Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including their preexisting rights to sovereign immunity, to structure their own governments, and to exercise jurisdiction over transitory actions—unless the act does so in clear terms or by unavoidable implication. Such canons, critics charge, are incompatible with textualism because judges simply invented them as a way to promote judicially favored values (such as federalism) in disregard of the natural meaning of statutory texts. This charge, however, is based on a false premise. The federalism canons are not a novel judicial creation. They are specific applications of well-established rules of interpretation older than the Constitution itself. These rules instruct courts not to read a legislative act to divest a government of a right or power unless the terms of the act do so clearly or by unavoidable implication. Understood against this background, the traditional federalism canons are fully consistent with mainstream textualism. Like other long-standing interpretive conventions, these canons reflect background context that is an essential part of ordinary interpretation. In applying the federalism canons, courts do not violate—but uphold—their constitutional role as faithful agents of Congress. Properly understood, judicial adherence to such canons reinforces the Constitution’s allocation of powers both between the political branches and the courts, and between the federal government and the states.

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits state regulation of Indian country commerce. The clause’s plain text and original understanding support this interpretation. While the Supreme Court departed from this understanding in the late 19th century, it has never adequately justified this shift. During the 1980s, the United States argued the Indian Commerce Clause bars state taxation of tribal commerce, and the Supreme Court rejected this argument with scant judicial reasoning. Consequently, courts continue to rely on ambiguous, fact-specific tests that undermine tribal sovereignty and economic development.

This Article proposes a revitalized application of the Indian Commerce Clause, advocating for a clear, constitutionally grounded framework. By categorically preempting state intrusion into Indian country commerce, this approach would provide the certainty necessary for tribal economic self-determination to flourish. This Article demonstrates how such a framework would resolve the current jurisdictional chaos, offering specific guidance for its implementation and ultimately promoting a more just and equitable relationship between tribes and states.

Foreign policy abstention is a novel and unsettled doctrine in international litigation. Unlike other established international litigation abstention doctrines, foreign policy abstention permits courts to decline jurisdiction when adjudication implicates significant foreign policy concerns. First invoked in 2004, the doctrine has since appeared sporadically in case law, most recently in the Eighth Circuit’s decision in Reid v. Doe Run Resources. Yet, its analytical framework remains muddy and amorphous, leading to inconsistent judicial application.

This Note examines one critical factor courts consider when determining whether to apply the foreign policy abstention: the strength of U.S. foreign policy interests in the litigation. In making this determination, courts value the U.S. State Department’s views, expressed through amicus briefs or Statements of Interest (SOIs). Courts have interpreted the State Department’s failure to file a brief to mean that the U.S. government does not have strong foreign policy interests in the litigation. And because the Department is sporadic and inconsistent in its filing practices, the judiciary’s inferences from the Department’s silence have exacerbated doctrinal muddiness in foreign policy abstention.

This Note argues that courts’ interpretations of State Department silence may not accurately reflect the U.S. government’s interests, as the Department’s inaction may stem from various reasons unrelated to the absence of foreign policy interests, including a mere lack of knowledge that the litigation exists at all. To address this issue, this Note discusses two potential solutions. It first considers an agency-implemented policy requiring the State Department to file an SOI in every case invoking foreign policy abstention. This, however, would place an undue burden on the Department. A more practical alternative is the adoption of a procedural rule mandating that parties notify the State Department when they invoke foreign policy abstention, ensuring the State Department is aware of the litigation and provided with an opportunity to speak. Under this framework, if the Department remains silent after notification, courts could more justifiably presume that U.S. foreign policy interests are weak. This approach offers a pragmatic framework that balances the judiciary’s need for clarity with the State Department’s administrative constraints.

By clarifying the State Department’s role and the weight of its statements, this approach seeks to promote consistency, transparency, and analytical rigor in invocations of the foreign policy abstention doctrine.