Statutory Structure.

AuthorBogue, Russell C.

NOTE CONTENTS INTRODUCTION 1530 I. STRUCTURE AND INTERPRETATION 1538 II. USES OF STATUTORY STRUCTURE 1544 A. Compositional Structuralism 1544 1. Location 1546 2. Geometry 1554 3. Aperture 1560 B. Operational Structuralism 1563 1. Operational Compatibility 1564 2. Operational Coherence 1566 C. Purposive Structuralism 1571 III. ASSESSING STRUCTURAL ARGUMENT 1577 A. The Value of Structural Argument 1578 B. Textualism and Structural Argument 1582 1. "Inside-View" Textualism 1583 2. "Outside-View" Textualism 1589 C. Legal-Process Rationalism and Structural Argument 1592 1. Unorthodox Lawmaking and the Reasonable Reader 1592 2. Courts as Cooperative Partners 1595 CONCLUSION 1598 INTRODUCTION

It is now uncontroversial to start, and often end, statutory interpretation with the text of the statute to be interpreted. (1) The ascendancy of the "new textualism" (2) has transformed statutory interpretation at the Supreme Court, prompting extensive commentary on the methods and merits of textualist analysis. (3) The recent fissures within the textualist camp, exposed in Bostock v. Clayton County, (4) have only added grist to the mill. (5) As the Court's interpretive practices have moved closer and closer to the statutory text, the academy's attention has followed.

But another interpretive practice with nearly equal dominance has received scant scholarly attention: namely, argument from statutory structure. Every Justice on the Supreme Court in the October 2021 Term had previously authored or joined an opinion that employed arguments from statutory structure. (6) Numerous casebooks and treatises describe and approve of the use of structural argumentation. (7) But despite this apparently widespread acceptance, little has been written to explain what, precisely, argument from statutory structure is. When the Court intones--as it often does--that its interpretation of a provision accords with a statute's "design and structure," (8) with "the structure of the statutory scheme," (9) or with the broader "context and structure" (10) of an act of Congress, what does it mean to say? And what does it hope to accomplish? This Note offers some answers.

Of course, structural argument in constitutional law is nearly as old as the text of the Constitution itself. Chief Justice Marshall was an early and aggressive employer of structural argument in seminal cases such as Marbury v. Madison (11) and McCulloch v. Maryland. (12) The use of structural argument in constitutional interpretation has accordingly received much more scholarly attention. (13) However, despite some similarities to structural argument in statutory interpretation, argument from constitutional structure is also meaningfully different. (14) Ordinary statutes are not governing charters. In general, they are not meant to create a governing architecture from which foundational principles can be inferred. More often, they are precise, complex, and limited documents addressing a particular problem. The structural arguments made to interpret statutes thus deserve to be examined on their own terms.

Though the Roberts Court has made particularly fruitful use of structural argument, for at least seventy years the Supreme Court has recognized that its job is to give "all of [a statute]... the most harmonious, comprehensive meaning possible." (15) Structural argument is thus a species of what some have called the "[w]hole act rule," or the injunction that "[e]ach statutory provision should be read by reference to the whole act and the statutory scheme." (16) Canons of construction that fall under this rule include familiar ones like the rule against surplusage (avoid construing a provision such that it would make another provision in the statute redundant) and the rule of meaningful variation (presume that differences in language between provisions in the same statute indicate differences in meaning). (17) Given its family resemblance to these well-known canons of construction--which have not themselves escaped scholarly attention (18)--it is all the more surprising that structural argument has so far received little critical analysis. (19)

It is also curious that a Supreme Court increasingly dominated by textualists has deployed structural arguments so widely and transsubstantively. (20) Structuralism pairs naturally with programmatic statutory schemes--like the Affordable Care Act (ACA) (21) or the Clean Air Act (CAA) (22)--for which questions about harmonious operation or implementation make the most sense. But the Justices have used the tools of structural analysis to interpret statutes without such ambitions, like civil-rights legislation (23) and federal criminal law, (24) which are mostly concerned with setting standards of liability. A central query of this Note is why the Court turns so frequently to structural argument, even outside the confines of Congress's programmatic enactments.

By way of preview, one way to answer that question is: "purposivism." The turn to structure could be considered a turn to purposivism. Now, this answer is admittedly incomplete. As I will show, some types of structural argument the Court uses are not explicitly premised on any articulable statutory purpose, but rather on appeals to coherence, symmetry, and context. And structural argument is explicitly tied to statutory text in a way that makes it highly attractive for textualist interpreters who are wary of purposivism's traditional embrace of extrinsic sources of statutory meaning. Often, however, structural argument is plainly an attempt to understand what the statute is meant to accomplish--and thus to discern its purpose. Indeed, the reference to a statute's "design" or "structure" presupposes coherence, implying a rational drafter with identifiable aims. (25) The wide appeal of structural argument, especially for textualist interpreters, suggests that it is where purposivism now lives on, clothed in new (textualist) garb. To adapt Justice Kagan's quip, (26) if we are all textualists now, we might also all be purposivists. (27)

The goals of this Note are both descriptive and normative. Descriptively, it aims to document a widely used tool of statutory interpretation that has not yet received any sustained treatment. The type of argument that the Court is making when it argues from structure varies considerably, even when the terminology the Court uses does not. Thirty years after scholars first began to notice that a textualist Supreme Court was increasingly turning to structural argument to replace extratextual sources of statutory meaning, (28) a typology of structural argument will enable readers of the Court's opinions and regulated parties better to understand the reasoning upon which the Court's judgments rest.

To guide this inquiry, I map below three broad categories of structural argument that the Court has employed in statutory cases. All of these categories take root from a background assumption of coherence. That is, structural argument in all its forms presumes that statutes are, to some degree, "logically or aesthetically ordered or integrated," "having clarity or intelligibility." (29) But the categories I map below emphasize different dimensions of coherence, roughly in increasing levels of abstraction: starting with the coherence of how the words, paragraphs, and written provisions of the statute interrelate and ending with the coherence of a given interpretation with the normative policy or purpose of the statute. (30)

The first category of structural argument is what I call compositional structuralism. This type of structural argument draws inferences about meaning from the way a statute is composed in its constituent parts. The Court has used at least three subcategories of compositional-structural argument. One resolves ambiguity by paying attention to the "location" of a provision in either the original statute or the U.S. Code. (31) Another draws on what might be called the "geometry" of the statute, evidenced by recognizable physical patterns formed by the presentation of the provisions themselves, such as their sequencing or symmetry. (32) And a final one--"aperture"--calibrates the substantive specificity of a provision to the specificity of surrounding provisions, thus cabining the interpretive space. (33) These various forms of structural argument derive from the structure of a statute as a written text. They trade on the assumption that text drafters, whatever their substantive ends, compose documents in a coherent fashion for their readers.

A second category is operational structuralism. Rather than assuming only that Congress drafts coherent texts, this type of argument assumes that Congress designs coherent statutory schemes, understood as legislative programs that provide direction to actors. Operational-structural arguments are primarily available for the interpretation of programmatic statutes. This type of structuralism resolves ambiguity by interpreting the statute in the most harmonious way possible and by declining to adopt interpretations of a provision that would undermine, contradict, or defeat the point of other provisions. It is both the most familiar (34) and the most easily manipulated form of structural argument. One casebook describes it as a way of showing how "each provision play[s] a role in constructing a coherent policy," thus allowing interpreters to see "what role to assign the ambiguous provision." (35) At its strongest, a structural argument of this type points out an incompatibility between the interpretations of two provisions: both cannot be true at the same time, either as a matter of practical operation or as a matter of logic. (36) Less demandingly, operational-structural arguments attempt to show that one interpretation is "incoherent" with other parts of the statute, either because it would embody a contradictory premise or because it would "impute to Congress a purpose to paralyze with one hand what it sought...

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