Jonathan Meilaender (Harvard Law School JD '25) has posted Structural Textualism and Major Questions (Harvard Journal of Law and Public Policy, Volume 48, No. 1 (forthcoming 2025)) (29 pages) on SSRN. Here is the abstract:
Justice Barrett's concurrence in Biden v. Nebraska aims to describe and defend the Major Questions Doctrine on textualist grounds. The Court's Major Questions cases, she argues, merely situate statutes within constitutional context, relying on commonsense notions of principal-agent relationships to offer the most natural reading of statutory text. Those commonsense notions include the "basic premise" that Congress usually intends to answer major questions itself. Justice Barrett's analysis has lately attracted criticism on the grounds that her underlying presumptions are either wrong or impermissible for a textualist. First, perhaps Congress often does intend to make major delegations. Second, Justice Barrett's underlying presumptions might not be sufficiently common or obvious to modify textual meaning: they are not part of common sense. These criticisms misunderstand the nature of the Biden v. Nebraska textual analysis, since Justice Barrett's "basic premise" is neither an empirical claim nor a statement about conventional assumptions. Nor is it a mere policy preference. It is, instead, a structural constitutional premise. Justice Barrett, like all textualists, views the text through the eyes of a hypothetical reasonable interpreter. But her interpreter is normatively reasonable, not a mere aggregator of shared conventions. Her interpreter's "common sense" is "sensible," but need not be "common" in the real world. Justice Barrett argues that a reasonable third-party observer would establish statutory context by looking to the Constitution first, and would be rationally compelled to acknowledge that the Constitution sets forth a particular kind of principal-agent relationship between Congress and agencies. In this way her Major Questions Doctrine integrates structuralism into textual meaning.
Posted at 6:35 AM