Textualism vs. more contextual arguments — but not in Halbig

July 23

Obviously the statutory interpretation case everybody wants to talk about is Halbig, but I was struck meanwhile by this short opinion from the Seventh Circuit yesterday by Judge Easterbrook. The question is whether the Fair Credit Reporting Act waives the United States’s sovereign immunity. The Court said yes:

Any “person” who willfully or negligently fails to comply with the Fair Credit Reporting Act is liable for damages. 15 U.S.C. §§ 1681n(a), 1681 o (a). “Person” is a defined term: “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity.” 15 U.S.C. § 1681a(b) (emphasis added). The United States is a government. One would suppose that the end of the inquiry. By authorizing monetary relief against every kind of government, the United States has waived its sovereign immunity. And so we conclude.

What about the purpose and legislative history of the statute?

According to the United States, none of the legislative history analyzing or explaining this amendment discusses the fact that this change, applied according to the terms of § 1681a(b), exposes the Treasury to monetary awards. Because Congress in 1996 did not evince knowledge of how the revised version of § 1681n interacts with § 1681a(b), the argument concludes, the FCRA does not waive sovereign immunity for damages even though the definition of “person” includes the United States. …

The argument that a silent legislative history prevents giving the enacted text its natural meaning has been made before — and it has not fared well. … Congress need not add “we really mean it!” to make statutes effectual. See, e.g., Swain v. Pressley, 430 U.S. 372, 378 & n. 11 (1977); Harrison v. PPG Industries, Inc., 446 U.S. 578, 592 (1980) (“it would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute”).

And as for the argument that ambiguities should be construed in favor of the government:

It takes unequivocal language to waive the national government’s sovereign immunity, Department of Energy v. Ohio, 503 U.S. 607, 615 (1992), but this means unequivocal language in a statute, not in a committee report.

The court goes on to conclude that the government did not violate the FCRA in this case, however, employing some of the same textualist reasoning that went against the government on the jurisdictional issue:

Having persuaded us to stick with the text of § 1681a(b) and reject the United States’ arguments about good public policy, Bormes can hardly expect us to do an about face and modify the text of § 1681c(g)(1) in favor of his own arguments about good public policy. The text is what it is, no matter which side benefits.

My friend and former boss Roy Englert wrote to me that “one could almost teach a whole course about statutory interpretation from this one short opinion,” yet in a week when virtually all discussion of textualism on the internet is about some other case, Bormes may not get much attention. (Rick Hasen does mention it briefly in his Slate column on the Halbig decision, and the opinion has some striking parallels to the now-controversial statutory interpretation in Halbig.) Yet I find it illuminating to think about some of the legal principles in a context that does not have the same political stakes.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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