Notice & Comment

The Supreme Court Applies an Uncontroversial Clear Statement Rule, by Eli Nachmany

Clear statement rules are having a moment at the Supreme Court. Recently, in Harrow v. Department of Defense, the Court held that a statutory deadline for an appeal from a Merit Systems Protection Board ruling was non-jurisdictional. In its unanimous ruling, the Court applied a “clear statement rule”: Congress must speak clearly if it means for a provision governing judicial review to have jurisdictional consequences. After some jockeying about clear statement rules in recent years, the Court’s opinion signals that at least one such rule—the jurisdiction rule—is uncontroversial.

Perhaps the most discussed clear statement rule in recent years has been the major questions doctrine, which the Court explicitly recognized in West Virginia v. EPA. That doctrine counsels against allowing administrative agencies to discover novel, sweeping regulatory powers in long-extant statutory provisions. (Louis Capozzi traces a version of this clear statement rule to 1897.) In practice, that means that Congress must indicate clearly that a provision of law authorizes an agency to take significant regulatory action; otherwise, a court will assume that the provision does not. Dissenting in the case, Justice Kagan derided the major questions doctrine as a “get-out-of-text-free car[d].”

The Court has required clear statements in several other contexts, too. Dean John Manning has identified several examples that he describes as “constitutionally inspired”: the federalism canon, the anti-retroactivity canon, the presumption that agency action is reviewable, and the canon of constitutional avoidance. Other clear statement rules abound—e.g., the presumption against implied repeal of the common law and the rule against implying rights of action in federal statutes.

Dean Manning’s article offers a qualified critique of constitutionally inspired clear statement rules, suggesting that they “impose something of a clarity tax upon legislative proceedings.” Meanwhile, in Biden v. Nebraska, Justice Barrett noted in a concurrence that she takes “seriously the charge that the [major questions] doctrine is inconsistent with textualism,” reconciling the doctrine as a means of both reckoning with context in statutory interpretation and “discerning—not departing from—the text’s most natural interpretation.”

At the oral argument in Harrow, Justice Gorsuch asked about the foundations of the clear statement rule for a statute’s jurisdictional consequences. He suggested that the rule might push courts beyond mere faithful interpretation of statutes (describing it as “a little awkward”), and he asked both sides to discuss the justification for the rule.

Petitioner’s counsel offered two rationales, each grounded in “fidelity to congressional intent”: First, courts have used the term “jurisdiction” loosely “with implications that Congress probably never intended.” Second, given that the Supreme Court has announced the clear statement rule, courts should now assume that Congress enacts statutes against that background presumption about how courts would read the law. Justice Scalia once made the latter point in a law review article when talking about canons of strict construction like the rule of lenity: “Once [these rules] have been long indulged, they acquire a sort of prescriptive validity, since the legislature presumably has them in mind when it chooses its language.”

When asked the same question, the government responded that “normally Congress doesn’t make a lot of separate requirements jurisdictional,” also grounding the justification in assumptions about Congress. The government noted that it had not disputed that the clear statement rule was “an appropriate use of [the] Court’s authority,” cautioning only against “expanding” the rule to privilege “extratextual considerations … over the clear meaning of the text.” Later in the argument, Chief Justice Roberts asked when the Court had established a clear statement rule for procedural requirements’ jurisdictional consequences, and the government traced it to the Court’s 2006 opinion in Arbaugh v. Y & H Corp.

Undoubtedly, the existence of clear statement rules implies the existence of unclear statement rules—areas of law where Congress may achieve certain ends without speaking clearly. One might contend that the Court’s jurisprudence has established something of a two-track system of statutory interpretation: Either the Court will demand Congress’s explicit acknowledgment of a desired end, or the Court will draw reasonable inferences from the plain text and context of the statutory provision and stop there. A fair response is that, for certain subjects, the lack of a clear statement itself raises a reasonable contextual inference that the statute cannot fairly be interpreted to have the consequences that one of the parties to a litigation urges it does.

Moreover, categorizing clear statement rules could further clarify the doctrine. I have contended in these pages that one might understand the major questions doctrine as a sub-canon of constitutional avoidance. Arguably, the federalism canon is another such sub-canon, to the extent that it avoids Tenth Amendment issues. Whether the requirement of a clear statement for the abrogation of state sovereign immunity is a type of federalism canon (a sub-sub-canon, if you will) or an element of the rule against implied repeals of the common law is perhaps an open question. Meanwhile, the rule applied in Harrow may function as a sub-canon of the reviewability presumption; the practical upshot for the petitioner in the case is that the Court has cleared a major hurdle to challenging the agency action in question.

In the end, any judicial discomfort with the jurisdictional clear statement rule—or with such rules in general—did not make it into the Court’s unanimous opinion in Harrow. Nor did it inspire any separate concurrences. So, Harrow stands as an unqualified reaffirmance of the principle that courts require a clear statement from Congress before treating procedural requirements as jurisdictional. To the extent that a textualist might be skeptical of clear statement rules, Harrow suggests that not all of them are controversial.

Eli Nachmany is an associate at Covington & Burling LLP. He was part of a Covington team that filed an amicus brief in Harrow v. Department of Defense in support of the petitioner on behalf of the National Veterans Legal Services Program, and he participated in a moot court for petitioner’s counsel before the oral argument. The views expressed in this essay do not necessarily reflect the views of the author’s employer, any of its clients, or the petitioner.

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