The perils behind the word “purposive”

A Twitter thread started by Jed Shugerman kept going the other day, and I want to breakdown some of its contents. As I’ll explain below, this thread contains two conversations that really have nothing to do with each other except for their capacities to confuse. The Shugerman portion of the conversation has to do with his reading of King v. Burwell. It is very easily confused with the portion of the conversation involving Richard Re about what makes a legal doctrine “purposive.” A word to the wise: this is the not the blog post for anyone who’s not really into the major questions doctrine (“MQD”) or invested in the pedantry behind the word “purposive.” Be wary.

By the way, I put “purposive” and “purposivism” in quotes when I’m referring to its commonplace usage. I italicize purposivism and intentionalism (along with their derivations) when I’m referring to the narrower and scholarly usages of those words.

As a final aside before we get started, I truly don’t care whether the MQD is “purposive” or not. Because that term is bandied about with very little precision, I only hope to clarify what we’re saying about the MQD. I really don’t walk around with a self-conception rooted in one of the theories of statutory interpretation. The only reason I care about the use of these words is because of their capacity to confound our understanding of key legal doctrines and different cases. This blog post is basically an exploration of those pitfalls.

First thoughts: what does “purposive” mean?

Legal academics and practitioners tend to use “purposive” as the antithesis of plain meaning textualism. In common parlance, its content is almost entirely defined by its relationship with its supposed opposite. Let’s start with some definitions from Larry Solum’s Legal Lexicon series. Larry says that when folks say “purposivism” they’re really often combining purposivism proper and intentionalism. He defines the latter as “a subjective approach [to statutory interpretation] that emphasizes legislative history as guide to the will of the legislature.” He defines purposivism as “an objective approach that focuses on an inquiry into the purposes than an ideal legislature would have had if it had enacted the statute to achieve the public good.”

These definitions track the Eskridge-Brudney-Chafetz (“EBC”) hornbook on Legislation and Statutory Interpretation (3d Ed. 2022). EBC write that intentionalism is a theory “valorizing the ‘specific intent’ of the democratically elected and accountable legislators.” (pg. 188) Okay so that’s focused on what lawmakers were actually thinking when they were enacting a particular piece of legislation. They write that purposivism is more related to the Legal Process School, which was concerned with reconstructing a reasonable legislature’s take on the overall purpose of a statute. (See pgs. 189–90). So you’re sitting back and thinking, what would the purpose of this statute have been if I were a “reasonable legislature” (whatever that means). I don’t think any of this is particularly controversial, check out Krishnakumar from 890–892.

Okay, so a cursory approach to “purposive” as we use that term in daily usage demonstrates that it’s a conflation of purposivism and intentionalism proper that is defined by its opposition to textualism. (See ECB pg. 185). So already, we’re getting to a place where we understand that the word is a little tricky. Worse, “purposivism” is referenced in opposition to “textualism.” Sometimes people use “purposivism” when they’re talking about anything that’s apart from the semantic meaning of text.

So now that we’ve gotten some of the basics out of the way, we must get at limitations. All three major theories, intentionalism, purposivism, and textualism, have hazy relationships with context. People need an approach to two different kinds of context—context specific to a particular piece of legislation and context that we might think of as generalized facts about the world. The former category was embraced by the earliest purposivists who, for example, were down to clown with the mischief rule where it helped them uncover the mischief that animated the legislation being interpreted. I am totally unaware of any canonical take on that other kind of context—the kind that’s not about any particular Congress and not particular to any piece of legislation. The problem, as we shall see below, is that this is the kind of context implicated by the MQDs (there are more than one) of the last decade or so. I’m not trying to give an elaborate explanation of each approach to context. I’m just flagging this as a problem for all three theories.

Is the MQD “purposive?”

Richard Re’s participation in the Shugerman Twitter thread was related to the MQD fiction and whether or not it makes the MQD “purposive.” The most consistent justification for the MQD has nothing to do with constitutional law or anything like it. It’s a simple legal fiction that Congress “speaks” clearly when addressing major questions. Most sane people understand that Congress does not, in any meaningful sense, “speak” clearly when addressing major questions. In the long run, Congress passes statutes that delegate sweeping authority to federal agencies and courts to establish entire fields. Some substantive areas are, in fact, defined by Congress’s propensity for “speaking” in a frequency falling far short of the MQD’s level of clarity. (This is a point that comes to me pretty intuitively as an appellate immigration lawyer.)

As I’m arguing in an upcoming paper, Original Sin: The Major Questions Doctrine Fiction, the Court’s disfigurement of this fiction across several cases is responsible for the worst features of the doctrine. To understand the MQD fiction, and whether or not it makes the doctrine “purposive,” we have to talk about how it’s changed over time.

Vanilla MQD. Back in a case from 1994 called MCI Telecommunications Corp v. AT&T, the FCC seized on the word “modify” in the text of the Communications Act of 1934 to exempt small telephone carriers that were competing with AT&T. Justice Scalia approached the cases as a Chevron question. Although the agency claimed that the Court should defer to their interpretation of the Act under Chevron, the Court disagreed and wrote that the agency’s reading was an improbable read of the word “modify” because it would have allowed the agency to fundamentally rewrite the terms of the statute. If you consider MCI an MQD case, it stands for the principle that there are *some* circumstances where the Chevron fiction–the idea that Congress means for agencies to fill gaps in statutes–doesn’t make sense because of the broader statutory context. That’s broadly “purposive,” and my reading of the case is that Scalia is doing purposivism proper.

This vanilla MQD, which operated as an anti-Chevron rule, made a big appearance in another case, FDA v. Brown & Williamson Tobacco. B&W concerned an FDA reading of the the Food, Drug, and Cosmetic Act that would have allowed the agency to regulate tobacco products. Although Congress had considered but failed to enact legislation authorizing the regulation of tobacco products, the agency pressed a new interpretation of the ACT that would have permitted the FDA to regulate nicotine as a “drug” and cigarettes as “combination products” that deliver nicotine into the body. In a decision written by Justice O’Connor, the Court invoked the MCI precedent: “As in MCI, we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” The Court’s deployment of what we now call the major questions doctrine was again used as an anti-Chevron rule. It came after the Court had laid out the relevant statutory text in greater context. Again, I think it’s defensible to say that this anti-Chevron version of the MQD is, broadly speaking, “purposive.” It’s just a tough ask to think that Congress really meant for the agency to have the power to make this kind of reading, given the statutory and policy history behind the Act.

Contemporary MQD. Over the next decade, the Court changed the weaker and more purposive versions of the doctrine so that the fiction is now free-floating. What do I mean by free-floating? Contemporary cases treat the MQD as bound to a transsubstantive fiction that Congress “speaks” clearly when addressing major questions. It’s not really rooted in the same kind of policy or statutory analysis that takes place towards the end of the interpretive process. This is a big problem and it’s responsible for the MQD’s disfigurement over the last two decades. For example, we can’t really say that the core reasoning of the MQD should apply to some emergency statutes, because Congress clearly went to great lengths to give the Executive the ability to respond to disasters, etc. The Roberts Court made the most basic mistake when dealing with legal fictions–it started taking the MQD fiction way too seriously. This is laid bare at oral argument. Recently, during the student-loan arguments, you could hear a beleaguered Chief Justice just repeating (and I’m paraphrasing), “I don’t get it, this is a big deal, so how could this possibly survive the MQD?” That’s the level of sophistication we’ve kind of devolved down to. The MQD fiction operates against big deals, without much in the way of statutory or policy analysis. The key is that it’s not about any congress in particular anymore, definitely not the one that enacted the legislation that comes before the Court.

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So this is where Re starts arguing with Blake Emerson and myself. He came in hot on a thread and asserted that the MQD is “purposive” “like Holy Trinity.” Re says, as many people do, that the MQD fiction makes the MQD “purposive.” It’s kind of up in the air whether either the Court really thinks this fiction is about legislative purpose or legislative intent properly understood. So let’s just ask whether the MQD fiction is “purposive,” in the more loose meaning of that phrase. The question is whether the MQD fiction’s role in the doctrine means that the Court is either (1) engaging with Congress’s subjective intentions or (2) asking what a reasonable Congress thought of the statute’s general purpose. Re points to a quote from Justice Kavanaugh from his lower court days where he says that judges “presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.” Re’s point here is pretty straightforward: “they said it’s about intent explicitly! What more could you want?”

I think the Kavanaugh is, at best, referring to that early anti-Chevron version of the MQD. We’ll never really know though. One problem, of course, is that the judges rarely discusses “intent” with any sophistication or distinguishes between intentionalism and purpose proper. Because we refer to “intent” and “purpose” so loosely, often as something in opposition to plain-meaning textualism, that the Kavanaugh quote is less than helpful here. It’s not clear to me what he means when he says its about “intent.” Does he mean that this is his best reading of the subjective mindset of the lawmakers behind the law? Or does he mean that this is a kind of useful fiction about congressional intent across time and space, kind of like how we talk about the Chevron fiction? Early on, the MQD read like a tool that was activated by a deeper contextual reading of the underlying statute. That’s MCI and Brown & Williamson. But the free-floating MQD of recent years is not based in either intentionalism or purposivism because the Court does not treat the MQD as triggered by either a subjective or objective reading of the Congress that enacted the relevant legislation. It’s just a fiction about how congresses use language when doing the big stuff. That the MQD of Kavanaugh’s tenure has this free-floating quality undercuts his claim that the MQD is about congressional intent proper (if that’s even what he meant).

So whether Kavanaugh said that the MQD was about congressional intent is kind of useless information to me. Worse, the Court tends to say that certain devices that have nothing at all to do with either intent or purpose are in fact related to a statement of congressional intent. As I say, the MQD is one of many devices that is not really about any particular Congress at all. The MQD, Chevron, constitutional avoidance (sometimes), lenity (sometimes), and the mischief rule (sometimes) are premised on claims about how congresses (plural) work. They’re judge-made fictions that aren’t really about the subjective or objective mindset of the Congress that passed the statute! So the obvious question to ask here is whether intentionalists or purposivists are using methods that are focused on a particular Congress, either real or imagined, that passed the law in question.

One reason that it’s anachronistic to even ask whether these are tools of purposivism and intentionalism is that this kind of tool predates the rise of legal theory and modern statutory interpretation. They serve a more primordial end. Judges interpreting statutes need some context. Many textualists even acknowledge the need for context to supplement plain meaning analysis in at least some situations.

So I pushed back on Re for saying that the MQD is “purposive” because I don’t think the *contemporary* MQD or these other tools have anything to do with purpose or intent. The contemporary MQD is not about intent because it has nothing at all to do with the subjective intentions of the lawmakers who enacted the legislation before the Court. Whether the contemporary MQD is purposive is a closer call. I bet Re would say that the MQD fiction looks a lot like asking about what purpose a reasonable legislature had. The problem—and this is the rub—is that when I think of purposivism, I am referring to a process by which we reconstruct the purpose of the reasonable legislature with respect to the statute before us. If the MQD were purposive, it would work like MCI—you’d have to have an analysis specific to the statute in front of you that triggered the MQD fiction. Do a few old MQD cases look like that, sure! Sort of! I think whether the question of whether the MQD was purposive when I was in elementary school might have been a tough call! Does the MQD work that way today? Hell no!

But in case you haven’t picked up on this yet, there is not a right answer. Re and I are running around with different words that just sound the same in our ears and look the same to our eyes. His version of the word “purposivism” includes these kinds of context canons that are just legal fictions. Mine doesn’t. Neither of us are “right” in any meaningful way. This reminds me of Larry Solum’s work on originalism. That word is really just a heuristic to refer to a bunch of different theories that share only a family resemblance. In a similar way, I am pretty confident that there’s no right answer as between me and Re because the word “purposive” is most useless without elaboration. In the end, Re and I can disagree, but I don’t think either of us is right or wrong in any meaningful sense.

So why bother writing a blog post about this portion of the thread if it’s small beans? Well because the Re contribution to the post might confuse a separate problem having to do with an exceptional reading of King v. Burwell.

What in God’s name did the Chief Justice do with the MQD in King v. Burwell?

So for a while now, Jed Shugerman has been running around saying that the MQD was “purposive” in cases like King v. Burwell. For the longest time I–and I suspect others–took him to be saying that the MQD was purposive in the Re sense. I (we) thought he meant that the MQD was deployed in a way that we could broadly describe as “purposive” because of its use of the MQD fiction.

Again, this would be kind of small beans if that was what Jed meant. In the orange parts of the opinions above, we see the Court apply the MQD to axe Chevron deference. That’s basically the conventional reading of King v. Burwell and the role the MQD played in the case. The Court applied the MQD and then proceeded to interpret the statute without deference as an obstacle. This is the reading of the case (I believe) that comports with the writings of Kristin Hickman, Jonathan Adler (see also here), and pretty much every other admin maven I’m familiar with. Again, I assumed that this is what Jed was talking about for the last several months.

What Jed really means clicked for me when I was listening to his podcast. He said something like “Roberts used the MQD to save the ACA.” That made my head spin around like The Exorcist. You have to understand, that’s not what the conventional understanding of King really is about. Under that conventional understanding, the Chief used the MQD to axe Chevron (probably part of a project to limit Chevron‘s domain) and then saved the ACA with a questionable reading of the statutory text that gave pride of place to context over the semantic meaning of text. I asked Jed what he meant.

In a series of Tweets, Jed explained that he has a different reading of King. Jed thinks that the MQD is both the doctrinal explanation for why Chevron didn’t apply and why Roberts was able to get beyond the semantic meaning of the ACA’s text. He thinks the MQD caused the outcome in King in a way that no other scholar I’m aware of thinks of the case.

So what separates the conventional reading of King from Jed’s reading? Okay, dear reader. So scroll up to the screenshots. Basically, the way 99% of the legal community–according to my subjective reading of the commentary–reads King is that after Roberts axes Chevron in the text highlighted in orange, Roberts proceeds with a straight-up interpretation of the text in the paragraph highlighted in green. By “straight-up interpretation” I mean interpretation without deference or any canon putting a thumb on the scale for either side. Roberts–and I don’t mean to offend here–basically lies and says that the relevant statutory text is ambiguous. Once that finding is made, he says that context is allowed to come in and illuminate the meaning of the statutory text. ACA saved.

Jed thought that it was the application of the MQD that allowed Roberts to create ambiguity and look into context. For support, Jed relies on the King Court’s citation to B&W.

Because King cites B&W–the quintessential MQD case–for the idea that we have to put words in context, Jed has concluded that the MQD operated in King and B&W to require the Court to look beyond the boundaries of petty textualism. In Jed’s head, the MQD was a command to put words in context so that the guts of Roberts’s statutory analysis in King could loosely be described as an MQD analysis. The problem, of course, is that the green paragraph above is set off an alternative form of interpretation to the Chevron/MQD paragraph in orange that proceeds it. Note the “[i]t is instead our task to determine.” This is an alternative form of statutory interpretation that I referred to above as “straight up” interpretation. The Court gives every indication that the MQD is limited to its anti-Chevron role.

What of Jed’s reliance on the citation to B&W? My dude has jumped to conclusions. Here’s the part of the B&W that the King Court is citing to.

What the Court is doing is referencing a black-letter rule of statutory interpretation that predates the MQD and requires courts to put ambiguous statutory text in context. That’s the whole game for Roberts in King. He doesn’t want to use Chevron because he’s in the heights of Chevron skepticism, which was running around like Reefer Madness. But he doesn’t want to strike down the ACA for all kinds of political reasons and institutional concerns that I’m not getting into here. So he axes Chevron with the MQD and then uses this “context canon”, along with a “creative” reading of the underlying statutory text, to reach his preferred outcome.

I would say that there is almost no evidence to support Jed’s reading of King. It’s really something you have to go into the opinion looking for. Whether Jed’s context-forcing MQD is normatively attractive is another question that is implicated in his amicus brief in the student loan litigation. With this Tweet thread behind us, Jed might double down on his reading of King. I think he’s pivoting towards casting this reading as “doctrinalist reconstruction,” which he defines as a “traditional mode of doctrinal analysis to make sense of what a judge does, when what the judge said was incomplete or had a gap in the steps.”

I totally concede that scholars have to do some of this doctrinalist reconstruction. But I would really implore Jed to just say that his is a reading of how the MQD ought to work, not how it was actually deployed in King. As I told Jed, the MQD has never actually worked the way he describes. While a few early MQD cases might be described as “purposivist” in the Re sense, the Court has basically abandoned that version of the MQD. And even if the MQD is “purposivist” in that Re sense, it’s “purposivism” was limited to providing a pragmatic limitation on the domain of the Chevron fiction. The MQD does not provide some kind of free-floating exception to textualist interpretation. It never has. Not in the sense Jed means it.

Acknowledging that we can do some doctrinalist reconstruction, we have to have some standards. Jed’s reading of the MQD does not pass a reasonable doubt standard in my mind. It’s kind of like the Alex Murdaugh trial. Could I invent a scenario where Murdaugh didn’t do it? Sure. Could I imagine a world where Roberts’s contextual King analysis is caused by the MQD?Maybe in a David Lynch fever dream. But it’s just not a plausible reading. You’d have to ignore the much more plausible explanations in both cases–namely that Roberts used the context canon and a creative textual reading to save the key accomplishment of the Obama Administration.

Conclusion

At one point, Jed seemed kind of frustrated because he’s been maintaining this reading of King for years and nobody ever mentioned that it might be different from the conventional story. I’ll submit, as an explanation to Jed, that the words “purposivism” and “context” are really to blame. For months, every time Jed said the MQD was about “purpose,” “context,” or “intent,” I thought he meant that the MQD was “purposive” because it relied on a fiction about Congress to nix Chevron. I really had no idea what he was saying *exactly* until his podcast came out.

The lesson here is please, please, please, let’s all just agree that were gonna start using these words intentionally and with more explanation. I pretty regularly read lawyers and law professors using these words and have no clue what they mean. Now there are obvious points of disagreement in how these words can be used. Re and I are disagreeing about what the word “purposivism” includes. But that’s fine. It’s totally cool to disagree as long as we can pinpoint the differences in how we’re using these words.

There are so many pitfalls in legal commentary and scholarship. “Purposivism,” “intentionalism,” and “textualism” are among the scariest of them. Beware!