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).

Comments

[SRG]

Parentheses carried far more weight 250 years ago because sentences themselves tended to be far longer, and parentheses helped keep a lengthy sentence clear without an excess of commas.

As sentences have become shorter, parentheses have lost their power. Indeed, even 50 years ago, the English heuristic* was that a parenthesis indicated a thought which could be removed without affecting the meaning or intent of a sentence. That is not true for the parentheses in the Constitution.

I note that in the "Swear (or affirm)" the parenthesis is used to indicate replacement, which is different from the usual function of parentheses,

*Most style and grammatical rules are, properly speaking, heuristics, not true rules.

[Michael P]

Even within this clause, parentheses cannot be removed without affecting the meaning:

(I)the fraction (expressed as a percentage), the numerator of which is the number of such hospital’s patient days for such period which were made up of patients who (for such days) were entitled to benefits under part A of this subchapter and were entitled to supplementary security income benefits (excluding any State supplementation) under subchapter XVI of this chapter, and the denominator of which is the number of such hospital’s patient days for such fiscal year which were made up of patients who (for such days) were entitled to benefits under part A of this subchapter, and

The third parenthetical, "(excluding any State supplementation)", is definitely significant. The first, "(expressed as a percentage)", is arguably significant and arguably implied by the definition being for the "disproportionate patient percentage".

[DaivdBehar]

Parentheses surround weasel clauses, and exceptions to generate lawyer jobs. They should be banned.

[Voize of Reazon]

parentheses helped keep a lengthy sentence clear without an excess of commas

And yet they invariably ended up with an excess of commas anyway.

[BadLib]

Likely such (alleged) use of (excessive) parenteticals seems to have resulted in yet longer sentences (as one could just keep adding parentheticals rather than breaking up (i.e., rewording) a sentence) while keeping a document (somewhat) readable (albeit, not necessarily easily) by a (highly literate (for the era)) reader.

[apedad]

Yup, all parts of the Constitution should be adhered to; well accept for this part which is (conveniently) be ignored, "A well regulated Militia, being necessary to the security of a free State. . . ."

[Michael P]

If you think that's bad, which antecedent clause(s) does the final clause in the Third Amendment modify?

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Or does the Fifth Amendment mean that courts martial cannot try servicemembers in times of peace (e.g. this case)?

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; [....]

[apedad]

Re: 5th Amendment and courts martials.

US Constitution, Article I, Section 8, Clause 14 already has that covered.

The Uniform Code of Military Justice (UCMJ, federal law), enacts this clause.

https://jsc.defense.gov/Portals/99/Documents/UCMJ%20-%2020December2019.pdf?ver=2020-01-28-083235-930

[Noscitur a sociis]

Michael P's point, I take it, is to ask whether the clause should be read as "in cases arising [in the land or naval forces, or in the militia,] [when in actual service in time of war or public danger]" or "in cases arising in [the land or naval forces,] or [in the militia, when in actual service in time of war or public danger]". In the former case, the UCMJ coverage would be unconstitutionally broad.

[Calliope]

In a dumb comment about people ignoring inconvenient text, you literally put an ellipsis in the part you like to ignore.

[Seamus]

(Sigh) You know, this has been explained before. The Second Amendment's introductory clause isn't ignored. It states the reason for adopting the amendment, without limiting its effect. It's a mini-preamble.

(As the Supremes explained in their Heller decision (citing our own Professor Volokh): "The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment, 73 N. Y. U. L. Rev. 793, 814–821 (1998).")

[apedad]

So we're just inventing re-phrases to fit a certain view.

Got it.

[Seamus]

No, those inventing re-phrases are those who would read the Second Amendment to mean "A well regulated militia being necessary to the security of a free state, the right of the militia [in some readings, the organized militia] to keep and bear arms while serving in a militia capacity shall not be infringed]" or "So long as a well regulated militia is necessary to the security of a free state," etc.

Professor Volokh's article (cited in the Supreme Court's Heller opinion) goes on at greater length how it those who see the introductory clause as limiting the Amendment's effect are the ones who are reinventing that clause.

[Dan Schiavetta]

"The usage of parentheticals in the Constitution does not reflect 'an aside or afterthought.'"

You've said a mouthful.

What if the Constitutional text the VC'ers love to ignore had been put into a parenthetical? Would that make it more than an "aside"?

The right of the people to keep and bear Arms, shall not be infringed (a well regulated Militia, being necessary to the security of a free State).

[Seamus]

Sure, if by "ignore," you mean "write whole law review articles about." (See https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-73-3-Volokh.pdf#:~:text=The%20Second%20Amendment%20is%20widely%20seen%20as%20quite,clauses%20for%20many%20of%20the%20rights%20they%20secured.)

[Dan Schiavetta]

Eugene’s point, in 1998, was that the Militia Clause should be ignored. It now is. He would not need to write that article today.

[Seamus]

Wrong again. His 1998 article did not call for ignoring the prefatory clause (which he refers to as the "justification clause," but for reading it correctly and understanding its meaning and purpose. He specifically said that "the justification clause may aid construction of the operative clause", with the caveat that it "may not trump the meaning" of that clause (emphasis omitted). It cannot, for example, "transform th[e] rather unambiguous
term ['right of the people'] into 'the right of the States' or 'the right of the militia." He explains that "reading 'people' to refer to each person might mean that the right is somewhat broader than the justification, but one should expect the possibility of a mismatch between justification clauses and operative clauses: The means chosen to serve the end will often be somewhat broader or narrower than the end itself. But it's the means that are being made into law."

[Krayt]

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.

One thing the Framers knew well, though: politicians are weasels who will e'er strive to increase their power by ignoring and minimizing the rules.

[Calliope]

Is there a reason statutes are always written out as definitions? I've previously thought that certain rules would be a lot clearer if they would use charts or examples rather than long and complicated sentences.