{"id":3080,"date":"2024-06-20T09:08:53","date_gmt":"2024-06-20T13:08:53","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=3080"},"modified":"2025-12-20T16:14:23","modified_gmt":"2025-12-20T20:14:23","slug":"placing-legal-context-in-context-chad-squitieri","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/placing-legal-context-in-context-chad-squitieri\/","title":{"rendered":"Placing Legal Context in Context – Chad Squitieri"},"content":{"rendered":"\n
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Download a PDF<\/a><\/div>\n<\/div>\n\n\n\n

Placing Legal Context in Context<\/h2>\n\n\n\n

Chad Squitieri*<\/a><\/p>\n\n\n\n

In <\/em>Biden v. Nebraska, Justice Barrett authored a concurrence in which she characterized the major questions doctrine as a linguistic canon that accounts for the \u201clegal context\u201d surrounding delegations of power.  Some scholars have critiqued Justice Barrett\u2019s concurrence on the grounds that empirical research suggests that ordinary readers do not account for \u201cmajorness\u201d 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.  <\/em><\/p>\n\n\n\n

Justice Barrett\u2019s concurrence should be considered within the broader textualist tradition of understanding \u201cordinary meaning\u201d as a legal concept, and not simply an empirical fact.  But to say that Justice Barrett\u2019s 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\u2019s concurrence does not account fully for legal context concerning the President\u2019s 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.<\/em><\/p>\n\n\n\n

Introduction<\/h2>\n\n\n\n

In Biden v. Nebraska<\/em>,[1]<\/a> Justice Barrett offered a unique conception of the major questions doctrine (\u201cMQD\u201d).  While many scholars and jurists think of the MQD as a substantive canon (i.e.<\/em>, a canon of statutory interpretation that promotes a policy norm existing \u201cexternal to a statute\u201d),[2]<\/a> Justice Barrett explained that she sees the MQD as a linguistic canon (i.e.<\/em>, a canon of interpretation that applies grammatical rules or speech patterns to discern a statute\u2019s meaning).[3]<\/sup><\/a>  For some scholars, Justice Barrett\u2019s new defense opened the door to a new critique.  Specifically, these scholars contend that empirical research indicates that ordinary people do not account for \u201cmajorness\u201d as the MQD suggests.  This Essay will first explain why those empirical arguments miss the mark\u2014at least for textualists.  This Essay will then explain why textualists should nonetheless object to the linguistic conception of MQD.<\/p>\n\n\n\n

The empirical critique misses the mark because it conflates factual<\/em> context with legal<\/em> context.  That conflation no doubt stems from textualists\u2019 efforts to give a statute its \u201cordinary meaning,\u201d which might sound like the meaning that an interpreter could derive from an empirical survey of \u201cordinary\u201d people.  But textualists have not traditionally embraced that sort of Family-Feud-survey conception of statutory meaning.[4]<\/a>  Instead, \u201ctextualists treat \u2018ordinary meaning\u2019 as primarily a legal concept, not simply as an empirical fact.\u201d[5]<\/a>  This means that empirical evidence suggesting that \u201cordinary\u201d people do not account for majorness in the manner that the MQD requires is not evidence that should hold much weight with textualists.<\/p>\n\n\n\n

That is not to say, however, that textualists should embrace Justice Barrett\u2019s linguistic conception of the MQD.  To the contrary, her conception of the MQD can be critiqued on the grounds that it fails to account fully for legal<\/em> context.  Specifically, Justice Barrett\u2019s MQD presumption that \u201ca reasonable interpreter would expect [Congress] to make the big-time policy calls itself, rather than pawning them off to [the executive] branch,\u201d[6]<\/a> fails to recognize that the Constitution vests lawmaking power in both <\/em>Congress and the President.  While Congress is vested with an enumerated subset of federal legislative powers, namely, \u201c[a]ll legislative powers herein granted,\u201d[7]<\/a> the President is vested with other aspects of federal lawmaking authority\u2014including explicit authority to both recommend and veto legislative measures.[8]<\/a><\/p>\n\n\n\n

Given that the Constitution mandates that both the President and Congress play a role in shaping federal legislation, jurists should expect the President (and\/or the President\u2019s congressional allies) to sometimes secure \u201cmajor\u201d statutory authority for the administrative agents that exercise executive power on the President\u2019s behalf.  To be sure, the various intra- and inter-branch political negotiations that make up the federal lawmaking process will also work to ensure that an institutionally jealous Congress will sometimes<\/em> have the political ability to refuse to vest the President\u2019s administrative agents with \u201cmajor\u201d statutory authority.  But it is precisely because the federal lawmaking process will sometimes favor the President and sometimes favor Congress that textualists jurists should avoid adopting an interpretive canon that stacks the deck in favor of Congress.  After all, textualist jurists are faithful agents of the People<\/em>, not Congress.  Faithful agents of the People should thus avoid adopting an interpretive canon that purports to favor Congress\u2019s institutional jealousies by requiring the President to utilize extra<\/em> political capital to secure extra<\/em>-clear statutory language addressing \u201cmajor\u201d authority.[9]<\/a><\/p>\n\n\n\n

Part I of this Essay will situate Justice Barrett\u2019s linguistic canon version of the MQD alongside the leading competing conception of the MQD, which views the MQD as a substantive canon.  Part II will then introduce an empirical critique lodged against Justice Barrett\u2019s linguistic canon, and explain why that critique should not prove persuasive for textualists.  Part III will then explain why textualists should nonetheless object to the linguistic canon version of the MQD on the grounds that it fails to account fully for relevant legal context.<\/p>\n\n\n\n

I.               Textualism and the Interpretive Canons<\/h2>\n\n\n\n

Part I.A will begin by defining textualism and its unique conception of faithful agency.[10]<\/a>  Parts I.B and I.C will then introduce the substantive and linguistic conceptions of the MQD.<\/p>\n\n\n\n

A.    Textualism<\/h3>\n\n\n\n

Textualists \u201cunderstand courts to be faithful agents of the [P]eople<\/em>,\u201d and those People can task their political agents to \u201cexpress the [P]eople\u2019s will . . . in . . . statutes.\u201d[11]<\/sup><\/a>  The federal lawmaking process requires that the People\u2019s will be shaped through particular political processes involving three institutions: the House, the Senate, and the President.[12]<\/sup><\/a>  Given that the 536 different humans that make up those three institutions might each approach proposed legislation from a different perspective, textualists interpret law by focusing primarily on the historical meaning of a statute\u2019s text<\/em> (i.e.<\/em>, the only part of the statute that survived participation by the House, Senate, and President at a particular moment in time) rather than attempt to elucidate and elevate the intention of any one subset of political actors.<\/p>\n\n\n\n

Other theorists seek to channel Congress\u2019s intent when interpreting a statute.[13]<\/sup><\/a>  A core idea behind that non-textualist approach is that Congress has a purpose, or an intent, when it enacts statutes into law.[14]<\/sup><\/a>  These non-textualists thus look to legislative history (such as committee reports and floor speeches) as a means of better understanding what Congress (or, at least, some members of Congress) intended to accomplish through a particular statute.[15]<\/sup><\/a>  To the extent that legislative history suggests that the text of a statute does not square with some conception of Congress\u2019s intent, many non-textualists posit that a court fulfills its obligation to act as a faithful agent of Congress<\/em> by stretching statutory language in order to better reflect what Congress purportedly intended to accomplish.[16]<\/sup><\/a><\/p>\n\n\n\n

Textualists, by comparison, \u201chave long objected to the use of legislative history on the ground that it is designed to uncover a nonexistent, and in any event irrelevant, legislative intent.\u201d[17]<\/sup><\/a>  But this is not to say that textualists ignore intent entirely.  To the contrary, \u201ctextualists look to . . . statutes\u2019 objectified intent,\u201d[18]<\/a> which is \u201cthe intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris<\/em>.\u201d[19]<\/sup><\/a>  When elucidating a statute\u2019s objectified intent, textualists often look outside of the four corners of a statute to consider statutory structure and history,[20]<\/sup><\/a> as well as canons of statutory interpretation.[21]<\/sup><\/a><\/p>\n\n\n\n

B.     MQD as an Interpretive Canon<\/h3>\n\n\n\n

Canons of statutory interpretation come in at least two types: linguistic and substantive.[22]<\/sup><\/a>  Substantive canons \u201cpromote policies external to a statute.\u201d[23]<\/sup><\/a>  There are at least two types of substantive canons.  The first serve as \u201ctie breakers between two equally plausible interpretations of a statute.\u201d[24]<\/sup><\/a>  The second are strong-form substantive canons, which include clear statement rules.[25]<\/a>  Strong-form substantive canons are \u201caggressive\u201d and \u201cdirect[] a judge to forgo the most plausible interpretation of a statute in favor of one in better accord with some policy objective.\u201d[26]<\/sup><\/a><\/p>\n\n\n\n

In West Virginia v. EPA<\/em>,[27]<\/a> Justice Gorsuch authored a concurring opinion, joined by Justice Alito, which conceptualized the MQD as a strong-form substantive canon.  In describing the majority<\/em> opinion in West Virginia<\/em>, for which Justices Gorsuch and Alito supplied two of its six votes, Justices Gorsuch wrote that, \u201cour precedents have usually applied the [MQD] as a clear-statement rule, and the Court today confirms that is the proper way to apply it.[28]<\/sup><\/a><\/p>\n\n\n\n

In Nebraska<\/em>, Justice Barrett offered a competing view.  As she explained, \u201c[t]he [MQD] situates text in context, which is how textualists, like all interpreters, approach the task at hand.\u201d[29]<\/a>  For Justice Barrett, the relevant \u201clegal context framing any delegation\u201d would lead a \u201creasonable interpreter\u201d to conclude that an agency does not have the statutory authority to make major policy\u2014at least in the absence of clear statutory language.[30]<\/a>  For support, she analogized to \u201ca parent who hires a babysitter to watch her young children over the weekend,\u201d and who instructs the babysitter to \u201c[m]ake sure the kids have fun.\u201d[31]<\/a>  A reasonable interpretation of that instruction, Justice Barrett posited, would authorize a babysitting-trip \u201cto the local ice cream parlor or movie theater,\u201d but not a more major \u201cmultiday excursion to an out-of-town amusement park.\u201d[32]<\/a><\/p>\n\n\n\n

Similar to how a reasonable interpreter might think that a parent does not ordinarily give major child-rearing authority to the babysitter, Justice Barrett wrote that, \u201cwhen it comes to the Nation\u2019s policy, the Constitution gives Congress the reins.\u201d[33]<\/a> She thus concluded that a \u201creasonable interpreter would expect [Congress] to make the big-time policy calls itself, rather than pawning them off to another branch.\u201d[34]<\/a>  Placed in terms of the MQD, the upshot is that an agency (i.e.<\/em>, the babysitter) does not ordinarily have the authority to make major decisions of the sort that are ordinarily reserved for Congress (i.e.<\/em>, the parent).<\/p>\n\n\n\n

II.             The Empirical Critique and Its Critique<\/h2>\n\n\n\n

Justice Barrett\u2019s linguistic conception of the MQD has been critiqued on the grounds that empirical research suggests that ordinary people do not account for majorness in the way that the linguistic MQD requires.  Part II.A will offer an overview of this critique.  Part II.B will then explain why that critique should not prove persuasive for textualists.<\/p>\n\n\n\n

A.    The Empirical Critique<\/h3>\n\n\n\n

Following Nebraska<\/em>, Professors Kevin Tobia, Daniel E. Walters, and Brian Slocum (collectively, \u201cTWS\u201d) published a fascinating paper \u201cchalleng[ing] the essential empirical claims at the heart of the arguments for the linguistic MQD..\u201d[35]<\/a>  TWS understand Justice Barrett\u2019s linguistic conception of the MQD to rest upon an \u201cempirically testable proposition: Ordinary people understand general delegations to be limited to only the most reasonable actions falling under the language of the delegation.\u201d[36]<\/a><\/p>\n\n\n\n

In response to Justice Barrett\u2019s babysitter hypothetical, TWS conducted a survey of roughly 500 participants.[37]<\/a>  The participants were asked:<\/p>\n\n\n\n

Imagine that [Patricia\/Patrick] is a parent, who hires [Blake\/Bridget] as a babysitter to watch [Patricia\u2019s\/Patrick\u2019s] young children for two days and one night over the weekend, from Saturday morning to Sunday night. [Patricia\/Patrick] walks out the door, hands [Blake\/Bridget] a credit card, and says: \u201cUse this credit card to make sure the kids have fun this weekend.\u201d[38]<\/a><\/p>\n\n\n\n

The survey participants were then presented with various scenarios, including those indicating that (1) \u201c[Blake\/Bridget] uses the credit card to buy the children pizza and ice cream and to rent a movie to watch together,\u201d and (2) \u201c[Blake\/Bridget] uses the credit card to buy the children admission to an amusement park and a hotel; [Blake\/Bridget] takes the children to the park, where they spend two days on rollercoasters and one night in a hotel.\u201d[39]<\/a>  All of the scenarios concluded with the phrase \u201cThe kids have fun over the weekend.\u201d[40]<\/a>  The survey participants were then asked to determine whether the babysitter in a particular scenario \u201cfollowed\u201d or \u201cviolated\u201d the parent\u2019s instruction to \u201cmake sure the kids have fun this weekend.\u201d[41]<\/a><\/p>\n\n\n\n

The survey results indicated that the participants did<\/em> \u201cunderstand different actions to vary in their reasonableness as a response to the rule \u2018Use this credit card to make sure the kids have fun this weekend[.]\u2019\u201d[42]<\/a>  As TWS explain, participants \u201cevaluated some actions as highly reasonable, such as buying pizza and a movie for the kids,\u201d whereas \u201c[o]ther actions appeared less reasonable, like taking the kids to an amusement park.\u201d[43]<\/a><\/p>\n\n\n\n

But critically, the survey evidence indicated that the participants did not <\/em>\u201cunderstand authorizing rules to be limited to only the set of most reasonable actions.\u201d[44]<\/a>  As TWS explain, \u201c[a]lthough people evaluate Barrett\u2019s \u2018major\u2019 action (taking the kids to an amusement park) as less reasonable than at least one alternative, they nevertheless understand it as consistent with the rule.\u201d[45]<\/a><\/p>\n\n\n\n

TWS consider those findings to be devastating to the linguistic conception of the MQD.  As TWS explain:<\/p>\n\n\n\n

[T]he linguistic properties identified by the MQD\u2019s defenders do not find support in the intuitions (or \u201ccommon sense\u201d) of ordinary people.  Consequently, at least in the absence of further empirical studies, the MQD cannot, and should not, be defended as a valid linguistic canon capturing how ordinary readers understand delegating statutes.[46]<\/a><\/p>\n\n\n\n

B.     Conflating Legal and Factual Context<\/h3>\n\n\n\n

TWS\u2019s conclusion\u2014that, \u201cat least in the absence of further empirical studies, the MQD cannot, and should not, be defended as a valid linguistic canon capturing how ordinary readers understand delegating statutes\u201d[47]<\/a>\u2014relies on the implicit presumption that \u201cordinary meaning\u201d is a matter of empirically testable fact.  But as it turns out, that is not the understanding of \u201cordinary meaning\u201d that textualists traditionally embrace.<\/p>\n\n\n\n

As Professor (and textualist) Tara Leigh Grove explains, \u201cthe ordinary meaning of a federal statute\u201d is not necessarily \u201cequivalent to a conversation on the street.\u201d[48]<\/a>  Instead, textualists recognize that \u201ca federal statute\u201d is \u201ca legal<\/em> document full of legal <\/em>concepts,\u201d meaning that \u201c[t]he ordinary meaning of a federal statute is full of law.<\/em>\u201d[49]<\/a>  It follows that \u201cprominent textualists have long treated \u2018ordinary meaning\u2019 as a legal concept,\u201d and not solely an empirical fact.[50]<\/a><\/p>\n\n\n\n

When viewed from within that textualist tradition, \u201cordinary meaning\u201d is better understood as a \u201clegal tool[]\u201d that uses \u201cthe construct of a hypothetical reasonable person[] to identify the \u2018ordinary meaning\u2019 of statutory terms and phrases.\u201d[51]<\/a>  Put differently, \u201cordinary meaning\u201d offers a \u201clegal term of art that distinguishes a less technical understanding of statutory terms or phrases from a more \u2018technical meaning,\u2019 one that draws on a particular trade, science, or other specialty.\u201d[52]<\/a><\/p>\n\n\n\n

Consider two cases, which demonstrate the difference between ordinary and technical meaning.  In McCaughn v. Hershey Chocolate Company<\/em>,[53]<\/a> the Court considered whether chocolate was \u201ccandy.\u201d[54]<\/a>  As Professor Grove explains, \u201c[t]he Hershey Company argued that chocolate was \u2018food,\u2019 not \u2018candy,\u2019 asserting that \u2018candy\u2019 had a specialized industry definition limited to \u2018confectionery, made principally of sugar or molasses, with or without the addition of coloring or flavoring matter.\u2019\u201d[55]<\/a>  But while \u201c[t]he Court acknowledged that \u2018the word \u2018candy\u2019 . . . may be used in this narrower and more restricted sense,\u2019\u201d the Court \u201cfound that, in the context of the\u201d relevant statute, the term \u201cwas used \u2018in a popular and more general sense\u2019\u201d that \u201cembraced Hershey chocolate.\u201d[56]<\/a><\/p>\n\n\n\n

Similarly, in Nix v. Hedden<\/em>,[57]<\/a>  the Court considered \u201cwhether \u2018tomatoes\u2019 should be classified as \u2018vegetables\u2019 under the Tariff Act of 1883.\u201d[58]<\/a>  After first concluding that there was \u201cno evidence that the words \u2018fruit\u2019 and \u2018vegetables\u2019 have acquired any special meaning in trade or commerce,\u201d[59]<\/a> the Nix <\/em>Court considered competing arguments concerning ordinary meaning.[60]<\/a>  The plaintiffs \u201cinsisted that the ordinary meaning of \u2018fruit\u2019\u2014an edible plant with seeds\u2014encompassed tomatoes.\u201d[61]<\/a>  By comparison, \u201c[t]he government countered that the ordinary meaning of \u2018vegetables\u2019 was broad enough to include tomatoes.\u201d[62]<\/a>  In the end, \u201cthe [Nix<\/em>] Court sided with the government, stating that although tomatoes are \u2018[b]otanically speaking . . . the fruit of a vine, . . . in the common language of the people,\u2019\u201d tomatoes are \u201c\u2018vegetables.\u2019\u201d[63]<\/a><\/p>\n\n\n\n

As Professor Grove explains, cases like McCaughn <\/em>and Nix <\/em>demonstrate that \u201c[t]o determine the ordinary meaning of a term or phrase in a federal statute,\u201d courts \u201cmust conduct a legal<\/em> analysis.\u201d[64]<\/a>  This includes deciding \u201cquestions of law,\u201d such as \u201cwhat evidence is relevant to a statutory interpretive inquiry,\u201d as well as \u201cwhat to make of the surrounding statutory structure.\u201d[65]<\/a>  For that reason, \u201cthere is a strong basis for treating \u2018ordinary meaning\u2019 as primarily a legal concept.\u201d[66]<\/a>  And it is this understanding of \u201cordinary meaning\u201d that textualists have traditionally embraced.[67]<\/a><\/p>\n\n\n\n

To be sure, \u201cordinary meaning\u201d may not be an \u201centirely legal\u201d matter.[68]<\/a>  That is because \u201c[l]anguage \u2026 depends on conventions that one learns in using the language over time,\u201d which \u201clikely explains why we do not see legal disputes over, for example, whether chocolate is a \u2018vegetable\u2019 or tomatoes are \u2018candy.\u2019\u201d[69]<\/a>  But closer questions\u2014such as whether tomatoes are a \u201cvegetable\u201d or \u201cfruit\u201d\u2014often are a subject of legal debate.  And when tasked with ruling in those cases, textualist interpreters often turn to legal<\/em> tools to uncover a term\u2019s ordinary meaning, rather than empirical<\/em> surveys.<\/p>\n\n\n\n

Justice Barrett\u2014who served as a leading textualist scholar prior to taking the bench\u2014should be read with this broader textualist tradition in mind.  As a scholar, then-Professor Barrett endeavored to explain shortcomings in earlier academic attempts to undercut textualism on empirical grounds.[70]<\/a>  And in that earlier work, then-Professor Barrett posited that \u201c[w]hether the canons actually capture patterns of ordinary usage is an empirical question,\u201d and she stated further that \u201c[i]f the[ canons] do not track common usage, then the textualist rationale for using the[ canons] is undermined.\u201d[71]<\/a> Statements such as those signal (at minimum) that textualists have not always been consistent when discussing the contours of \u201cordinary meaning.\u201d But then-Professor Barrett\u2019s statements need not be read as authoritative departures from the broader textualist tradition catalogued by Professor Grove.  Instead, one might (with an admitted bit of elbow grease) seek to harmonize then-Professor Barrett\u2019s statements with the traditional textualist view, which (as noted above) recognizes that \u201cordinary meaning\u201d may not be an \u201centirely<\/em> legal\u201d matter, given that \u201c[l]anguage \u2026 depends on conventions that one learns in using the language over time.\u201d[72]<\/a><\/p>\n\n\n\n

To be sure, Justice Barrett might indeed understand \u201cordinary meaning\u201d in way that is distinguishable from textualists\u2019 traditional understanding of the term.  If she does, a more thorough defense of that position is called for.  But there is reason to pause before reading Justice Barrett as having fully committed herself to charting an entirely distinct course.  In particular, Justice Barrett\u2019s Nebraska <\/em>concurrence offers at least one piece of evidence indicating that her understanding of \u201cordinary meaning\u201d could be read in harmony with the traditional textualist understanding of the term.<\/p>\n\n\n\n

In her concurrence, Justice Barrett is careful to explain that \u201cour constitutional structure, which is itself part of the legal context<\/em> framing any delegation,\u201d indicates that a \u201cmajor\u201d policy is one that a \u201creasonable interpreter would expect\u201d for Congress to make itself.[73]<\/a>  Given her explicit reference to \u201clegal context,\u201d her presumption that the \u201cordinary meaning\u201d of a delegation would not include \u201cmajor\u201d authority need not be understood as offering an empirical argument concerning how \u201cordinary\u201d people might answer a survey.  Instead, her presumption regarding the \u201cordinary meaning\u201d of a delegation can be understood as being based upon the idea that the hypothetical \u201cordinary reader\u201d (i.e.<\/em>, the product a legal construct) would look to the Constitution\u2019s legal structure and conclude that administrative agencies do not ordinarily receive the statutory authority to answer \u201cmajor\u201d questions.<\/p>\n\n\n\n

III.           Missing Legal Context<\/h2>\n\n\n\n

Although Justice Barrett\u2019s linguistic conception of the MQD is not necessarily subject to an empirical criticism, her conception of the MQD is still subject to criticism on the grounds that it fails to account for relevant legal context.  Indeed, Part III will argue that the linguistic MQD fails to account for the specific way in which the Constitution separates and vests lawmaking authority in both the President and Congress.<\/p>\n\n\n\n

A.    The President\u2019s Lawmaking Authority<\/h3>\n\n\n\n

Fearful that an overly powerful legislature could prove tyrannical,[74]<\/a> the Framers were careful in how they vested federal legislative power\u2014indeed, the Constitution does not vest \u201cthe legislative power\u201d at all.[75]<\/a>  Instead, Article I first ensures that the federal Congress would be split into two chambers accountable to different constituencies,[76]<\/a>  and then vests that bicameral legislature with an enumerated subset of legislative powers.  To wit, Article I only vests Congress with \u201call legislative powers herein granted.\u201d[77]<\/a>  The enumerated list of powers that follow that vesting clause offer a list of the limited subset of legislative powers that Congress are entitled to exercise.[78]<\/a><\/p>\n\n\n\n

As a textual matter, something special can be observed in the manner in which federal legislative authority is vested.  While Article II vests all of \u201c[t]he<\/em> executive power\u201d in the President,[79]<\/a> and Article III vests all of \u201c[t]he<\/em> judicial power of the United States\u201d in federal courts,[80]<\/a> Article I only vests \u201call legislative powers herein granted.\u201d[81]<\/a>  What\u2019s more, the Constitution vests other aspects of federal lawmaking authority in the President via two constitutional provisions.<\/p>\n\n\n\n

The first provision vesting the President with federal lawmaking authority is Article I, Section 7, which empowers the President to veto legislation.[82]<\/a>  The mere threat of a veto enables the President to shape federal legislation long before it is sent to the President for formal consideration.[83]<\/a>  Congresspeople, familiar with the President\u2019s views, often have a good idea as to what sorts of policies will be found acceptable to a President whose veto pen is never too far from reach.  And even though Congress can override a President\u2019s veto, the attendant super-majority requirement can influence proposed legislation.  That is because legislative language that may be acceptable to a simple majority of Congress may not be palatable to a super-majority of Congress, which includes members whose political views may be further from the congressional mean, as well as members who may see an opportunity to secure legislative compromises that might not have otherwise been obtainable.<\/p>\n\n\n\n

The second constitutional provision vesting the President with lawmaking authority is the Recommendation Clause of Article II, Section 3.[84]<\/a>  That provision vests the President with a power (and duty) to \u201crecommend to [Congress\u2019s] consideration such measures as [the President] shall judge necessary and expedient.\u201d[85]<\/a>  As Justice Story recognized, Article II, Section 3 enables the President \u201cto point out the evil, and . . . suggest the remedy.\u201d[86]<\/a><\/p>\n\n\n\n

The President\u2019s power to start the legislative process gives the President a first-mover advantage that can influence legislation.  Consider what occurs in the wake of the President\u2019s State of the Union Address (a common time to offer presidential proposals), in which legislative debate often centers around the perceived virtues and vices of the President\u2019s legislative agenda.  When this power to recommend legislation is considered alongside the power to veto legislation, it becomes clear that the Constitution works to ensure that federal legislation can be shaped by a President from start to finish.<\/p>\n\n\n\n

B.     Securing Major Authority<\/h3>\n\n\n\n

Given the President\u2019s constitutional authority to shape legislation, federal jurists should expect for the President (and\/or the President\u2019s congressional allies) to sometimes secure \u201cmajor\u201d statutory authority for the administrative agents that exercise executive authority on the President\u2019s behalf.[87]<\/a>  In particular, a President might recommend that Congress grant the President\u2019s administrative agents \u201cmajor\u201d authority, or might threaten to veto legislation that does not grant those administrative agents the same.<\/p>\n\n\n\n

To be sure, the federal lawmaking process is \u201ccomplicated and chock-full of political bargains that cannot (and need not) be fully understood by individual legislators, let alone politically insulated jurists.\u201d[88]<\/sup><\/a>  Federal jurists should therefore also expect that the various intra- and inter-branch political negotiations that make up the federal lawmaking process will enable an institutionally jealous Congress to sometimes<\/em> refuse to vest the President\u2019s administrative agents with \u201cmajor\u201d statutory authority.  But it is precisely because the federal lawmaking process will sometimes favor the President and sometimes favor Congress that textualists jurists should avoid adopting an interpretive canon that stacks the deck in favor of either political branch.<\/p>\n\n\n\n

Because textualist jurists are faithful agents of the People<\/em>, textualist jurists should seek to neutrally interpret the final legislative compromise that was hammered out by both<\/em> of the political branches that the People\u2019s Constitution tasks with creating federal statutes.  Faithful agents of the People should therefore avoid adopting an interpretive canon that purports to favor Congress\u2019s legislative preferences by requiring the President to utilize extra<\/em> political capital in order to secure extra<\/em>-clear statutory language speaking to \u201cmajor\u201d authority.  In other words, the political actors who wish to grant the President\u2019s agents with major authority, as well as the political actors who wish to avoid granting such authority, should be held to the same interpretive standard.<\/p>\n\n\n\n

Once one is reminded that the Constitution vests federal lawmaking authority in both<\/em> the President and Congress, it becomes clear that Justice Barrett\u2019s linguistic conception of the MQD does not fully account for all of the \u201clegal context framing any delegation.\u201d[89]<\/a>  While her linguistic canon focusses on the legal context concerning Congress\u2019s lawmaking authority, it does not account for the broader legal context which ensures that Congress can only exercise its lawmaking authority in concert with the President.<\/p>\n\n\n\n

The legal context concerning statutory delegations is therefore more akin to the alternative hypothetical that Justice Barrett mentions elsewhere in her Nebraska <\/em>concurrence: where \u201cone parent left the children with the other parent for the weekend,\u201d in which \u201cwe would view the same [amusement park] trip differently because the parents share authority over the children<\/em>.\u201d[90]<\/sup><\/a>  Like how parents share authority over the children, the President (who supervises executive branch officials and who helps shape federal legislation empowering those officials) shares authority with Congress over administrative agencies.  And so, much like a babysitting-parent can be expected to secure major babysitting authority in the ordinary course, so can the President be expected to secure major statutory authority in the ordinary course.  This broader legal context demonstrates why a faithful agent of the People (who should not favor either the President or Congress) should resist supporting a MQD that elevates the decisions of one \u201cparent\u201d (i.e.<\/em>, Congress) over those of another \u201cparent\u201d (i.e.<\/em>, the President).[91]<\/a><\/p>\n\n\n\n

C.    The Reformulated MQD<\/h3>\n\n\n\n

To say that the linguistic conception of the MQD offered by Justice Barrett in Nebraska <\/em>does not account for all of the relevant legal context is not to say that textualists cannot embrace something like that linguistic conception.  To the contrary, and as I explain elsewhere,[92]<\/a> textualists can embrace a reformulated MQD that borrows from much of the existing MQD caselaw.<\/p>\n\n\n\n

The reformulated MQD would work to prevent the President\u2019s agents from squeezing (to borrow terminology from existing MQD caselaw) an \u201cunheralded power\u201d from a \u201clong-extant statute.\u201d[93]<\/a>  To do so, the reformulated MQD would use the President\u2019s Recommendation Clause duty as sort of constitutional tripwire.  Specifically, a challenger invoking the reformulated MQD would first allege that a regulatory measure is the type of \u201cnecessary and expedient\u201d measure (to borrow a term from the Recommendation Clause) that the President is required to \u201crecommend\u201d for Congress\u2019s \u201cconsideration.\u201d[94]<\/a>  When faced with that allegation, the President (or perhaps more likely, one of the President\u2019s agents) could defeat the challenge by proving one of two things.  First, that the regulatory measure was not a \u201cnecessary and expedient\u201d measure within the meaning of the Recommendation Clause (i.e.\u00b8 <\/em>that the regulatory measure was not the type of measure that the Recommendation Clause requires the President to bring to Congress).[95]<\/a>  Or second, that the President had no duty to recommend the measure for Congress\u2019s consideration because the President already had \u201cclear statutory authorization\u201d to take the measure in question.[96]<\/a><\/p>\n\n\n\n

In short, the focus of the reformulated MQD would be temporal (i.e.<\/em>, focus on deciding whether a new power was part of a particular legislative compromise agreed upon at a particular moment in time).  That focus distinguishes the reformulated MQD from the current MQD, which focuses on the political consequences of a claimed power (i.e.<\/em>, which focuses on deciding whether a regulation seeks to answer a question of \u201cmajor\u201d political importance of the sort thought reserved for Congress).  Readers interested in additional detail concerning that reformulated approach should refer to my earlier work.[97]<\/a>  For the present, it will suffice to note that a reformulated MQD can be embraced by textualists like Justice Barrett (among others) who appear uneasy with administrators\u2019 claims to find \u201cunheralded power\u201d in \u201clong-extant\u201d statutes.<\/p>\n\n\n\n

Conclusion<\/h2>\n\n\n\n

Justice Barrett\u2019s unique conception of the MQD has been subject to unique critiques. But one of those critiques\u2014that empirical evidence demonstrates that the MQD cannot serve as a linguistic canon\u2014does not account for the broader textualist tradition of treating \u201cordinary meaning\u201d as primarily a legal concept.  Nonetheless, the linguistic conception of the MQD does not itself account for legal context concerning the President\u2019s role in the federal lawmaking process. Textualist jurists in favor of the MQD should therefore consider reconceptualizing the MQD into a new substantive canon that more fully accounts for the precise way in which the Constitution assigns federal lawmaking authority.<\/p>\n\n\n\n

*<\/a> Assistant Professor of Law, Columbus School of Law, the Catholic University of America.  I thank Beau J. Baumann, Tara Leigh Grove, Haley N. Proctor, Richard M. Re, and Daniel E. Walters for comments on prior drafts.  I also thank the Pacific Legal Foundation, which provided me with an honorarium for drafting this Essay for a symposium that the Foundation held with the Harvard Journal of Law & Public Policy (\u201cJLPP\u201d).<\/p>\n\n\n\n

[1]<\/a> 143 S. Ct. 2355 (2023).<\/p>\n\n\n\n

[2]<\/a> Id.<\/em> at 2376 (Barrett, J., concurring).<\/p>\n\n\n\n

[3]<\/a> Id.<\/em> at 2377 n.2.<\/p>\n\n\n\n

[4]<\/a> Family Feud is a gameshow in which contestants guess the most popular answers to various survey questions. See Family Feud<\/em>, Wikipedia, https:\/\/en.wikipedia.org\/wiki\/Family_Feud.  I credit my friend and former colleague Aaron Smith for this analogy.<\/p>\n\n\n\n

[5]<\/a> Tara Leigh Grove, Foreword: Testing Textualism\u2019s \u201cOrdinary Meaning<\/em>,\u201d<\/em> 90 Geo. Wash. L. Rev. 1053, 1057 (2022).<\/p>\n\n\n\n

[6]<\/a> Biden v. Nebraska, 143 S. Ct. at 2380 (Barrett, J., concurring) (citation omitted).<\/p>\n\n\n\n

[7]<\/a> U.S. Const. art. I, \u00a7 1.<\/p>\n\n\n\n

[8]<\/a> Infra <\/em>Part III.A.<\/p>\n\n\n\n

[9]<\/a> To be sure, the current MQD might be better understood as a means of empowering the judiciary in relation to the political branches, rather than an effort to support Congress\u2019s purported interest in answering major questions.  See, e.g.<\/em>, Beau J. Baumann, Americana Administrative Law<\/em>, 111 Geo. L. J. 465, 526 (2023) (\u201c[T]he major questions doctrine offers a more discreet alternative for judicial self-aggrandizement at Congress\u2019s expense.\u201d).  Nonetheless, the Essay will take at face value the idea that the MQD actually does seek to strengthen, rather than weaken, Congress\u2019s ability to fulfill their constitutional role.  The broader point is that, regardless of whether a court is correct to think that the current MQD assists Congress\u2019s legislative preferences, a court should not place an interpretive thumb on the scale in favor of either of the two political branches that make up the federal lawmaking process.<\/p>\n\n\n\n

[10]<\/a> Portions of Part I were first published in Chad Squitieri, \u201cRecommend \u2026 Measures\u201d: A Textualist Reformulation of the Major Questions Doctrine<\/em>, 75 Baylor L. Rev. 706 (2024).<\/p>\n\n\n\n

[11]<\/a> Chad Squitieri, Who Determines Majorness?<\/em>, 44 Harv. J. L. & Pub. Pol\u2019y 463, 465, 481\u201382 (2021)  (emphasis added) (citations omitted) (internal quotation marks omitted); see also  <\/em>Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 138 (2012) (explaining that \u201ccourts are assuredly not agents of the legislature\u201d but instead \u201care agents of the people\u201d); West Virginia v. EPA, 142 S. Ct. 2587, 2616 (Gorsuch, J., concurring) (quoting Amy Coney Barrett, Substantive Canons and Faithful Agency<\/em>, 90 B.U. L. Rev. 109, 169 (2010)) (explaining that clear statement rules can help \u201ccourts \u2018act as faithful agents of the Constitution.\u2019\u201d).<\/p>\n\n\n\n

[12]<\/a> U.S. Const. art. I, \u00a7 7.<\/p>\n\n\n\n

[13]<\/a> Kevin M. Stack, Purposivism in the Executive Branch: How Agencies Interpret Statutes<\/em>, 109 Nw. L. Rev. 871, 882 (2015) (\u201c[P]urposivists treat the text as the best evidence of statutory purposes and a source of constraint, but understand interpretation as a process of implementing statutory purposes, not merely adhering to statutory text.\u201d).<\/p>\n\n\n\n

[14]<\/a> See<\/em> John F. Manning, What Divides Textualists and Purposivists?<\/em>, 106 Colum. L. Rev. 70, 76 (2006).<\/p>\n\n\n\n

[15]<\/a> Anita S. Krishnakumar, Backdoor Purposivism<\/em>, 69 Duke L. J. 1275, 1276 (2020) (\u201c[M]odern purposivists regularly invoke statutory purpose, intent, and legislative history.\u201d).<\/p>\n\n\n\n

[16]<\/a> Amy Coney Barrett, Congressional Insiders and Outsiders<\/em>, 84 U. Chi. L. Rev. 2193, 2193\u201398 (2017) [hereinafter Barrett, Congressional Insiders and Outsiders<\/em>].<\/p>\n\n\n\n

[17]<\/a> Id<\/em>. at 2205 (citation omitted).<\/p>\n\n\n\n

[18]<\/a> Squitieri, supra <\/em>note 11, at 482.<\/p>\n\n\n\n

[19]<\/a> Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 17 (Amy Gutmann ed., Princeton 1997).<\/p>\n\n\n\n

[20]<\/a> See, e.g.<\/em>, Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation<\/em>, 17 Harv. J. L & Pub. Pol\u2019y 61, 64 (1994).<\/p>\n\n\n\n

[21]<\/a> See <\/em>Cass R. Sunstein, Two Justifications for the Major Questions Doctrine<\/em>, __ Fla. L. Rev. __ (forthcoming 2024) (SSRN last revised Sept. 9, 2023, available at<\/em> https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=4503583), at 8 (\u201cAny plausible defense of textualism will not leave substantive canons off-limits. After all, Anglo-American law has long embraced them.\u201d).<\/p>\n\n\n\n

[22]<\/a> Barrett, Substantive Canons<\/em>, supra <\/em>note 11, at 117.<\/p>\n\n\n\n

[23]<\/a> Id.<\/em><\/p>\n\n\n\n

[24]<\/a> Id<\/em>.<\/p>\n\n\n\n

[25]<\/a> Id.<\/em> at 118.<\/p>\n\n\n\n

[26]<\/a> Id.<\/em><\/p>\n\n\n\n

[27]<\/a> 142 S. Ct. 2587 (2022).<\/p>\n\n\n\n

[28]<\/a> Id.<\/em> at 2620 n.3 (Gorsuch, J., concurring) (citing Barrett, Substantive Canons<\/em>, supra <\/em>note 11, at 109).<\/p>\n\n\n\n

[29]<\/a> Nebraska<\/em>, 143 S. Ct. at 2378 (Barrett, J., concurring).<\/p>\n\n\n\n

[30]<\/a> Id.<\/em> at 2380.<\/p>\n\n\n\n

[31]<\/a> Id.<\/em> at 2379.<\/p>\n\n\n\n

[32]<\/a> Id.<\/em> at 2380.<\/p>\n\n\n\n

[33]<\/a> Id.<\/em> at 2381.<\/p>\n\n\n\n

[34]<\/a> Id.<\/em> at 2380.<\/p>\n\n\n\n

[35]<\/a> Kevin Tobia, Daniel E. Walters & Brian Slocum, Major Questions, Common Sense?<\/em>, 97 U. S. Cal. L. Rev. (forthcoming 2024) (SSRN as of Nov. 8, 2023, available at<\/em> https:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=4520697), at 62 [hereinafter, TWS, Common Sense?<\/em>].<\/p>\n\n\n\n

[36]<\/a> Id.<\/em> at 33.<\/p>\n\n\n\n

[37]<\/a> Id.<\/em> at 41.<\/p>\n\n\n\n

[38]<\/a> Id.<\/em> at 39.<\/p>\n\n\n\n

[39]<\/a> Id.<\/em> at 39.<\/p>\n\n\n\n

[40]<\/a> Id. <\/em>at 40.<\/p>\n\n\n\n

[41]<\/a> Id.<\/em><\/p>\n\n\n\n

[42]<\/a> Id. <\/em>at 43.<\/p>\n\n\n\n

[43]<\/a> Id.<\/em><\/p>\n\n\n\n

[44]<\/a> Id.<\/em><\/p>\n\n\n\n

[45]<\/a> Id.<\/em><\/p>\n\n\n\n

[46]<\/a> Id. <\/em>at 47.<\/p>\n\n\n\n

[47]<\/a> Id.<\/em><\/p>\n\n\n\n

[48]<\/a> Tara Leigh Grove, Is Textualism at War with Statutory Precedent?<\/em>,102 Tex. L. Rev. 639, 689 (2024).<\/p>\n\n\n\n

[49]<\/a> Id. <\/em>at 689\u201390 (emphases added).<\/p>\n\n\n\n

[50]<\/a> Grove, supra <\/em>note 5, at 1057. But see<\/em> Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning<\/em>, 91 Notre Dame L. Rev. 1, 12 (2015) (\u201cInterpretation is an empirical inquiry.\u201d) (quoted in Grove, supra <\/em>note 48, at 692 n.289).<\/p>\n\n\n\n

[51]<\/a> Grove, supra <\/em>note 5, at 1057; see also <\/em>Grove, supra <\/em>note 48, at 669 (noting that prominent textualists have referred to \u201cthe statutory meaning derived by textualists\u201d as \u201ca construct\u201d) (citations omitted).<\/p>\n\n\n\n

[52]<\/a> Grove, supra<\/em> note 5, at 1058; see also <\/em>Grove, supra <\/em>note 48, at 670  n. 160 (\u201c[Linguistic] canons may be useful in interpreting legal instruments, whether or not they accurately depict ordinary conversation.\u201d).<\/p>\n\n\n\n

[53]<\/a> 283 U.S. 488 (1931).<\/p>\n\n\n\n

[54]<\/a> Grove, supra <\/em>note 5, at 1060 (citation omitted).<\/p>\n\n\n\n

[55]<\/a> Id.<\/em> (quoting McCaughn<\/em>, 283 U.S. at 490\u201391).<\/p>\n\n\n\n

[56]<\/a> Id.<\/em> (quoting McCaughn<\/em>, 283 U.S. at 491).<\/p>\n\n\n\n

[57]<\/a> 149 U.S. 304 (1893) (cited in Grove, supra <\/em>note 5, at 1060).<\/p>\n\n\n\n

[58]<\/a> Grove, supra <\/em>note 5, at 1060 (citation omitted).<\/p>\n\n\n\n

[59]<\/a> Nix,<\/em> 149 U.S. at 306 (cited in Grove, supra <\/em>note 5, at 1060).<\/p>\n\n\n\n

[60]<\/a> Grove, supra <\/em>note 5, at 1060\u201361.<\/p>\n\n\n\n

[61]<\/a> Id.<\/em> at 1061 (citing Nix<\/em>, 149 U.S. at 10\u201311, 20).<\/p>\n\n\n\n

[62]<\/a> Id.<\/em> (citing Brief for the Defendant in Error, at 3, Nix v. Hedden<\/em>, 149 U.S. 304 (1893) (No. 137)).<\/p>\n\n\n\n

[63]<\/a> Id.<\/em> (citing Nix<\/em>, 149 U.S. at 307).<\/p>\n\n\n\n

[64]<\/a> Id.<\/em> at 1063 (emphasis added).<\/p>\n\n\n\n

[65]<\/a> Id.<\/em> (emphasis added).<\/p>\n\n\n\n

[66]<\/a> Id.<\/em><\/p>\n\n\n\n

[67]<\/a> Id.<\/em> at 1064\u201365 (referring to \u201cJustice Scalia, Justice Gorsuch, Judge Easterbrook, and John Manning,\u201d who each \u201cfocus on \u2018the understanding of the objectively reasonable person\u2019\u201d).  To be sure, \u201c[t]extualists disagree about how \u2018well-informed\u2019 this reasonable reader should be\u2014that is, which evidence may be presumptively considered in conducting a statutory analysis.\u201d  Id.<\/em> at 1066.  But intra-textualist debates concerning \u201cwhat context a hypothetical reasonable reader may consider[] depend largely on normative considerations, not an empirical investigation.\u201d  Id.<\/em> at 1073.<\/p>\n\n\n\n

[68]<\/a> Id.<\/em> at 1063.<\/p>\n\n\n\n

[69]<\/a> Id.<\/em><\/p>\n\n\n\n

[70]<\/a> Barrett, Congressional Insiders and Outsiders<\/em>, supra <\/em>note 16, at 2204 (contending that \u201cthe textualist rationale for using\u201d interpretive canons \u201cis not undermined by [empirical] evidence that Congress rejects them as linguistic defaults\u201d).<\/p>\n\n\n\n

[71]<\/a> Id.<\/em><\/p>\n\n\n\n

[72]<\/a> Grove, supra <\/em>note 5, at 1063 (emphasis added).<\/p>\n\n\n\n

[73]<\/a> Nebraska<\/em>, 143 S. Ct. at 2380 (Barrett, J., concurring); see also id.<\/em> at 2378 (stating that \u201c[t]o strip a word from its context is to strip that word of its meaning,\u201d and explaining that \u201c[c]ontext is not found exclusively within the four corners of a statute. . . . Background legal<\/em> conventions, for instance, are part of the statute\u2019s context\u201d) (emphasis added) (internal quotation marks omitted) (citations omitted).<\/p>\n\n\n\n

[74]<\/a> Judith A. Best, Legislative Tyranny and the Liberation of the Executive: A View from the Founding<\/em>, 17 Presidential Studies Q. 4 (Fall 1987), at 697 (\u201cAn overriding fear . . . of legislative tyranny . . . informed the Founders\u2019 conception of the presidency and its proper role in the whole governmental solar system.\u201d).<\/p>\n\n\n\n

[75]<\/a> See <\/em>Rob Natelson, How to Correct the Context of the \u201cNon-delegation\u201d Debate<\/em>, The Originalism Blog (Jan. 20, 2020), available at <\/em>https:\/\/originalismblog.typepad.com\/the-originalism-blog\/2020\/01\/how-to-correct-the-context-of-the-non-delegation-debaterob-natelson.html (\u201cIt is fundamental that the Constitution does not delegate to Congress \u2018the legislative power.\u2019\u201d).<\/p>\n\n\n\n

[76]<\/a> U.S. Const. art. I, \u00a7 1 (\u201cAll legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives\u201d).<\/p>\n\n\n\n

[77]<\/a> Id.<\/em>; see also <\/em>Natelson, supra <\/em>note 75 (The Constitution \u201cdelegates about thirty discrete legislative powers\u2014seventeen (clarified by the Necessary and Proper Clause) in Article I, Section 8, and others scattered throughout the document.\u201d).<\/p>\n\n\n\n

[78]<\/a> See, e.g.<\/em>, U.S. Const. art. I, \u00a7 1, cl. 8 (referring to the powers to, inter alia<\/em>, \u201clay and collect taxes,\u201d \u201cregulate commerce . . . among the several states,\u201d and \u201ccoin money\u201d).  Congress is also vested with authority outside of Article I.  See, e.g.<\/em>, U.S. Const. art. IV, \u00a7 2 (Territorial Clause).<\/p>\n\n\n\n

[79]<\/a> U.S. Const. art. II, \u00a7 1 (emphasis added) (\u201cThe executive power shall be vested in a President of the United States of America.\u201d).<\/p>\n\n\n\n

[80]<\/a> U.S. Const. art. III, \u00a7 1 (\u201cThe judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish\u201d).<\/p>\n\n\n\n

[81]<\/a> U.S. Const. art. I, \u00a7 1; see also <\/em>Natelson, supra <\/em>note 75.<\/p>\n\n\n\n

[82]<\/a> U.S. Const. art. I, \u00a7 7.<\/p>\n\n\n\n

[83]<\/a> See <\/em>Meghan M. Stuessy, Cong. Rsch. Serv., R46338, Veto Threats and vetoes in the George W. Bush and Obama Administrations, at 3 (Apr. 30, 2020), available at <\/em>https:\/\/www.everycrsreport.com\/files\/20200430_R46338_a7b4e73fb8350e2a0aa2bc91991a656a644656c9.pdf (cited in Squitieri, supra <\/em>note 10, at 715, 758).<\/p>\n\n\n\n

[84]<\/a> U.S. Const. art. II, \u00a7 3.<\/p>\n\n\n\n

[85]<\/a> Id.<\/em><\/p>\n\n\n\n

[86]<\/a> 3 Joseph Story, Commentaries on the Constitution of the United States \u00a7 1555 (1833) (cited in Squitieri, supra <\/em>note 10 at, 716, 751\u201353, 757\u201358).<\/p>\n\n\n\n

[87]<\/a> When referring to \u201cthe President\u2019s administrative agents,\u201d this Essay is referring to administrative officials who exercise executive authority.  Because all of \u201cthe executive power\u201d is vested in the President, U.S. const. art. II, \u00a7 1, this Essay takes the position that all officials exercising executive power should be understood as reporting to the President.  Other scholars disagree, and contend that federal officials can exercise executive authority outside of the executive branch.  Responding to the conception of executive power relied upon by those scholars is outside the scope of this Essay.<\/p>\n\n\n\n

[88]<\/a> Squitieri, supra <\/em>note 11, at 482 (citation omitted).<\/p>\n\n\n\n

[89]<\/a> Nebraska<\/em>, 143 S. Ct. at 2378 (Barrett, J., concurring) see also id.<\/em> at 2378 (stating that \u201c[t]o strip a word from its context is to strip that word of its meaning,\u201d and explaining that \u201c[c]ontext is not found exclusively within the four corners of a statute. . . . Background legal<\/em> conventions, for instance, are part of the statute\u2019s context\u201d) (emphasis added) (citations omitted) (internal quotation marks omitted).<\/p>\n\n\n\n

[90]<\/a> Id. <\/em>at 2381 (emphases added).<\/p>\n\n\n\n

[91]<\/a> Squitieri, supra <\/em>note 10, at 748. The fact that \u201cmajorness\u201d might influence the context of real-world babysitting authority, but not the legal authority vested by a federal statute, is not surprising, given that \u201conce we consider federal statutes as distinctively legal documents, it is not at all surprising that . . . legal rules and presumptions may not translate to ordinary conversation.\u201d  Grove, supra <\/em>note 48, at 670.<\/p>\n\n\n\n

[92]<\/a> Squitieri, supra <\/em>note 10.<\/p>\n\n\n\n

[93]<\/a> West Virginia<\/em>, 142 S. Ct. at 2610 (citation omitted).<\/p>\n\n\n\n

[94]<\/a> U.S. Const. art. II, \u00a7 3 (stating that the President \u201cshall . . . recommend to [Congress\u2019s] [c]onsideration such measures as [the President] shall judge necessary and expedient\u201d).<\/p>\n\n\n\n

[95]<\/a> Squitieri, supra <\/em>note 10, at 754\u201357.<\/p>\n\n\n\n

[96]<\/a> Id.<\/em> at 762\u201363.<\/p>\n\n\n\n

[97]<\/a> Squitieri, supra<\/em> note 10.<\/p>\n","protected":false},"excerpt":{"rendered":"

Placing Legal Context in Context Chad Squitieri* 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 \u201clegal context\u201d surrounding delegations of power.  Some scholars have critiqued Justice Barrett\u2019s concurrence on the grounds that empirical research suggests that ordinary readers do not account for \u201cmajorness\u201d in the way that the major questions doctrine requires.  This Essay argues that those critiques 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