Page:Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.pdf/35

12 abrogation of sovereign immunity.

Taking the “domestic government” possibility off the table leaves only one other. Respondent falls back on the idea that “foreign or domestic” is really just shorthand for “every government under the Sun.” The Court relies solely on this reading, holding that §102(27) “unequivocally abrogates the sovereign immunity of any and every government that possesses the power to assert such immunity.” Getting to that conclusion from the statutory text requires two interpretive moves. First, the reader must treat the words “foreign or domestic” as a single, undifferentiated clause (rather than as a disjunctive grouping of descriptors). Second, the reader must take that undifferentiated clause to mean “anywhere and everywhere.” Each move is plausible; neither is “clear.” And a problem with either is game over.

Start with the first move. Respondent would have us read “foreign or domestic” as a unitary clause expressing a single, shared idea. This is what linguists might call a hendiadys—“two terms separated by a conjunction [that] work together as a single complex expression.” S. Bray, “Necessary and Proper” and “Cruel and Unusual”: Hendiadys in the Constitution, 102 Va. L. Rev. 687, 688 (2016). On occasion, English employs that sort of construct. But those occasions are the exceptions, not the rule. Nor is it clear that is what we have here. As even respondent concedes, “or” in “its ordinary use” instead indicates that “ ‘the words it connects are to “be given separate meanings.” ’ ” Brief for Respondent 23 (quoting United States v. Woods, 571 U. S. 31, 45–46 (2013)). A perfectly natural reading, then, would ask whether Tribes clearly qualify as “foreign … government[s]” or as “domestic government[s].” And because the answer is “no” on both scores (for the reasons already laid out above) the language flunks the clear-statement rule.

The second move has issues too. The case for treating