The Value of Parentheticals in Statutes and the Constitution

Becerra v. Empire Health Foundation presents an exceedingly intricate case about Medicare funding. I won't even try to explain the facts. In dissent, Justice Kavanaugh said the statutory formula is "mind-numbingly complex." Justice Kagan, for the majority, joked "you might be ready to absorb the relevant statutory language (but don't bet on it)."  Here, Justice Kagan used a parenthetical, as she often does. But the usage was especially relevant, as this case turned (in part) on how to interpret a parenthetical.

Specifically, the statute uses the parenthetical "(for such days)."

Justice Kagan explained that this parenthetical does not alter the meaning of the statute. And she invokes (gasp) a major-questions doctrine case:

But we cannot understand Congress to have changed the statute's consistent meaning of "entitled to benefits" simply by adding "(for such days)." That slight phrase is incapable of bearing so much interpretive weight. If Congress "does not alter the fundamental[s]" of a statutory scheme "in vague terms or ancillary provisions," then it ordinarily does not do so in parentheticals either. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). To the contrary, a parenthetical is "typically used to convey an aside or afterthought." Boechler v. Commissioner, 596 U. S. ___, ___ (2022) (slip op., at 5) (internal quotation marks omitted). And nothing about the "(for such days)" parenthetical signals anything different. Empire asks us to read it as transforming the uniform statutory meaning of "entitled to benefits" for the fraction provisions alone. But if Congress had wanted to accomplish that unexpected object, it would simply have said so.

For what it's worth, Boechler was a Barrett opinion that quoted from Garner's Modern English Usage. I, for one, do not disregard Kagan's parentheticals. They usually make me chuckle.

Justice Kavanaugh responds with a textualist argument grounded in the Constitution.

Second, contrary to the Court's suggestion, we cannot brush aside the statutory phrase "(for such days)" simply because that phrase appears in a parenthetical. See Duncan v. Walker, 533 U. S. 167, 174 (2001). Parentheticals can be important, as the Constitution itself makes clear. See, e.g., Art. I, §7 (counting days for bill to become law with "(Sundays excepted)"); Art. IV, §4 (affording federal protection to States on application by the Executive but only "(when the Legislature cannot be convened)").

Art. I, §7, Cl. 2 provides:

If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Art. IV, §4 provides:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

 

I think about the text of the Constitution quite a bit, but I never paid attention to the Framers' use of parentheticals. The usage of parentheticals in the Constitution does not reflect "an aside or afterthought." Kavanaugh's argument is very innovative. And after a quick search I could not find it in Empire's brief, or in any of the (two) amicus briefs. Kudos to Kavanaugh.

There are three other parentheticals in the Constitution:

Art. I, §7, Cl. 3 provides:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States

Art. I, §8, Cl. 13 provides:

The Congress shall have Power To …exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States….

Art. 2, §1, Cl. 8 provides:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: — "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

These parentheticals are also important. Then again, grammatical conventions shift. I do not know if the usage of the Framers is consistent with modern usage.

Two other stray observations about Empire Health.

First, I think this was the first case in which Justice Thomas assigned a 5-4 opinion to Justice Kagan.

Second, in a few spots, Justice Kagan cited D.C. Circuit opinions that then-Judge Kavanaugh participated in: Hall v. Sebelius (2012) and Northeast Hospital Corporation v. Sebelius (2011).