Investor Presentaiton
16
Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional
Law: Clear Statement Rules As Constitutional
Lawmaking, 45 VAND. L. REV. 593, 631 (1992) (clear-
statement canons "assure that the political branches make
the most important policy choices in democracy").
With considerations like these in mind, the Court has
repeatedly called the major-questions doctrine into action.
Four decades ago, a plurality of the Court found it
"unreasonable to assume" Congress delegated
"unprecedented power over American industry" without
"a clear [textual] mandate." Indus. Union Dept., AFL-
CIO v. Am. Petroleum Inst., 448 U.S. 607, 645-46 (1980)
(plurality op.). Last summer, the Court found it equally
unlikely that statutory ambiguity empowered the Centers
for Disease Control and Prevention to impose a
nationwide eviction moratorium. Ala. Ass'n of Realtors v.
Dep't of Health & Hum. Servs., 141 S. Ct. 2485, 2486
(2021). The same reasoning permeates decisions in the
decades between. See King v. Burwell, 576 U.S. 473, 486
(2015) (IRS lacked authority without an "express[]"
delegation to determine applicability of Affordable Care
Act tax credits that involved billions in spending and
affected millions of people); Gonzales v. Oregon, 546 U.S.
243, 267-68 (2006) (Attorney General lacked authority
from "oblique" statutory provision to criminalize assisted
suicide); Brown & Williamson, 529 U.S. at 160 (FDA
lacked authority to regulate cigarettes because delegation
on a matter of "such economic and political significance"
would not occur “in so cryptic a fashion"); MCI
Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231
(1994) (FCC lacked authority to excuse non-dominant
long-distance carriers from rate-filing requirements, as “a
subtle [statutory] device" did not establish that Congress
left "determination of whether an industry will be entirely,View entire presentation