Document Type
Article
Publication Date
2023
Abstract
Following Biden v. Nebraska, defenders of the major questions doctrine (which requires administrative agencies to identify “clear congressional authorization” to regulate “major” issues) can be categorized as falling within one of two camps. The first camp includes Justices Gorsuch and Alito, who view the major questions doctrine as a substantive canon. The second camp includes Justice Barrett, who explained in Nebraska that she is “wary” of adopting new substantive canons, and indicated that she considers the major questions doctrine to be a linguistic canon. Interestingly, both camps have relied on an influential scholar to advance their positions: then Professor (now Justice) Barrett. This Article will therefore also work within Justice Barrett’s scholarly framework, but will do so to make two points. First, that textualists have reason to object to both the substantive and linguistic conceptions of the major questions doctrine that are currently on offer. And second, that the major questions doctrine can be reformulated into a new substantive canon that textualists can embrace.
Recommended Citation
Chad Squitieri, “Recommend . . . Measures”: A Textualist Reformulation Of The Major Questions Doctrine, 75 Baylor L. Rev. 706 (2023).
