this far is not a constitutional problem.

And Justice Kagan, comparing this agency’s funding method with that of the Federal Reserve:

KAGAN: Sure seems that on your view, the federal reserve would be unconstitutional.

REICHARD: Still, Justice Samuel Alito asked Prelogar for the government that perennial question in the law:

ALITO: I just want to understand what you think the limiting principle is. Let's take the FTC, which I think had a budget of $430 million. So let's say there's a law that allocates forever -- up to $1 billion adjusted for inflation to the FTC to use as the FTC sees fit. Would that be consistent with the Appropriations Clause?

As the FTC “sees fit.” That’s a bit too much authority, and Prelogar had to answer. not likely.

Francisco for the lenders said this funding is perpetual, not subject to yearly appropriations process as required by the Constitution.

I think Justice Brett Kavanaugh pointed to the eventual ruling here, in favor of the funding structure of the agency.

KAVANAUGH: The word “perpetual.” I'm having trouble with because it implies that it's entrenched and that a future Congress couldn't change it. But Congress could change it tomorrow and there's nothing perpetual or permanent about this.

That’ll probably carry the day, and the CFPB will live on, at least on the funding aspect. Until Congress changes it, or someone else brings a successful challenge. And that’s this week’s Legal Docket!

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