A blog on practice in the Nation’s second-most powerful court

The limits of the “Congress knows how to say” canon

In cases involving statutory construction, someone often will say, “if Congress had wanted to say X it would have been easy enough to say X.” But that argument is difficult to falsify. Congress often could have been clearer. The question is whether it was clear enough.

In a case decided today under the federal immigration laws, the D.C. Circuit held that Congress was clear enough. Huisha-Huisha v. Mayorkas (No. 21-5200).

Here’s the key passage:

Unlike [42 U.S.C.] § 265, its surrounding provisions single out “vessels” and other common carriers, which makes § 265’s omission of a common-carrier reference look intentional. We don’t place undue weight on the “‘easy-to-say-so-if-that-is-what-was-meant’ rule of statutory interpretation,” but that rule is especially strong here because Congress enacted § 265 in the same legislation as the statutory provisions regulating common carriers.

Did you catch that aside? The D.C. Circuit doesn’t rely too heavily on the “easy-to-say-so-if-that-is-what-was-meant” rule. It prefers to see other textual clues, as well. And here there were some. Specifically, Congress used the telltale language in surrounding provisions, but omitted it in the provision in dispute; and all the provisions were enacted together.

That combination of factors suggested that the omission was intentional.

Something to keep in mind when litigating the meaning of a statute that’s pretty clear.