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Supreme Court Gives a Whistle-Blower Some Help

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The U.S. Supreme Court struck a blow for whistle-blowers today -- but it had to resort to extreme formalism to do it. By a 7-2 vote, the court reinstated a disgruntled Transportation Security Administration employee who was fired for telling MSNBC about plans to get air marshals off overnight flights from Las Vegas. Instead of issuing a ringing defense of free speech, the court held in Department of Homeland Security v. MacLean that the disclosure wasn’t prohibited by law, only by an internal TSA regulation. Reaching that conclusion demanded the court to read the relevant laws literally. Justices Sonia Sotomayor and Anthony Kennedy both dissented -- a weird arrangement that raises interesting possibilities for the Obamacare case the court will decide later this year.

The legal framework for the case works like this: The federal whistle-blower law says the government can’t fire an employee for a disclosure if the information disclosed is “not specifically prohibited by law” or “not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.”

The government said the disclosure made by the whistle-blower Robert MacLean was specifically prohibited in two ways: by the TSA regulation that bars sensitive disclosures and by the general law that directs the TSA to make regulations “prohibiting the disclosure of information obtained or developed in carrying out security.”

The court rejected the government’s first claim handily. The TSA regulation, the court said, wasn’t a “law” -- because it was a regulation. The statute creating the TSA refers frequently to “law, rule, or regulation.” This proved, said Chief Justice John Roberts in his opinion for the court, that where the reference is only to “law,” the intent is to exclude regulation.

Roberts led with this textual argument, but he also added a functional proof in support. Reading “law” to include “regulation” might gut the whistle-blower statute, because lots of agencies either have or could make regulations telling their employees not to disclose whatever they already aren’t supposed to disclose. If breaking those regulations didn’t get you whistle-blower status, then the status might almost disappear.

This combination of text and purpose is sensible enough -- and all nine justices agreed to it. The disagreement arose about Roberts’s explanation of why MacLean’s disclosure wasn’t “specifically prohibited” by the statute directing the TSA to make regulations prohibiting security-related disclosures.

Here Roberts sounded like a lawyer -- and in this case, I don’t mean that as a compliment. He wrote: “This statute does not prohibit anything. On the contrary, it authorizes something -- it authorizes the [TSA] to ‘prescribe regulations.’” In essence, Roberts said that a law telling the TSA to make prohibitions isn’t itself a prohibition --it’s just an authorization of one.

Roberts had a follow-up that wasn’t much better. Technically, the law tells the TSA to make regulations only if the agency “decides that disclosing the information would ... be detrimental to the security of transportation.” That condition, Roberts said, showed that the law didn’t even require prohibition but simply authorization.

Let’s be clear: This lawyerly argument is certainly plausible. Lawyers love to distinguish authorization from requirement, and TSA does have some discretion under the statute. It’s just that this kind of reasoning seems pretty far from what the statute realistically aimed to achieve as its purpose. Congress obviously wanted TSA to ban certain security-related disclosures -- such as whether air marshals will be in planes. The justices wanted to protect whistle-blowers, so they went with literalist formalism.

Sotomayor’s dissent makes this observation visible. “Shall prescribe” means “must prescribe,” Sotomayor said, mischievously quoting Justice Antonin Scalia’s 2012 book on legal interpretation. And she added a punchy conclusion: “I myself decline to surrender so fully to sheer formalism.”

Sotomayor is the court’s most liberal member. She regularly sides with employees against management, and she is a reliable believer in free-speech. So why did she dissent here? And more intriguingly, why did Kennedy, the court’s perennial swing voter, join her?

One possible interpretation is that Sotomayor wanted to lay down a marker against formalist statutory interpretation in advance of the Afforable Care Act case, King v. Burwell. There, challengers to the ACA will claim, using formalism, that the law removes subsidies from federally established health insurance exchanges. As I wrote recently, the other side will also try to use text to make its case -- but the most natural reason to reject the challengers’ view is the absurdity of its formalist reliance on the words of the text.

Here, protecting the whistle-blower thwarts the TSA statute’s purpose -- and Sotomayor wanted us know it.

Does this mean Kennedy, who joined Sotomayor, might conceivably be open to providing a fifth vote to preserve the ACA? Last time the ACA was before the court, court-watchers, myself included, thought he might be the deciding vote. We were wrong, and Kennedy happily joined the libertarian dissent that would have struck down the individual mandate.

Roberts, who saved the ACA last time, is highly unlikely to do it this time when statutory interpretation is the battlefield. He was happy to write the formalist opinion in today’s whistle-blower case. But maybe -- just maybe -- Kennedy is signaling that he is open to being convinced that the ACA statute shouldn’t be given an absurdly formalist reading. Or else maybe he just likes to feel safe when flying to Las Vegas.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net