by Margaret Ambrose
Last Monday, on May 8th, 2017, former Acting Attorney General Sally Yates squared off with Texas Senator Ted Cruz about her decision not to enforce President Trump’s initial attempt at a travel ban.
This tense exchange was duly noted by both liberal and conservative news outlets. Of specific interest to those in the legal community was the article on Above the Law: Let’s Rewatch Sally Yates Posterizing Ted Cruz: Ted Cruz walked in woefully unprepared. A beatdown ensued. In this post, I am not going to pick a winner and loser. Instead I will focus on what interested me as a legal research instructor and reference librarian about the exchange and the Above the Law article specifically: competing philosophies of statutory interpretation.
According to the article, Cruz ran “off [into] the ditch” because “hardcore devotees like Cruz don’t just use textualism, they live it,” and Cruz according to the article, made the mistake of thinking he could “hang [his] hat on any two or three words at random and wave it around like it’s the Eleventh Commandment.” This is of course in reference to the moment where Cruz cited 8 U.S. Code § 1182, only to have Yates cite an additional provision of the INA, before relaying that her main concern at the time was not limited to a mere statutory interpretation of the INA but that her concern was more fundamental: whether Trump’s travel ban was constitutional.
This is an interesting exchange and should be noted by members of the legal research profession. It touches on a very basic learning objective for any legal research class. Specifically, it has to do with statutory research, and the need to not merely use the search bar in legal research platforms to find isolated sections of the code only. Law students typically come to the table without knowing how important it is to take the time to do the research to gain an understanding of the statutory scheme enacted by a legislature, rather than focusing only on particular sections of the code in isolation. Taking a step back even further, it is equally important to understand how a statute interacts with other law (e.g. the Constitution, regulations, cases, other statutes).
Conversely, this issue is not limited to students but also to public patrons seeking information who are trying to either represent themselves or understand the legal arguments that are being bandied about as part of a national conversation. They too come to the table thinking the answers will be spelled out clearly in the text of a particular case or isolated statute. That is what makes them laymen, as most lawyers know that the answer to almost any question is: “maybe… it depends.”
Again the point is not to declare that Ted Cruz was wrong and Sally Yates was right in her interpretation because she had a superior understanding of the statutory scheme and how it interacted with the Constitution. Or that Yates was wrong and Cruz was right because the law was nebulous so as to make it a partisan move for Yates not to wait for the courts’ interpretation. The point of this post is to identify points where something that should not be overly political (i.e. legal research instruction), may at times not be so high above the fray as legal research librarians might like to think. When this is the case, is there a duty to correct a student or a patron who reaches a conclusion based on what some might conclude is incomplete research (i.e. not taking the time to understand the entire statutory framework), or is it more a matter of a competing philosophy of statutory interpretation that relies on textualism?
Either way, if there is a duty to correct or not correct, the aim is to do so with as little bias as possible, which in many cases may be easier said than done.