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Chad Squitieri on the Major Questions Doctrine
Michael Ramsey

At Law & Liberty, Chad Squitieri (Catholic): Major Problems with Major Questions. From the introduction: 

This July in West Virginia v. EPA, the Supreme Court formally recognized the “major questions doctrine.” That doctrine, which can be traced to a 1986 law review article published by then-Judge Stephen Breyer, calls on courts to consider a legal question’s “political importance” when interpreting statutes.

The major questions doctrine is a product of legal pragmatism—a theory of statutory interpretation advanced by Justice Breyer which often elevates statutory purpose and consequences over text. The doctrine is inconsistent with textualism—an interpretive theory that emphasizes statutory text, structure, and history to understand a statute as the public originally understood it. The takeaway is clear: textualists should reject Justice Breyer’s major questions doctrine.

And from the conclusion: 

A textualist analysis of the relevant constitutional provisions reveals that the major questions doctrine undermines, rather than promotes, the Constitution’s chosen means for promoting democracy.

Article I, Section 7 of the Constitution outlines the exclusive means of enacting federal statutes. That provision requires a specific democratic process: both the House and Senate must approve statutory text that is then presented to the President for approval or veto. Throughout that democratic process, any federal legislator or the President may negotiate for different statutory language—including when the legislator or President thinks different language would better address topics that the legislator or President thinks to be of major political importance. But Article I, Section 7 does not permit the federal judiciary to similarly exercise political judgment as a participant in the lawmaking process.

Instead, federal courts merely exercise legal (not political) judgment by interpreting the final statutory language that survives the Article I, Section 7 lawmaking process. The major questions doctrine—which permits unelected judges to withhold legal effect from a law due to political calculations of majorness, similar to what an elected President might do when exercising the veto power or an elected legislator might do when considering a bill—runs afoul of the Constitution’s exclusive means (Article I, Section 7) for democratic lawmaking.

For textualists concerned with reigning in the administrative state, the major questions doctrine might seem like a step in the right direction. After all, the Supreme Court has been loath to enforce the nondelegation doctrine in recent decades, and sometimes enforcing the Constitution’s limitations on delegations of congressional authority is better than never enforcing those limitations at all. But invoking the major questions doctrine is the wrong way to enforce nondelegation concerns because invoking the major questions doctrine (and its focus on political calculations) comes at the cost of undermining textualism (and its separation of legal and policy considerations) more generally. Textualists would thus do best by rejecting the major questions doctrine and instead applying the Constitution’s limitations on delegations across the board—not just in those instances that a judge thinks to be of particular political importance.

My tentative somewhat contrary views are here.  He makes good points, though.  I remain undecided for now.