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08/22/2022

Ilya Somin on the Major Questions Doctrine
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Originalism and the "Major Questions" Doctrine (commenting on the exchange on this blog between me and Mike Rappaport).  After summarizing the competing posts, he continues:

Both Mikes make good points. But I largely agree with Ramsey. Indeed, I would go further. Even if nondelegation is justiciable, at least in some cases, the major questions doctrine can be justified as an additional tool for enforcing it, in situations where direct enforcement is infeasible for some reason (either because it is intrinsically impossible, or because judges just aren't willing to do it). In this way, MQD, like other "clear statement" rules can be seen as a second-best tool for enforcing constitutional constraints on government power that, in an ideal world, would get stronger protection.

I think Rappaport fails to effectively respond to this rationale for MQD. Even if it is not the ideal rule, it may be better than the available alternatives in a world where nondelegation is inadequately enforced.

I would add that, while both Mikes implicitly assume that constitutional originalists must also apply originalist principles to statutory interpretation, I am not convinced that is necessarily true. It may be so for those I refer to as "intrinsic originalists," who believe that originalism is inherently the only legitimate method of legal interpretation. But this is not true for what I call "instrumental originalists" - those whose support for originalism is based on the view that originalism leads to better consequences than other methodologies would. An instrumental originalist might conclude that, while constitutional originalism leads to better consequences than other constitutional theories, statutory originalism isn't necessarily superior in the same way to all of its rivals.

I agree with the last point in theory.  But I see the main instrumentalist reason for preferring constitutional originalism to be rule of law values, which also supports statutory textualism/originalism.