If Judges are Umpires, is the Attorney General the Baseball Commissioner?

January 23rd, 2012

Justice Breyer thinks so in Reynolds v. United States:

At the same time, the Fourth Statement says that theAttorney General has authority to specify the Act’s “applicability,” not its “nonapplicability.” And it consequently is more naturally read as conferring the authority to apply the Act, not the authority to make exceptions. That is how we normally understand a term such as “authority to specify” in the context of applying new rules to persons already governed by pre-existing rules. If, for example,the Major League Baseball Players Association and theteam owners agreed that the Commissioner of Baseball“shall have the authority to specify the applicability” tothe major leagues of the more stringent minor league drug testing policy, we should think that the minor leaguepolicy would not apply unless and until the Commissioner so specified.

Justice Scalia in dissent, disagrees:

To begin with, I do not share the Court’s belief that to “specify the applicability” more naturally means, in thepresent context, to “make applicable” rather than to “make inapplicable.” See ante, at 7. The example the Court gives, the Commissioner of Baseball’s “‘authority to specify the applicability’” of more stringent minor-league drugtesting policies to the major leagues, ibid., is entirelyinapt, because it deals with a policy that on its face isotherwise not applicable. Since the major leagues are not covered by the policies, the Commissioner’s “‘authority to specify [their] applicability’” can mean nothing else but the authority to render them applicable. What we have here, however, is a statute that states in unqualified terms that “a sex offender shall register,” §16913(a)—and that theCourt rightly believes was meant to cover pre-Act offenders.* The issue is whether “specify the applicability” means that no pre-Act offenders need register unless theAttorney General says so, or rather that the AttorneyGeneral may excuse the unqualified requirement for pre-Act offenders. In that context, it seems to me that the latter meaning is more natural. One specifies the applicability of an application that already exists by describing orrevising its contours.