Should Courts Stop Using “Substantive” Canons of Construction?

Ysleta del Sur Pueblo v. Texas was argued a few weeks back. This case is most well-known for its amusing discussion about “what’s ‘bingo?” Many Justices raised a novel and exciting proposal to statutory interpretation. It is proposed that some, or all, of the “substantive” interpretation canons should be eliminated (as opposed the canons which operate mostly as linguistic rules.

Here’s Justice Kagan

JUSTICE KAGAN This case is beyond my jurisdiction, therefore I am sorry beforehand. Justice Alito, however, raised the question of what should I do? This is an intriguing question I have been asked These are just a few of the many things you can think about.Canons substantiveThese are the main points of interpretation When they are present and when they’re not Of course, they’re everywhere.

This is not only the Indian canon. Next week We’ll be thinking about what the supposed major questions canon. Other canons are available. That is, you have to go through Justice. Scalia’s book will provide a wealth canons to help you understand Scalia. This is the type of substantive canons.

Some help the government. Some of these The government will be hurt. Does the government have any other options? Has the ability to say “How can we?” All these perspectives can be reconciled Canons Perhaps we could just toss all of them
You know what you are doing.

MR. YANG: How about?

JUSTICE KAGAN That’s what I meant. We should. As in, “What are we doing?” here? 

Justice Kagan took up Justice Alito’s question earlier:

JUSTICE ALTO The following is a reference to Indian canon. People who are a fan of the Interpretation of statutes: What does it mean? The statute’s words are usually understood. I mean, have a question about these Substantive canons.

These include the Rule of Attraction. Lenity has a rich history. You think? What is the Indian basis of this canon?

Justice Gorsuch then tried to defend Indian canon.

JUSTICE GORSUCH – The governmentDoesn’t waiver sovereign immunity lightly. This is one of our canons.

MR. YANG: This is exactly what it says right.

JUSTICE GORSUCH Und – and it’s not the Indian canon has a function very similar to that of the American one. We don’t take it lightly when we say that The Congress can grant state authority to regulate an independent sovereign?

Justice Kavanaugh also followed up:

JUSTICE KAVANAUGH JWe will follow-upJustice Kagan’s question. I think That’s crucial, Justice Alito should also agree. On — I want to talk about the Indian canon. Because it’s difficult to determine what type of canon it might be, Seems like your Substantive canonsYou can fall in two buckets. A single bucket is in ambiguity dependent Canons. If a statute is ambiguous, use this. A second bucket of canons is a statement. Canons for Mens Rea, Extraterritoriality

MR. YANG: Right.

JUSTICE KAVANAUGH — And the like. First, the ambiguity-dependent. Like Auer deference and Rule of Lenity. Please confirm that you believe the Indian canon to be an It’s an ambiguity-dependent Canon as it has been Traditionally,

MR. YANG: This is my view. Yes, it is true. But there are other things going on. Bryan also referred to the — as the principle. recognized. If you need to, please use the following context. Talking about the state application You are the regulatory authority for — Indian lands Be more alert. This is, however, a federal law. statute implied — federal law Bryan has some caution, however it is law. Reflections, I believe, should — should direct the Court.

JUSTICE KAVANAUGH That’s what it suggests You need a more clear message, so those These clear statements rules are usually followed Reflect some constitutional or quasi-constitutional value, due process, Extraterritorial structure: The structure of country. That would be a reflection of what it means. principle you just described?

Justice Barrett later refereed to this government answer as the “sub Indian canon canon”. By the way, when she was Professor Barrett she wrote perhaps the most important article criticizing substantive Canons textually (Substantive Canons and Faithful Agency), which Justice Kagan probably didn’t forget when she made that point.

While there is much to be said about the Indian canon and its history, the discussion here has wider relevance and interest.

It is my opinion that it is important to be very careful about using “substantive Canons” when interpreting statutes. Steve Sachs and me have made other arguments that such canons only become valid when they are established in law. This would imply they either “were laws at the Founding” or they have been validly adopted by law pursuant to rules for legal change. It might prove difficult for many substantive canons to be traced this way.

Justice Kagan seems to have gone too far with her reaction. Some substantive canons might actually be drawn from established principles of general or fair inferences made from other laws. As an example, consider the debate over extraterritoriality or sovereign immunity.

One aspect of what is happening today seems to be that there are many putative substantive canons. These canons aren’t directly rules or positive law but are derived from other canons. One example is the legally recognized canon against replies to repeals. That might be extended to include a presumption that federal sovereign immunity cannot be impliedly repealed. That could be extended to include a presumption that immunity from other sovereigns cannot be impliedly repealed. That could be extended to include a presumption for the preservation of Indian tribal sovereignty. So on.

We could also start from the legal rule that the Constitution has precedence over any statute. This could lead to the substantive canon for constitutional avoidance. That, along with a view of legislative and executive power might be the “major question” canon. This could lead to an alternative that would be closer to a canon of “major regulations”. So on.

It is a problem that the phrase “and so on”, can get us far from where we started. Furthermore, there are several unsupervised levels of freedom regarding how one extrapolates to one substantive principle. This is something I think the Justices might be concerned about.

  • One option would be to allow legally-grounded substantive Canons, but ban extrapolations.
  • One other thing would be to be less impulsive with extrapolations. This would likely require more discipline in common-law reasoning.
  • The third option is to follow Justice Kagan’s lead and throw them out all together.