Should Courts Stop Using "Substantive" Canons of Construction?

A proposal from Justice Kagan.

At oral argument a few weeks ago in Ysleta del Sur Pueblo v. Texas—most famous for the amusing debate about "what is 'bingo'?"—several Justices voiced a radical and intriguing proposal for statutory interpretation. The proposal is that we should get rid of some or all of the so-called "substantive" canons of interpretation (as opposed to the canons that operate largely as linguistic rules of thumb).

Here is Justice Kagan:

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.

MR. YANG: Well ––

JUSTICE KAGAN: I mean, I think kind of we should, honestly. Like, what are we doing here? 

Justice Kagan was picking up on this earlier question by Justice Alito:

JUSTICE ALITO: … You refer to the Indian canon. Those who favor the interpretation of statutes to mean what the words of the statute are generally understood to mean have some question about some of these substantive canons.

Now some of them, like the Rule of Lenity, have a long history. What do you think is the basis for this Indian canon?

And then Justice Gorsuch tried to defend the Indian canon:

JUSTICE GORSUCH: The government doesn't waive sovereign immunity lightly. That's one of our canons, right?

MR. YANG: That—that's exactly right.

JUSTICE GORSUCH: And—and isn't the Indian canon very similar in its function in saying that we don't lightly assume that Congress is allowed state authorities to regulate an independent sovereign?

And Justice Kavanaugh followed up as well:

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 ––

MR. YANG: Right.

JUSTICE KAVANAUGH: — and the like. The former category, the ambiguity-dependent, like Auer 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?

Justice Barrett later referred back to the government's answer here as the "sub-Indian canon canon." When she was Professor Barrett, by the way, she had perhaps the leading article criticizing substantive canons from a textualist point of view (Substantive Canons and Faithful Agency), a fact that I'm sure was not lost on Justice Kagan when she first made the point.

Now there's much to say about the "Indian canon" specifically and its origins, but the debate here is also of broader interest and relevance.

I share the view that one should be pretty careful and critical about the use of "substantive canons" in statutory interpretation. As Steve Sachs and I have argued elsewhere, such canons are valid if and only if they are established as law—which we would say means they "were rules of law at the Founding or have validly become law since, pursuant to rules of legal change that were themselves valid in this way." Many substantive canons might be hard to pedigree this way.

But it seems to me that Justice Kagan's reaction goes too far. Some substantive canons really might be derived from longstanding principles of general law, or fair inferences from other legal rules. The ensuing debate about extraterritoriality, or maybe sovereign immunity, are good examples, as is the famous example of the rule of lenity.

Part or what seems to be going on today is that there are a lot of putative substantive canons that are not directly rules of positive law, but that are derived from other canons. For instance, we might start with the legally established canon against implied repeals. We might extend that to a presumption against the implied repeal of federal sovereign immunity. We might extend that to a presumption against the implied repeal of the immunity of other sovereigns. We might extend that to a general presumption in favor of preserving the sovereignty of Indian tribes. And so on.

Or we might start with the legally established rule of priority that the Constitution is supreme over a statute. We might derive from that the substantive canon of constitutional avoidance. We might derive from that, plus a certain view about legislative and executive power, the "major questions" canon. We might derive from that a variation that's closer to a "major rules" canon. And so on.

The problem is that "and so on" can take us pretty far away from the first principles where we started, and there are a lot of unsupervised degrees of freedom in how one extrapolates from one substantive principle to another. If the Justices are concerned about this, I can think of several possible solutions:

• One would be to permit legally-grounded substantive canons but to ban extrapolations.
• Another would be to be more disciplined about extrapolations, something that would probably require a more disciplined approach to common-law reasoning generally.
• A third is just to go Justice Kagan's way, and "toss them all out."