The Major Questions Doctrine at the Boundaries of Interpretive Law | Daniel Walters - Iowa Law Review - The University of Iowa

I've been waiting for someone to write this paper.  There are a lot of good takes on the specious "major questions doctrine".  Judicial aggrandizement (Jason Chafetz) and Imperial Supreme Court (Mark Lemley) are good.  But anyone who proclaims a Doctrine has a heavy burden to justify it.  The string of cases leading to the new Doctrine include cases that could be reached by by ordinary principles of statutory interpretation.

Let's take for example, FDA v. Brown & Williamson (1999).  Stymied in Congress by the tobacco lobby and the Senate filibuster rule the Food & Drug Administration took an understandable step.  Nicotine is an addictive drug. Tobacco cigarettes are a delivery device.  FDA has jurisdiction over drugs and devices, so let's take on that fight - and save (conservatively) thousands of lives each year.

But respect for the directly elected character of Members of Congress the FDA surely knew that their efforts were not understood to be part of FDA's mission.  it was mission creep - which served the public good.  Because Congress was an ethical swamp.

So the tobacco regulation effort could not realistically to be said to be within the contemplation of Congress, nor within the kind of interpretive range that could be described as consciously left to administrative flexion.

But the newly coined MQD (why not make it an acronym) shows no such constraints.  Its demand - plain speaking is n impossibility as Aristotle recognized in his book Rhetoric 2,700 years ago:

 "Equity’s existence partly is and partly is not intended by the legislators; not intended where they have noticed no defect in the law; intended where they find themselves unable to define things exactly, and are obligated to legislate as if  that held good always  which in fact only holds good usually.

Aristotle - Rhetoric - Book I, para 13

So it is today.  The Supreme Court's demand for "clear statement" masquerades as deference to Congress, and constraint on administrative agencies.  Bt it actually shackles both - and deserves the sobriquets of Professors Chafetz and Lemley.

- GWC February 14, 2024 

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The Major Questions Doctrine at the Boundaries of Interpretive Law | Iowa Law Review - The University of Iowa: The Major Questions Doctrine at the Boundaries of Interpretive Law 109 Iowa L. Rev. 465 (2024)    

By Daniel Walters - Texas A&M Law School

Abstract 

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to 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.