Summary: This post explores and assesses Justice Kavanaugh’s challenge to the veterans benefit canon of statutory construction, and similar substantive interpretive canons regarding entitlements or benefits legislation.

In the midst of the major decisions the Supreme Court handed down last term, it was easy to miss Rudisil v. McDonough, 601 U.S. 294 (2024), especially a concurring opinion signed by only two Justices.[1]  The case resolved a question that, to most, seems rather pedestrian: could a veteran who served three separate tours of duty take educational benefits under one GI Bill for one tour of duty and different GI Bill for his second and third tours of duty.  Yet the case had roiled the lower courts, ultimately resulting in an en banc ruling by the Federal Circuit, BO v. Wilkie, 31 Vet. App. 321 (2019), aff’d, 4 F.4th 1297 (Fed. Cir. 2021)(2-1 decision), reversed, 55 F.4th 879, Fed. Cir. 2022)(en banc)(10-2 decision). Despite the Department of Veterans Affairs’ conclusion that the applicable statutes precluded the veteran from relying on different GI bills based on his separate tours of duty (a position 10 of 12 members of the en banc Federal Circuit Court endorsed), the Supreme Court found that the veteran could indeed designate one tour of duty under the Montgomery GI Bill and the second and third under the post-9/11 GI benefits Bill.  Rudisil v. McDonough, 601 U.S. at 310-12.

But in a separate concurring opinion, presaged in a Federal Circuit opinion, Kisor v. McDonough, 995 F.3d 1347, 1348-59 (Fed. Cir. 2021)(Prost, C. J., concurring in denial of rehearing en banc), Justice Kavanagh questioned the validity of the interpretive canon that veterans’ benefits statutes are to be construed in favor of veterans, Rudisil v. McDonough, 601 U.S. at 314-18.  Only Justice Barrett joined the Kavanaugh concurrence, but that opinion merits attention and a belated preliminary assessment nonetheless.[2]

Justice Kavanaugh’s Opinion

Justice Kavanaugh began by distinguishing substantive and linguistic canons of statutory construction, identifying the veterans’ canon as the former.  He equated the canon with the presumptions against retroactivity, Landsgraf v. USI Film Products, 511 U.S. 244 (1994), and extraterritoriality, EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), and the presumption that criminal statutes require a mens rea, Ruan v. United States, 597 U.S. 450, 458 (2022).  Rudisil v. McDonough, 601 U.S. at 315. In his view, substantive canons allowed courts to depart from a judge’s “best reading” of the statutory text.  Id.

But Justice Kavanaugh failed to acknowledge an important distinction between two categories of substantive canons, “plain statement canons” and weak substantive canons.[3]  Plain statement canons, like the retroactivity canon, or the recently abandoned Chevron doctrine, dictate the results of the case if the statutory provision is ambiguous.[4]  Weak substantive canons, like the veterans’ canon, do not mandate particular results (and certainly do not require the legislature to speak with unusual clarity, i.e., provide a “plain statement” in the statutory text). Rather such canons have an impact only at the margin of statutory interpretation, serving as one member of an “unruly team,” often “pulling in opposite directions,” Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991)(cited in Kisor v. McDonough, 995 F.3d 1347, 1374 (Fed. Cir. 2021)(O’Malley, J., dissenting from denial of rehearing en banc), i.e., one of many canons that cut in various directions.

Referencing only a leading casebook, Justice Kavanagh asserted that “[s]ubstantive canons are typically based on background constitutional principles or long-settled judicial understandings of congressional practice.” Rudisil v. McDonough, supra, 601 U.S.  at 315 (citing John F. Manning & Matthew C. Stephenson, Legislation and Regulation 382-84 (4th ed. 2021)).[5]   Moving from the descriptive to the normative, he concluded that given substantive canon’s inherent decision-altering effects, “any substantive canon must be sufficiently rooted in constitutional principles or congressional practices.”[6]

Tracing the veterans canon’s genesis back to Boone v. Lightner, 319 U.S. 561, 575 (1943), Justice Kavanaugh asserted that the canon seems to embody a loose, and unexplained, judicial assumption about congressional intent, namely “that Congress intends for courts to read ambiguous veterans-benefits statutes more broadly than the courts” would otherwise read them.[7]  Rudisil v. McDonough, supra, 601 U.S.  at 315.[8]

Justice Kavanaugh observed, however, that since the early cases invoking such an approach, “the Court has occasionally referred to a general pro-veterans interpretive principle . . . without further explanation.”  Id. at 315-16.[9]  Moreover, he noted, the Court has “rarely” applied the canon. Even when mentioned, “the canon ha[d] seemingly served only as the proverbial icing on a cake already frosted—that is, an extra citation after the Court has already concluded that the veteran prevails anyway under the statutory text and traditional tools of statutory interpretation.” Id. at 316. (citing Kisor v. McDonough, 995 F.3d 1347, 1350 (Fed. Cir. 2021) (Prost, C. J., concurring in denial of rehearing en banc).  These comments eerily resemble the assertion the Court would make two months or so hence in Loper Bright with regard to the Supreme Court’s application of the Chevron doctrine.  Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 406 (2024)(observing that the Court had not deferred to an agency interpretation under Chevron since 2016).  Justice Kavanaugh lamented “the Court’s reflexive repetition of the canon,” which had led the Federal Circuit to “rely on the canon in a way [the Supreme] Court has not.”  Rudisil, supra, at 316.

Having challenged the presumption’s precedential basis, Justice Kavanaugh proceeded to lay out certain problems with benefits-related canons like the veteran’s canon.[10]  Indeed, he asserted, such canons both fail to reflect congressional practice and improperly expand the judiciary’s role.  The crux of his argument is that allocating funds to the provision of benefits involves making trade-offs with respect to other potential uses of the funds. 

To be sure, if someone asked a Member of Congress or the President . . . in the abstract, “Should veterans get more benefits?” the answer would be yes. But that question is not (and cannot be) answered in the abstract. The spending process is a zero-sum game, where money spent on one group means less money for other groups and other national priorities. . . And the U.S. Treasury is not a bottomless well of free money—rather, the money comes primarily from the taxes paid by the American people. 

Id. at 316-17.[11]  He asserted that “[j]udges have no principled way to make [such] choices or weigh those tradeoffs.” Id. at 317.  And, other than reading the statutory text as written, judges lack any principled basis for concluding “that Congress and the President would prefer to favor one group over another—or stated another way in this zero-sum process, to disfavor one group over another.”  Id.

Moreover, judges [lack] constitutional authority to favor or disfavor one group over another in the spending process; the Constitution leaves such judgments to Congress and the President. Id. at 317-18 (citing U. S. Const., Art. I, § 7, cl. 2; § 8, cl. 1; § 9, cl. 7). Thus, Courts must “neutrally interpret and apply the spending laws enacted by Congress and the President.”  Id. at 317-18. And they must do so “by heeding the statutory text and employing the traditional tools of statutory interpretation,” rather than singling out particular groups for favored or disfavored treatment. Id. at 317-18 (citing Antonin Scalia & Brian Garner, Reading Law: The Interpretation of Legal Texts 352–354 (2012)).

Analysis

Justice Kavanaugh’s proposed approach is vulnerable to three critiques.  First, his view of veterans’ benefits legislation as reflecting some grand set of trade-offs among all the federal government’s fiscal obligations reflects an idealized and oversimplified conception of congressional processes.  Second, other types of legislation, legislation that does not confer entitlements to financial assistance from the government, also involve trade-offs.  Under Justice Kavanaugh’s approach virtually every statute would have to be interpreted without reference to any substantive canons.  Third, substantive presumptions can reflect the values of our society as objectively manifested in our laws and customs. And long-standing substantive canons may well have been accepted by Congress as a part of the background against which it legislates.  Thus, substantive canons can be recognized as a traditional tool of construction that can influence, even if not determine, how ambiguous statutes are interpreted.

Congressional Reality

Justice Kavanaugh broadly hypothesizes an idealized congressional budgeting process, in which Congress revises benefits programs and allocates funds for all government programs in one comprehensive process, prioritizes among the full range of federal programs.  But the actual congressional budgeting process is far messier and disaggregated.

First, the appropriations process must be distinguished from the authorization process. Congressional Research Service, The Appropriations Process: A Brief Overview (May 16, 2023)(James V. Saturno); W. OLESZEK, M. OLESZEK, E. RYBICKI, & B. HENIFF CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS, Congressional Budget Process 5 (CQ Press 2020).[12]  Congress has created a two-step process for funding government programs and operations.  Congress must first authorize the maximum amounts that may be appropriated for various programs.  Such authorizations are typically included in substantive legislation, and considered by each chamber’s substantive committees, not their respective appropriations committees. At least in the House, the germaneness rule serves to limit amendments to legislation to the subjects of a bill, Congressional Research Service, The Amending Process in the House of Representatives 9 (Updated September 16, 2015).[13] Granted, the germaneness rule can be waived.  Appropriations for discretionary expenditures are then established for expenditures covered by authorization bills.  It is here that authorized amounts may be limited by balancing competing funding needs against those for other government programs.

Veterans benefits legislation, a form a entitlement spending, is generally not adopted by appropriations committees, but by subject area committees, like the House and Senate Veterans Affairs committees.  See, Kisor v. McDonough, supra, 995 F.3d at 1355-56 (Prost, J., concurring in denial of rehearing en banc).[14]  Thus, while in a theoretical sense Justice Kavanaugh is surely correct that fiscal limitations require reconciling spending priorities, i.e., “trade-offs,” it is not at all clear that ambiguous statutory language in veterans benefits  legislation has its provenance in the portion of the budgeting process in which such trade-offs are typically made (such as the appropriations or reconciliation processes described below). 

Moreover, there are different types of appropriations bills ─ general appropriations bills, continuing resolutions, and supplemental appropriations bills.[15]  Consideration of the latter two are less likely to involve a focus on unrelated programs’ relative merits than consideration of general appropriations bills. 

First consider general appropriations bills, the most likely to involve the type of global trade-offs between funding for various unrelated programs that Justice Kavanaugh posits.  Even here, however, the consideration of all programs against all others, i.e., the posited fiscal “war of all against all,” does not occur at a particularly granular level.  A budget resolution will provide general targets for appropriations committee to meet, and can include directions to modify entitlements programs to bring them in line with general expenditure targets.[16] (But not even every budget resolution contains instructions to committees to reduce the expenditures on entitlement programs.)[17] However, the work on general appropriations bills is split among twelve subject-specific appropriations subcommittees.[18]  These separate appropriations bills ultimately may or may not be combined into one omnibus appropriation bill[19]  Nevertheless, as a practical matter any granular choices in priorities are primarily made between competing programs in the same general category of programs. 

Moreover, even omnibus appropriations bills contain substantive provisions largely unrelated to appropriations.[20]  The long-frustrated effort adopt a copyright small claims tribunal came to fruition by being included in the Consolidated Appropriations Act of 2021, Pub. L. 116–260, 134 Stat. 1182 (Dec. 27, 2020), as section 212, entitled the ‘‘Copyright Alternative in Small-Claims Enforcement Act of 2020,’’134 Stat. 2176-2200 (adding 17 USC §§1501-1511).[21]  That is not an isolated incident.  No doubt such appropriations provisions are attached to appropriations bills because appropriations bills are “must pass” legislation.[22]

Now consider the types of appropriations bills that fall outside this general process, continuing resolutions and supplemental appropriations bills.  Continuing resolutions generally maintain the status quo until Congress can adopt general appropriations bills (though sometimes Congress never succeeds in adopting general appropriations bills for a particular fiscal year).[23] Congress may make some modifications in spending priorities, but the continuing resolution process does not purport to serve as a comprehensive evaluation of the relative merits of all government expenditure programs.  Congress has recently relied more heavily on appropriation by continuing resolution.[24] 

Supplemental appropriations bills provide additional funding which are not necessarily part of the trade-offs made in the idealized conception of the budget process.[25]

To discern, then, whether language in veterans, or other benefits, statutes embody the painful budgetary choices Justice Kavanaugh envisions, veterans seeking benefits, the Department of Veterans Affairs, and judges would have to sift through legislative history. They would need to ascertain whether the statutory language at issue language originated from the budget reconciliation process or the generalized appropriations process, or, instead, from the authorization process or a supplemental appropriations process. 

The provisions at issue in Rudisil v. McDonough were included in a supplemental appropriations bill providing additional funding for the Iraq and Afghanistan wars, inter alia.  Though I have not fully plumbed the legislative history and congressional debates, I have perused the House and Senate debates briefly.  The expenditures were approved outside of the standard appropriations process.[26]  Indeed, it appears that while most of the expenditures provided for in the bill were not offset by either expenditure reductions in other areas or tax increases, the GI Bill provisions were funded by increasing tax obligations. [27]   Thus, the GI Bill provisions were not weighed against other expenditure programs, but Congress specifically provided for those benefits by increasing tax revenues.  There certainly does not appear to be much of a indication that the GI Bill’s provisions should be construed conservatively. Indeed, opponents’ main concerns appear to have been the enhanced benefit’s effects on the retention of those currently serving in the military, and the “unnecessary” tax increase associated with the expansion of GI benefits, not the cost of the enhanced benefits.[28]   

Ultimately, for good or ill Congress has eschewed renouncing reliance on debt, and Justice Kavanaugh leaves this out of his set of choices.  Congress has failed to adopt proposed Balanced Budget Amendments to the Constitution on numerous occasions, which garnered much attention in the 1980’s and 1990’s. Congressional Research Service, A Balanced Budget Constitutional Amendment: Background and Congressional Options 8-20 (Aug. 22, 2019).  And, as the burgeoning national debt evidences, it is not congressional practice to insist upon a balanced budget; rather Congress seems to routinely accept deficient spending as a necessity.  Thus, an entitlement provision may be designed to be paid for, if necessary, by increasing the national debt, rather than by offsets from other expenditures or revenue enhancements.[29]

To say the least, then, the reality of congressional consideration of the nation’s finances is somewhat more complex than Justice Kavanaugh envisions.[30]

Broader Critiques of Justice Kavanaugh’s Challenge to Benefits Canons

The second and third critiques of Justice Kavanaugh’s challenge to “benefits” canons can be addressed more briefly.

The second of my three critiques suggests that, on a broader level, Justice Kavanaugh’s argument proves too much.  Almost every statute involves some sort of trade-off.  Granting a right to one person inevitably imposes an obligation on others.  The cannon that the income tax is to be construed broadly and exceptions are to be interpreted narrowly, Commissioner v. Schleier, 515 U.S. 323, 328 (1995) (citing cases); United States v Wells Fargo Bank, 485 US 351,354 (1988), involves trade-offs. Admittedly, that particular canon serves to subordinate the interest of certain taxpayers vis-à-vis others or potential beneficiaries of government expenditure programs.  Likewise, the canon that FOIA’s exemptions are to be construed narrowly, see, e.g., Milner v. Department of the Navy, 562 U.S. 562, 571 (2011)(citing cases), involves trade-offs ─ greater access to public records requires the government to devote more resources to providing that access.  The same arguments can be made with regard to construing statutes in favor of Native Americans and Native American tribes.  Chickasaw Nation v. U.S., 534 U.S. 84 (2001). 

Even the “major questions doctrine,” in refusing to honor plain text because of the text’s implications, involves trade-offs. Biden v. Nebraska, 600 U.S. 477 (2023), provides an example with regard to legislation that has fiscal implications for the government.  Alabama Association of Realtors v. Department of Health & Human Services, 594 U.S. 758 (2021) (per curiam) provides an example with regard to imposition of compliance costs on private entities and individuals.  In Biden v. Nebraska, the Court protected the public fisc at the expense of those burdened by student loan debt.  Absent a concern about the fiscal implications of loan forgiveness, the “best” reading based on the relevant statutory text might well be that the Biden Administration acted within its authority in forgiving a portion of the principal amount remaining on student loans.  In Alabama Realtors, the Court protected landlords at the expense of tenants (though admittedly there was little fiscal impact on the federal government).  Granted, the trade-offs in most substantive legislation, and particularly legislation that does not grant entitlements, are often less polycentric than budgeting trade-offs.

The final of my three critiques challenges Justice Kavanaugh’s normative proposition that “any substantive canon must be sufficiently rooted in constitutional principles or congressional practices.”  That broad proposition might be sound with respect to plain statement canons, designed to require Congress to expressly address particular issues. However, the case for applying that proposition to inherently less potent “tie-breaking” canons is far weaker. 

As the Court reaffirmed in Loper Bright, it is the role of the court to say what the law is.  And the best interpretation may require resort to the wide array of traditional interpretive tools.[31]  Those traditional tools may well include substantive canons that reflect the Court’s identification of societal values that appear to be encoded into law.  Most astute observers of this society, its politics, and most particularly its laws, would conclude that the United States is particularly solicitous to those who have served in its Armed Forces (at least since the end of World War II).[32]  It is not clear why courts should refuse to acknowledge that background principle, or its relevance in interpreting ambiguous statutes veterans’ benefits statutes.[33] 

Indeed, in assessing the cost of a veterans benefits program legislators might actually assume courts will apply the pro-veterans canon.  Theoretically, legislators might craft legislation keeping in mind this background assumption, invoked by the Supreme Court for almost 80 years and applied by the Federal Circuit.[34] Such a recognition may lead to revisions in programs to lower their cost.   

Conclusion

In an era in which most of us have become more budget conscious, it is hardly surprising that some Justices view the nation’s financial state with alarm.  Justice Kavanaugh’s separate opinion gives voice to this concern, broadly questioning pro-beneficiary substantive canons of interpretation.  His opinion also has broader implications in terms of the fate of a variety of substantive canons.  Ultimately, only time will tell whether other Justices embrace the approach Justice Kavanaugh sketches out in Rudisil v. McDonough.

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[1] I myself missed the case until I reviewed a unpublished manuscript by a student of mine, John Andrews, Rutgers Class of 2025, entitled “The Unseen Sacrifice: Administrative Hurdles for Global War of Terror Veterans Obtaining Recognition for Traumatic Brain Injuries” (May 17, 2025).  Mr. Andrews cited Rudisil v. McDonough in his analysis.

[2] The majority noted that the Court of Veterans Appeals, after having found the statutory scheme was ambiguous, referenced the pro-veteran canon, in addition to the relevant statutory structure, regulatory framework, and congressional purposes, in overturning the Department’s interpretation of the relevant statutes, and embracing Rudisil’s.  Rudisil v. McDonough, 601 U.S. 294, 304 (2024).  Perhaps in deference to two of her colleagues’ concerns about referencing the pro-veteran’s canon, Justice Jackson did not otherwise refer to the pro-veteran’s canon in the opinion for the Court.  She did, however, begin her analysis by quoting pro-veteran findings in the ‘‘Post-9/11 Veterans Educational Assistance Act of 2008’’, 122 Stat. at 2358, Title V of the Supplemental Appropriations Act of 2008, Pub. L. 110–252, 122 Stat. 2323.  Rudisil v. McDonaugh, supra, 601 U.S. 298-99.

[3] See e.g., WILLIAM D. POPKIN, A DICTIONARY OF STATUTORY INTERPRETATION 18-20 (2007) (definition of “substantive canons”).

[4] Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984); Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

[5] For example, Landsgraf’s presumption against retroactivity is clearly grounded in furtherance of certain constitutional values.  Landsgraf, supra, 511 U.S.  at 266-68.  Justice Kennedy’s opinion for the Court noted that “the antiretroactivity principle finds expression in several provisions of our Constitution,” but that, for good reason, the Constitution does not preclude all retroactive legislation. Justice Kennedy explained that the plain statement rule announced in Landsgraf would require Congress to “make its intention clear,” so as to ensure “that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness”).  See also, Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 313, 338 (2000)(characterizing a wide range of substantive canons as catalysts, properly viewed as a form of “democracy-forcing [judicial] minimalism,” designed to ensure that judgments are made by the democratically preferable institution).

[6] Justice Barrett herself addressed this subject as an academic.  She noted that “many normative canons “express a rule of thumb for choosing between equally plausible interpretations of ambiguous text”—i.e., when descriptive tools do not illuminate a “best meaning.” Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. REV. 109, 109 (2010).

[7] The National Institute of Military Justice submitted an amicus brief that outlined congressional treatment of veterans over the sweep of United States history, starting with the American Revolution.  Brief of National Institute of Military Justice as Amicus Curiae in Support Of Petitioner, Rudisil v. McDonough, Dkt. No. 22-888 (Filed Aug. 17, 2023), accessible at the docket sheet. Based upon “studies and research by professional historians,” the brief asserts that the veterans canon is  “grounded in the nation’s history and traditions.” Id. at 1-2. 

The Institute also argued that the norm of interpreting veterans benefit legislation generously embodies a judicially-imposed constraint upon Congress that “has ensured, from the modest pensions of the Revolutionary era to the comprehensive benefits systems of today, that the nation’s promises to those who have sacrificed for its ideals are kept.” Id. at 21-23 (observing that the canon “function[s] as a check on shifting political currents that push back against “the intent to provide generous benefits.” and failing to apply the canon “risks slippage . . . back into a history of broken promises”).

[8] Justice Kavanaugh asserted that “the early cases did not purport to establish a canon,” but “simply engaged in broadly purposive interpretation of the particular statutes at issue.” Thus, “the canon appears to have developed almost by accident.” Rudisil v. McDonough, supra note 2, 601 U.S. at 315.  Note, this same allegation had been made regarding the soon to be interred Chevron doctrine.  Loper Bright, supra, 603 U.S. at 398 (Chevron, which a prominent scholar descried as an “accidental landmark,” seemed “destined to obscurity;” the Court “did not at first treat it as the watershed decision it was fated to become”), as well as Auer deference, Kisor v. Wilkie, 588 U.S. 558, 592 (Gorsuch, J. concurring)(the Court “invented [Auer deference], almost by accident and without any meaningful effort to reconcile it with the Administrative Procedure Act or the Constitution”).  Rudisil was decided 10 weeks before the Court issued its opinion in Loper Bright.

[9] See, e.g., Henderson v. Shinseki, 562 U.S. 428, 441, (2011); King v. St. Vincent’s Hospital, 502 U.S. 215, 220–221, n. 9, (1991).

[10] He asserted: “the notion that benefits statutes should be interpreted to favor a particular group creates significant tension with the actual operation of the process by which Congress and the President enact spending laws.”

[11] Such an approach could be employed to counteract the maladies of the “interest group” theory of politics.  See, Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533 (1983); Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 232 (1986); Frank H. Easterbrook, Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 14-18 (1984).  Under that theory, pioneered in the 1950s, political minorities tend to fare better than political majorities in the legislative process.  Political minorities are more easily organized than political majorities.  In addition, there is the “iron triangle effect” where specialized congressional committees, agencies devoted to a single constituency, and interest groups formed to advance the interests of the constituency work together in a mutually reenforcing way that shields policy in the area from input from Congress as a whole and even the President.  The theory does echo the concerns of James Madison expressed in the Federalist about the evils of faction.  The Federalist No. 51. An interpretive approach seeking to rein in this disfunction would not be constitutionally compelled. However, it could be justified as a means to ensure that the legislative process works as intended.  But it would be based on a contestable mid-Twentieth Century political theory. 

[12] This is even clearer at the state level.  Many states have a one subject and tile rules that limit substantive legislation to one subject, see, 1A SUTHERLAND STATUTORY CONSTRUCTION §17:1 (8th ed.), accessible in westlaw, but except general appropriations bills from those strictures precisely because such bills must involve trade-offs across government programs.  See, Common Cause v. Pennsylvania, 668 A.2d 190, 197 (Commonwealth Ct.1995)(“general appropriation bill from the single subject requirement[,] [b]ecause a general appropriation bill of necessity contains multiple subjects;” but “the potential for legislative abuse was limited by requiring that such bills contain only appropriations”); accord, Washington State Legislature v. Inslee, 498 P.3d 496, 511-12 (2021)(“greater latitude must be granted the legislature in enacting multi-subject legislation under the appropriations bill title than any other, since the purpose of appropriations bills is to allocate monies for the State’s multitudinous and disparate needs”); Opponents of Prison Site, Inc. v. Carnahan, 994 S.W.2d 573, 580 (Mo. App. 1999); State v. Jorgenson, 136 N.W.2d 870, 872 (S.D. 1965).

[13] The Congressional Research Service explains: “The principle underlying the germaneness rule is that the House should consider one subject at a time. While debating authorizations for military weapons systems, for example, the House should not be distracted by amendments concerning food safety, mass transit, or other unrelated subjects.” The Amending Process in the House of Representatives, supra, at 9 (emphasis added).

[14] In Kisor v. McDonough, decided in 2021, Chief Judge Prost, in his concurrence to the denial of rehearing en banc, noted that no fewer than 134 pieces of legislation originating in [the Senate and House Veterans Affairs] committees had been signed into law over the last decade.  Kisor v. McDonough, supra, 995 F.3d at 1356.

[15] Congressional Research Service, A Brief Overview of the Congressional Budget Process 5 (Jan. 10, 2023).

[16] BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S. CONGRESS 99 (3d ed. 2007); Congressional Research Service, A Brief Overview of the Congressional Budget Process  3 (Jan. 10, 2023); Congressional Research Service, Congressional Budget Resolutions: Historical Information 8, 11 (November 16, 2015)(“The budget resolution was designed to provide a framework to make budget decisions, leaving specific program determinations to the Appropriations Committees and other committees with spending and revenue jurisdiction”) .

[17] Id. at 15 (“In the past 41 years, Congress included budget reconciliation directives in 22 budget resolutions”).

[18] Committee for a Responsible Budget, Appropriations 101(June 6, 2024) See “How does Congress allocate appropriations?”

[19] Congressional Research Service, Omnibus Appropriations: Overview of Recent Practice 1-2 (August 14, 2024)(Insight Series).

[20] Omnibus Appropriations, supra note 19, at 3.  The Congressional Research Service has explained:

Due to their scope, timing, and various other political factors, omnibus appropriations measures have often been used as vehicles to address other legislative priorities. Eleven of the 18 omnibus appropriations measures enacted from FY2012 through FY2024 included at least one additional division containing legislation unrelated to the appropriations process for that fiscal year (i.e., provisions unrelated to regular, supplemental, or continuing appropriations).

[21] Indeed, the Consolidate Appropriations legislation seemed to add a cornucopia of legislative provisions. Division FF, incorporating 21 titles. Pub. L. 116–260, 134 Stat. at 1184 (Table of Contents)

[22] See, Omnibus Appropriations, supra note 19, at 3; W. OLESZEK, M. OLESZEK, E. RYBICKI, & B. HENIFF CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS, Congressional Budget Process 19 (CQ Press 2020); see, U.S. Senate Glossary (definition of “must pass” bill).

[23] See generally, Congressional Research Service, Continuing Resolutions: Overview of Components and Practices 2-3, 5-6 (March 27, 2025); UNORTHODOX LAWMAKING, supra note 16, at 95.

[24] Id. at 1 (“Congress has enacted one or more [continuing resolutions] in all but three fiscal years since FY1977”); Supplemental Appropriations, Appropriations.com (Congress passes stop-gap measures, called continuing resolutions, to keep agencies operating at a particular level of funding (often the previous year’s funding level, with some adjustments) while they endeavor to complete appropriations action).

[25] Supplemental Appropriations, supra note 24.

[26] 154 Cong. Rec. H3935 (Rep. Ryan); 154 Cong. Rec. S4727 (Sen. Carper). The citations to the Congressional Record in this and the next four footnotes can be accessed in westlaw, under the legislative history for the Supplemental Appropriations Act.

[27] 154 Cong. Rec. H3900 (Rep. Ginny Brown-Waite); 154 Cong. Rec. H3934 (Rep. Obey): id, at H4038 (Rep. Stearns);  id. at at H4042  (Rep. Udall); 154 Cong. Rec. S4727 (Sen. Carper).

[28] Id. at H4043 (Rep. Dingell); id, at S4714 (Sen. Tester); id, at S4717 (Sen. Graham).

[29] Granted, for the expansion of the benefits in question in Rudisil v. McDonough, Congress chose to fund them with tax increases rather than rely on borrowing.

[30] As one set of authors have noted in the context of Presidential discretion over appropriations, “[a]ppropriations law involves a complicated interplay of authorizing statutes, general framework statutes, and specific appropriations laws.”  Matthew B. Lawrence, Eloise Pasachoff, and Zachary S. Price, Appropriations Presidentialism at 23 (forthcoming 114 Georgetown Law Journal Online __ (2025)).

[31] Loper Bright Enterprises v. Raimondo, supra note 4, 603 U.S. at 401, 403.  In Kisor v. Wilkie, the Court noted: “before concluding that a rule is genuinely ambiguous, a court must exhaust all the “traditional tools” of construction [citing Chevron], because “ only when that legal toolkit is empty and the interpretive question still has no single right answer can a judge conclude that it is ‘more [one] of policy than of law.’”  Kisor v. Wilkie, 588 U.S. 558, 575 (2019).  Indeed, Justice Kavanaugh himself, in lamenting the Court retention of Auer deference, recognized “all sorts of tie-breaking rules” as traditional rules of interpretation:

And those tools [traditional tools of construction that must be exhausted] include all sorts of tie-breaking rules for resolving ambiguity even in the closest cases. Courts manage to make do with these tools in many other areas of the law, so one might hope they will hardly ever find them inadequate here.

[32] Even Justice Kavanaugh acknowledges this. Rudisil v. McDonaugh, supra, 601 U.S., supra note 2, at 318 (“[t]o be clear, Congress’s commitment to assisting veterans through the many federal veterans-benefits programs is entirely appropriate given the sacrifices made by those who have served in the Armed Forces” (emphasis added)). And Justice Ketanji Brown Jackson begins her analysis in the majority opinion with such a statement. Id. at 298-99.    Accord, Brief of National Institute of Military Justice, supra note 7, at 14 (the Servicemen’s Readjustment Act of 1944, Pub. L. 78–346, 58 Stat. 284, the original “GI Bill,” “marked a turning point in Congressional intent, as the bill was drafted for the first time as an explicit investment in those who have proven their dedication to the success and welfare of their country through service.”)

[33] Part of the difference may be in view can be attributed to the question of how clear is “clear enough.”  Christopher J. Walker, Gorsuch’s “Clear Enough” & Kennedy’s Anti-“Reflexive Deference”: Two Potential Limits on Chevron Deference, YALE J. REG.: NOTICE & COMMENT (June 22,2018).  Justice Kavanaugh may be a confident textualist, rarely seeing ambiguity in a statute, while others may more frequently see such ambiguity.

[34] See Brief of National Institute of Military Justice, supra, note 7, at 22-23 (asserting such a claim).