Michael B. Rappaport (University of San Diego School of Law) has posted Replacing the Major Questions Doctrine with Originalist Statutory Interpretation on SSRN. Here is the abstract:
This short essay, written for a symposium, argues against the major questions doctrine from the perspective of statutory originalism. The essay contends that the doctrine in its leading form – which is understood as a substantive canon of interpretation – is inconsistent with statutory originalism. The doctrine cannot at present be justified as protecting the Constitution’s prohibition on delegation. The essay also argues that the arguments in favor of substantive canons, made by then Professor Amy Coney Barrett, are much weaker than normally thought, as the history does not indicate that federal courts believed they had the power to establish new substantive canons.
The essay then argues that substantive canon version of the major questions doctrine is not necessary to protect against unduly expansive agency interpretations of their statutory authority. A variety of originalist interpretive methods, such as the mouseholes canon, the elimination of Chevron deference, contemporaneous exposition, and the mischief rule would operate to restrain such interpretations while also being consistent with originalism. The essay concludes by acknowledging that the linguistic version of the major questions doctrine is far superior to the substantive version but argues that it is best to dispense with even the linguistic version. It is better to focus directly on discovering the original meaning rather than to do so indirectly by attempting to define the acceptable limits of the linguistic version of the doctrine.
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