Anita S. Krishnakumar (Georgetown University Law Center) has posted What the Major Questions Doctrine is Not (George Washington Law Review, Vol. 92, 2024) (60 pages) on SSRN. Here is the abstract:
The major questions doctrine has undergone a sea change in prominence within the span of two years. In the ten months between August 2021 and June 2022, the Court invoked the canon three times, using it aggressively to invalidate some of the signature policies implemented by the Biden Administration—including the CDC’s eviction moratorium, OSHA’s attempt to impose a vaccine-or-test mandate on employees, and EPA’s efforts to regulate greenhouse gas emissions. And this past term, it added a fourth case to this burgeoning list, striking down the Biden Administration’s student debt relief program. All eyes are now on the major questions doctrine. Several scholars have criticized the latest iteration of the doctrine, and some—including former law professor, now-Justice Amy Coney Barrett—have sought to defend it as consistent with textualism, as a linguistic canon, as part of the ordinary “common sense” context a reasonable reader would consider, or as a canon designed to protect the Constitution’s nondelegation principle.
This essay seeks to cut through the confusing labels and justifications that have been offered for this relatively new, somewhat reinvented, and incredibly powerful doctrine. It argues first that the major questions doctrine is not many of the things that commentators, including the Justices, have suggested it is: It is not a proxy for the nondelegation doctrine; it is not part of the “common sense” context that the “reasonable reader” brings to identifying a statute’s ordinary meaning; it is not a linguistic canon; and it is not even purposivism or intentionalism—or at least not good purposivism or intentionalism. The essay concludes by arguing that in the end, the major questions doctrine may best be thought of as either a new multi-factor test or standard of judicial review for “major” agency decisions or as a form of naked pragmatism that uses clear statement rule rhetoric in an effort to sound more textualist than it is.
Via Larry Solum at Legal Theory Blog, who has significant comments.
I think the major questions doctrine is a substantive canon, so I can avoid all these issues. (But then I have to contend with others, like whether substantive canons are illegitimate.)
Posted at 6:18 AM