Three times this month, the Supreme Court has released opinions
in which it was called upon to determine whether a federal
agency's construction of its own bailiwick was reasonable.
Twice it was, once it was not.
Although they were written by justices with very different bents
or reputations, all three opinions were unanimous.
Given their proximity, their similarity, and their unanimity,
the opinions might reveal something about this court's approach
to the regulatory state.
After the jump a few words about:
Words mean things.
Especially Congress' words.
In these three recent cases, two of the Court's so-called
"liberal" judges along with its senior
"conservative" justice all garnered nine votes to
delineate an agency's power or discretion, and all three began
(and practically speaking ended) with the words Congress used. None
of the opinions prompted any other justice to write separately.
Gutierrez, Justice Kagan wrote that the Bureau of Immigration
appeals need not "tack on" or consider a parent's
time in the country when considering whether a child has remained
here long enough to have a removal order canceled. Why? Because
Congress did not require it:
The Board's approach is
consistent with the statute's text, as even respondents tacitly
concede. Section 1229b(a) does not mention imputation, much less
require it. The provision calls for "the
alien"—not, say, "the alien or one of his
parents"—to meet the three prerequisites for
cancellation of removal. Similarly, several of §1229b(a)'s
other terms have statutory definitions referring to only a single
individual. . . . Respondents contend that none of this language
"forecloses" imputation: They argue that if the Board
allowed imputation, "[t]he alien" seeking cancellation
would "still have to satisfy the provision's durational
requirements"— just pursuant to a different
computational rule. . . . . But even if so—even if the
Board could adopt an imputation rule consistent with the
statute's text—that would not avail respondents.
Taken alone, the language of§1229b(a) at least permits the
Board to go the other way—to say that "the
alien" must meet the statutory conditions independently,
without relying on a parent's history.
Singular grammar permitted singular construction. In the face of
the text, all resort to history or statutory purpose paled. Agency
uses good grammar, so agency wins.
Although slightly less textual,
Capato revolves on the manner in which Congress used
other provisions to narrow a definition that was completely
circular an unhelpful . . . "'child' means . . . the
child of an individual." Gee,
Justice Ginsberg wrote that the Social Security
Administration was within its rights to deny benefits to a child
who was conceived and born after her biological father had died.
because Congress had completed its definition by reference to state
intestacy law, which this child could not meet.
As we have explained,
§416(e)(1)'s statement, "[t]he term 'child'
means . . . the child . . . of an individual," is a definition
of scant utility without aid from neighboring provisions. . . .
That aid is supplied by §416(h)(2)(A), which completes the
definition of "child" "for purposes of th[e]
subchapter" that includes§416(e)(1). Under the completed
definition, which the SSA employs, §416(h)(2)(A) refers to
state law to determine the status of a posthumously conceived
child. The SSA's interpretation of the relevant provisions,
adhered to without deviation for many decades, is at least
reasonable; the agency's reading is therefore entitled to this
* * *
Capato's death before he and his wife could raise a
family—gave rise to this case.But the law Congress
enacted calls for resolution of Karen Capato's application for
child's insurance benefits by reference to state intestacy law.
We cannot replace that reference by creating a uniform federal rule
the statute's text scarcely
Agency has textual foundation, Agency wins again.
Freeman, Justice Scalia found that the plaintiffs were relying
upon an agency interpretation that was characterized as policy
"overreach" because it had no grounding in the
Congress' text and grammar. They had sued under a statute that
prohibited fee splitting and kickbacks in mortgage settlement
services, but their complaint was that they had just been charged
fees in exchange for work that had not been done.
No go. Congress' grammar would not support the Agency's
The dispute between the parties boils
down to whether this provision prohibits the collection of an
unearned charge by a single settlement service
provider—what we might call an undivided unearned
fee—or whether it covers only transactions in which a
provider shares a part of a settlement-service charge with one or
more other persons who did nothing to earn that part.
* * *
By providing that no person
"shall give" or "shall accept"a "portion,
split, or percentage" of a "charge" that has
been"made or received," "other than for services
actually performed," §2607(b) clearly describes two
distinct exchanges. First, a "charge" is "made"
to or "received" from a consumer by a settlement-service
provider. That provider then"give[s]," and another person
"accept[s]," a "portion, split,or percentage"
of the charge. Congress's use of different sets of verbs, with
distinct tenses, to distinguish between the consumer-provider
transaction (the "charge" that is "made or
received") and the fee-sharing transaction (the "portion,
split, or percentage" that is "give[n]" or
"accept[ed]") would be pointless if, as petitioners
contend, the two transactions could be collapsed into one.
And that's more than just a nerdy thing.
As long as the court is focused on Congress' words and
Congress' grammar, the court is keeping the legislative power
in the legislative branch with elected representatives where it
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