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PaperclipPerfector  2yr ago (text post)   36443 thread views

Culture War Roundup for the week of June 26, 2023

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It was decided based on the major questions doctrine, or so Roberts said and Barrett concurred on. I haven't read the dissent yet, and I've only skimmed the concurrence, but it appears Barrett's concurrence goes into some great detail on how the major questions doctrine promotes more strict adherence to the constitution (than the dissenters would have) but not actual literalism. I presume the dissenters disagree.

If you accept the major questions doctrine, I think the case was clear. The HEROES act may have been bigger than a mousehole, but full student loan forgiveness was a LOT bigger than an elephant.

Barrett's concurrence

My reading of Barrett's concurrence is that MQD is not about strict adherence to the Constitution, but about actually coming to the best reading of the text of the statute. She gives examples like

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….

The idea is that you just mentally have some sense of the scope of the text in context, and understanding that scope leads you to the best interpretation of the text. I'm not sure I'm convinced, nor precisely how it doesn't lurch folks back into the morass of divining meaning out of legislative history, but that's what I think it is.

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