In a January 3 segment on America's News Headquarters, Fox News host Gregg Jarrett erroneously stated that the legal use of the word "shall" in the Affordable Care Act (ACA) meant implementation delays are absolutely barred.
Jarrett argued that because the word "shall" was used in the ACA's section that incentivizes large employers to provide health insurance by 2014, the Obama administration's delay of this "employer mandate" is illegal. In an interview with his Republican guest, current Texas Attorney General and gubernatorial candidate Greg Abbott, Jarrett continued, "'shall' -- and you learned this in law school -- is a mandatory word. It is not fungible." Abbott confidently agreed, saying that "as a former Texas Supreme Court justice myself, I can tell you that courts consistently apply that word, 'shall,' to mean that it provides the executive branch no latitude in how they are going to apply the law."
What neither Jarrett or Abbott point out -- despite reassuring viewers of their expertise -- is that the meaning of the word "shall" has been at the center of a great deal of legal confusion, and is far from "mandatory" in American statutory interpretation. Bryan Garner, who is the editor-in-chief of the leading law dictionary and who co-authored two legal writing textbooks with conservative Supreme Court Justice Antonin Scalia, is one of many who have explained that the plain meaning of the word "shall" really isn't so plain:
In every English-speaking jurisdiction that I know of -- don't be so shocked -- shall has been held to mean may. As Justice Ruth Bader Ginsburg remarked in a majority opinion: "though shall generally means must, legal writers sometimes use, or misuse, shall to mean should, will or even may."
In the ninth edition of Black's Law Dictionary, I list five meanings for shall:
shall, vb. (bef. 12c) 1. Has a duty to; more broadly, is required to "the requester shall send notice" "notice shall be sent". This is the mandatory sense that drafters typically intend and that courts typically uphold. 2. Should (as often interpreted by courts) "all claimants shall request mediation". 3. May "no person shall enter the building without first signing the roster". When a negative word such as not or no precedes shall (as in the example in angled bracket), the word shall often means may. What is being negated is permission, not a requirement. 4. Will (as a future tense verb) "the corporation shall then have a period of 30 days to object". 5. Is entitled to "the secretary shall be reimbursed for all expenses". Only sense 1 is acceptable under strict standards of drafting.
In short, shall is a chameleon-hued word.
For teachers of legal drafting, there are two main pedagogical approaches today for teaching lawyers and aspiring lawyers about this word: (1) restrict shall to meaning either "has a duty to" or "is required to" (meaning that 40 to 80 percent of the shalls in existing forms will be replaced); or (2) eliminate shall altogether on grounds that lawyers as a group cannot realistically master the semantic subtleties of the word (meaning that 100 percent of shalls get dropped).
When I acted as style consultant to the U.S. Judicial Conference's Standing Committee on Rules of Practice and Procedure, beginning in the 1990s, the federal judges for whom I worked experimented with the first option, but settled on the second. Hence when I revised the full sets of civil, appellate and criminal federal rules, the shalls were dropped.
Context is crucial to any analysis of the use of "shall," a tool of statutory interpretation courts frequently use to decide whether "shall" actually means "should," "will," or "may." In the case of the announced phased-in enforcement of the "employer mandate," legal experts note that despite the section's use of "shall," the current delay has decades of precedent to support its legality.
And yet, Jarrett and Abbott remain convinced that the use of the word "shall" will bring about the end of the ACA, as soon as they find "somebody who has experienced actual harm" by affordable insurance to sue.