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- Title
The Major Questions Doctrine at the Boundaries of Interpretive Law.
- Authors
Walters, Daniel E.
- Abstract
The Supreme Court's apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for "major" ageng actions has already had, and will continue to have, wide-Tanging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutog interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress cund newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particularfonnulation of a clear statement rule, which stands almost entirely alone in its structuml features. With the exception ofthemuch-maligned absurdity doctrine, the new majoT-questions-doctrine-as-clear-statement-mle is the only substantive canon that combines two extreme design elements of canons:.first, a weakielationship 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 canonperhaps because the combination exponentially increases the potential inte*renee of canons with Congress's exercise of the legislative power. This avoidance has helped to keep the Coulfs use of substantive canons within recognizable boundalies that pieserue a limited role for thejudician. Now that the modern Court has, for the f·rst time, taken this step in the Tecognition 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 doctritte's novel features are a tell of serious theoretical and constitutional injirmities. #' canons can take on this unique combination offeatures. there are no Speed brakes to stop the unraveling of the faithful agent model at the center of standa,-d textualist and intention, alist accounts of the judicial power to interpret statutes. If such canons could. be justified at all, it would only be under a more dynamic statutcny interpTetation approach that explicitly departs from legislative supremag, but the extremibi of the major questions doctrine potentially goes bgond partnership to judicial takeouer of the legislative power, putting significant p'resswe euen on these justifications. In sum, the major questions doctrine's novel step in the law of interpretation mises new questions about the limits ofsubstantive canons. It is not enough jor the Court and defenders of the doct'rine 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.
- Subjects
UNITED States. Supreme Court; PUBLIC law; CONSTITUTIONAL law; JUDICIAL power; STATUTES
- Publication
Iowa Law Review, 2024, Vol 109, Issue 2, p465
- ISSN
0021-0552
- Publication type
Article