The major debate over major questions in the tariffs decision is only the beginning

Clear Statements is a recurring series by Abbe R. Gluck on civil litigation and the modern regulatory and statutory state.

The Supreme Court’s decision striking down the president’s tariffs last week is generating a lot of chatter in wonky circles about the inside-baseball debate among the justices about the “major questions” rule. All seven of the opinions in the case mention the rule – the judicial presumption that Congress doesn’t delegate big questions to the executive branch without being clear – and each takes a different position. But the debate is a lot more “major” than that. A storm has been brewing at the court about nearly all of the interpretive presumptions that courts use when construing statutes, known as the “canons” of interpretation. It just hasn’t been widely noticed yet. The debate last week offers a mere harbinger of more drama and doctrinal shifts to come. As Justice Neil Gorsuch put it in his opinion, the emergence of these differences among the justices presents “an interesting turn of events. Each camp warrants a visit.”

The crux of the problem is that the major questions rule, and all canons of interpretation, are judge-made presumptions that advance policy preferences that come from a “‘substantive’ source ‘external’ to any statute” (Gorsuch’s words in the tariffs case, not mine). When applied, many of these canons push the court toward an interpretation that is not necessarily the most natural reading of the enacted text. The court of the 1970s – which often considered extra-textual factors like statutory purposes – might not have blushed over this problem, but this is the court built by Justice Antonin Scalia’s textualism. As Justice Amy Coney Barrett put it in the tariffs case, to “forgo the most natural reading of a statute” based on a policy that “it is preferable for Congress, rather than the President, to make the big decisions, that way lies ‘a lot of trouble’ for the textualist.”

There are other problems too. There are dozens of these canons and they are haphazardly created and applied. Gorsuch defended the major questions canon over Justice Elena Kagan’s dissent in the tariffs case by disputing that it was a recent “innovation.” At an oral argument a few years back in a case that involved the “Indian canon” (the presumption that  statutes be construed in favor of Native American sovereignty), Kagan more pointedly asked: what “these substantive canons of interpretation are and when they exist and when they don’t exist. They’re all over the place … Like, what are we doing here?” Two terms later, Justices Brett Kavanaugh, Clarence Thomas, and Samuel Alito argued that yet another canon, known as the veterans’ canon, “rest[ed] on uncertain foundations.”

And, finally, what triggers these rules? As I have detailed in a forthcoming article, the court is on the cusp of a major fight over the concept of ambiguity. This is a big deal. For decades, ambiguity in a statute’s text was the critical threshold in statutory interpretation. Finding part of a statute ambiguous opened the door to consideration of external tools, like legislative history and canons, on the theory that text alone could not answer the question.

Many also viewed statutory ambiguity as a kind of delegation to courts – a space left by Congress for the courts to fill, so consultation of external norms  (via canons) might be legitimate in such cases. But of late, several justices have moved away entirely from the ambiguity threshold for their favorite canons, including the major questions rule. For some statutory cases, the court now begins with the canon, rather than using it as an ambiguity-breaking tiebreaker only at the end of the inquiry. The result is that those canons become powerful hammers that allow judicially-imposed policy preferences to shape outcomes from a case’s outset.

That’s what the major questions fight in the tariffs case is about. Let’s break it down. The dispute among Chief Justice John Roberts, Kagan, and Gorsuch was actually about the ambiguity question. The chief justice went ahead and applied the major questions canon and mentioned several times that the statute was “ambiguous.” In so doing he waded into the debate raging on the court as to whether ambiguity is even required before applying the major questions rule. Gorsuch took that question head on, arguing “[t]he statutory terms contain no ambiguity.” But he would apply the canon nonetheless, to implement the court’s preference for nondelegation to restrict executive power, regardless of whether the statutory language might be read broadly enough to extend that power. Kagan’s objection puts her somewhere in the middle. Like Gorsuch, she doesn’t see an ambiguity – but she isn’t going to apply the major questions rule without it. She argued instead “straight-up statutory construction resolves this case for me; I need no major-questions thumb on the interpretive scales.”

When Barrett enters the picture, she’s not only concerned with the muscularity of Gorsuch’s approach – though she does call it a “judicial flex”! – she is also concerned about textualism. Barrett’s problem is that she is on record, both in scholarship and in her concurrence in the Biden student-loan-forgiveness case, as having serious concerns with the policy canons in general, especially when applied without ambiguity. She has questioned the court’s authority to create them and, in the tariffs case, she argued that those canons, in “instructing a judge to adopt an inferior-but-tenable reading—veer beyond interpretation and into policymaking,” making them inconsistent with textualism. But that doesn’t mean she doesn’t like major questions. She does. In the student-loan case, Barrett came up with an ingenious hack to get around her problem. She argued that the canon was actually not a judicially imposed policy norm, but rather was simply a canon that captured the way “we communicate conversationally.” That is, she argued that it’s simply a presumption about how ordinary people use language when talking about delegating tasks to others, and therefore it isn’t external to the text at all.

In the tariffs case, Gorsuch cried bupkis. He acknowledged that the canon brings norms “external” to the statute and argued that “commonsense principles of communication do not explain many of our major questions cases—this one included.” For Barrett, it’s a real problem if the canons do not reflect an ordinary textual reading, but Gorsuch is okay with that exercise of judicial authority, and views it as supporting the constitutional separation of powers. There are good arguments on all sides of the issue about the extent to which the court is justified in exercising such power – picking a side here isn’t the point. The point is simply that the cracks forming among the court’s textualists about the canons are important.

Kavanaugh’s dissenting opinion on major questions is less relevant to this post, because he mainly argues – unsuccessfully – for an exception to the canon for the president’s foreign relations authority. But Kavanaugh has been an important voice in the emerging canon wars. He doesn’t like ambiguity as a threshold. He didn’t like it for the now-overruled Chevron administrative-deference doctrine, and he doesn’t like it in the context of other important canons like the canon of constitutional avoidance (that courts should avoid ruling on constitutional issues when interpreting a statute).

So he’s been experimenting with what to do instead. For the canons he likes, like severability, Kavanaugh would dispense with ambiguity altogether and apply the canon at the top of inquiry, as a presumption that controls until proved otherwise. But for canons he really doesn’t like – like the rule of lenity (construe ambiguous criminal statutes in favor of defendants) – he has started imposing a “grievous ambiguity” threshold, over the dissent of Gorsuch, to try to prevent the canon from ever be applied at all. For other canons, like the pro-Indian and pro-veterans’ canons, whose legitimacy he has questioned, he has argued they remain “ambiguity dependent,” only to be used if needed as tiebreakers at the end of the inquiry. (Justice Clarence Thomas’ opinion only briefly mentions major questions, focusing instead on the Constitution, so it is not relevant here.)

Why does all this matter? Because textualism is the dominant method of statutory interpretation on this court, and canons have been the go-to doctrinal tool for textualists since Scalia’s time. And the canons have never before been sliced and diced, or ranked, in this way, despite many suggestions by scholars through the years for the court to try to get a handle on them. Canons are important because textualists need somewhere to turn if text alone cannot answer a question and, since textualists generally avoid legislative history (critiquing that avoidance, by the way, was the focus of Justice Ketanji Brown Jackson’s dissent in the tariffs case), canons become the textualists’ main tool. But, at the same time, textualists, Scalia included, have always been uncomfortable with canons because of their atextual nature and the question of where the court gets authority to create them.

Canons also are about power. When a court applies a canon to a statute that isn’t ambiguous it is indeed a “flex,” or a “clarity tax” (another term of Barrett’s) on Congress, even if the canon ostensibly aims to protect Congress’ power, as major questions’ proponents say it does. Canons burden Congress by making legislation harder – Congress now has to foresee and legislate for specific scenarios rather than write broader statutes that might accommodate future developments.

The major fight over major questions thus signals more divisions among the court’s textualists to come. Look out for disputes about when canons should be applied, what triggers them, and whether some are more legitimate than others. (And for those who haven’t have enough, my forthcoming article, “The End of Ambiguity (in Statutory Interpretation),” details the emerging canon wars in all their glory.)