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Cass R. Sunstein, Two Justifications for the Major Questions Doctrine, Fla. L. Rev. (forthcoming 2023).

Abstract: There are two justifications for the major questions doctrine. The first justification, vigorously offered by Justice Neil Gorsuch, might be described as Lockean; it sees the doctrine as an effort to preserve legislative primacy and to reduce the policymaking authority of the executive branch. On the Lockean view, the major questions doctrine is a clear-statement principle, and it is in evident tension with textualism. The second justification, vigorously offered by Justice Amy Coney Barrett, might be described as Wittgensteinian; it sees the doctrine as an effort to capture Congress’ likely instructions. The Wittgensteinian justification fits comfortably with textualism, and it does not operate as a clear-statement principle at all. The Court can be seen as having adopted an incompletely theorized agreement in favor of the major questions doctrine, but at some point, the two justifications might lead in different directions. While neither justification is implausible, both of them run into serious objections.