Deference must be near the top of the list of ideas that are out of favor, so out of favor in fact that it might need defining: “humble submission and respect,” according to Mr. Google. Synonyms include dutifulness, obedience, surrender, accession, capitulation and acquiescence. We certainly don’t see much of any of these former qualities anymore.
Unsurprisingly, lawyers can’t do with simple meanings so they create special rules for use in bamboozling clients when college tuition payments are due. Pesky book charges, activity fees, purchases of laptops and gap years can be covered if these rules are referred to as “canons.” A hushed tone and a drawn out pronunciation are de rigueur when saying the word “canon.”
By now you are probably wondering how I will ever get around to Obamacare let alone the enabling doctrine.
There are five canons of deference, at least according to Wikipedia. (Citing Wikipedia is definitely not de rigueur for lawyers and my doing so provides much insight into my dismal record as a law student.) Nonetheless, here they are:
- If a statute administered by an agency is ambiguous with respect to the specific issue, the courts will defer to the agency’s reasonable interpretation of the statute.
- If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems.
- The legislature did not intend an absurd or manifestly unjust result.
- When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it.
- When two statutes conflict, the one enacted last prevails.
Critics of the use of canons argue that canons impute some sort of “omniscience” to the legislature, suggesting that it is aware of the canons when constructing the laws.
Everyone is awaiting the Supreme Court’s upcoming decision in the case of King v. Burwell, which will or won’t decide whether the word state means state or whether the word state means federal government. If the former, a whole lot of people will no longer get subsidized health insurance; if the latter, the President gets a big part of his legacy.
There is much subtle (well, not very) lobbying going on: the President refers to the controversy as a contorted reading of the law and suggests that the court should not have taken it up in the first place; there is no plan B so chaos will ensue; and blah, blah, blah. The Center for American Progress, a liberal think tank, weighs in with “it would be a terrible thing, but from the perspective of the parties, it would completely galvanize Democrats to make the Supreme Court a massive issue election.”
Note to politerati: many of the Supreme Court Justices have mastered the whole reading thing and some of them are known to have radios, TVs and even internet access.
If “deference” has fallen out of favor, “enabling” certainly has not and the newly created “enabling doctrine” will immediately resolve this and all future similar problems. Here’s how it works according to the Court’s decision that we should get, but won’t:
Mr. Chief Justice Roberts, speaking for a unanimous 9-0 court, said: “Deference is like respect. It is neither a right nor is it deserved. It must be earned. This Court will defer to the Congress when the Congress is, in fact, legislating and/or doing the nation’s work. This Court will not defer to the Congress when it is using the Capitol as a political public relations venue. Former House Speaker, Nancy Pelosi, with her comment ‘we have to pass the law then we’ll see what’s in it’ is now the mother of the newly-announced ‘enabling doctrine.’
“This court will no longer defer to the Congress when it is manifestly placing partisan political advantage ahead of the country’s interest. Our enabling has been unhelpful and today it ends. Hence we hold that the word ‘state’ means ‘state,’ but, on a one-time basis, we stay the effect of this decision until January 1, 2016, thus affording the Congress a little over six months to do its job and fix the mess.”
“We do not find it necessary, at this time, to address the loathsome practice of legacy manipulation. Lest politerati miss the point, the words ‘at this time’ should be noted carefully.”