The Battling Dictionaries in Chamber of Commerce v. Whiting

May 26th, 2011

In Chamber of Commerce v. Whiting, an important aspect of the case focuses on the meaning of the word “license” in IRCA. The majority opinion by Chief Justice Roberts focuses on certain definitions from Webster’s Third New International (gasp! international!) Dictionary..

A license is “a right or permission granted in accordancewith law . . . to engage in some business or occupation, to do some act, or to engage in some transaction which but for such license would be unlawful.” Webster’s Third New International Dictionary 1304 (2002) . . . Moreover, even if a law regulating articles of incorporation, partnership certificates, and the like is not itself a “licensing law,” it is at the very least “similar” to a licensing law, and therefore comfortably within the savings clause. 8 U. S. C. §1324a(h)(2).5

Justice Breyer differs on the Chief’s dictionary definition:

Dictionary definitions of the word “licensing” are, as the majority points out, broad enough to include virtually any permission that the State chooses to call a “license.” See ante, at 10 (relying on a dictionary and the federal Administrative Procedure Act). But neither dictionary definitions nor the use of the word “license” in an unrelated statute can demonstrate what scope Congress intended the word “licensing” to have as it used that word in this federal statute. Instead, statutory context must ultimately determine the word’s coverage. Context tells a driver that he cannot produce a partnership certificate when a policeman stops the car and asks for a license. Context tells all of us that “licensing” as used in the Act does not include marriage licenses or the licensing of domestic animals. And context, which includes statutory purposes ,language, and history, tells us that the federal statute’s “licensing” language does not embrace Arizona’s overly broad definition of that term. That is to say, ordinary corporate charters, certificates of partnership, and the like do not fall within the scope of the word “licensing” as usedin this federal exception. See Dolan v. Postal Service, 546U. S. 481, 486 (2006) (statutory interpretation requirescourts to “rea[d] the whole statutory text, conside[r] thepurpose and context of the statute, and consul[t] any precedents or authorities that inform the analysis”); United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849) (similar).

In a footnote, the Chief faults Breyer’s objections premised on “fanciful hypotheticals,”, and calls his concerns “largely academic.” Ouch.

5 JUSTICE BREYER recognizes that Arizona’s definition of the word “license” comports with dictionaries’ treatment of the term, but argues that “license” must be read in a more restricted way so as not to include things such as “marriage licenses” and “dog licens[es].” Post, at 2, 12 (dissenting opinion). Luckily, we need not address such fanciful hypotheticals; Arizona limits its definition of “license” to those state permissions issued “for the purposes of operating a business” in the State. Ariz. Rev. Stat. Ann. §23–211(9)(a) (West Supp. 2010). JUSTICE BREYER’s primary concern appears to be that state permissions such as articles of incorporation and partnership certificates are treated as “licensing and similar laws.” Because myriad other licenses are required to operate a business, that concern is largely academic.