1. AN ORIGINALIST DEFENSE OF THE MAJOR QUESTIONS DOCTRINE.
- Author
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RAMSEY, MICHAEL D.
- Subjects
DELEGATED legislation ,INTERNATIONAL law ,FEDERAL laws ,JUDICIAL power ,SEPARATION of powers - Abstract
According to the U.S. Supreme Court, the major questions doctrine requires “clear congressional authorization†for agencies to exercise delegated authority over “major policy decisions.†But where can the Court find constitutional authority to announce such a rule? That question divides originalist-oriented scholars and judges. Some have criticized the doctrine sharply as departing from a court’s obligation to apply a law’s textual meaning. Others have defended it as arising from congressional intent, ordinary linguistic conventions, or a constitutionally based rule against delegation of legislative power. This Article undertakes a broader originalist defense. First, it describes the major questions doctrine as a substantive canon—that is, an interpretive rule based not on linguistic conventions but on an extra-textual value of protecting the separation of powers. Second, it assumes that the major questions doctrine need not be derived from a direct constitutional command against delegation. It then argues instead that the major questions doctrine can be seen as part of a broader power of courts to read ambiguous federal laws narrowly to avoid erroneously undermining core founding-era structural assumptions. The article explores early post-ratification judicial practice in support. It concludes that the early judicial practice indicates a discretionary authority, uncontested at the time, to underenforce ambiguous laws in this manner. It thus links early interpretive canons such as the presumption against violations of international law and the presumption against civil retroactivity, with the modern Court’s longstanding presumptions protecting federalism and the present Court’s recent invocation of the major questions doctrine. [ABSTRACT FROM AUTHOR]
- Published
- 2024