Judge Maggs’s Bergdahl Concurrence—The Canon that Dare not Speak its Name

Judge Maggs filed a concurrence in the Bergdahl case last summer that dealt with one of the biggest legal issues in the case: whether or not the UCI regulation covered the President (of the US). 80 M.J. at 248. The regulation at issue, RCM 104(a)(1) states, “No convening authority or commander may [commit UCI],” and Article 22 of the Code states that “General courts-martial may be convened by…the President of the United States.” Putting these two together, one might think that the statutory authorization of the President to convene courts-martial qualifies him/her for the restrictions of the regulations. The President is a convening authority, and no convening authority may commit UCI. QED, right? Well, perhaps not if one were applying a method of interpretation that looked beyond the plain meaning of the text. Some methods hold that the intent of the writers, or their purpose, are also relevant. But Judge Maggs resisted the conclusion that the President is covered by the command regulation not from the standpoint of intentionalism or purposivism—he argued that even a textualist would come to this conclusion. How can that be?

Judge Maggs cites to Reading Law by Scalia & Garner, noting that even committed textualists such as those authors agree that “the hyperliteral meaning of each word” need not be given effect. This may seem odd to the lay reader. Isn’t the “plain meaning” of the text the same as the “literal” meaning? How much work is “hyper” doing here? The full passage from Reading Law, not quoted by Judge Maggs, reveals that they were not thinking of some general license to ignore plain meaning. Instead, they were thinking of three narrow exceptions:

“The full body of a text contains implications that can alter the literal meaning of individual words. To give but three examples: (1) the rule of ejusdem generis, which narrows the literal meaning of a tagalong general term (see § 32 [ejusdem generis canon]); (2) the rule that a provision whose literal meaning is evidently absurd can be taken to be an error if the rest of the text shows that only another meaning makes sense (see § 37 [absurdity doctrine]); and (3) the principle that an act not literally authorized is authorized as a necessary predicate of an authorized act (see § 30 [predicate-act canon]).” Reading Law at 356.

Judge Maggs cites to this page in arguing that textualists would impose an “implicit qualifier” on the regulation—that the convening authority committing the UCI must be the convening authority convening that specific case. 80 M.J. at 252. Surely we are not dealing with an ejusdem generis situation here, nor does this look like a necessary predicate-act issue. What’s left, then, must be the absurdity doctrine. Judge Maggs alludes to this, but does not use the a-word:

“If ‘no convening authority’ implicitly means no person empowered to act as a convening authority, and is not implicitly limited to the convening authority in the specific case at issue, then R.C.M. 104(a)(1) would have an astonishingly broad scope. For instance, it would cover not just the President of the United States, but also every junior officer in any service stationed anywhere in the world who is designated as a summary court-martial convening authority.”
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But if we bring the a-word back into the picture, the conclusion seems less obvious. Would it be absurd for the rule to have the effects Judge Maggs describes, or would it just be a very broad rule? Scalia and Garner describe an “absurd” interpretation as one that “no reasonable person could approve.” Reading law at 234. Chief Justice Marshall wrote that the exception applied when “the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” Sturges v. Crowninshield, 17 U.S. 122, 202–03 (1819). Could no reasonable person approve of a rule that prohibited all convening authorities from committing UCI? Scalia and Garner warn that the use of the absurdity canon threatens a "slippery slope," as "It can lead to judicial revision of public and private texts to make them (in the judges' view) more reasonable." Reading Law at 237. I believe that this is what happened here. 

Brenner Fissell

EIC