I have posted a revised and expanded version of my article An Originalist Defense of the Major Questions Doctrine (Administrative Law Review, vol. 76, forthcoming 2024) (43 pages) on SSRN. Here is the abstract:
Courts invoke an array of “canons” to aid their interpretation and application of legal texts. Their authority to do so remains contested and underdeveloped. The debate over judicial canons has been rekindled by the major questions doctrine (MQD), announced by the Supreme Court in West Virginia v. EPA and related cases. According to the Court, the MQD requires “clear congressional authorization” for administrative or executive agencies to exercise delegated authority over “major policy decisions.”
The MQD has been criticized from various perspectives, including by originalist- and textualist-oriented scholars. This essay, prepared for a roundtable at the C. Boyden Gray Center for the Study of the Administrative State, addresses part of that criticism – specifically, the question whether the Constitution’s original meaning permits courts to adopt clear statement canons like the MQD. It concludes that such canons are sometimes constitutionally permissible (though not necessarily advisable), even if they allow courts to depart from a statute’s most plausible original meaning. It particular, it argues that this judicial practice was deployed by courts in the immediate post-ratification period without material objection, suggesting that it is an aspect of the “judicial Power” vested in federal courts by Article III.
Comments welcome.
Posted at 6:13 AM