Dog That Did Not Bark Canon in Yesterday’s Per Curiam

Following up on this post, I was reading Josh Blackman’s post on yesterday’s Supreme Court per curiam opinion.  Josh makes an interesting comparison about the Court waiting for Congress to act in the NAMUDNO case compared to this one, and he also highlight the Court’s use of what legislation scholars call the “Dog that Did Not Bark” canon:

It has now been seven years since the ICJ ruling and three years since our decision in Medellín I, making a stay based on the bare introductionof a bill in a single house of Congress even less justified. If a statute implementing Avena had genuinely been a priority for the political branches, it would have been enacted by now.

It is always perilous to judge congressional intent from the Congress’s failure to act.

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