Throw Out All the Canons? [Updated]

An interesting question from Justice Kagan.

Yesterday, the Supreme Court heard oral argument in Ysleta del Sur Pueblo v. Texas, a case concerning the authority of specific Indian Tribes to regulate bingo and other gaming activities on Indian lands. The case largely turns on a question of statutory interpretation—specifically whether a federal statute prevents Texas from enforcing gaming regulations on tribal territory.

As this case involves Indian territory, there is a question whether the Court should apply a substantive canon of construction that would resolve ambiguities in favor of Indian tribes. But during oral argument, Justice Kagan raised broader questions about the use of substantive (as opposed to semantic) canons of construction.

From the transcript:

JUSTICE KAGAN: I'm about to take you outside the scope of this case, so I apologize beforehand. But Justice Alito raised what to me is an interesting question that I've been thinking about a good deal about what these substantive canons of interpretation are and when they exist and when they don't exist.

They're all over the place, of course. It's not just the Indian canon. Next week, we're going to be thinking about the supposed major questions canon. There are other canons.

I mean, if you go through Justice Scalia's book, you'll find a wealth of canons of this kind, these sort of substantive canons. Some of them help the government. Some of them hurt the government.

Is there any way that the government has of coming in and saying, like, how do we reconcile our views of all these different kinds of canons? Maybe we should just toss them all out, you know. . . .

I mean, I think kind of we should, honestly. Like, what are we doing here? But is there—do you have a view of, like, when these canons are the kind that you're going to talk about in your briefs and when these canons are not the kind that you're going to talk about in your briefs?

MR. YANG: Well, I think our briefs generally grapple first with the text, right, as we've done here. And canons, I think, can play an important role in certain contexts. I think, for instance, Bryan recognized that in the Indian tribal sovereignty context, there is a very important principle that kind of underlays the body of the law there.

You do not want to read statutes to grant state regulatory authority on tribal lands without kind of a clear expression of that. And I think that those types of principles reflect a background body of law that one brings when reading statutes. So it's true, you know, I think I've seen the Court's decision that, you know, sometimes you get canons that conflict, right, that run in contrary directions. These are aids in interpretation, but you always start with the text.

 

UPDATE: I thought it was also noting this later question from Justice Kavanaugh that picks up on the question of when substantive canons should or should not apply.

JUSTICE KAVANAUGH: Just to follow up on Justice Kagan's question because I think that's important, and Justice Alito's as well, on—on the Indian canon, I just want to isolate what kind of canon it is, because it seems like our substantive canons fall into two buckets. One bucket are in ambiguity-dependent canons; if a statute's ambiguous, do this. Another bucket of canons are plain statement canons for mens rea, extraterritoriality . . . and the like.

The former category, the ambiguity-dependent, like our deference, Rule of Lenity, and I want to confirm that you think the Indian canon is an ambiguity-dependent canon as it's been traditionally applied.

MR. YANG: I think that's generally true, but there's something else going on here too, which is the—the principle that Bryan recognized. In the specific context when you're talking about the application of—of state regulatory authority in—on Indian lands, you know, you need to be more cautious.

Now, admittedly, this is a federal statute that implied—that applies federal law, but I think some of the caution that Bryan reflects, I think, should—should guide the Court.

JUSTICE KAVANAUGH: So that suggests you need more of a clear statement, and those usually—those clear statement rules usually reflect some constitutional or quasi-constitutional value, due process, extraterritorial structure, the structure of the country. What would that reflect here, that principle you just described?

MR. YANG: Well, I think it—it reflects that Indian tribes are sovereign nations, that they have before the founding of this country. And, you know, the Court's opinion in Bay Mills tracks some of this.

So, you know, whatever you think about the—canons in general and whether that should be, you know, plain statement, just, you know, tip the balance in ambiguity, the Indian canon, at least when we're talking about tribal sovereignty and the application of state law on tribal lands, that does have a strong pedigree and I think ultimately it traces to the fact these are sovereign nations.