abstract. One of the least controversial tools of statutory interpretation the Supreme Court employs is also one of its least examined: the use of a statute’s “structure.” For decades—but particularly under Chief Justice Roberts—the Court has determined the meaning of ambiguous statutory provisions through reference to the “structure,” “scheme,” or “plan” of a statute. Despite its ubiquity in the Court’s opinions, however, structural argument in statutory interpretation has gone largely unexamined by scholars. This Note attempts to fill that gap.
Through an analysis of recent case law, this Note categorizes the types of structural argument employed by the Court in its statutory-interpretation cases and the various assumptions needed to motivate such arguments. This fine-grained mapping permits a closer normative evaluation of structural argument and, in particular, of its compatibility with different methodologies of statutory interpretation. All dominant methods for reading statutes have good reason—on their own terms—to employ some types of structural argument, which demonstrates its cross-methodological appeal. But purposive reasoning best embodies the assumptions of coherence and rational design that undergird structuralism. The sway of this type of argument over a hypertextualist Supreme Court thus suggests the enduring need for purposive reasoning, particularly as the traditional tools of purposivism—such as legislative history—have been largely abandoned.
author. Yale Law School, J.D. 2023; University of Oxford, D.Phil. 2020, M.Phil. 2018; University of Virginia, B.A. 2016. Special thanks to William N. Eskridge, Jr.—who taught me not just how to read a statute, but also how to think about the act of reading a statute—for supervising this project and providing extensive feedback. I am indebted also to the following individuals for their invaluable commentary at various points of the drafting process: Katherine Fang, Robert C. Post, Daniel R. Ortiz, Judith Resnik, Isabella Soparkar, Kannon Shanmugam, and the Honorable Paul J. Watford. The editors of the Yale Law Journal, in particular Zachary J. Krislov, Jessica Huang, and Milo Hudson, were generous and insightful in bringing this Note to publication. This Note has been improved by those mentioned above and others unnamed; all errors or omissions are my own.
It is now uncontroversial to start, and often end, statutory interpretation with the text of the statute to be interpreted.1 The ascendancy of the “new textualism”2 has transformed statutory interpretation at the Supreme Court, prompting extensive commentary on the methods and merits of textualist analysis.3 The recent fissures within the textualist camp, exposed in Bostock v. Clayton County,4 have only added grist to the mill.5 As the Court’s interpretive practices have moved closer and closer to the statutory text, the academy’s attention has followed.
But another interpretive practice with nearly equal dominance has received scant scholarly attention: namely, argument from statutory structure. Every Justice on the Supreme Court in the October 2021 Term had previously authored or joined an opinion that employed arguments from statutory structure.6 Numerous casebooks and treatises describe and approve of the use of structural argumentation.7 But despite this apparently widespread acceptance, little has been written to explain what, precisely, argument from statutory structure is. When the Court intones—as it often does—that its interpretation of a provision accords with a statute’s “design and structure,”8 with “the structure of the statutory scheme,”9 or with the broader “context and structure”10 of an act of Congress, what does it mean to say? And what does it hope to accomplish? This Note offers some answers.
Of course, structural argument in constitutional law is nearly as old as the text of the Constitution itself. Chief Justice Marshall was an early and aggressive employer of structural argument in seminal cases such as Marbury v. Madison11 and McCulloch v. Maryland.12 The use of structural argument in constitutional interpretation has accordingly received much more scholarly attention.13 However, despite some similarities to structural argument in statutory interpretation, argument from constitutional structure is also meaningfully different.14 Ordinary statutes are not governing charters. In general, they are not meant to create a governing architecture from which foundational principles can be inferred. More often, they are precise, complex, and limited documents addressing a particular problem. The structural arguments made to interpret statutes thus deserve to be examined on their own terms.
Though the Roberts Court has made particularly fruitful use of structural argument, for at least seventy years the Supreme Court has recognized that its job is to give “all of [a statute] . . . the most harmonious, comprehensive meaning possible.”15 Structural argument is thus a species of what some have called the “[w]hole act rule,” or the injunction that “[e]ach statutory provision should be read by reference to the whole act and the statutory scheme.”16 Canons of construction that fall under this rule include familiar ones like the rule against surplusage (avoid construing a provision such that it would make another provision in the statute redundant) and the rule of meaningful variation (presume that differences in language between provisions in the same statute indicate differences in meaning).17 Given its family resemblance to these well-known canons of construction—which have not themselves escaped scholarly attention18—it is all the more surprising that structural argument has so far received little critical analysis.19
It is also curious that a Supreme Court increasingly dominated by textualists has deployed structural arguments so widely and transsubstantively.20 Structuralism pairs naturally with programmatic statutory schemes—like the Affordable Care Act (ACA)21 or the Clean Air Act (CAA)22—for which questions about harmonious operation or implementation make the most sense. But the Justices have used the tools of structural analysis to interpret statutes without such ambitions, like civil-rights legislation23 and federal criminal law,24 which are mostly concerned with setting standards of liability. A central query of this Note is why the Court turns so frequently to structural argument, even outside the confines of Congress’s programmatic enactments.
By way of preview, one way to answer that question is: “purposivism.” The turn to structure could be considered a turn to purposivism. Now, this answer is admittedly incomplete. As I will show, some types of structural argument the Court uses are not explicitly premised on any articulable statutory purpose, but rather on appeals to coherence, symmetry, and context. And structural argument is explicitly tied to statutory text in a way that makes it highly attractive for textualist interpreters who are wary of purposivism’s traditional embrace of extrinsic sources of statutory meaning. Often, however, structural argument is plainly an attempt to understand what the statute is meant to accomplish—and thus to discern its purpose. Indeed, the reference to a statute’s “design” or “structure” presupposes coherence, implying a rational drafter with identifiable aims.25 The wide appeal of structural argument, especially for textualist interpreters, suggests that it is where purposivism now lives on, clothed in new (textualist) garb. To adapt Justice Kagan’s quip,26 if we are all textualists now, we might also all be purposivists.27
The goals of this Note are both descriptive and normative. Descriptively, it aims to document a widely used tool of statutory interpretation that has not yet received any sustained treatment. The type of argument that the Court is making when it argues from structure varies considerably, even when the terminology the Court uses does not. Thirty years after scholars first began to notice that a textualist Supreme Court was increasingly turning to structural argument to replace extratextual sources of statutory meaning,28 a typology of structural argument will enable readers of the Court’s opinions and regulated parties better to understand the reasoning upon which the Court’s judgments rest.
To guide this inquiry, I map below three broad categories of structural argument that the Court has employed in statutory cases. All of these categories take root from a background assumption of coherence. That is, structural argument in all its forms presumes that statutes are, to some degree, “logically or aesthetically ordered or integrated,” “having clarity or intelligibility.”29 But the categories I map below emphasize different dimensions of coherence, roughly in increasing levels of abstraction: starting with the coherence of how the words, paragraphs, and written provisions of the statute interrelate and ending with the coherence of a given interpretation with the normative policy or purpose of the statute.30
The first category of structural argument is what I call compositional structuralism. This type of structural argument draws inferences about meaning from the way a statute is composed in its constituent parts. The Court has used at least three subcategories of compositional-structural argument. One resolves ambiguity by paying attention to the “location” of a provision in either the original statute or the U.S. Code.31 Another draws on what might be called the “geometry” of the statute, evidenced by recognizable physical patterns formed by the presentation of the provisions themselves, such as their sequencing or symmetry.32 And a final one—“aperture”—calibrates the substantive specificity of a provision to the specificity of surrounding provisions, thus cabining the interpretive space.33 These various forms of structural argument derive from the structure of a statute as a written text. They trade on the assumption that text drafters, whatever their substantive ends, compose documents in a coherent fashion for their readers.
A second category is operational structuralism. Rather than assuming only that Congress drafts coherent texts, this type of argument assumes that Congress designs coherent statutory schemes, understood as legislative programs that provide direction to actors. Operational-structural arguments are primarily available for the interpretation of programmatic statutes. This type of structuralism resolves ambiguity by interpreting the statute in the most harmonious way possible and by declining to adopt interpretations of a provision that would undermine, contradict, or defeat the point of other provisions. It is both the most familiar34 and the most easily manipulated form of structural argument. One casebook describes it as a way of showing how “each provision play[s] a role in constructing a coherent policy,” thus allowing interpreters to see “what role to assign the ambiguous provision.”35 At its strongest, a structural argument of this type points out an incompatibility between the interpretations of two provisions: both cannot be true at the same time, either as a matter of practical operation or as a matter of logic.36 Less demandingly, operational-structural arguments attempt to show that one interpretation is “incoherent” with other parts of the statute, either because it would embody a contradictory premise or because it would “impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.”37
On the other end of the spectrum, structure from coherence bleeds into an argument about the purpose of the statute—and thus, the third category presented in this Note, purposive structuralism. Strictly speaking, operational structuralism does not require drawing any conclusions about the normative or policy aims that Congress seeks to accomplish in its statutes; rather, it assumes that—whatever those aims—Congress will not pursue them in a contradictory fashion. Often, however, there is nothing strictly “incoherent” or “incompatible” about a certain interpretation other than that it would not as effectively serve the purpose of the statute as a judge or Justice conceives of it. This type of argument is purposive, even though it is gleaned from the structure of the statute. Purposive-structural arguments employ a notion of normative coherence, seeking to privilege one interpretation over another based on how closely it fits with the policy the statute seeks to advance. There is nothing magical about this type of argument: the Court simply uses the terminology of structural argument—which has broad appeal—to make arguments about the purpose of a statute. It is striking, however, that a Court that has moved aggressively away from purposive reasoning still regularly engages in it under the guise of the uncontroversial argument from statutory structure.38 For those who believe that a primary goal of statutory interpretation is to effectuate the rational purposes of the legislature, this is good news.
By clarifying an undifferentiated area of statutory interpretation, this Note will also permit better normative evaluation of the use of structural argument. Not all uses of structure are created equal, nor can all be easily squared with the theoretical justifications that dominate the Court. Thus, the second aim of this Note is to evaluate structural argument in light of the various interpretive methodologies on the Court. Both textualists and purposivists readily turn to statutory structure, and both have good reasons—on their own terms—for doing so. But the theoretical assumptions underlying structural argument sit uneasily next to some of the presuppositions of textualist methodology. Insofar as structural argument assumes a rational statute drafter or rational outside reader,39 it asks much of an interpretive method that claims to take such individuals as they are. It is a puzzle, therefore, that the Court’s textualist Justices so readily employ all types of argument from statutory structure. Tracing the links and gaps between textualism and structural argument can help both to illustrate its enduring appeal across methodologies and to demonstrate the continuing need for purposive reasoning of some kind, despite the Court’s aversion to the word.
Finally, this Note seeks to bolster the legitimacy of structural argument as an interpretive practice. Structural argument has become all the more necessary as the current Court has shut the door to extrinsic sources of determining statutory meaning, like legislative history.40 In an era of “unorthodox lawmaking,”41 in which statutes are often cobbled together from disparate legislative committees, there is some danger in interpretive practices that presume that regulated parties or statute drafters are really looking at the whole text. But, by assuming that Congress acts rationally—even if it drafts distractedly—structural argument can help to legitimize statutory interpretation. To varying extents, structural arguments can serve core interpretive values, such as the rule of law, democratic accountability, and good governance. It deserves to be taken seriously by statutory interpreters with disparate methodological commitments.
Moreover, structuralism’s value exceeds merely its capacity
to accommodate purposive reasoning. In King v. Burwell, Chief Justice
Roberts’s opinion for the majority relied heavily on structural arguments of
various kinds, employing them to trump the plain meaning of the statutory terms
in the ACA.42 Justice Scalia, writing in
dissent, accused the majority of hiding purposive reasoning behind the language
of structure.43 Though some of Roberts’s
structural moves surely aimed to vindicate the purpose of the ACA, however,
many others were simply commonsense methods of reading terms in their context
or of avoiding internal contradictions. And Scalia himself deployed his own
structural counters, implicitly conceding its utility as a method of
argumentation.44 Uncovering the logic and persuasive force of various forms of structural argument rebuts the argument that it is simply a form of dressed-up purposivism—even if, as I will show, it sometimes is, and even if that development is to be warmly encouraged.
Part I clarifies what judges and Justices mean when they invoke the term “statutory structure” and compares structural argument in statutory interpretation to its analog in constitutional interpretation and to other methods of using the “whole act” to interpret a statute. Part II maps three broad categories and five subcategories of structural argument and provides case examples to illustrate. Part III assesses structural argument normatively and methodologically. In addition to examining how structuralism serves rule-of-law, democratic-accountability, and governance values, this Part assesses how well the three categories of structural argument map onto the dominant interpretive theories of purposivism and textualism, concluding that each theory has good—but different—reasons to use at least some forms of structural argument. However, Part III also concludes that pragmatic and purposive methods of interpretation better match the underlying presuppositions of structural argument—that Congress pursues rational ends rationally—than do textualist methods. The genius of structural argument thus lies in its capacity to find justification in any interpretive framework while providing cover for a pragmatic and purposive way of reading statutes.