The "plain meaning" of blogposts and of briefs: A response to Gray, White and Gustafson

Marty Lederman

Over on the Volokh Conspiracy, C. Boyden Gray, Adam White and Adam Gustafson--the authors of an amicus brief filed on behalf of the Galen Institute and 21 state legislators (19 from Tennessee and two from Ohio)--take issue with my post from yesterday.

In my post, I emphasize "a federalism canon of statutory construction that the Court invoked and applied just last Term, but that the challengers entirely ignore--a canon that is the focus of an important amicus brief filed by Jim Feldman on behalf of Professors Tom Merrill, Gillian Metzger, Abbe Gross and Nick Bagley."  The canon in question was applied by the Chief Justice, on behalf of six Justices, in last year's Bond decision--namely, “the well-established principle” that “‘it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides' the ‘usual constitutional balance of federal and state powers.’”  Bond slip op. at 12 (quoting Gregory v. Ashcroft, 501 U.S. at 460).

The Galen Institute attorneys write:  "Georgetown’s Marty Lederman asserted on the Balkinization blog yesterday that 'the challengers entirely ignore' the federalism argument."  This "comes as quite a surprise to us," they write, "because federalism was a central point in our own brief (on behalf of State Legislators and the Galen Institute), as well as the brief filed by Oklahoma and several other States."

Much as they might wish otherwise, the Galen attorneys and their clients are not the "challengers" to which my post was referring--four individuals represented by Michael Carvin are.  (This is self-evident from my post, which repeatedly quotes from and cites their briefs.)  And my representation was correct: those challengers have entirely ignored the Gregory canon that is a central focus of my post and of the Merrill brief.

For what it's worth, however, the Galen brief and the Oklahoma amicus brief also fail even to mention, let alone contend with, the Gregory/Bond canon that “‘it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides' the ‘usual constitutional balance of federal and state powers.’”*

Those top-side amicus briefs do make other federalism-based arguments, some of which Gray and his colleagues summarize in their post.  My post was not about those arguments.  Part III of the Merrill amicus brief, however, does address Oklahoma's arguments directly.  That brief speaks for itself (quite powerfully, I think), and I commend it to interested readers.

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* In an earlier version of this post, I mistakenly stated that the Oklahoma brief mentions the Gregory "certainty of congressional intent to upset the balance" canon.  That brief does quote selectively from parts of Gregory surrounding the statement of the canon, but does not mention the canon itself.
Posted 10:56 AM by Marty Lederman [link]