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Against the Major Questions Doctrine
Mike Rappaport

In a recent post, Mike Ramsey attempts to provide an originalist defense of the Major Questions Doctrine (MQD).  While it is always risky to disagree with Mike about originalism, I feel compelled to voice my contrary views.

Before discussing Mike’s view, let me state my basic objection to the MQD: It neither enforces the Constitution nor applies ordinary methods of statutory interpretation.  Thus, it seems like a made up interpretive method for achieving a change in the law that the majority desires.

Mike’s defense is based on his view that “The Court has a common and longstanding practice of developing clear statement rules.”  Even assuming that is true, I do not think that a longstanding practice establishes that something is originalist.  For quite some time, at least until recent terms, the Supreme Court has been interpreting the Constitution and even statutes from an nonoriginalist perspective, but that does not make such nonoriginalism originalist.  That Justice O’Connor announced a federalism canon in 1991 (or the Court applied similar ones in other cases from that time period) hardly provides support for the originalist bona fides of the canon.

Mike claims that this practice goes back to at least Chief Justice Marshall in the Charming Betsy (1804) and Talbott v. Seemen (1801), which required a clear statement before a statute is read to violate international law.  But I am skeptical.  Marshall may have applied the rule but did he “develop” it as Mike claims?  At that time, the law often employed interpretive rules that sought to make different bodies of law cohere with one another.  For example, statutes were interpreted in accord with the common law.  I would be surprised if such a rule did not also apply to statutes and international law.  

This is a key point.  There is a strong argument for applying existing interpretive rules to statutes enacted in the shadow of such rules.  This is original methods for statutory interpretation.  It is quite another thing to make up interpretive rules after the enactment.  That is nonoriginalism.  

Another justification for the Charming Betsy rule is that it accords with the presumed intent of the Congress.  That justification won’t work for the MQD, since many of these statutes were passed during a period of broad delegation to agencies, when Congress appeared to desire broad delegations and certainly understood delegations would be read in that way.  Mike doubts that the Charming Betsy rule can be justified as the presumed intent of Congress.  But I am not so sure of that either.  While Mike may be right that the present day Congress may not care so much about modern international law, I am less certain that the early Congress would have been willing to ignore international law when the U.S. was a much weaker nation and much more beholden to international law protections.  So once again the Charming Betsy rule seems different than making up interpretive rules.     

To be frank, I wish the MQD could be justified.  It would certainly make things easier from the perspective of limiting delegations.  But “wishing does not make it so.”