Textualism and Newspeak

A 5th Circuit Court of Appeals has a case that’s well summarized (for the sake of my thesis) by the Institute for Justice in this way:

What are judges to do when they wish to be faithful to text but two provisions of the same law irreconcilably conflict? The Fifth Circuit brings us the answer with an annual Medicare health care provider compensation formula that overlaps for one day each year.

The court’s answer is a blithe engagement in Newspeak, textualism, and a misunderstanding of the duties of judges. The details of the case itself needn’t concern us here; it’s sufficient that it centers on those two provisions of a statute that contradict each other:

Here’s the conflict:  Federal regulations establish a compensation formula for the payment of certain health care providers—a formula that changes once a year.  But there’s a glitch.  Each formula takes effect on January 1 and runs until January 1 of the following year. That means that, on 364 days of every year, there’s no conflict. But on January 1, two competing formulas purport to apply, making it unclear which one governs:  the new one, or the one from the preceding year.

Now it might seem that a conflict of a single day and a judge or panel of judges picking one of them to govern is a trivial matter. But there’s a principle involved centered on the judiciary’s duty vs that of the political branches that far outweighs the trivium of a single day’s conflict.


First, the court engaged in this bit of newspeak [cite omitted]:

respect for text requires that “judges must do the least damage they can.” And doing the “least damage” to the text means attempting to determine, if at all possible, which of the two conflicting provisions should govern in a particular case.

Then the court uttered this newspeak [cite omitted]:

“This is no departure from textualism,” but rather a “recognition” that the law “has produced a series of texts that cannot coexist.”

Of course it is a departure from textualism. The statute says what it says, neither more nor less.

It’s also the case that, under our Constitution, it is the Congress in concert with the Executive (occasionally overruling the Executive)—the political branches of our government—that write the statute; no one in the Judiciary branch has that authority.

Thus, when the plain, obvious, and rational meaning of one clause of a statute directly contradicts the plain, obvious, and rational meaning of another clause of the same statute in such a way that the statute cannot function until its internal contradiction is resolved, only the political branches that resolve the matter.

What, after all, is the court’s limiting principle here? When does a contradiction (for instance) exceed judges’ ability to do the least damage they can? How far can judges depart from the plain, obvious, and rational meaning of this or that clause without altering its plain, obvious, and rational meaning or disregarding it altogether?

How far can judges intrude into the role of the political branches of our government and remain true to their own duties as members of the Judiciary?

The questions answer themselves, and rather tautologically: judges cannot depart from the text without rewriting it. Not by a minim.

Nor can judges intrude into political matters farther than a minim. They can intrude to the limit of a minim, however, and the intrusion takes a much shorter path than trying to find one’s way through the Labyrinth of an Orwellian dictionary: they can rule that, taken as a whole, the statute is unconstitutionally vague from that internal contradiction rendering the statute inoperable, even if its separate clauses are crystalline; they can strike it.

The ruling can be read here.


H/t to Institute for Justice‘s Short Circuit newsletter [by free subscription; although IJ gratefully accepts donations at the link in this h/t.

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