Document Type
Article
Publication Date
2024
Abstract
In Biden v. Nebraska, Justice Barrett authored a concurrence in which she characterized the major questions doctrine as a linguistic canon that accounts for the “legal context” surrounding delegations of power. Some scholars have critiqued Justice Barrett's concurrence on the grounds that empirical research suggests that ordinary readers do not account for “majorness” in the way that the major questions doctrine requires. This Essay argues that those critiques miss the mark because they conflate factual context with legal context. Justice Barrett's concurrence should be considered within the broader textualist tradition of understanding “ordinary meaning” as a legal concept, and not simply an empirical fact. But to say that Justice Barrett's concurrence should be understood within that broader textualist tradition is not to say that her concurrence is immune from criticism. To the contrary, this Essay contends that Justice Barrett's concurrence does not account fully for legal context concerning the President's lawmaking functions. The upshot is that textualists eager to embrace the major questions doctrine are better off reconceptualizing the doctrine as a substantive canon that polices the precise lines delineating the lawmaking powers vested in the President and Congress.
Recommended Citation
Chad Squitieri, Placing Legal Context In Context, 2024 Harv. J. L. & Pub. Pol’y Per Curiam 19 (2024).