Two cases decided or argued within 24 hours of each other last week expose the same problem: statutory language bent away from its plain meaning.
In Denver, District Court Judge Mark Bailey ruled March 23 in Calvarese v. Laubacher that Colorado Democratic Party Chair Shad Murib had authority to move the CD4 assembly date from March 26 to March 27 — a one-day shift that made Eileen Laubacher eligible by satisfying the party’s 12-consecutive-months registration requirement. Colorado Democratic Party rules state the district chair “shall fix” the time, date, and place for assemblies. “Shall” is mandatory in statutory construction. Bailey ruled the language did not give district chair Lisa Chollet exclusive authority, converting a mandatory duty into a shared one.
In Washington the next day, the U.S. Supreme Court heard oral argument in Noem v. Al Otro Lado. The case turns on the Immigration and Nationality Act’s provision that an alien “who arrives in the United States” may apply for asylum and must be inspected by immigration officers. The government argues “in” carries its ordinary meaning — within the limits or bounds of the United States. Al Otro Lado argues that presenting oneself at a port of entry while still physically in Mexico constitutes arriving “in” the United States. Dissenting Ninth Circuit judges called that reading “breathtaking” and “radical.”
As of this writing, Bailey’s ruling stands. The Supreme Court’s decision in Noem is expected before the term ends in late June or early July.
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