The Supreme Court’s recent decision to overturn the president’s tariffs has sparked a significant debate about the “major questions” rule, underscoring a broader disagreement over the judicial frameworks used in statutory interpretation. This rule posits that Congress does not delegate significant questions to the executive branch without clearly stating so. The latest tariffs case, in which all seven opinions addressed the rule, hints at wider doctrinal shifts potentially emerging in the court.
Justice Neil Gorsuch has highlighted that these interpretive presumptions, including the major questions rule, are judge-made constructs advancing policy preferences external to statutory text. When such constructs are applied, they may divert interpretations from the most straightforward reading of the statutory language. This approach contrasts with prior judicial philosophies from the 1970s that considered external factors like statutory purposes.
Similarly, Justice Amy Coney Barrett expressed concerns in the tariffs case, questioning the legitimacy of policy canons, especially when applied without ambiguity. She argued against these canons’ tendency to drive interpretations toward less natural readings. However, in a nuanced twist, Barrett has previously argued that the major questions rule could reflect conversational language norms rather than judicially imposed policies, as noted in her concurrence in the Biden student-loan-forgiveness case.
The ongoing debate involves different views on the necessity of textual ambiguity before applying such rules. Chief Justice John Roberts, for instance, applied the major questions canon by acknowledging statutory ambiguity, whereas Gorsuch maintained that statutory terms had no ambiguity yet supported the canon to restrict executive power. Justice Elena Kagan, positioned between the two, favored straightforward statutory construction over applying the rule without clear necessity.
This dispute also touches upon the fundamentally judicial capacity of creating and applying canons of interpretation. Justices including Brett Kavanaugh have criticized the reliance on ambiguity as a threshold and have been experimenting with alternative frameworks for these canons, such as applying them at the outset of inquiries or establishing higher thresholds for certain canons like the rule of lenity.
The divergence among the court’s textualists regarding the canons’ application and legitimacy highlights significant discussions on judicial power and Congress’s legislative role. For more insights, a forthcoming article provides a comprehensive view of how these “canon wars” are playing out within the court’s deliberations.
The broader implications suggest that the recent decision might only be the beginning of a more extensive examination of the judicial presumptions applied during statutory interpretation, reflecting ongoing debates on the court’s theoretical underpinnings.