I have posted a new paper titled An Originalist Defense of the Major Questions Doctrine (21 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.
Coming at this issue from a foreign affairs law perspective, I'm especially interested in the restraint canons discussed in early foreign affairs cases such as Murray v. The Charming Betsey and U.S. v. Schooner Peggy. And coming at the issue from an executive power perspective, I'm more interested in the MQD as a restraint on executive power than I am in its relationship to Congress or the agencies.
This short paper is based on a post on this blog (here). Thanks to Scalia Law School's C. Boyden Gray Center for the Study of the Administrative State for encouraging me to expand my thoughts and present them at a roundtable last year.
Posted at 6:08 AM