A healthy skepticism for the MQD as a linguistic canon - Adminwannabe Com

Lord Acton too famously said that power corrupts and absolute power corrupts absolutely.  So it is with the United States Supreme Court, a monarchical crew that gains its authority from life tenure and the long tolerance of its claim to have the last word on interpretation of a famously malleable, almost unamendable written constitution.

Today's most dramatic overreach is its absolutist preemption of state legislatures, and of any courts but itself (NY State Rifle Ass'n v. Bruen), and the development of the demand that the Executive can adopt regulations and policies of "major" impact only if Congress spoke clearly - no matter how novel the circumstances.  A conservative law professor Ilan Wurman seeks to rescue this judicial imperialism.  Beau Baumann rebuts.  - GWC 3/30/23

A healthy skepticism for the MQD as a linguistic canon - Adminwannabe Com

By Beau Baumann

Recently, we’ve had a new justification for the major questions doctrine (“MQD”) in the form of Ilan Wurman’s Importance and Interpretive Questions, which aims to recast the doctrine as a linguistic canon. Wurman’s project ask whether the MQD can find a defensible justification as an insight into either (1) how Congress drafts statutes or (2) how ordinary language is used when people in conversation delegate authority. You get the sense from the paper that this project was born of Ilan’s pessimism on the MQD’s pedigree as a substantive/constitutional canon. He says that several version of the MQD are just not defensible or are only defensible if the doctrine doesn’t—as most scholars think it does—require clarity over and above plain meaning. What follows is an eclectic collection of evidence that gives Wurman’s piece a kitchen-sink feeling. I don’t mean that as a criticism; Wurman collects evidence from many sources to try to see if anything sticks. I think it’s a creative work that will give everyone a lot to deal with in the literature. But at the same time, it can be dizzying how Wurman toggles back and forth between different sorts of evidence; from (what I think of as) intentionalist evidence about congressional staffers’ views on drafting, to a theoretical work on language. So you’ve got to come into this one with some flexibility.

The evidence includes the following:

1. Evidence of drafting practices—Wurman relies on the results from a question in Bressman and Gluck’s survey (“B-G Survey”) of congressional drafters from a decade ago.
2. Theoretical work on ordinary language—Wurman relies on the work of Ryan Doerfler, whose paper, High-Stakes Interpretation, discussed the role that importance can play in ordinary conversation.
3. The mischief rule—in a move that should be familiar to readers of the blog, Wurman argues that the MQD might serve a similar function to the mischief rule.
4. Historical evidence—Wurman points to the Necessary and Proper Clause, agency law, contract law, and the historical work of Louis Capozzi.

Personally, most of this evidence is not for me because of various methodological commitments and my own assessment of the evidence.