# Biden v. Nebraska/Opinion of Justice Barrett

SUPREME COURT OF THE UNITED STATES
No. 22–506
JOSEPH R. BIDEN, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. NEBRASKA, ET AL. ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [June 30, 2023]
Justice Barrett, concurring.
I join the Court’s opinion in full. I write separately to address the States’ argument that, under the “major questions doctrine,” we can uphold the Secretary of Education’s loan cancellation program only if he points to “ ‘clear congressional authorization’ ” for it. West Virginia v. EPA, 597 U. S. ___, ___ (2022) (slip op., at 19). In this case, the Court applies the ordinary tools of statutory interpretation to conclude that the HEROES Act does not authorize the Secretary’s plan. Ante, at 12–18. The major questions doctrine reinforces that conclusion but is not necessary to it. Ante, at 25.
Still, the parties have devoted significant attention to the major questions doctrine, and there is an ongoing debate about its source and status. I take seriously the charge that the doctrine is inconsistent with textualism. West Virginia, 597 U. S., at ___ (Kagan, J., dissenting) (slip op., at 28) (“When [textualism] would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards”). And I grant that some articulations of the major questions doctrine on offer—most notably, that the doctrine is a substantive canon—should give a textualist pause.
Yet for the reasons that follow, I do not see the major ​questions doctrine that way. Rather, I understand it to emphasize 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.
I A
Substantive canons are rules of construction that advance values external to a statute. A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117 (2010) (Barrett). Some substantive canons, like the rule of lenity, play the modest role of breaking a tie between equally plausible interpretations of a statute. United States v. Santos, 553 U. S. 507, 514 (2008) (plurality opinion). Others are more aggressive—think of them as strong-form substantive canons. Unlike a tie-breaking rule, a strong-form canon counsels a court to strain statutory text to advance a particular value. Barrett 168. There are many such canons on the books, including constitutional avoidance, the clear-statement federalism rules, and the presumption against retroactivity. Id., at 138–145, 172–173. Such rules effectively impose a “clarity tax” on Congress by demanding that it speak unequivocally if it wants to accomplish certain ends. J. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 403 (2010). This “clear statement” requirement means that the better interpretation of a statute will not necessarily prevail. E.g., Boechler v. Commissioner, 596 U. S. ___, ___ (2022) (slip op., at 6) (“[I]n this context, better is not enough”). Instead, if ​the better reading leads to a disfavored result (like provoking a serious constitutional question), the court will adopt an inferior-but-tenable reading to avoid it. So to achieve an end protected by a strong-form canon, Congress must close all plausible off ramps.
While many strong-form canons have a long historical pedigree, they are “in significant tension with textualism” insofar as they instruct a court to adopt something other than the statute’s most natural meaning. Barrett 123–124. The usual textualist enterprise involves “hear[ing] the words as they would sound in the mind of a skilled, objectively 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, it is undeniable that they pose “a lot of trouble” for “the honest textualist.” Scalia 28.
B
Some have characterized the major questions doctrine as a strong-form substantive canon designed to enforce Article I’s Vesting Clause. See, e.g., C. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 483–484 (2021) (asserting that recent cases apply the major questions doctrine as “a nondelegation canon”); L. Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1946–1948 (2017) (describing the major questions doctrine as a “normative” canon that “is both a presumption against certain kinds of agency interpretations and an instruction to Congress”). On this view, the Court overprotects the nondelegation principle by increasing the cost of delegating authority to agencies—namely, by requiring Congress to speak unequivocally in order to grant them significant rulemaking power. See Barrett 172–176; see also post, at 27 (Kagan, J., dissenting) (describing the major questions doctrine as a “heightened-specificity requirement”); Georgia v. President of the United States, 46 F. 4th 1283, 1314 (CA11 2022) (Anderson, J., concurring in part and dissenting in part) (“[T]he major questions doctrine is essentially a clear-statement rule”). This “clarity tax” might prevent Congress from getting too close to the nondelegation line, especially since the “intelligible principle” test largely leaves Congress to self-police. (So the doctrine would function like constitutional avoidance.) In addition or instead, the doctrine might reflect the judgment that it is so important for Congress to exercise “[a]ll legislative Powers,” Art. I, §1, that it should be forced to think twice before delegating substantial discretion to agencies—even if the delegation is well within Congress’s power to make. (So the doctrine would function like the rule that Congress must speak clearly to abrogate state sovereign immunity.) No matter which rationale justifies it, this “clear statement” version of the major questions doctrine “loads the dice” so that a plausible ​antidelegation interpretation wins even if the agency’s interpretation is better.
While one could walk away from our major questions cases with this impression, I do not read them this way. No doubt, many of our cases express an expectation of “clear congressional authorization” to support sweeping agency action. See, e.g., West Virginia, 597 U. S., at ___ (slip op., at 19); Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014); see also Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6). But none requires “an ‘unequivocal declaration’ ” from Congress authorizing the precise agency action under review, as our clear-statement cases do in their respective domains. See Financial Oversight and Management Bd. for P. R. v. Centro De Periodismo Investigativo, Inc., 598 U. S. ___, ___ (2023) (slip op., at 6). And none purports to depart from the best interpretation of the text—the hallmark of a true clear-statement rule.
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 reflecting “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).
II
The major questions doctrine situates text in context, which is how textualists, like all interpreters, approach the task at hand. C. Nelson, What Is Textualism? 91 Va. L. Rev. 347, 348 (2005) (“[N]o ‘textualist’ favors isolating statutory language from its surrounding context”); Scalia 37 (“In textual interpretation, context is everything”). After all, the meaning of a word depends on the circumstances in which it is used. J. Manning, The Absurdity Doctrine, 116 ​Harv. L. Rev. 2387, 2457 (2003) (Manning). To strip a word from its context is to strip that word of its meaning.
Context is not found exclusively “ ‘within the four corners’ of a statute.” Id., at 2456. Background legal conventions, for instance, are part of the statute’s context. F. Easterbrook, The Case of the Speluncean Explorers: Revisited, 112 Harv. L. Rev. 1876, 1913 (1999) (“Language takes meaning from its linguistic context,” as well as “historical and governmental contexts”). Thus, courts apply a presumption of mens rea to criminal statutes, Xiulu Ruan v. United States, 597 U. S. ___, ___ (2022) (slip op., at 5), and a presumption of equitable tolling to statutes of limitations, Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95–96 (1990). It is also well established that “[w]here Congress employs a term of art obviously transplanted from another legal source, it brings the old soil with it.” George v. McDonough, 596 U. S. ___, ___ (2022) (slip op., at 5) (internal quotation marks omitted). I could go on. See, e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. 118, 132 (2014) (federal causes of action are construed “to incorporate a requirement of proximate causation”); Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co., 505 U. S. 214, 231 (1992) (“de minimis non curat lex”). As it happens, “[t]he notion that some things ‘go without saying’ applies to legislation just as it does to everyday life.” Bond v. United States, 572 U. S. 844, 857 (2014).
Context also includes common sense, which is another thing that “goes without saying.” Case reporters and casebooks brim with illustrations of why literalism—the antithesis of context-driven interpretation—falls short. Consider the classic example of a statute imposing criminal penalties on “ ‘whoever drew blood in the streets.’ ” United States v. Kirby, 7 Wall. 482, 487 (1869). Read literally, the statute would cover a surgeon accessing a vein of a person in the street. But “common sense” counsels otherwise, ibid., ​because in the context of the criminal code, a reasonable observer would “expect the term ‘drew blood’ to describe a violent act,” Manning 2461. Common sense similarly bears on judgments like whether a floating home is a “vessel,” Lozman v. Riviera Beach, 568 U. S. 115, 120–121 (2013), whether tomatoes are “vegetables,” Nix v. Hedden, 149 U. S. 304, 306–307 (1893), and whether a skin irritant is a “chemical weapon,” Bond, 572 U. S., at 860–862.
Why is any of this relevant to the major questions doctrine? Because context is also relevant to interpreting the scope of a delegation. Think about agency law, which is all about delegations. When an agent acts on behalf of a principal, she “has actual authority to take action designated or implied in the principal’s manifestations to the agent … as the agent reasonably understands [those] manifestations.” Restatement (Third) of Agency §2.02(1) (2005). Whether an agent’s understanding is reasonable depends on “[t]he context in which the principal and agent interact,” including their “[p]rior dealings,” industry “customs and usages,” and “the nature of the principal’s business or the principal’s personal situation.” Id., §2.02, Comment e (emphasis added). With that in mind, imagine that a grocer instructs a clerk to “go to the orchard and buy apples for the store.” Though this grant of apple-purchasing authority sounds unqualified, a reasonable clerk would know that there are limits. For example, if the grocer usually keeps 200 apples on hand, the clerk does not have actual authority to buy 1,000—the grocer would have spoken more directly if she meant to authorize such an out-of-the-ordinary purchase. A clerk who disregards context and stretches the words to their fullest will not have a job for long.
This is consistent with how we communicate conversationally. Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the ​babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park. If a parent were willing to greenlight a trip that big, we would expect much more clarity than a general instruction to “make sure the kids have fun.”
But what if there is more to the story? Perhaps there is obvious contextual evidence that the babysitter’s jaunt was permissible—for example, maybe the parent left tickets to the amusement park on the counter. Other clues, though less obvious, can also demonstrate that the babysitter took a reasonable view of the parent’s instruction. Perhaps the parent showed the babysitter where the suitcases are, in the event that she took the children somewhere overnight. Or maybe the parent mentioned that she had budgeted $2,000 for weekend entertainment. Indeed, some relevant points of context may not have been communicated by the parent at all. For instance, we might view the parent’s statement differently if this babysitter had taken the children on such trips before or if the babysitter were a grandparent.
In my view, the major questions doctrine grows out of these same commonsense principles of communication. Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ” Utility Air, 573 U. S., at 324. That clarity may come from specific words in the statute, ​but context can also do the trick. Surrounding circumstances, whether contained within the statutory scheme or external to it, can narrow or broaden the scope of a delegation to an agency.
This expectation of clarity is rooted in the basic premise that Congress normally “intends to make major policy decisions itself, not leave those decisions to agencies.” United States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC 2017) (Kavanaugh, J., dissenting from denial of reh’g en banc). Or, as Justice Breyer once observed, “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters [for agencies] to answer themselves in the course of a statute’s daily administration.” S. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986); see also A. Gluck & L. Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 1003–1006 (2013). That makes eminent sense in light of our constitutional structure, which is itself part of the legal context framing any delegation. 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. See West Virginia, 597 U. S., at ___ (slip op., at 19) (explaining that the major questions doctrine rests on “both separation of powers principles and a practical understanding of legislative intent”).
Crucially, treating the Constitution’s structure as part of the context in which a delegation occurs is not the same as using a clear-statement rule to overenforce Article I’s nondelegation principle (which, again, is the rationale behind the substantive-canon view of the major questions doctrine). My point is simply that in a system of separated powers, a reasonably informed interpreter would expect ​Congress to legislate on “important subjects” while delegating 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. To see what I mean, return to the ambitious babysitter. Our expectation of clearer authorization for the amusement-park trip is not about discouraging the parent from giving significant leeway to the babysitter or forcing the parent to think hard before doing so. Instead, it reflects the intuition that the parent is in charge and sets the terms for the babysitter—so if a judgment is significant, we expect the parent to make it. If, by contrast, one parent left the children with the other parent for the weekend, we would view the same trip differently because the parents share authority over the children. In short, the balance of power between those in a relationship inevitably frames our understanding of their communications. 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.
Given these baseline assumptions, an interpreter should “typically greet” an agency’s claim to “extravagant statutory power” with at least some “measure of skepticism.” Utility Air, 573 U. S., at 324. That skepticism is neither “made-up” nor “new.” Post, at 24, 29 (Kagan, J., dissenting). On the contrary, it appears in a line of decisions spanning at least 40 years. E.g., King v. Burwell, 576 U. S. 473, 485–486 (2015); Gonzales v. Oregon, 546 U. S. 243, 267–268 (2006); Brown & Williamson, 529 U. S., at 159–160; Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion).
Still, this skepticism does not mean that courts have an ​obligation (or even permission) to choose an inferior-but-tenable alternative that curbs the agency’s authority—and that marks a key difference between my view and the “clear statement” view of the major questions doctrine. In some cases, the court’s initial skepticism might be overcome by text directly authorizing the agency action or context demonstrating that the agency’s interpretation is convincing. (And because context can suffice, I disagree with Justice Kagan’s critique that “[t]he doctrine forces Congress to delegate in highly specific terms.” Post, at 24.) If so, the court must adopt the agency’s reading despite the “majorness” of the question. In other cases, however, the court might conclude that the agency’s expansive reading, even if “plausible,” is not the best. West Virginia, 597 U. S., at ___ (slip op., at 19). In that event, the major questions doctrine plays a role, because it helps explain the court’s conclusion that the agency overreached.
Consider Brown & Williamson, in which we rejected the Food and Drug Administration’s (FDA’s) determination that tobacco products were within its regulatory purview. 529 U. S., at 131. The agency’s assertion of authority—which depended on the argument that nicotine is a “ ‘drug’ ” and that cigarettes and smokeless tobacco are “ ‘drug delivery devices’ ”—would have been plausible if the relevant statutory text were read in a vacuum. Ibid. But a vacuum is no home for a textualist. Instead, we stressed that the “meaning” of a word or phrase “may only become evident when placed in context.” Id., at 132 (emphasis added). And the critical context in Brown & Williamson was tobacco’s ​“unique political history”: the FDA’s longstanding disavowal of authority to regulate it, Congress’s creation of “a distinct regulatory scheme for tobacco products,” and the tobacco industry’s “significant” role in “the American economy.” Id., at 159–160. In light of those considerations, we concluded that “Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Id., at 160.
We have also been “[s]keptical of mismatches” between broad “invocations of power by agencies” and relatively narrow “statutes that purport to delegate that power.” In re MCP No. 165, OSHA, Interim Final Rule: Covid–19 Vaccination and Testing, 20 F. 4th 264, 272 (CA6 2021) (Sutton, C. J., dissenting from denial of initial hearing en banc). Just as an instruction to “pick up dessert” is not permission to buy a four-tier wedding cake, Congress’s use of a “subtle device” is not authorization for agency action of “enormous importance.” MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994); cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). This principle explains why the Centers for Disease Control and Prevention’s (CDC’s) general authority to “ ‘prevent the … spread of communicable diseases’ ” did not authorize a nationwide eviction moratorium. Alabama Assn. of Realtors, 594 U. S., at ___–___, ___ (slip op., at 2–3, 6). The statute, we observed, was a “wafer-thin reed” that could not support the assertion of “such sweeping power.” Id., at ___ (slip op., at 7). Likewise, in West Virginia, we held that a “little-used backwater” provision in the Clean Air Act could not justify an Environmental Protection Agency (EPA) rule that would “restructur[e] the Nation’s overall mix of electricity generation.” 597 U. S., at ___, ___ (slip op., at 16, 26).
Another telltale sign that an agency may have transgressed its statutory authority is when it regulates outside ​its wheelhouse. For instance, in Gonzales v. Oregon, we rebuffed an interpretive rule from the Attorney General that restricted the use of controlled substances in physician-assisted suicide. 546 U. S., at 254, 275. This judgment, we explained, was a medical one that lay beyond the Attorney General’s expertise, and so a sturdier source of statutory authority than “an implicit delegation” was required. Id., at 267–268. Likewise, in King v. Burwell, we blocked the Internal Revenue Service’s (IRS’s) attempt to decide whether the Affordable Care Act’s tax credits could be available on federally established exchanges. 576 U. S., at 485–486. Among other things, the IRS’s lack of “expertise in crafting health insurance policy” made us think that “had Congress wished to assign that question to an agency, it surely would have done so expressly.” Id., at 486. Echoing the theme, our reasoning in Alabama Association of Realtors rested partly on the fact that the CDC’s eviction moratorium “intrude[d] into … the landlord-tenant relationship”—hardly the day-in, day-out work of a public-health agency. 594 U. S., at ___ (slip op., at 6). National Federation of Independent Business v. OSHA is of a piece. 595 U. S. ___ (2022) (per curiam). There, we held that the Occupational Safety and Health Administration’s (OSHA’s) authority to ensure “ ‘safe and healthful working conditions’ ” did not encompass the power to mandate the vaccination of employees; as we explained, the statute empowered the agency “to set workplace safety standards, not broad public health measures.” Id., at ___, ___ (slip op., at 2, 6). The shared intuition behind these cases is that a reasonable speaker would not understand Congress to confer an unusual form of authority without saying more.
We have also pumped the brakes when “an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy.’ ” Utility Air, 573 U. S., at 324. Of course, an agency’s ​post-enactment conduct does not control the meaning of a statute, but “this Court has long said that courts may consider the consistency of an agency’s views when we weigh the persuasiveness of any interpretation it proffers in court.” Bittner v. United States, 598 U. S. 85, 97 (2023) (citing Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944)). The agency’s track record can be particularly probative in this context: A longstanding “want of assertion of power by those who presumably would be alert to exercise it” may provide some clue that the power was never conferred. FTC v. Bunte Brothers, Inc., 312 U. S. 349, 352 (1941). Once again, Brown & Williamson is a good example. There, we balked at the FDA’s novel attempt to regulate tobacco in part because this move was “[c]ontrary to its representations to Congress since 1914.” 529 U. S., at 159. And in Utility Air, we were dubious when the EPA discovered “newfound authority” in the Clean Air Act that would have allowed it to require greenhouse-gas permits for “millions of small sources—including retail stores, offices, apartment buildings, shopping centers, schools, and churches.” 573 U. S., at 328.
If the major questions doctrine were a substantive canon, then the common thread in these cases would be that we “exchange[d] the most natural reading of a statute for a bearable one more protective of a judicially specified value.” Barrett 111. But by my lights, the Court arrived at the most plausible reading of the statute in these cases. To be sure, “[a]ll of these regulatory assertions had a colorable textual basis.” West Virginia, 597 U. S., at ___ (slip op., at 18). In each case, we could have “[p]ut on blinders” and confined ourselves to the four corners of the statute, and we might have reached a different outcome. Sykes v. United States, 564 U. S. 1, 43 (2011) (Kagan, J., dissenting). Instead, we took “off those blinders,” “view[ed] the statute as a whole,” ibid., and considered context that would be important to a reasonable observer. With the full picture in ​view, it became evident in each case that the agency’s assertion of “highly consequential power” went “beyond what Congress could reasonably be understood to have granted.” West Virginia, 597 U. S., at ___ (slip op., at 20).
III
As for today’s case: The Court surely could have “hi[t] the send button,” post, at 23 (Kagan, J., dissenting), after the routine statutory analysis set out in Part III–A. But it is nothing new for a court to punctuate its conclusion with an additional point, and the major questions doctrine is a good one here. Ante, at 25, n. 9. It is obviously true that the Secretary’s loan cancellation program has “vast ‘economic and political significance.’ ” Utility Air, 573 U. S., at 324. That matters not because agencies are incapable of making highly consequential decisions, but rather because an initiative of this scope, cost, and political salience is not the type that Congress lightly delegates to an agency. And for the reasons given by the Court, the HEROES Act provides no indication that Congress empowered the Secretary to do anything of the sort. Ante, at 12–18, 25.
Granted, some context clues from past major questions cases are absent here—for example, this is not a case where the agency is operating entirely outside its usual domain. 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. Common sense tells us that as more indicators from our previous 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 demonstrate that the Secretary has gone far “beyond what Congress could reasonably be understood to have granted” in ​the HEROES Act. West Virginia, 597 U. S., at ___ (slip op., at 20). Our decision today does not “trump” the statutory text, nor does it make this Court the “arbiter” of “national policy.” Post, at 24–25 (Kagan, J., dissenting). Instead, it gives Congress’s words their best reading. *** The major questions doctrine has an important role to play when courts review agency action of “vast ‘economic and political significance.’ ” Utility Air, 573 U. S., at 324. But the doctrine should not be taken for more than it is—the familiar principle that we do not interpret a statute for all it is worth when a reasonable person would not read it that way.
* ↑ They stand in contrast to linguistic or descriptive canons, which are designed to reflect grammatical rules (such as the punctuation canon) or speech patterns (like the inclusion of some things implies the exclusion of others). A. Barrett, Substantive Canons and Faithful Agency, 90 B. U. L. Rev. 109, 117 (2010).
* ↑ Whether the creation or application of strong-form canons exceeds the “judicial Power” conferred by Article III is a difficult question. On the one hand, “federal courts have been developing and applying [such] canons for as long as they have been interpreting statutes,” and that is some reason to regard the practice as consistent with the original understanding of the “judicial Power.” Barrett 155, 176. Moreover, many strong-form canons advance constitutional values, which heightens their claim to legitimacy. Id., at 168–170. On the other hand, these canons advance constitutional values by imposing prophylactic constraints on Congress—and that is in tension with the Constitution’s structure. Id., at 174, 176. Thus, even assuming that the federal courts have not overstepped by adopting such canons in the past, I am wary of adopting new ones—and if the major questions doctrine were a newly minted strong-form canon, I would not embrace it. In my view, however, the major questions doctrine is neither new nor a strong-form canon.
* ↑ Indeed, the doctrine may have even deeper roots. See ICC v. Cincinnati, N. O. & T. P. R. Co., 167 U. S. 479, 494–495 (1897) (explaining that for agency assertions of “vast and comprehensive” power, “no just rule of construction would tolerate a grant of such power by mere implication”).
* ↑ I am dealing only with statutory interpretation, not the separate argument that a statutory delegation exceeds constitutional limits. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 474 (2001) (describing a delegation held unconstitutional because it “conferred authority to regulate the entire economy on the basis of” an imprecise standard).