Spurn Not the Lowly Comma

A misplaced comma once cost the federal government $38.4 million.  In the 19th Century, the federal government imposed a 20% tariff on imported fruit.  Fruit trees, as distinguished from the fruit itself, were tax exempt.  I suppose that was to encourage domestic fruit production.

Up through 1872, the tariff exemption read: “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation.”  A new tariff act came along in 1872, which read: “fruit, plants tropical and semi-tropical for the purpose of propagation or cultivation.”  In neither statute are the commas handled particularly well, but courts don’t get to correct Congressional punctuation  They have to make sense of what punctuation is there.  And what is there beginning with the 1872 act is what appears to be an attempt to create a series consisting of fruits and plants.

The ultimate interpretive rule is legislative intent.  But you can’t poll Congressmen, because different ones will have different intents, and some of them may have changed their minds.  Polling Congress would give partisans a second bite at the legislative apple.  Partisans would try to influence how their colleagues responded to the poll.  So the courts are left with what Congress did.  And here, as is so often the case, what Congress did is make a mess.  All the courts can do is read Congress’ words and try to give them their common-sense meaning.  Here that common sense meaning is that both fruits and plants, whether tropical or semi-tropical, are exempt from the tariff.  Probably no Congressmen actually intended that result, but that result is the most logical inference of “Congressional intent” that the courts can come up with.

So pay attention to commas.  And don’t be so quick to disparage courts’ efforts to divine legislative intent.  After all, they are left to clean up Congress’ messes.


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