Justice Barrett in the Concurring Opinion, addressing Justice Kagan's concerns that the MQD is a 'get out of text free card' and "is inconsistent with textualism":
"Yet for the reasons that follow, I do not see the major questions doctrine that way. Rather, I understand it to em-
phasize the importance of context when a court interprets a
delegation to an administrative agency. Seen in this light,
the major questions doctrine is a tool for discerning—not
departing from—the text’s most natural interpretation."
"Rather, I understand it to em-
phasize the importance of context when a court interprets a
delegation to an administrative agency."
Justice Barrett, while a Law Professor wrote "A. Barrett, Substantive
Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117
(2010) (Barrett)" and sheds some more daylight on the MQD:
"The usual textualist enterprise involves “hear[ing] the
words as they would sound in the mind of a skilled, objec-
tively reasonable user of words.” F. Easterbrook, The Role
of Original Intent in Statutory Construction, 11 Harv. J. L.
& Pub. Pol’y 59, 65 (1988). But a strong-form canon “load[s]
the dice for or against a particular result” in order to serve
a value that the judiciary has chosen to specially protect.
A. Scalia, A Matter of Interpretation 27 (1997) (Scalia); see
also Barrett 124, 168–169. Even if the judiciary’s adoption
of such canons can be reconciled with the Constitution,2 it
is undeniable that they pose “a lot of trouble” for “the honest
textualist.” Scalia 28."
Footnote 2. "In my view, however, the major
questions doctrine is neither new nor a strong-form canon."
"So what work is the major questions doctrine doing in
these cases? I will give you the long answer, but here is the
short one: The doctrine serves as an interpretive tool re-
flecting “common sense as to the manner in which Congress
is likely to delegate a policy decision of such economic and
political magnitude to an administrative agency.” FDA v.
Brown & Williamson Tobacco Corp., 529 U. S. 120, 133
(2000)."
"Because the Constitution
vests Congress with “[a]ll legislative Powers,” Art. I, §1, a
reasonable interpreter would expect it to make the big-time
policy calls itself, rather than pawning them off to another
branch."
"My point is simply that in a system of separated
powers, a reasonably informed interpreter would expect Congress to legislate on “important subjects” while delegat-
ing away only “the details.” Wayman v. Southard, 10
Wheat. 1, 43 (1825). That is different from a normative rule
that discourages Congress from empowering agencies."
"And when it comes to
the Nation’s policy, the Constitution gives Congress the
reins—a point of context that no reasonable interpreter
could ignore."
"But the doctrine is not an on-off switch that flips when a
critical mass of factors is present—again, it simply reflects
“common sense as to the manner in which Congress is likely
to delegate a policy decision of such economic and political
magnitude.” Brown & Williamson, 529 U. S., at 133. Com-
mon sense tells us that as more indicators from our previ-
ous major questions cases are present, the less likely it is
that Congress would have delegated the power to the
agency without saying so more clearly."
"Here, enough of those indicators are present to demon-
strate that the Secretary has gone far “beyond what Con-
gress could reasonably be understood to have granted”
AI
