Vermeule on Barrett on the Major Questions `Doctrine' - Text and “Context” - Yale Journal on Regulation

Adrian Vermeule - the "post-liberal" Harvard law professor best known - at the moment - for his Common Good Constitutionalism, a celebration of  reading law today as informed by classical principles of jurisprudence, particularly the notion of the common good.  He takes that approach to analyse and respectfully dismember Amy Coney Barrett's effort - in the case voiding the forgiveness of some student loans - to narrowly state the so-called `Major Questions Doctrine' rather than the more extreme variants voiced by Neil Gorsuch and John Roberts. 

Vermeule - the co-author with Cass Sunstein -  of Law & Leviathan - is the anomalous conservative defender of the administrative state.

- George Conk 8//15/2023

Text and “Context” - Yale Journal on Regulation By Adrian Vermeule, July 13, 2023

In Biden v. Nebraska, the decision in which the Court invalidated the Biden administration’s student loan forgiveness program, Justice Barrett wrote a theoretically ambitious concurrence, joined however by no other Justice. The aim of the concurrence was to put the so-called major questions doctrine on a more secure basis by justifying it as a natural inference from “common sense” and “context,” rather than as a substantive canon of interpretation. Whatever the merits of the major questions doctrine, my point here is a theoretical and analytical one about the structure of the distinctions that Justice Barrett attempts to erect. I do not think that structure can stand; indeed I think her own examples show it to be divided against itself. Justice Barrett’s account of “context” is so broad as to easily encompass the substantive principles and maxims that she sees as problematic for the textualist judge, thereby collapsing into an approach that Barrett sees as non-textualist, contrary to her commitments. Yet any narrower account of context would be untenable. The upshot is that the appeal to context merely displaces and postpones, rather than resolving, the question which background principles of the legal order the judge may properly take on board.

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