Want to see the problem with textualism? Here you go.
The case comes out the way most people would expect. Plaintiff says he's entitled to Social Security disability benefits. But he was convicted of rape, imprisoned, and then when he was about to get out, was detained as a sexually violent predator and held in a state hospital. So this whole time, he's been in state facilities at the state's expense. So the SSA thinks -- entirely understandably -- that he's not entitled to disability benefits.
And that's, indeed, what the Ninth Circuit holds. No benefits.
Now, getting committed as a sexually violent predator is a two-step process. First, the state files a petition to commit you, and ultimately, there's a trial. Both of those happened here, and, in the end, Mr. Allen was indeed found to be a SVP.
But Mr. Allen says that he's entitled to disability benefits from the date he was "released" from prison to the date he lost the trial and was ultimately committed as an SVP -- in other words, during the interim period during which he'd been charged as an SVP but not yet held to be one. The SSA responds that during this whole period, however, Mr. Allen was being held in a state facility, so he's not entitled to benefits.
Which makes total sense.
The only problem being: That's not what the statute says.
The Social Security statute, in relevant part, says that no benefits shall be paid to people confined and maintained at public expense who “immediately upon completion of confinement” for a criminal sexual offense “is confined by court order in an institution at public expense pursuant to a finding that the individual is a sexually dangerous person or a sexual predator or a similar finding.” 42 U.S.C. § 402(x)(1)(A)(iii). So if, like Mr. Allen, you're in prison for rape and then "immediately upon completion" of that sentenced, you're confined in a hospital "pursuant to a finding" that you're indeed an SVP, then you get no benefits.
So, sure, after Mr. Allen lost at trial, and was declared an SVP, he's not entitled to benefits. But what about before the trial? When he was temporarily detained based upon an allegation that he was an SVP? What about benefits then?
On that front, Mr. Allen has a super good argument. Because there wasn't a "finding" that he was an SVP at that point. There was just a petition.
The most natural, straightforward reading of the statute is that the exception doesn't apply, because the filing of a petition isn't a finding that the individual is an SVP. Which is, after all, why we have a trial; because, sometimes, people are sought to be committed as SVPs who are not, in fact, SVPs.
Now, if you're a structuralist, or care about the purposes of the statute, this isn't necessarily dispositive. Because, obviously, the whole point of the exception is to not give benefits to people who are currently in a state-run and state-maintained facility that already provides 100% of the individual's care. So if you look to things like the goals of the statute and legislative intent, it's fairly easy to come to a conclusion that, no, Mr. Allen is not entitled to benefits.
But textualists assert that it's the text of the statute that matters. Just call balls and strikes. Just follow the words.
But the words here mean that Mr. Allen gets benefits during that interim period.
But, obviously, textualists aren't happy with that result.
So they find a way around it. Like here.
The Ninth Circuit holds that the text of the exception applies to Mr. Allen because the trial court found that there was probable cause to hold him as an SVP during that interim period. Hence, according to Judge Ikuta, there was a judicial "finding" and thus the exception applies.
Which is fine, except for the tiny little problem that a finding that there's probable cause to believe that someone's an SVP is not a finding that the person is, in fact, an SVP. Which is what the actual text of the statute requires.
There's probable cause to believe lots of things that aren't, in fact, true. That's, again, why we have a trial. The statute says that there has to be a "finding that the individual is a sexually dangerous person," not that he "might be" or "potentially is" such a person.
Those words matter. If only because there's a big, big difference between being accused of something and actually having done it on the other.
Imagine, for example, a statute that says that you don't get benefits if someone "is guilty of theft." Take a person who's charged with theft but not yet convicted. Surely the fact that they've been charged does not mean they're ineligible for benefits, right? Even if there's a probable cause finding. Ditto for anyone who's been sued civilly for theft -- even if the case has gotten past the pleading stage or even past summary judgment. That it's reached that point, even if there's a "finding" that liability is possible, does not mean that the person has actually done it, or -- in the present case -- is an actual predator. Likely or possible does not mean actually is.
So if a statute takes away benefits only if there's a finding that a person actually is a predator, then the fact that (as with Mr. Allen) there's a finding that he might be a predator doesn't satisfy the statute. So he gets benefits.
But no one likes that result. So we says that "is" means something different. That a probable cause finding means that he "is" a predator.
Even though that's totally not true.
The value -- the promise -- of textualism is that it purportedly gives words meaning and doesn't allow unelected judges to incorporate their own values or policy beliefs into statutes. And if you're a truly and honestly committed textualist, and really do just seek to call balls and strikes based upon the meaning of the actual words used, then, yeah, those values do indeed get advanced. (There are other downsides that accompany those upsides, but at least you get the upsides.)
But that's not how, in my experience, textualism generally works in practice. Instead, you have opinions like this one, that define and interpret words not in the manner they actually mean, but instead with the objective of obtaining a certain desired result.
Which is fine. Except that you're doing it while pretending that you're doing the exact opposite. Which, in my view, is not an acceptable way to do these things. At a minimum, we should be honest about what we're doing. And pretending that we're just following the common meaning of words -- and slamming others for incorporating their own policy preferences -- when the reality is otherwise just seems flatly wrong.
It'd have been one thing if Judge Ikuta had said "You know, it's a stupid result, and I'm confident it's not what Congress actually intended, but 'is' means 'is', and those are the words that Congress used, so Mr. Allen gets his benefits, and if Congress wants to change the statute, go right ahead." That'd be one way to go, and I'd be fine with that. I'd also be fine with an opinion that said "Yeah, I can see the argument that 'is' means is, but I think it's pretty darn clear from the purposes of the statute that that's not what Congress wanted, so Mr. Allen gets no benefits." Cool with me as well.
But coming up with a theory of probable cause that treats "is" as meaning something other than what it actually means just seems profoundly problematic.
And you'd think that, given history, conservatives might be particularly worried about manipulating the definition of the word "is" -- particularly in the context of sexual predators. No?
