The Major Questions Doctrine at the Boundaries of Interpretive Law
62 Pages Posted: 7 Feb 2023 Last revised: 28 Feb 2023
Date Written: February 4, 2023
The Supreme Court’s transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions will have wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost entirely alone in its structural features. With the exception of the much-maligned absurdity doctrine, the new major-questions-doctrine-as-clear-statement-rule is the only substantive canon that combines two extreme design elements of canons: first, a weak relationship to existing authoritative constitutional law, and, second, unbounded potential applicability. While courts and scholars have accepted or created many canons that have one or the other of these extreme features, they have conspicuously avoided combining these two features in any new canon—perhaps because the combination exponentially increases the potential interference of canons with Congress’s exercise of the legislative power. This avoidance has helped to keep the Court’s use of substantive canons within recognizable boundaries that preserve a limited role for the judiciary. Now that the modern Court has, for the first time, taken this step in the recognition of a new canon, it is time to assess the limits of canons in a system of limited judicial power.
This article undertakes that project, finding that the major questions doctrine’s novel features are a tell of serious theoretical and constitutional infirmities. If canons can take on this unique combination of features, there are no speed brakes to stop the unraveling of the faithful agent model at the center of standard textualist and intentionalist accounts of the judicial power to interpret statutes. If such canons could be justified at all, it would only be under a more dynamic statutory interpretation approach that explicitly departs from legislative supremacy, but the extremity of the major questions doctrine potentially goes beyond partnership to judicial takeover of the legislative power, putting significant pressure even on these justifications. In sum, the major questions doctrine’s novel step in the law of interpretation raises new questions about the limits of substantive canons. It is not enough for the Court and defenders of the doctrine to identify the major questions doctrine as a canon; they must explain why newly recognizing this form of canon is consistent with core theoretical, normative, and constitutional commitments in our legal system.
Keywords: major questions doctrine, statutory interpretation, west virginia v. epa, chevron, substantive canons, separation of powers, judicial power, legislative power, delegation, administrative law
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