Thursday, September 21, 2017

The Textual Argument That the President Does Not Hold an "Office Under the United States"

On Tuesday, in the Trump Hotel emoluments cases, Seth Barrett Tillman and Josh Blackman filed an amicus brief in the District Court for the District of Columbia, and a motion for leave to file a response to an amicus brief of several legal historians in the Southern District of New York, in support of Professor Tillman's distinctive originalist position that the President does not hold an "office of profit or trust under [the United States]" and therefore is not regulated by the Foreign Emoluments Clause.  Much more attention has been given, on "appellate Twitter" and Josh's blog, to the latter filing.  

That filing, as readers of this post likely know, addresses the legal historians' brief's claim (subsequently expatiated upon in strong terms on "Take Care" by one of the amicus historians, counsel for other amici, and counsel for plaintiffs themselves) that in 1793 Alexander Hamilton prepared a list for the Senate of persons holding "office under the United States" and their respective salaries that included then-President Washington and then-Vice President Adams, and that Professor Tillman had failed to disclose the existence of this document in his recent writings and misrepresented its authenticity in his initial SDNY brief.  In reality, it appears that the only authentic copy of this 1793 list did not include Washington or Adams, and that the list on which the plaintiff-amici legal historians and plaintiff/plaintiff-amici counsel relied is a bad copy, probably prepared decades after the original, as Tillman had been claiming for years; at least, so say five experts in the relevant field with great confidence.  This would seem to definitively clear the air on an important though hardly dispositive document, besides whatever it says about the plaintiff-side "Take Care" contributors' efforts to attack Tillman personally. [9/24:  I should note here in fairness to those contributors that as of today, several of the historian amici have graciously apologized to Tillman and Blackman, or seconded the apology linked to here on social media; the other people I mention above, however, have not apologized or otherwise retracted their comments at all.] 

The more interesting of these filings, however, for people who have an interest in the substance of this litigation, as opposed to litigious antics, is the new Tillman-Blackman amicus brief filed in DC, which lays out their position in full.  I must disclose here that I was kindly asked to review this brief in draft, not because it was assumed that I would be sympathetic to it, but because it was expected that I would be skeptical.  I was very skeptical indeed of Tillman's position at first, the necessary consequences of which include: (a) that Presidents and members of Congress are not covered by the Foreign Emoluments Clause, (b) that the Incompatibility Clause, which prohibits holders of office under the United States from serving in Congress, does not prevent the Speaker of the House or Senate Majority Leader from simultaneously serving as President, (c) that the President can be a member of the Electoral College notwithstanding the Elector Incompatibility Clause, which prohibits holders of office under the United States from serving in the Electoral College, and (d) that Congress can not prevent an impeached official from running for the Presidency, notwithstanding the Disqualification Clause, which allows Congress to disqualify impeached officials from serving in any office under the United States.  These seem like fairly odd rules, and I happen to be someone who believes that oddity is a cognizable constitutional-interpretive consideration, both by way of gauging what the Constitution was likely intended to mean by its drafters or understood to mean by its ratifiers, and as a perfectly legitimate freestanding consideration of its own.

However, as I reviewed the drafts of Tillman and Blackman's brief and read the various responses to Tillman's articles that have been written over the years by some of the academy's leading originalists, most of which were sharply critical, I began to become convinced not only that there is a very serious textual argument for Tillman's position, but that it was difficult to see what an adequate textual rejoinder would look like.  None, I believe, has yet been offered. 

I do not think this textual argument is entirely made or entirely clear in Tillman's brief or perhaps even in his articles, which dwell as much on historic practice as on text and pull several textual punches.  Unlike the brief's authors, or many originalists, I am not someone who attaches profound importance to who Hamilton listed as an officer under the United States in 1793, or whether then-President Jefferson accepted a bust of the Czar of Russia without asking for permission from Congress.  These instances of practice seem to me, at best, indicia of what a couple high-ranking officials made of the Constitution near its ratification, no more or less weighty than the EPA Administrator and her deputy's near-contemporaneous understanding of the Clean Air Act—information in which the connoisseurs of Tillman and Blackman's sort of argument tend to have little to no interest.  I am, however, interested in constitutional text, especially a part of the Constitution's text as little-interpreted as this one, and I think any reader will agree that under normal, humdrum rules of textual interpretation, Tillman's initially counterintuitive claim that the President does not hold an office under the United States is at least a very plausible reading of the text if not indeed the best.

A.  Officers of the United States

To begin with, we need to defuse a very natural objection—that it is so obviously the case that the President holds an office under the United States that any other reading of the text is trivially wrong.  The Foreign Emoluments Clause provides that "[n]o title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state."  The antecedent of "them" in "no person holding any office of profit or trust under them" is, of course, "the United States.  Does the President hold an office of profit or trust under the United States?  

Well, the argument would go, the text of Article II, section 1, clause 1 tells us that the President shall "hold [an] Office."  (Likewise, section I, clauses 5, 6 and 8 refer to the Presidency as an "Office.")  And, the same clause refers to him as the "President of the United States."  Certainly the Presidency is an office of "trust" or "profit," and while an "office under" the United States is a funny, antiquated way to talk, surely an "Office" in the government of the United States, indeed at the very head of it, is an "office under" the United States.

This argument, however, proves a bit too much, because it is almost unambiguously the case that the President is not an "officer of the United States," a phrase that appears several times in the Constitution, even though he textually holds an "Office" the very title of which says is "of the United States."  This is most clearly the case in that the Appointments Clause requires that "all . . . officers of the United States" be appointed, not elected, by the President or by some other constitutionally provided mechanism.  The Appointments Clause famously provides that the President, "with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for," though Congress may vest appointments of inferior officers in the President alone or heads of departments.  So, to be an "Officer of the United States," either the President must appoint you with the advice and consent of the Senate, or your appointment must be "herein otherwise provided for" in the Constitution.

Now, the President of course does not appoint himself, nor the members of Congress.  But nor are their "Appointments . . . herein otherwise provided for" in the Constitution; the President is, in the language of Article II, section 1, clause 1, "elected," as are the members of the House, see Article I, section 2, clause 2, while the members of the Senate were, under the original Constitution, "chosen by the [state] Legislature" in an "Election," see Article I, section 3, clauses 1–2.  The word "appoint" is used with circumspection throughout the Constitution to refer to literally appointed, unelected officials of various types, such as Senators temporarily appointed to midterm vacancies, see Article I, section 3, clause 2, officers in state militias, see Article I, section 8, clause 16, and the ambassadors, ministers, and judges of the Appointments Clause itself.  Definitionally, then, an officer of the United States is an appointed officer.

Moreover, Article II, section 3 charges the President with the duty to "commission all the Officers of the United States," just as he must appoint "all" officers of the United States less those whose appointments are constitutionally committed elsewhere.  But no President has ever self-commissioned or commissioned his successor; nor has any President ever commissioned members of Congress, to my knowledge.  This isn't because commissions are formal niceties.  Presidents still commission federal judges to this day; a confirmed judge cannot serve, indeed is not a judge, until he receives his judicial commission from the President.  And Marbury, of course, is a testament to how essential the founding generation viewed the delivery of the constitutionally requisite commission to serving as a judicial officer of the United States.

Further still, Article II, section 4 provides that "[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment," raising the obvious inference that the President and Vice President are not themselves officers of the United States.  And further yet, we know that the original version of this clause said that the President, Vice President, and "other" officers of the United States could be impeached, and that the Committee of Style, which made technical corrections to the proposed Constitution, tellingly excised "other."  Professor Calabresi has suggested that the word "other" was redundant because it was somehow already obvious that the President was an officer of the United States; not only isn't it obvious, that argument raises the question of why, if the Committee of Style were so concerned about redundancy, it wouldn't remove the five words "the President, Vice President, and" from the clause as well, which would be, on this view, far more redundant.  Indeed, it is far from apparent that "other" would on Calabresi's own view be redundant at all; does a phrase like "A, E, and all the English vowels," as opposed to "A, E, and all the other English vowels," really make sense?  The former is like saying, "A, E, and A, E, I, O, and U."

Finally, the Constitution's Oaths Clause, Article VI, section 3, requires that "all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution."  One might assume that the President was an executive officer of the United States.  Yet Article II, section 1, clause 8 specifically provides a particular oath for the President, one which does not refer to "supporting" the Constitution (unlike the oath Congress requires all executive-branch officials besides the President to take, in keeping with the Oaths Clause), but to preserving, protecting, and defending it.  If the President were an executive officer of the United States, he would be covered by the Oaths Clause and the presidential oath clause in Article II would either be unnecessary or require the swearing of a second oath on top of the general executive-branch oath to "support" the Constitution.

As far as officers of the United States go, then, the Constitution all but textually compels the conclusion that the President is not an officer of the United States.  This should at least make us willing to doubt, or pause before we assume, that the President holds an "office under the United States" simply because the Constitution plainly provides that he holds an "office" in the United States government; one likewise could assume with equal logic that the President was an officer of the United States, and yet would be wrong.  Indeed, were one simply engaging in a plain-language intuitionist interpretation of "officer of the United States" and "office under the United States," one would be more likely to suppose that the President was an officer of the United States but did not hold office under it.

B.  Offices Under the United States.

1.  Members of Congress plainly do not hold office under the United States.

What of offices under the United States?  Perhaps, one might suppose, the difference between offices under the United States and officers of the United States is that the former includes the Presidency and seats in Congress and the latter does not.  But this is clearly at least half-wrong.  The text of two clauses of the Constitution makes it quite plain that members of Congress are not officers under the United States.

To begin with, the Incompatibility Clause provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."  Whether this prohibits the President from being a member of Congress or not, it certainly can't prohibit a member of Congress from being a member of Congress, yet that's just what it would do if members of Congress were deemed to hold "any Office under the United States."  Were members of Congress officers under the United States, the clause would be as nonsensical as saying that "no holder of federal elected office shall be the President."

Second, the obscure Elector Incompatibility Clause provides a strong anti-surplusage kick to the view that members of Congress are not officers under the United States.  It provides that "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."  Like the clause subjecting the President and Vice President to the impeachment power, it is difficult to see why the drafters of the Constitution would specifically refer to Senators and Representatives if they were persons holding offices under the United States.  Indeed, sentences with this structure scan as almost nonsensical, or at least extremely ill-formed, if there's redundancy; for example, "no mouse, gerbil, or animal was harmed in the making of this film."

2.  But do Presidents?

Now, it is just conceivable that the difference between officers of the United States and offices under the United States is that the latter includes Presidents and Vice Presidents, while both leave Congress out.**  I think there are six problems with that.  First, and weakest, a different part of the Incompatibility Clause than the part I've quoted links offices under the United States with appointment, as the Appointments Clause ties officer-of status to appointment.  It provides that "[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time."  This part of the clause prohibits a member of Congress from being appointed to any civil office under the United States the salary of which has increased during the time that member was in office.  

Presidential salary has increased over the years, of course, so were the Presidency an office under the United States, it could in theory fall under the prohibition of this clause.  Yet if the Presidency were such an office under the United States, "any civil Office under the Authority of the United States. . . the Emoluments whereof shall have been increased during such time" can't really mean any civil office under the United States, because appointment (which is what the clause prohibits, not appointment or election) to the Presidency is an impossibility.  Tellingly, Madison advanced the compromise that was ultimately ratified by arguing that "no office ought to be open to a member, which may be created or augmented while he is in the legislature."  Yet if Madison saw the Presidency as an office under the United States, the clause as written is underinclusive relative to what he sought to achieve; on the other hand, if he thought that offices under the United States were definitionally appointed offices, the clause as ratified makes sense.

** Akhil Amar has advocated in this paper (according to Tillman at least, though I find Amar's position as to the Presidency opaque with the exception of these ipse dixits in his book) for a cousin of this position, on which officers of and officers under are synonyms and both include the President and exclude members of Congress.  This position strikes me as all but indefensible, and in any event he gives no positive argument for the inclusion of the President. 

Second, there doesn't seem to be any evidence that anyone at the framing held a hybrid view of offices under the United States, on which the phrase included appointed federal officers, elected executive-branch offices, but not elected legislative-branch offices.  The plaintiffs' legal historian amici have pointed out that George Mason and Edmund Randolph, the country's first Attorney General, said that the Foreign Emoluments Clause applied to the Presidency.  But as Tillman and Blackman say in response, Mason and Randolph also believed that members of Congress could be impeached, which is to say they believed that they were officers of the United States (see Article II, section 4), despite strong textual indications to the contrary, and despite what's almost universally viewed as the Senate's conclusion in 1799 that it lacked the power to convict impeached members of Congress (though see this interesting article arguing that the Senate didn't actually make that determination).  The point isn't to impugn Mason or Randolph as interpretive sources or to suggest that if they were wrong on one thing they had to be wrong on another; it's that they don't support the hybrid view.  Plaintiffs or their amici haven't identified a framer or founding-era source that supports what has to be their theory of the case:  that Presidents are officers under the United States while Congressmen are not.

Third, it seems extremely difficult to me to understand what theory would underlie this hybrid understanding of offices under the United States, or how anyone at the framing would have known that "office under the United States" was a term of art that included Presidents but excluded members of Congress, especially without leaving any evidence of their talking about the term in this way.  I can understand, or at least acclimate myself to, a linguistic convention on which only appointed federal officials were deemed officers of the United States or holders of office under the United States.  I can't quite grasp a convention, though, on which Presidents and Congressmen weren't thought officers of the United States, as I think is clear, on which Congressmen weren't thought officers under the United States, as I think is also clear, but on which Presidents were deemed officers under the United States.  What theory of "office under" as distinct from officer of would underlie these strange distinctions?  

More fundamentally, even if "officer of" and "office under" could be defined in this way on some hidden logic, how would anyone in the ratifying conventions or in the debates at the Constitutional Convention have understood these reticulated definitions of these newly invented terms of American law without at least some explanation or clarification in those debates or indeed in the text itself?  A widely, though not universally shared understanding that general references in the Constitution to officers and offices did not include elective office seems like the much simpler explanation of how people could have coordinated around and voted on the text we have today.

Fourth, and critically, it in fact does appear that there is an explanation for how people were able to vote on the Constitution and agree to its language without further textual or extratextual explanation of what its many opaque references to offices under the United States meant.  And that is that, as Tillman and Blackman explain at pages 7–8 of their brief, there is a quite old British tradition, dating back to at least 1707, of using the phrase "office under the Crown" to refer to appointed offices, and an equally old British tradition of distinguishing elective offices from offices under the Crown. The richest source they cite is this 1941 Attorney General memorandum, which traces the history of understandings of "office under the Crown" back into the seventeenth century.  What is quite clear is that by 1707 British statutes, written much like our Constitution's Incompatibility Clause, forbade members of Parliament from holding offices under the Crown—an incoherent proscription if members of Parliament themselves held such office.  This settled British legal and linguistic tradition of understanding office under the Crown to exclude elected office explains how the framers and ratifiers could have coordinated around the otherwise cryptic and novel phrase, "office under the United States."  Indeed, something like a practice of this kind is almost necessary to explain how such coordination was possible.

Fifth, while I share the textualist impulse to think that there must be some important difference between officers of the United States and offices under the United States, it is perfectly possible that the framers simply referred to offices under the United States when they spoke in the abstract of offices (as they had to in order to talk about offices of profit or trust), and officers of the United States when they spoke in the concrete of officers.  It does not appear, after all, that the Constitution ever refers simply to offices of the United States, or to "officers under" the United States.  I find this explanation of the variation in phraseology quite plausible.

Alternatively, Tillman has provided a quite plausible account of the difference that is at least borne out by unbroken practice from 1789 to the present day.  This is that "officers of" the United States do not include appointed legislative-branch officers, such as the Secretary of the Senate or the Director of the Congressional Budget Office.  Offices under the United States, on the other hand, do, he claims, include these offices.  

The argument from practice and structure that legislative-branch officers are not officers of the United States, no matter how high-ranking, is quite strong.  While Article II, section 3 requires the President to "commission all the Officers of the United States," the President has never commissioned a legislative-branch officer.  And while "all civil officers of the United States" are impeachable under Article II, section 4, it would seem unnecessary to extend the impeachment power to legislative-branch officers given that Congress implicitly has the power to remove those officers, given, in turn, each House's textually committed power in the fifth clauses of Article 1, sections 2 and 3 to appoint those "Officers."  Here too, we see that we cannot reason from the Constitution describing a federal official as an "Officer" to the conclusion that he is necessarily an "officer of" or "officer under" the United States; Article 1, section 2, clause 5 provides that "[t]he House of Representatives shall chuse their Speaker and other Officers," but no President has ever commissioned a Speaker of the House or any other officer of the House as an officer of the United States.  

I have one textual quibble with this argument; the Appointment Clause's implication that there are officers of the United States "whose Appointments are . . . otherwise herein provided for" by limiting the President's Senate-confirmed appointment power to officers of the United States "whose Appointments are not otherwise herein provided for" makes me wonder if those otherwise herein provided-for officers are the "Officers" appointed by each House.  However, this is just an implication, and the language may merely be a careful savings clause inserted in case there were such appointments provided for later in the drafting process, or in a subsequent amendment.  Further, to the extent otherwise-herein-provided appointments of officers of the United States are implied, it is possible that these could be found in the Recess Appointments Clause (an exception to the normal Appointments Clause procedure) or the inferior officers discussed in the Appointments Clause, or the members of the Electoral College, who the states "appoint."  And it is also possible that they can be found in the "Officers" of the militia, the appointment of which Article 1, section 8, clause 16 leaves to the states, even though the state militias could be, under that clause, "employed in the Service of the United States," and thus might be viewed as containing officers of the United States that are appointed in a manner "otherwise herein provided."

Sixth, it is not dispositive, but certainly suggestive, that the President in fact has his own Emoluments Clause, which reads, in full: "The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them."  Nothing here is said about foreign emoluments; what is proscribed, interestingly, is payment by state governments.  Of course, it is possible that the President is both regulated by the Foreign Emoluments Clause as an officer under the United States, and by the Presidential Emoluments Clause as the President.  But ratifiers attempting to understand the Constitution could certainly have drawn a fair intratextual inference that the President was not covered by the Foreign Emoluments Clause and did not hold office under the United States.  How anyone reading the document at the time would have drawn the opposite inference—that Presidents did hold office under the United States, while members of Congress did not—escapes me at the present time.

3.  A closing comment.

My intention here has not been to provide anything like a conclusive argument that Presidents (at least as a textual matter) do not hold office under the United States.  My intention, rather, has only been to show that there is a strong argument that they are not that needs to be taken far more seriously than it has been, not just because Hamilton prepared a report that supports the view or because Tillman's critics have made spurious claims about the historical record or Tillman himself, but because the text of the Constitution tends to support it.  

I do believe that much work remains to be done in this regard, precisely because so much of the literature and briefing taking the position that Presidents are officers under the United States has been so peremptory.   The weakness of that side of the literature, in my view, is not necessarily a sign of a weak position so much as it is a function of the position's strong intuitive appeal, both in a casual plain-language sense and as a matter of policy, such that the position has seemed too obvious until now to need much defense from a lone scholar.  My hope in writing this post has been to at least help dissolve the sense that the Presidency's status as an office under the United States is beyond debate, so that scholars, researchers and lawyers inclined to support that proposition can begin the textual and historical work of explaining why it is correct, and so that scholars, researchers and lawyers who come to this question in a spirit of genuine inquiry can continue the work that Professor Tillman has so ably started.

Monday, August 28, 2017

Supreme Court 2016 Statutory Term in Review: A Postscript on Why the Majority Joined Breyer's Opinion in Midland

Several serious Court-watchers have written to me to suggest that Chief Justice Roberts and Justices Alito, Thomas, and maybe Kennedy likely joined Justice Breyer's opinion in Midland Funding not because they agreed with its purposivist rationale, but because Justice Breyer was the swing vote and assent to his reasoning was necessary to avoid a fractured opinion or even a 4-4 split.  I don't think I actually quite said that those Justices bought Justice Breyer's reasoning, and I'm not sure how much it matters if they did.  However, I'll briefly lay out what can be garnered from the argument transcript as to the concurring Justices' reasoning, offer some speculation about how likely it is that the concurring Justices were compelled to join Breyer's opinion in full or to let him say what he wanted to say, and then offer a comment on how much it matters if Breyer's reasoning was really just personal to Breyer.

First, as to Chief Justice Roberts, an estimable and adroit statutory interpreter who I view, after cases like Bond and Burwell, as more of a scion of the Legal Process School than a textualist (though he can trade textual arguments with anyone), the oral argument certainly reveals that he had some concerns with basing FDCPA claims on a theory that a creditor's claim was barred by an affirmative defense.  This is the ground my correspondents speculate the concurring Justices had for joining Breyer's opinion; indeed, they suspect that outside of Breyer, the majority would be happy to hold that suits in state court on stale debts aren't unfair or unconscionable means of debt collection.  However, I think it's also pretty clear that Roberts shared Breyer's purposivist concern with FDCPA litigation in district court, given that at one point he contrasted FDCPA suits on time-barred bankruptcy claims with FDCPA suits on time-barred debt-collection actions, remarking:
Well, bankruptcy is very different.  The whole idea is let's get everything here in one place and -- and deal with it, you know, and different priorities and all of that.  I think it's much more significant if you have things spinning out of the bankruptcy estate being adjudicated elsewhere than the fact that you might have it as a general matter in -- in district courts.
Note that this is, for better or worse, an extremely purposivist/pragmatic concern.  The claim is that, assuming that FDCPA suits about time-barred bankruptcy claims would be "adjudicated elsewhere" than bankruptcy court, deeming a time-barred bankruptcy claim to be unfair or unconscionable under the FDCPA would defeat bankruptcy's "whole idea" of "getting everything here in one place," no matter how unfair or unconscionable it might be to sue on time-barred debts generally.  This concern has nothing to do with (a) the language of the statute or (b) the purposes of the FDCPA.  Rather, the argument would gerrymander out a set of unfair/unconscionable means of debt collection in order to maximally pursue a purpose of the Bankruptcy Code, though it's far from obvious that a purpose of bankruptcy is getting all the debtor's bankruptcy-related causes of action in one place, as opposed to his debts (and, as I said in my post, bankruptcy-jurisdictional statutes already largely do that).  Interestingly, Roberts's concern isn't even Breyer's more limited and pragmatic, if mistaken concern that district courts would struggle to adjudicate bankruptcy-related issues if bankruptcy-related FDCPA actions were allowed to be brought in district court; his concern is the more purposive one of fulfilling bankruptcy's goal of getting "everything here in one place," regardless of the content of the "everything."

Justice Alito, in argument, doubted that chapter 13 trustees lacked the time to or interest in objecting to stale claims; I believe he's the only Justice who voiced such doubts, which tends to confirm my sense that the opinion's doubts on this score had little to do with the Court's decision.  Justice Alito also, at one critical juncture, expressed skepticism with basing FDCPA claims on a creditor's failure to honor an affirmative defense.  Justice Kennedy's questions were all of this latter genre, and Justice Thomas didn't speak.

I think, then, that the Midland Funding majority was likely an overlapping consensus of Justices that thought filing a proof of claim on a time-barred debt wasn't textually unfair, and at least two Justices (not coincidentally, the majority's two most purposivist Justices) that had strong purposivist and pragmatic concerns about allowing FDCPA suits on bankruptcy claims to be brought in district court.  Was it necessary to let Breyer discuss those concerns in his opinion to avoid a fractured decision?  I'm not so sure of that, for the following reasons. 

It strikes me that a compromise could have been forged, if anyone cared enough to forge it, that would focus on staleness particularly being an affirmative defense in bankruptcy, where a claim is "deemed allowed" absent objection, without deciding whether a time-barred debt-collection suit violates the FDCPA, and without talking about Breyer's and Roberts's concerns of bankruptcy-related litigation in district court.  The opinion already does talk about affirmative defenses to a large extent, so we're talking about a cut rather than a complete reorientation.  And it's not at all clear to me that Breyer would have vigorously fought the cut; his discussion of bankruptcy-related litigation in district court is already rather muted relative to his discussion at oral argument.  At worst, I believe that Breyer would have been willing to fully concur in an affirmative-defense-focused opinion, as he already wrote one that places considerable reliance on that rationale, while writing a separate concurring opinion of his own raising his concerns.  So my best guess is that the other members of the majority didn't feel compelled to acquiesce to that discussion, but simply didn't find it that offensive.

How much does it matter if the majority silently objected to Breyer's (and Roberts's) purposivist reasoning?  It could matter a lot; if it's the case that such reasoning only enters a majority opinion of the Court when the swing vote in a case happens to be a purposivist Justice, all an opinion like Midland Funding shows is that we have one or two purposivist Justices who occasionally play pivotal roles, which is hardly new news.  The direction of the law remains, one might argue, a strongly textualist one.  A few responses to that.  

First, besides that I simply don't think it's true that the law's direction is strongly textualist in light of cases like Bond, Burwell and Yates, the direction of the law isn't solely or really even mostly the Supreme Court's direction, and opinions like Midland Funding influence lower courts.  For example, a bankruptcy judge reading Midland Funding will likely take it as a signal that the Supreme Court doesn't want the FDCPA to muck up the Bankruptcy Code's remedies for creditor misconduct generally, not just in the case of claims on time-barred debts, and will carry that sort of pragmatic anti-mucking-up reasoning with her into other interpretive situations, as she's seen that the Supreme Court reasons this way.

Second, we are very possibly (probably?) headed into a world where Justice Breyer and the Chief Justice are swing votes in most close cases, so I think their fairly unreconstructed purposivism is a pretty big deal.

Third, the fact that such purposivist reasoning slips into majority opinions without objection, when, I speculate, it could have been removed or led to a reassignment upon an objection, is at least suggestive of purposivist reasoning's continuing broad acceptability, even if relatively few of the Justices practice it themselves.