Originalism and the "Major Questions" Doctrine

Originalist legal scholars Mike Ramsey and Mike Rappaport debate whether the major questions doctrine - an important theory underlying several recent Supreme Court decisions - can be squared with originalism or not.

The "major questions" doctrine is a rule of statutory interpretation that requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of "vast 'economic and political significance.'" If such a broad delegation of power isn't clear, the doctrine requires courts to rule against the executive's claims that it has the authority in question.

For a long time, the major questions doctrine was a relatively obscure rule of interest mainly to experts in statutory interpretation, and lawyers litigating cases where it might come up. Only occasionally would it affect the outcome of a prominent case. But over the last year, the Supreme Court has relied on it in three major cases: the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. This has made the rule a focus of controversy, with critics arguing that it is a flawed doctrine misused by the conservative justices on the Supreme Court.

At the Originalism Blog (to which both are regular contributors), prominent originalist legal scholars Mike Ramsey and Mike Rappaport recently debated the issue of whether the major questions doctrine is consistent with constitutional originalism. Ramsey believes that it is, while Rappaport is skeptical.

Here's Ramsey:

I was initially skeptical of the major questions doctrine (MQD), as deployed by the Supreme Court in West Virginia v. EPA – basically for the reasons expressed by Chad Squitieri, Tom Merrill and Jonathan Adler.  But with everyone ganging up on the MQD, my contrarian instinct pushes me the other way.  So here is a tentative defense.

First, I assume that the Constitution's original meaning contains some reasonably strong version of the nondelegation doctrine, that is, that Congress cannot delegate important legislative matters to the President (or administrative agencies) as a result of Article I, Section 1's vesting of "all legislative Powers" in Congress…..

Second, I assume that the line between permissible and impermissible delegations is so difficult to define and apply that, except in extreme cases, the nondelegation rule is basically nonjusticiable, as held by the Supreme Court (per Justice Scalia) in the Whitman case…  I'm not sure that's right, but I'm assuming it for purposes of the argument.

Third, I assume that Congress will often enact broad statutes in which the extent of the intended delegation is uncertain.  (I'm pretty confident that's true).

Now for the argument:

The Court has a common and longstanding practice of developing clear statement rules (whether actually called by that name or not), by which the Court avoids an expansive reading of a statute unless Congress is clear in directing the expansive reading.  For example, a clear statement is needed before a statute is read to interfere with a state's internal governance (Gregory v. Ashcroft), to apply to purely local activity (Bond v. US), to apply extraterritorially (Morrison v. National Australia Bank), or to impose criminal penalties (the rule of lenity).

Probably the earliest version in US federal law is the "Charming Betsy" rule, requiring a clear statement before a statute is read to violate international law.  (The rule takes its name from Chief Justice Marshall's decision in Murray v. The Charming Betsy(1804)…).  Specifically Marshall wrote in Charming Betsy: "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains."

I'm not sure that's good enough for a strict textualist, but as an originalist matter that's a pretty strong practice.  (Also, for what it's worth, Justice Scalia endorsed most or all of the modern clear statement rules).

In my view, these rules aren't really about finding the true meaning of the statutory text.  I doubt, for example, we can assume that, absent a clear statement, Congress doesn't want to violate international law, interfere with states' internal governance or create criminal penalties.  Rather, these are rules of judicial restraint, avoiding a broad reading of a statute where the meaning is uncertain and there are severe costs to the court erroneously reading the statute broadly…..

Thus, the fact that the MQD applies a clear statement rule instead of applying close textual analysis isn't novel or contrary to originalism.  To be consistent with historical practice, though, this particular clear statement rule needs to protect against some substantial negative effect of overreading a statute.  For the MQD, I think that argument can be made, if one accepts the assumptions posited at the outset of this post.  Nondelegation is an important constitutional value, assuring that the people's representatives in Congress make legislative decisions through a deliberative and accountable process.  But since the Court can't enforce nondelegation directly and delegating statutes are often ambiguous as to their scope, there's a substantial risk courts will err in reading statutes too broadly, allowing too much delegation to the President or the agencies.

Ramsey's argument here is similar to that advanced by Supreme Court Justice Neil Gorsuch, who has also argued in several opinions that the major questions doctrine is best understood as a tool for enforcing nondelegation. For example, in his concurring opinion in Gundy v. United States (2019), Gorsuch notes that "[a]lthough it is nominally a canon of statutory construction, we apply the major questions doctrine in service of the constitutional rule that Congress may not divest itself of its legislative power by transferring that power to an executive agency."

Here's Rappaport's response:

Before discussing Mike [Ramsey'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….

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."

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.

Rappaport (as described in his excellent book Originalism and the Good Constitution, coauthored, with John McGinnis) is an instrumental originalist. So too am I. That means we cannot presumptively reject nonoroginalist methods of statutory interpretation. For us, it is possible that MQD can be justified even if it is not originalist. That's especially true if it is a useful tool for enforcing constitutional rules that do have an originalist justification.

As Ramsey recognizes, his rationale for MQD (and Justice Gorsuch's and mine!) only works if nondelegation rules impose genuine limitations on congressional power to transfer authority to the executive. If the Constitution imposes few or no constraints on delegation, then MQD cannot be justified as a tool for enforcing those (by assumption, nonexistent) restrictions.

The extent to which there are constitutional limits to congressional delegations of power to the executive is a much-disputed issue. Though I generally think there are some significant limits, I won't try to defend that position here.

Even if MQD is a sound rule, that doesn't necessarily mean the Court applied it correctly in any given case. I have previously argued that it did so justifiably in the eviction moratorium and vaccine mandate rulings. West Virginia v. EPA strikes me as an at least somewhat closer case.

Comments

[Martinned]

My overwhelming impression here is that the debate is so myopic. The common law world extends far beyond the US borders, as it did in 1776. And in all of those countries courts struggle with statutory interpretation, and with the interpretation of statutes that create powers for the government.

For example, the equivalent of the Charming Betsey rule also exists in the UK, where it is much more of a stretch because, unlike the US, the UK has a dualist system where treaties are not supposed to have direct effect in the domestic legal order. And yet the Courts assume that Parliament would not generally make law in a way that would put the UK in breach of its obligations under international law, while also recognising that sometimes it will. Now I don't know how far back the case law on this point might go, but it wouldn't surprise me if it went back before 1776. (It is the UK, after all.)

Courts and scholars across the common law world regularly cite cases (and scholarship) from other jurisdictions as persuasive (but not binding, obviously) authority. They assume that the drafters of a Canadian law in year X were familiar with obviously relevant English precedent (case law or statute law) from before that time, and that this is something that can be helpful in working out the correct interpretation of the law. Only in America do courts and scholars write as if there is no other place in the world but America.

When it comes to delegation, the obvious originalist observation to make is that broad delegations were a perfectly ordinary thing for legislatures to do both under the Articles of Confederation and under State law, as well as under the British constitution of the time, both with respect to the British government and with respect to various colonial governments. Empowering the executive to do X or Y is an exercise of legislative power under article I, and carries with it no contradictions. As a result, the burden of proof is on the person claiming otherwise to show their work. You can't just assume the conclusion as Mike Ramsey does above.

[mse326]

The Court regularly cites to British law pre and around the time of our founding so that is already a blatant falsehood. The other common law jurisdictions didn't exist back then (pretty much all common law countries are ex-British territories).

The Constitution was written specifically to change much of the way the law worked in GB. One of the most important was separation of powers. So no it doesn't make sense to say that GB did it, or the then non existent countries do it, as a way to definitively say what our Constitution says.

And you don't seem to understand what the MQD is based on your last paragraph. The MQD doesn't prevent Congress from delegating anything, it says that the delegation of a major question must be clear. Congress is free, under the MQD, to delgate anything as long as they are clear about it.

[DaivdBehar]

Compliments on quoting Article I. Section 1. That is in touch with reality. Now show me where that power can be delegating wxcept by scumbag lawyer lying and gaslighting.

Soviet Bill of Rights was more extensive than ours. They had no freedom. Our freedom comes from the separation of powers. It has to be protected.

[DaivdBehar]

If you Ivy indoctrinated, big government, little tyrants do not like it, amend the constitution. You don't know shit, yet you feel free to impose your rent seeking sick tyranny on this lawyer beleaguered country.

Nothing you do, you rent seeking, lawyers, has the slightest external validation. Your sole validation are men with guns. Do you know what your quackery justifies? Rounding you up, trying you an hour, and executing you in the court basement.

[DaivdBehar]

Hey scumbags. First you show arule is reliable. That 2 cops administer it the same way because it is clearly written. Then you show it is valid. Iit does what it says it does. Then you prove it is safe and effective with tolerable unintended consequences.

When have you ever bothered to do that work, you vile toxic scumbags? Why bother when you have men with guns?

[Stephen Lathrop]

The conclusion Ramsey assumes is one beloved of many originalists, but easer to find in the their prejudices than in the historical record: that original intent should be presumed to favor less powerful government.

[Stephen Lathrop]

For instance, this from Somin:

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.

What that means in practice is that if a particular delegation promises (or threatens) enlargement of government power, the court can overturn it, and thus prevent implementation pending a contrary endorsement from congress, which may never come. Delegations which go the other way—to reduce government power, or to leave it as is—face no such procedural ratchet.

Of course would-be originalists, many of whom are in the originalism business as avowed opponents of government power, would love a doctrine like that. Never mind that an increase in government power might in particular cases be a closer match to original intent than the reverse.

There is nothing originalist in so-called, "originalist," doctrines which get imposed as present-minded doctrine without reference to past meaning and context. Thinking which tends that way is all about constitutionalizing without benefit of political process a particular present-minded political position, i.e. smaller government is better government.

[DaivdBehar]

Stevie Boy, don't you agree, a course in Critical Thinking should be made a pre-law requirement?

[Krayt]

The issue isn't increases in government power. It is increases in power without direct authorization, be it directly by Congress arrogating power without amendment in ways the founding fathers would have laughed out of town, or a downstream delegatee arrogating power Congress never conceived when it delegated it.

The goal is to stop the power hungry from assuming new powers without authorization, using little weasel trickies instead of clear, out in the open language.

Power hungry taking new power at their own whim...hasn't worked out so well historically.

Normally this is raw power arrogation by Congress sans amendment, into arenas that would have been laughed out of town by the founding fathers.

Delegation is a lesser one. But when it involves the delegated entity doing this on its own

[Krayt]

Strike the last two sentences as leftover edit effluvia.

[Stephen Lathrop]

The issue isn't increases in government power. It is increases in power without direct authorization, be it directly by Congress arrogating power without amendment in ways the founding fathers would have laughed out of town . . .

Krayt — Whenever we see the, "founders would have," construction we know we are looking at made up history. That is no basis for historical insight, let alone for historically-justified originalism. You repeat that construction twice.

Similarly conclusory is, "arrogation by Congress sans amendment." You may have points to make, but you are not making them. The challenge posed by the OP is to answer whether the MQD is a legitimate originalist means to determine whether the needed amendment you merely assume is actually constitutionally required. With no specifics in sight which could contribute to an answer, you are indeed just asserting a general preference for smaller government. There is no point in fooling yourself that you have made a constitutional argument about anything specific enough to justify anything but an assertion of that general preference.

[Sarcastr0]

It is increases in power without direct authorization,

The issue is that this makes what counts as direct authorization a moving target.

I don't care what you favor, this subjective test is just a bad idea prudentially.

Normally this is raw power arrogation by Congress sans amendment, into arenas that would have been laughed out of town by the founding fathers.
Ah yes, the 'my telepathy tells me the Founders woulda been libertarian.'
Actual scholars of American political thought at the time find a much more mixed bag than this kind of totemic invocation would indicate. Not that you would ever dirty up your ideology by studying up on it.

[Kazinski]

Stephen, Stephen, Stephen you say they (me too, I guess) are blinded by our predjudices, but if you are looking clearly how can you look at founding era text like this and say the intent wasn't to limit powers:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Of course that's just one example, there is also "Congress shall make no law", "shall not be infringed", "nor shall private property be taken".

There is absolutely no doubt that limited government was the original intent.

But you misunderstand original intent, or at least original public meaning. While it's common on the left to use purposivism as a tool of statutory deconstruction, as in the Appellate decision in West Virginia: 'the purpose of the Clean Air Act was to reduce pollution, so any regulation that reduces pollution is presumptively valid'.

That's not how original public meaning works, the purpose can't be used to validate regulations that go far beyond what the actual text of the law is, regardless of whether we approve the purpose or not. If Congress wants to go further, let them.

[Stephen Lathrop]

Kazinski, the original understanding was to limit powers by kinds, not by how extensive or effective actually permitted powers might be. There is nothing in the original understanding of the founding era to tell us that shrinking the scope and power of government was part of the intent of the Constitution.

There is quite a bit in the historical record to the contrary. The impetus to create a constitution is widely understood to have originated in a failed experience with too-limited government under the Articles of Confederation. I suppose you actually know that as well as anyone. Shrinking the power of government is not an original purpose of the Constitution. People who advocate such constraints need to look elsewhere for citations to support their arguments.

[mulch]

The MQD doesn't limit the power of government. It only limits the power of the executive -- to what was specifically given to it by the legislature.

Prevents the executive from squeezing size 36 powers into a size 4 law. But if the legislature wants to tailor a size 32 law it can.

[mulch]

The MQD in action:

https://www.shutterstock.com/video/clip-1074804383-fat-woman's-belly-she-unbuttons-her-skirt

[Stephen Lathrop]

mulch, the discussion is about originalism. There is nothing in the historical record to support your preferred interpretation. If there had been, of course the Supreme Court would have cited it in its ostensibly, "originalist," decisions. It did not do that, because the record will not support it. That leaves the Court the task of justifying a major questions doctrine on some other basis. If you have any suggestions for what that basis should be, and can show existing practical basis for using them, tell us about it. So far, you have not done much to justify what otherwise looks like a power grab by the Court.

[Kazinski]

Once again Stephen, you've latched on to an idea and you ignore all the contrary evidence, like the executive "shall faithfully execute the laws", not just execute, " necessary and proper" not just necessary. Not the power for "searches and seizures" but "against unreasonable searches and seizures".

Those all limit how extensive and effective the "kind" of power is.

I could go on, there is the power to take land for public use, but its effectiveness is limited very severely by having to just compensation. Interrogating suspects is a kind of power, but you have to admit Miranda warnings and the right to an attorney severely limits the effectiveness of that power.

When you come up with these harebrained notions think them through before you propose them as an immutable principle nobody ever thought about before.

Well almost nobody:
"The ends justify the means." – Niccolò Machiavelli

[Stephen Lathrop]

Kazinski — My point right along has not been that nobody ever thought before about the implications of sovereignty. My point has been just the opposite. Previously, thinking of that sort pervaded the founding era in the U.S., and political discourse in England.

A great deal of that theory was built into the construction of U.S. institutions, and is memorialized in both the Declaration of Independence, and on the Constitution, and in early Supreme Court decisions. It is also found especially in the writings of John Marshall and James Wilson.

The problem is, almost nobody thinks about that stuff now, and that results in chronic misreadings of founding era history, and many misunderstandings of the American constitution. Needless to say, misreadings of history are disadvantages in arguments attempting to support originalism.

Also, you misquote Machiavelli. Your quote is a product of a consequentialist philosophy which Machiavelli considered, qualified, and never fully advocated. He never said what you, "quote."

[Kazinski]

Yeah, I knew the quote was apocryphal, this is blog comments not a doctoral dissertation.

But noted, next time I "quote" Machiavelli it will be in the original 16th century Italian.

[Kazinski]

You shouldn't read much from the British "constitution" into the US Constitution in regards to executive power. A President is not a king thus inherits none of the kingly powers not explicitly granted in the constitution.

A example is Kings were traditionally considered wards of orphans and widows. Of course they took no notice of poor orphans and widows but they gladly stepped in to manage the estates and contract marriages for rich widows and heiresses. There is nothing in the constitution that forbids this power to the president, but no assumption, or rather presumption of this alluring perk was ever asserted.

[Martinned]

You misunderstand. My point was not about the King's prerogative powers, but about the way the King's minister's would gain new powers through Acts of Parliament. Those have been carefully distinguished in English law going back at least as far back as Lord Coke's judgment in the Case of Proclamations (1610).

[Bob from Ohio]

"Empowering the executive to do X or Y is an exercise of legislative power under article I, and carries with it no contradictions. "

The Constitution is not an Enabling Act. Under your theory, Congress can delegate ALL its powers as an "exercise of legislative power".

[Martinned]

There are things that the Constitution specifically says need to be done by Congress, like declaring war, but otherwise I don't think it would be unconstitutional for Congress to delegate all of its powers. No Congress can bind a later Congress, so such a delegation would never prevent Congress doing anything. Nonetheless, voters might not be pleased, so there would probably be some kind of political limit on this.

But under the Articles of Confederation, the Northwest Ordinance basically did this. (The Ordinance was reaffirmed by the First Congress after the current constitution entered into force.)

[CJColucci]

There's a fair amount of recent scholarship, which I am too busy to dig up now, contesting the very existence of an originalist non-delegation doctrine in the Constitution. These articles draw a critical distinction between delegating its power to the executive, which Congress can do, and alienating its power to the executive, which it can't. Congress can always take back a power it delegates.
Maybe the major questions doctrine makes sense as a rule of thumb in statutory interpretation. But it can't be justified as a necessary, or even as a second-best, doctrine to protect against some constitutional violation, as opposed to advancing the policy preferences of whoever is arguing a major question point. Most major question doctrine advocates are simply creating a rationale for restricting regulation they don't like.

[Alpheus W Drinkwater]

This is an excellent comment, and I think some of the scholarship to which you refer is the Mortensen and Bagley paper "Delegation at the Founding." My problem with Prof. Ramsey's argument is that I think his first assumption is incorrect, and his whole argument rests on that assumption.

[Brett Bellmore]

Isn't a lot of the problem here the Court saying the Constitution embodies a non-delegation rule, (Which is, I think, a perfectly reasonable reading of the text.) but in practice treating it as a non-delegation suggestion? Because if it's a constitutional rule, a clear statement shouldn't cut it, Congress doesn't get to violate the Constitution just because it says so clearly.

[Bored Lawyer]

That's because Somin has has made a leap from a statutory interpretation principle, which is what the article is talking about, to a Constitutional doctrine. The former is simply a presumption that, absent a very clear indication, Congress will not deviate from the norm. There are many canons like that; they are not Constitutional restrictions, but presumptions of what Congress means.

[Brett Bellmore]

But the argument above, on Ramsey's part, is that the statutory interpretation principle, running contrary to a plain textual interpretation of the law, is only justified if there's a constitutional basis for it.

But if there's a constitutional basis for it, the rule wouldn't be, "Non-delegation unless clearly stated.", it would be, "Non-delegation, and if clearly stated the law is unconstitutional."

[MatthewSlyfield]

Second, I assume that the line between permissible and impermissible delegations is so difficult to define and apply that, except in extreme cases, the nondelegation rule is basically nonjusticiable, as held by the Supreme Court (per Justice Scalia) in the Whitman case… I'm not sure that's right, but I'm assuming it for purposes of the argument.

[Brett Bellmore]

Declaring a constitutional rule "non-judiciable" does kind of reduce it to a suggestion.

[Ridgeway]

You have to remember that there are two separate doctrunes, and they seem tot be gettign conflated. The non-delegation doctrine (NDD) is separate from the MQD. The NDD is a constitutional doctrine that states that the legislature may not delegate law-making authority. Rule-making authority that merely implements the law is OK. The question then becomes: Is the grant of rule-making authority so broad as to constitute law-making authority? The answer is usually "no," although some justices dissent from time to time and look to give the doctrine more teeth.

The MQD, as noted above, is a doctrine of statutory interpretation.

[Ridgeway]

"seem to be getting"

[dwshelf]

Understanding how it works is confused by people who spend a lot of time and energy asserting how they think it should work. It's particularly egregious when people claim that it really does work the way they think it should work.

The way it works is that there are minor questions which everyone agrees the administration can do as they see fit. And there are huge questions which everyone agrees that congress needs to decide. The two ends together might be 10% of the issues which come to the supreme court. The other 90% are in the middle.

Out in that huge middle the questions are not much determined by principle, rather, they are determined primarily by partisan goals and secondarily by personal feelings by individual SC justices.

Any attempt to formalize this with the expectation of controlling the middle is just more hot air.

[BravoCharlieDelta]

Well said. An obvious conclusion from any clear-eyed observer is that they generally do whatever they want and are not boxed in by principles or doctrines. Instead, they use these as simple machinations to dress up their actions with legitimacy.

[DaivdBehar]

That is insurrection against the constitution. The federal law should be amended to have capital punishment as a sentence. Then arrest the entire lawyer hierarchy.

[Kazinski]

"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."

I think this is somewhat wrong, I think it's intuitive that a written constitution might create new methods of interpretation in interpreting it in the aftermath of the founding. For instance the 10th amendment was novel and certainly not in the British common law or constitutional law tradition, as well as the "Congress shall make no law" in the first. The British constitutional tradition was to grant a right "as allowed by law" which allowed those rights to be eroded, as with the right to bear arms.

[bernard11]

"instrumental originalists" - those whose support for originalism is based on the view that originalism leads to better consequences than other methodologies would. ...

Rappaport (as described in his excellent book Originalism and the Good Constitution, coauthored, with John McGinnis) is an instrumental originalist. So too am I.

This is an interesting confession.

[Kazinski]

Yes, but that's hardly the dominant strain of originalism, certainly not Scalia's view.

It's hard not to notice that Ilya can be very outcome oriented in his constitutional analysis, I'm glad he admits it.

[bernard11]

Could be, Kazinski, but I'm cynical enough to think that outcomes motivate a lot of originalists.

Look at Vermeule, saying, in effect, originalism no longer can be counted on to provide the results we want, so let's get a different theory.

[Kazinski]

Perhaps, but I think at least for those that have actually given it some real thought is you can't have the rule of law unless there is a clear way of determining what the law is, and being able to depend on it staying constant, absent legislative revision.

Lets just use the Clean Air Act as the example because its topical. Say 15 years ago a power company knowing what the law is, their understanding, the EPA's understanding, Congress' understanding as well as the courts, decides to make an investment in a coal power plant. Now 15 years later the EPA decides the law as it is isn't giving them the regulatory muscle they desire, so they reinterpret the law with depending on a supposed ambiguity, which really isnt ambiguous at all to completely change the well understood meaning of the law.

The proper way is to change the law by public debate and legislative votes, but they lack both public and legislative support to make the change.

Reinterpreting existing law to meet changing ends undermines the rule of law, and basic democratic principles.

[Sarcastr0]

On the other hand, we are not a dictatorship just because rule making exists. The APA is not an instrument of American tyranny; we are still a free people.

Agencies are aware of the need for stability, and for large changes like regulating carbon give lots and lots of warning.

[Stephen Lathrop]

And solicit lots and lots of public input, which the agency is legally required to pay attention to, and sometimes to take into account.

[Kazinski]

But they have to stay within the four corners of the law, and the Clean Power Plan did not.

The lower courts have gone off.on their own using Chevron deference that is not true to the original decision. Their test is 1) is there ambiguity in the law 2) is there a rational basis for the agencies interpretation, 3) its upheld.

The real test is "whether the agency's answer is based on a permissible construction of the statute". The CAA said that when a stationary source is constructed or has a major retrofit then the best system for minimizing pollution has to be used. It wasn't a permissible construction to say the entire power grid is one system, and should be managed to minimize CO2 over the entire system. It isn't reasonable or a permissable construction to call a power grid a stationary source. And all the stationary sources in the grid were certified to have the best system in place when they were permitted.

The CPP is rational, the CAA maybe ambiguous, but it wasn't a permissible or reasonable construction.

And they didn't need to go to the Major Questions Doctrine to strike it, although I think it was a welcome cabining of the administrative state.

[Sarcastr0]

they have to stay within the four corners of the law, and the Clean Power Plan did not.

This is you begging the question. The EPA found that the science indicated a new pollutant, and the Supreme Court agreed.

It isn't reasonable or a permissable construction to call a power grid a stationary source.
Could be - this is enough in the weeds I don't know. But notably, this is not the reasoning the Court used. Which is weird, unless you think all 9 Justices are not into the rule of law, and basic democratic principles.

I think it more likely that you are taking a general objection to a decision you disagree with, like we all have, and drama-ing it up into the end of the republic.

[Kazinski]

"I think it more likely that you are taking a general objection to a decision you disagree with, like we all have, and drama-ing it up into the end of the republic."

Heh, talk about drama.

No I think the republic is on the right track constitutionally with the current Supreme Court. The fact an appellate court got it wrong and was corrected by the Supreme Court laying out a principle for lower courts to decide these cases more consistently in the future is good.

I do think it's humorous that critics of WV v EPA bemoan the decision saying:

"The entire planet hangs in the balance!!! But it's not a Major Question."

[dwshelf]

It's hard not to notice that Ilya can be very outcome oriented in his constitutional analysis, I'm glad he admits it.

So is everyone, although indeed few of them admit it.

This is a game played far better by liberals, who say almost anything, but never compromise.

[Sarcastr0]

Liberals never compromise. Thus America is communist today.

[dwshelf]

We have Ogbergfell because Kennedy compromised.

We have Obamacare because Roberts compromised.

We have Kelo because Kennedy compromised.

We had 13 years of refusal to back up Keller because Roberts and/or Kennedy compromised.

There are no examples the other way.

[Sarcastr0]

What is your definition of liberal here? You seem to think all swing justices are nonliberal definitionally?

What you posted aren’t compromises, they are Justices who aren’t on the far right.

I could post how every case that doesn’t give us a constitutional right to universal basic income is a liberal compromise by your Manichaean logic.

[dwshelf]

What is your definition of liberal here? You seem to think all swing justices are nonliberal definitionally?

The same as everyone else's definition. There has been no doubt in recent times as to which justices were "liberal" and which were "conservative".

What you posted aren’t compromises, they are Justices who aren’t on the far right.

What I posted were the most egregious examples of conservative justices betraying conservative ideology and voting liberal.

I could post how every case that doesn’t give us a constitutional right to universal basic income is a liberal compromise by your Manichaean logic.

How about showing us a single case where a liberal voted with the conservatives on an ideologically contended question. Just not there to be found.

[Sarcastr0]

Kennedy is a conservative is news to many on here.

Notably, you've switched from complaining the right compromises with liberals and not vice versa to the right is full of traitors.

That's quite a different statement - you moved from factually inaccurate to purity test-level ideology.

If you want examples of liberals voting with the right, I'd point you to defendant's rights in 4/5/7A. Or Stevens on flag burning or, as he did here: https://en.wikipedia.org/wiki/Nguyen_v._INS

But in general, I think you are confusing the swing Justice being right of center with the right compromising all the time.

[dwshelf]

I think you are confusing the swing Justice being right of center with the right compromising all the time.

I'm saying that the swing justice is always been from the right in modern times.

Indeed, there are two broad reasons, which aren't confused, but they get the same result and they both end up with the compromiser giving some mumbo jumbo about originalism or textualism or whatever. One is that some on the right actually do sometimes vote with the left on "principle", particularly when they have no strong personal feeling either way. They claim to be principled, and trot out some principled explanation. Two is when they have a strong personal feeling that prefers the left result even though conservative constitutional principles say otherwise. Now they have to ignore the principle but claim they still support it.

The left is at least a bit more honest. They vote for "abortion rights" or "civil rights", and they find some new way to interpret the constitution which supports their claim. They actually say that's what they're doing.

But when Roberts said the Obamacare penalty was a tax, that was mumbo jumbo instead of just "voting for health care". You didn't see Ginsburg offering such nonsense. Roberts for personal reasons wanted to vote with the left, principles be damned.

Kennedy's Ogbergfell opinion was quite similar. Kennedy personally felt that gay marriage was right, even though it wasn't mentioned in the constitution. But he couldn't, as a conservative, just say "I voted for gay rights". He had to produce some mumbo jumbo.

That's how it works. All this discussion of "textualism" vs "original meaning" vs "living constitution" is just hot air, in the sense that it doesn't actually compel votes, particularly from the left.

[dwshelf]

Or Stevens on flag burning or, as he did here: https://en.wikipedia.org/wiki/Nguyen_v._INS

That case is an obscure corner: should a child be granted birthright citizenship when an American soldier's paternity test is all that establishes the kid's claim?

I'm just not seeing the ideological value here, and apparently Stevens didn't either. If this is the best example, it proves the point.

[Sarcastr0]

Can you think of some other explanation for the swing justice to be a conservative other than conservatives being squishy compromises?

And you ignored flag burning in order to make a judgement call that a case isn’t ideological, even though everyone else broke along ideology lines.

Your narrative is falling apart, man.

[dwshelf]

And you ignored flag burning

1st Amendment cases are seldom ideological. That one in particular. Scalia for example was with Johnson.

Actually, I think the SC generally behaves as we would hope on 1A cases. Justices do in fact vote more on principle than on partisan beliefs.

[dwshelf]

Can you think of some other explanation for the swing justice to be a conservative other than conservatives being squishy compromises?

When one side compromises, and the other doesn't, you end up with the swing always being from the compromising side. Seems pretty clear. Swing and compromise are much the same dynamic.

Now is the swing justice sometimes motivated by the power of being the swing? Probably. That's not what we need more of.

[Sarcastr0]

When the majority is of one ideology the swing vote will be of that ideology.

Simple. No need for nonsense ‘the other side is so ruthless and my side too nice’

And 1A isn’t ideological because the Court comes down as you want? You do see how that reveals a worldview where agreeing with you is reason and not is ideology?

[dwshelf]

And 1A isn’t ideological because the Court comes down as you want?

To be more precise, 1A questions which do not involve Christianity are non-ideological, or maybe religion in general. In particular, 1A questions which involve political speech by individuals.

We know that because of how the two sides divide.
1. Lots of 1A cases are unanimous
2. Of those which are contentious, there's often a non-aligned mixture making up the majority, which means that something other than ideology motivated the individual vote. Something like "1A principles".

Check out that flag burning decision for a prime example. It was a 5-4 decision, with two conservatives in the majority, and a liberal in the dissent. It was contentious because the underlying question was whether burning a flag was what we call "fighting words". You can understand both sides as being rational, and not driven by ideology.

[dwshelf]

When the majority is of one ideology the swing vote will be of that ideology.

Three of the most influential cases in modern times were 5-4 decisions which featured a conservative voting with the liberal minority, and supplying mumbo-jumbo as defending the vote as some kind of adherence to strong constitutional principles.

Any examples from a prior era when the liberals held a majority by a liberal went with the conservatives on a monumental 5-4 (we wouldn't expect them to need any mumbo jumbo, because liberals can just vote for whatever they think is the right result).

[Sarcastr0]

First, flag burning is absolutely a partisan issue - https://today.yougov.com/topics/politics/articles-reports/2020/06/24/flag-burning-legal-illegal-poll-data
Republicans (77%) are more likely than Independents (50%) and Democrats (35%) to say that it should be illegal to burn the American flag.

Non religious 1A has it's share of partisan cases. Citizens United was a 1A case. School speech by both teachers and students is a current and partisan issue.

[Sarcastr0]

Three of the most influential cases in modern times were 5-4 decisions which featured a conservative voting with the liberal minority

And all the rest were the conservative voting as a conservative.
This is what you would expect in general when your swing vote is on the right side of the political divide.

Would you trade for a court wherein the norm is a liberal swing vote siding with the liberal court and occasionally making an exception? I don't think you would.

[dwshelf]

First, flag burning is absolutely a partisan issue

Yes, of course it is.

But it's an example of where the SC is not controlled by ideology. Rather, 1A principles and the principled boundary between unprotected and protected speech is determined using rational analysis. It doesn't seem like very many SC justices can look up the answer to flag burning on their ideological calculator, like they can on most issues.

[dwshelf]

And all the rest were the conservative voting as a conservative.

Then they ought to just say that, and drop the constitutional stuff about originalism or textualism and, nowadays, whether something was done 200 years ago or not.

There's a case to be made that the USA is a better country because of the rights of individuals to own and use guns. There's a contrary case to be made that the USA is a worse country than, say, Australia, because respecting gun ownership yields more gun ownership. That's the reality of the debate, the formality of it here in 2022 is mocked by the inaction between Heller and today.

[Sarcastr0]

Justices can reach a partisan decision via one of the many competing legit jurisprudential theories. They can also write a really weak rationalization for a clearly outcome-oriented decision.

You argument is utterly orthogonal to the method; you explicitly don't care why the swing vote swung, only that it tends to swing left. That means such decisions are the exception, and you're focusing on the deviation and missing the mean.

[dwshelf]

you explicitly don't care why the swing vote swung, only that it tends to swing left.

You are correct.

The next step however is to avoid swingers in the nomination process. We've done way better, but still not as well as the left. Sotomayor is a better justice for the left than Cavanaugh is for the right. Jackson sure looks as if she's more left than Gorsuch is right...because Gorsuch has these principles that occasionally get in the way of getting the desired result.

We've come forward since Souter, then Kennedy, then Roberts. Clarence Thomas has been the best of all time, but it's because he's uncompromising in his libertarian views. Another Thomas would be welcome of course, but their just aren't many Thomas's out there.

[Michael P]

Interesting in what way? Why do you believe that your preferred approach to government policy is the right way to do things: Because it leads to better consequences than other methodologies would? Because it leads to worse consequences?

[SimonP]

It's a sign of our times that "legal scholars" are trying to defend a case for the "originalist" roots of the "major questions doctrine" using a circular, non-originalist argument.

Physicians, heal thyselves. Keep your pox away from the rest of us.

[Bubba Jones]

It seems patently absurd that the original meaning of the constitution was that the executive could usurp any legislative powers not explicitly denied it by congress.

[Martinned]

It would be absurd, if that was remotely similar to what anyone was actually arguing.

[F.D. Wolf]

The "major questions doctrine" is not new. Chief Justice John Marshall might be said to have provided an early statement of it in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825). That case concerned the questions of 1.) whether Congress could delegate to the federal courts the power to formulate their own procedural rules concerning the manner of execution of writs (or whether they were bound by the rules of the states in which they sat; and 2.) whether Congress had in fact delegated such power to the courts.

Marshall answered the first question in the affirmative, writing this power of delegation was "self-evident" and "too plain to admit of a doubt." Id. at 4. Marshall also answered the second question in the affirmative. While Congress had not specifically given this particular power to courts, it's general grant to courts of the power to formulate their own rules of procedure was sufficient, as such rules were mere "details":

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.

Id. at 43. ("Important subjects doctrine", anyone?)

[Martinned]

And yet, 200 years later, the Federal Rules of civil and criminal procedure, and sundry other rules, are still made by the courts. I might have overlooked something, but I don't think any of the learned judgments of the Supreme Court has ever suggested that that might be inappropriate. Coming from a country that has a Code of Civil Procedure and a Code of Criminal Procedure, both adopted by Parliament as ordinary statutes, I'm not sure I see why this should be so.

[Winnie SC]

"debate whether the major questions doctrine - an important theory underlying several recent Supreme Court decisions - can be squared with originalism or not."

PET PEEVE ALERT: the "or not" at the end of your sentence is entirely superfluous. The "or not" is implied in the "whether." It's like saying "I wonder if he is tall [or not]." The "or not" is superfluous, as the answer to the question posed in the first six words necessarily encompasses the answer to the alternate question posed by the last two words.

Thank you for your attention.

[Life of Brian]

"See me no more, whether he be dead or no."
— William Shakespeare

[dwshelf]

PET PEEVE

It's superfluous in the same way that "pet" is a superfluous adjective to "peeve".

Language is redundant on well trodden paths.

[bernard11]

Not really, in fact.

A pet peeve is a major peeve. I may also have minor peeves, which I don't regard as pets.

So while I don't feed them, or let them sleep in the house, I don't mind if they hang around the yard.

[ReaderY]

I find myself skeptical of the doctrine in its current formulation. Where it’s legitimate, ordinary statutory interpretation would lead to concluding Congress hadn’t authorized asdressing the issue.

And where ordinary statutory interpretation would lead to a different conclusion, it seems to me that it’s an invitation for courts to let their own political proclivities intrude by declaring whatever they strongly disagree with “major.”

I think a narrowed version of the doctrine has potential for legitimate use. It makes some sense as an exception to the Chevron doctrine to address ambiguity. When it’s unclear, after having conducted a standard statutory analysis, whether a statute authorizes an agency action, perhaps courts shouldn’t defer to the agency on major questions.

But a major questions analysis BEFORE a statutory interpretation analysis that imposes requirements on Congress without attempting to ascertain if it can understand what Congress meant seems more an arrogation of autjority than a legitimate statutory interpretative tool.

Spending Clause clear statement doctrine implements contract principles and preserves states rights. There is no corresponding basis for such a doctrine here.

[ReaderY]

In Spending Clause cases, where Congress authorizes contracts with the states, the Supreme Court is merely applying the ordinary rule of contract interpretation that a contract is construed strictly against its maker.

But there is no corresponding traditional common-law rule that the Court is applying in administrative major questions cases. It simply made the rule up.

[Rev. Arthur L. Kirkland]

I hope American law schools are not wasting much time or effort on this right-wing rubbish.

[The Margrave of Azilia]

Those whippersnappers who want to restore the classical legal tradition (and aren't fans of originalism) suggest that the positive law is in continuity with the law of nature and the law of nations. So *if possible* the positive law should be interpreted to conform to those two other branches of law.

I don't know where the major-question doctrine fits in here.

[DaivdBehar]

Great comment, bruh. Say you had a rating scale, tell the class what is required before applying it to a human being. The rating scale is to get help for the person.

Now, say, you are going to hit someone over the head, throw them in a cage, and take their money and their freedom, what minimum requirement do you suggest for a rule that will result in that?