Geoffrey T. Blackwell
@gtblackwell.atheists.org
2.7K followers 1.3K following 276 posts
Atheists.org Legal Director, #FirstAmendment attorney, co-host of @notsograndjury.bsky.social. "With the first link, the chain is forged. The first speech censored, the first thought forbidden, the first freedom denied, chains us all irrevocably."
![Introducing her view that “commonsense principles of communication” can sometimes help resolve disputes over the meaning of statutory terms, JUSTICE BARRETT points to
an old chestnut. Nebraska, 600 U. S., at 512, 514 (concurring opinion). Suppose a legislature used the phrase “who-
ever drew blood in the streets” in a criminal statute imposing punishment. As a matter of “common sense,” JUSTICE BARRETT says, it would “‘g[o] without saying’” that the law
doesn’t apply to a surgeon accessing a patient’s vein to save his life. Ibid. That is because the phrase “drew blood” is
susceptible to two conventional idiomatic meanings: one “applicable to violent encounters with man or beast” and
the other “to medical procedures,” A. Scalia & B. Garner, Reading Law 357 (2012) (Scalia & Garner). And any](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:aeh25pysb2rcvipzfijs72gh/bafkreiaadv7eemxtz5twls6kpkqqseqcrazubwzfaubaqmroejcb4ljlym)
![ordinary person faced with that phrase in a penal law would
find it obvious which meaning applies. Ibid.; see also Ne-
braska, 600 U. S., at 512 (BARRETT, J., concurring).
The difficulty is, our major questions cases are different.
Often, little about them “‘goes without saying.’” Ibid. Take
FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120
(2000). There, the question was whether the FDA could
regulate tobacco products. Id., at 125. Looking only to com-
mon sense, the answer would have been yes. Congress au-
thorized the FDA to regulate “drugs,” which Congress de-
fined expressly and broadly as “‘articles (other than food)
intended to affect the structure or any function of the
body.’” Id., at 126. As a matter of common sense, nicotine
qualifies as a “drug” based on this statutory definition, as it
might even as a matter of everyday speech. West Virginia,
597 U. S., at 721–722 (noting the “colorable textual basis”
for the executive branch’s interpretation in Brown & Wil-
liamson). Still, we held the FDA could not regulate tobacco
products. Brown & Williamson, 529 U. S., at 159–160.
Other cases follow suit. We have ruled that the term “air
pollutant” does not include greenhouse gases, even though
greenhouse gases pollute the air. Utility Air Regulatory
Group v. EPA, 573 U. S. 302, 316, 323–324 (2014). We have
held that the phrase “‘[r]egulations . . . necessary to pre-
vent the . . . spread of communicable diseases’” does not in-
clude eviction moratoriums, even without questioning that
eviction moratoriums were necessary to prevent the spread
of COVID–19, a communicable disease. Alabama Assn. of
Realtors, 594 U. S., at 761, 764. And we have said that clos-
ing coal power plants is not the “‘best system of emission
reduction,’” even while acknowledging that closing them
would reduce emissions. West Virginia, 597 U. S., at 721,
732–735.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:aeh25pysb2rcvipzfijs72gh/bafkreibxudsab2ecasofje7shebbjoj2i52apdguij2h6d3epe3lglsscy)
