Jack speaks with Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School, about his new book, Separation of Powers: How to Preserve Liberty in Troubled Times. They discuss why the executive is the most dangerous branch of government, the importance of responsible executive branch lawyers, and contemporary debates over the administrative state, including the unitary executive theory in light of the Trump v. Slaughter oral argument and the major questions doctrine after the tariffs case, Learning Resources, Inc. v. Trump.
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Today, I’m going to talk to my colleague and friend, Cass Sunstein, about his new book, Separation of Powers: How to Preserve Liberty in Troubled Times. Cass, thanks for chatting.
Cass Sunstein: Thanks so much for having me.
So, your book is about all aspects of separation of powers, and you focus on the judicial branch and the legislative branch, as well as the executive branch. But since this is for Executive Functions, we’re going to talk about executive power mostly.
The subtitle of your book, which is about separation of powers, is How to Preserve Liberty in Troubled Times. And Chapter Six is entitled, “The Executive is the Most Dangerous Branch.” So how do these things relate together? And why is the executive branch the most dangerous branch? And what does that have to do with liberty?
What I saw, particularly in my White House job, was the massive knowledge advantage the executive branch has, and the massive advantage it has by virtue of the power of initiative. So courts, of course, are the glamorous entities for law students, often, but they’re after the fact. Sometimes they’re really after the fact. Sometimes they don’t get involved at all. And sometimes they don’t know what they’re doing.
And when they don’t know what they’re doing, part of the time they know they don’t know what they’re doing. And that creates a kind of humility and modesty, which is both salutary and sometimes dangerous. So the courts are in a weaker position.
Congress—I was flabbergasted to see in my second stint, that is, in the Office of Information and Regulatory Affairs—is often flailing. And it’s not really their fault. They have to get re-elected, the members. Their staffs aren’t nearly as numerous or as expert as the executive branch’s staffs.
So Congress is frequently thinking, you know, this is wrong, what you did. And Congress might be right on that, but really doesn’t have anything like the understanding that the executive branch does. And it is able to hold a hearing and maybe annoy. And sometimes it’s able to write a letter, which can cause a stream of events to follow, including potentially a subpoena.
But the executive branch really is front and center of the apparatus of governance. And when I was there, of course, in the Obama administration, I didn’t particularly lament that. But I did notice it and thought that the most beautiful and wonderful things that happen in our country are frequently a product of executive branch creativity. And some of the least beautiful things are either potentially, or in fact, a product of—let’s call it—executive branch creativity.
But most people, when they think about the dangers of the executive branch, don’t think about its information advantages. They think about the fact that it exercises the sword of the community, that it has coercive power, and that it can take the initiative to exercise those powers. So how does that factor in, and how does that relate to this knowledge or information point?
Okay, they’re closely related. So suppose the executive branch wants to issue a bunch of regulations that are, let’s say, costly or harmful, or motivated by politics rather than by really figuring out what’s best. It can do that. And then the very fact that it’s issuing regulations often causes change on the ground.
And the people who try to stop it from happening might make arguments to the public or to courts that are in the direction of, let’s just say, inadequately informed. And the executive branch will have a machine of response. And that can, on the regulatory side—which is a keen interest of mine in two of my three stints—on the regulatory side, just the knowledge and the authority to initiate can make all the difference.
So you might even say you’re going to issue a regulation. It might involve the environment, it might involve immigration, it might involve safety in the air. And then the private sector is just going to do stuff, knowing that the executive branch might act, and thinking it doesn’t want to be behind the game as the game starts.
And because the executive branch knows a ton, the private sector knows that it’s going to have an uphill battle in winning in court, even though it might win. And even if it wins in court, it might win late. And that might mean there’s all sorts of economic consequences.
Of course, when people think of the prosecutorial authority of the executive branch, which I think is what you have in mind, I saw that in the Department of Justice—not that close, but pretty close, because it was the same building. And I saw it at the Department of Homeland Security; ICE—I work closely with ICE—the executive branch can do all sorts of things to bring enforcement power to bear.
And it knows things. So in a contest with people outside the executive branch, those people might lose, not because they’re wrong, but just because they don’t know enough. Now, it is often the case—and we’ve seen this under both the Biden administration and Trump administration—that the executive branch is going to lose in court a lot. But there’s a lot that doesn’t go to court at all. And if it doesn’t go to court, then the executive branch typically wins.
Yeah. So those are the two points I was going to make. The second one first—so much, I mean, you say in the book that the executive may—I’m sorry—you talk about how courts can constrain the executive branch. And I’m going to talk about an important example that you mentioned in a second.
But so many of the things that the executive branch does, and it can take the initiative on, whether it has superior information or not, it can do—and there’s no judicial review. So many things, when I was at OLC, very few things that I worked on in OLC ever appeared in court, either because it was secret, or because of just justiciability, standing, and related things, or because no one had a cause of action.
So it seems that the executive branch has a massive advantage, not just because of information and because of its coercive power, but also because there’s, in many circumstances, no checking branch, or potentially Congress.
That’s true. Let me tell you two stories, shall I?
In one discussion we had in the executive branch, the Department of Homeland Security was in a contest with another department, which I won’t name for reasons that will become clear. The other department wanted to do something that was thought by it to be in the public interest, very much so, and left of center in a way that that department really liked.
The Department of Homeland Security thought that that was—it was unlawful—that the preferred option by the other department violated governing statutes. And we said that, and the other department said, look, no one left standing to sue us. So we’ll completely succeed; no one is standing to sue.
And the Department of Homeland Security said, you know, we took an oath to follow the law, the Constitution, the Take Care Clause, took an oath—we have to follow the law. And the other department said—I remember this as if it was yesterday—said no court has ever struck down an act of the executive branch solely on the ground that it violated the oath, which suggested they missed the point, that even if courts wouldn’t be involved, it was still inconsistent with the law.
And in that particular discussion, the Department of Homeland Security prevailed, because people agreed you shouldn’t do something that violates the law, even if there’s no court involvement. So that happens. I’m sure you know that. It happens a lot.
Does it happen all the time? Not. It doesn’t happen all the time.
So that’s one story of the role of legal constraints when things are working well, with no judicial involvement. I think it was just today announced that the Department of Homeland Security, my old department, is going to return to the BRIC program, which is basically a resilience program in the face of weather-related harm, like flooding or wildfire.
And the Trump administration had abandoned this program, the BRIC program, something I had some work to do on when I was there. And the court said, you can’t just abandon the program. A court did get involved in a suit brought by 22 states.
And the Trump administration just said, okay, we’ll go forward with it, which suggests, though you’re right, of course, there’s a serious category of cases in which there’s no court involvement. Still, there are a lot of cases in which there is. And that’s a beautiful thing from the standpoint of the separation of powers.
I just want to underscore something you said, which is, though in those cases where there’s no judicial review, it really depends on the integrity of the lawyers inside the executive branch. And, you know, executive branch lawyers have their own interpretive principles, their own institutional constraints, their own attitudes toward law.
But there’s such a large percentage of cases where the executive acts without effective judicial review that that form of internal review is just vitally important. And that’s not really separation of powers, formally.
You’re right. It has an integration of powers, where it’s the executive authority and interpretive authority. And if the executive has a strong policy preference—meaning the political leadership—maybe the lawyers will recede, or that the lawyers will try to figure out a path, even if it’s really not a legitimate path.
One thing that I observed, and that we’ve been circling around, I think does have a separation of powers component, which is the morality of legality. And let’s just name it, where an executive branch lawyer thinks that there’s a moral obligation to follow the law, which is independent of anything else and a trump card.
And the reason that it has a separation of powers component is that typically what legality amounts to is fidelity to congressional instructions.
Right.
For the Constitution, which is not really a separation of powers issue.
But so you describe—you say this is one of the most important—I’m going to move on to an area where the executive is effectively checked, and it’s vitally important. You say—I’m going to read from the book—that this is one of the most important paragraphs in the book, you think, and I’m quoting from it now:
It is also true and fundamental that the executive power and the judicial power are separated in the sense that the executive initiates cases, including prosecutions, and judges decide on both facts and law. If the Department of Justice thinks that you have committed a crime, it cannot put you in jail just because it wants to do that. It has to prove its case before an independent tribunal, and often with a jury.
And you might have added, with a grand jury intervening. That point has been vitally important in the last year and a half, and has, I think, is a more important separation of powers point, as a fundamental constraint protection of liberty, than people appreciated before recently.
I agree completely. So the words that you kindly read were written kind of low temperature, in the background, where it was, you know, a recognition. But if you write them now, there’s a lot more heat in the sentences.
And it is the case that, you know, if you love the current president or not so much, the idea that any president can put people in criminal jeopardy without the buffer, the independence of court—that’s Kafka. It’s kind of literally Kafka. And it’s a nightmare from the standpoint of liberty.
Yeah. And the framers—I mean, as you say, you made this point outside of—you wrote this point outside of the current heat—but it’s kind of a foundational point. It goes back to the framers. They designed this system with this protection of liberty in mind.
Completely. So Hamilton, in an obscure passage in the Federalist, celebrated constitutional review, but said it’s not with a view to infractions of the Constitution alone that the independent judiciary is important. And he talked about a civilizing effect.
And, you know, we could write a book about that. But part of the civilizing effect is making sure that the facts of the law are supportive of the charge, and that, you know, for a large number of people, some of whom were in the newspapers, most of whom are not, that is a lifeline.
Okay. I want to move on to what you call in the book the “grand narrative.” And I think it’s fair to say this is a grand narrative about administrative law, but it might be a grand narrative about executive power. What is the grand narrative, and why is it important?
When I was in law school the day before yesterday, the majority of us thought Article One gives legislative power to Congress. That’s true, which means that Congress can’t give open-ended authority to the executive branch by telling the executive branch to do what’s reasonable or feasible—that that is a violation of Article One, Section One.
Article Two gives executive power to the president, which means there can’t be independent agencies like the Federal Communications Commission and the Federal Trade Commission that excise executive power from the president and give it to other people. That’s very, very bad—or so we thought.
And Article Three gives judicial power to judges protected by independence, life tenure, salary guarantees, and that means that adjudication can’t be exercised outside of those independent people. And yet the Social Security Administration and many other executive officials are engaged in adjudication.
So what we thought back in the day was that there’s sequential violations of Article One, Article Two, and Article Three. And that’s the grand narrative—that the Constitution created these entities, and then the New Deal or the Great Society, or maybe Woodrow Wilson, did something horrible, which was to take a red pen to Article One, Section One; Article Two, Section One; Article Three.
And that’s terrible. And the grand narrative suggests we have to go back to the original constitutional settlement, which was, you know, very focused on self-government and why our country became independent. That’s not a trivial matter.
And also very focused on liberty. And so the obligation of the legal culture now is to obey the lesson of the grand narrative, which is to restore the beauty and pristineness of what the Constitution plainly says. That’s the grand narrative.
And I’m going to flesh this out, and I want to talk about the Slaughter case, which has raised these issues exquisitely since you wrote the book. But what is your basic take on it? I mean, what is your take on the grand narrative?
It’s a little false. And it’s a little made up. And it’s a little bit simple. And it’s too cool for school. That’s actually the phrase—too cool for school was made for this. It’s very cool, but in school, it’s just not going to work.
And the reason is that, as simple and seductive as it sounds, it has a very tendentious understanding of Article One, Article Two, and Article Three. I say not, you know, baseless or ridiculous understanding of Article One, Article Two, and Article Three, but it has a tendentious understanding.
So we have to investigate each of the three. The idea that Congress isn’t permitted to grant discretionary authority to the executive branch—that’s the first part of the grand narrative, or the one that tends to get people’s juices flowing most.
This is the non-delegation doctrine, is that correct?
Yeah, yeah, yeah. So let’s take one idea, which is Congress can grant as much discretion to the executive as it wants. Then it’s exercising lawmaking, and the executive is implementing pursuant to the admittedly open-ended grant of discretion.
So one view is that’s fine. If Congress says, do what you think best to handle immigration or to handle climate change, no problem—that’s how Congress has made the law. That’s one view, and a lot of people hold that view. It has some historical support.
I think that view isn’t justified by the history. So let’s have a more modest view, which is that broad grants of discretion are fine, and the founding generation understood them to be fine. If it’s completely open-ended, it’s not fine.
So that’s not inconsistent with the founding settlement. But if you say, do it to the extent feasible, or do it to the extent practicable, or do it to the extent reasonable, those things are consistent with what the founding generation itself did, with very little in the way of constitutional objection.
So that part of the grand narrative—let’s just say—is historically reckless.
So you mean false from an originalist perspective? Yeah, completely, yeah. And because, as you’ve written, there may be reasons today, given the change in the nature of government, where we might view these things differently. I agree with you. I think that the originalist debate on that has cut pretty strongly, based on what the early Congress did and how the early courts understood what the early Congress did, to allow pretty broad, broad delegations.
So I concur in that. What’s next?
Okay. So let’s say—and I want to underline your point—that we could think, on originalist grounds, an aggressive restriction on Congress’s power to give discretion to the executive branch is very hard to defend. But we could say that some kind of non-delegation doctrine is essential now, given the nature of executive power. And I think that’s an interesting view, and not at all preposterous.
And I want to come back to that idea later.
Okay. So on the second part of the three-part grand narrative—we actually have three grand narratives—the second part is that Congress can’t authorize officials to exercise executive authority without the president’s removal power untrammeled.
And that would mean that little me, as a 20-something in the Office of Legal Counsel, would be an at-will employee of the president, notwithstanding the Civil Service Act. I wasn’t that. As a staffer, I had for-cause protection.
Under the second part of the grand narrative, that would be constitutionally very suspicious. Worse than that, from the standpoint of the second part of the grand narrative, is the Federal Communications Commission, the Federal Trade Commission, the Nuclear Regulatory Commission, the Federal Reserve Board, et cetera.
— explain why? It’s because of the restrictions on the president’s removal power.
Because the executive power is being taken out of the president’s domain—and what part of Article II, Section 1, do you not understand? Executive power is vested in a President of the United States.
That view—the view that the strongly unitary president is constitutionally mandatory—it hasn’t taken the kind of battering that the non-delegation doctrine has taken, but it’s suffered some very serious blows.
So, if you’re a boxing fan, it’s Muhammad Ali—jab, jab, jab, jab, jab, jab—rather than George Foreman knocking you out. And the jab, jab, jab, jab, jab consists of findings that the early Congress probably thought it had the authority to limit the president’s removal authority over principal officers. It just decided not to exercise that authority.
So there wasn’t a consensus in the founding period that the president had unlimited removal authority over the people who execute the laws, or at least this is a very hard historical question.
But on that one, I mean, you started off by saying you weren’t removable. We’re talking about the grand narrative about the unitary executive here and the president’s removal power. And a couple of points—and I’m wondering if you agree.
One is it’s not at all clear what the pure theory entails, that the president can control every person in the executive branch on every decision, no matter what it looks like. The court has never gone nearly that far in its case law.
Even Myers acknowledged that there could be constraints on the president’s removal power of certain officials, right? And the originalist point doesn’t really get at whether, you know, these multi-member independent agencies with massive combined—whatever kind of powers you want to call rulemaking and adjudication—it doesn’t really speak to that, does it?
Well, I agree. But the people who believe in a strongly unitary president, I think, should agree—and many do—and, as you say, Myers did, that the civil service law is okay, because the lower-level officials are, through the chain of command, subject to policy control by the president.
But if you have a principal officer, like people who are running the Securities and Exchange Commission, the view is—the unitary executive view that I think Chief Justice Roberts holds, and that many law professors hold—the constitutional settlement doesn’t allow that.
So the multi-member commissions, whose heads are for-cause protected against the president—that I thought, when I worked in the Justice Department as a kid lawyer, I thought that was a constitutional atrocity. And I think a lot of people, on originalist grounds, think that.
It’s not clear that, on originalist grounds, they’re wrong. That’s my view. It’s a really hard question. I think it’s 60–40, 40–60.
Yeah. Okay. So a lot of this issue has come up in the slaughter case, which is about the constitutionality of the independent commissioners on the FTC. And everybody thinks, based on the oral argument—and, frankly, based on the last three or four unitary executive cases concerning removal, anyway—that the Court is going to say that the president does have the authority to remove the members of the FTC, and that his removal power extends that far, at least.
I just want to assume that’s true and try to think through the implications. And I think this goes to the heart of your book. And I want to do so by listening to two sets of questions by Justice Kagan at the oral argument in Slaughter, where I think she raised, as I say, issues that go to the heart of your book, and I want to see what you think about them.
So here’s the first clip from Justice Kagan in the Slaughter argument.
The idea is that the president was supposed to do the executing, but he wasn’t supposed to do the legislating, and he wasn’t supposed to do the judging. And here’s my next proposition, which I think you have to agree with, because we just look around the government and it’s obviously true.
Some people think it’s a real distortion from what the founders thought, but what you think of as executive branch agencies, including independent agencies, they do a lot of legislating and they do a lot of judging. And you listed it a bunch of times. You said this is obviously executive power.
Why is it obviously executive power? Because they’re doing a lot of rulemaking, and they’re doing a lot of adjudications leading to enforcement. And those are—although we’ve said that this is executive power in some sense—but they’re legislative functions. That’s what rulemaking is. They’re adjudicative functions.
And isn’t it problematic, given what we know about the founder’s vision, that what this is going to amount to, at the end of the day, is putting not only all executive power in the president, but an incredible amount of legislative slash rulemaking power and judging in the president’s hands?
Okay. So I'm very keen about what you think about that. Is Justice Kagan embracing or rejecting the grand narrative? Is she embracing a different narrative? What do you make of that set of questions?
Okay. I think she is kind of embracing it, thinking that the exercise of rulemaking authority by the executive is a constitutional violation, and the exercise of adjudicative authority by the executive is a constitutional violation. I don’t think it’s right, though.
So rulemaking—suppose there’s a statute that says, on a diagnosis of cancer, the Occupational Safety and Health Administration has to require some reporting. And then the Occupational Health Safety Administration defines what a diagnosis is through rule.
Now, there’s not a lot of room to say what’s a diagnosis. There’s not a lot of discretion there. It’s a pretty mechanical—maybe that’s an overstatement—but it’s not a big exercise in policymaking, open-ended policymaking authority.
So this is a way of saying rulemaking can be just a form of execution unless we insist it isn’t, but it might not involve much in the way of discretion at all. It might be that you decide whether the permissible level of some pollutant is 9.11111 or 9.11112, and you do that through a rule.
That isn’t an exercise of legislative authority unless we insist that any rulemaking is—and why would we do that? Rulemaking has been around a long, long time. The idea that rulemaking, because it’s rulemaking, is legislation—which Justice Kagan, my former dean, is saying—I think, on reflection, she wouldn’t accept her own proposition.
But I think there’s a way of interpreting it, and this is going to bring me to the second clip. I don’t think—I’m fairly confident—Justice Kagan is not saying that rulemaking is an exercise of Article I legislative power, and that adjudication is an exercise of Article III judicial power.
I think what she’s saying is that there’s a massive concentration of various powers that we call executive, but that, as you talk about in your book, have adjudicative elements and have discretionary lawmaking elements, whether it’s the exercise of legislative power or not.
And I think she’s just pointing out the extraordinary concentration of power in the executive that now the court is on the road to saying the president can do with what he wants. I think—so let me run the second clip, which I think enlightens the first one, and then you can tell me what you think.
Here’s been the bargain over the last century, and I think it has been a bargain. Congress has given these agencies a lot—a lot of work to do that is not traditionally executive work—that is more along the lines of: make rules when we issue broad delegations, and do lots of adjudications that set the rules for industries and entire bodies of governance, right?
And they’ve given all of that power to these agencies, largely with it in mind that the agencies are not under the control of a single person, of the president, but that indeed Congress has a great deal of influence over them too.
And if you take away a half of this bargain, you end up with just massive, uncontrolled, unchecked power in the hands of the president. And it’s really hard to affect both sides of this bargain, because it’s already been done.
So the result of what you want is that the president is going to have massive, unchecked, uncontrolled power, not only to do traditional execution, but to make law through legislative and adjudicative frameworks.
So Cass, I want you to comment on that. I just want to point out, because I thought this was remarkable, that in the same oral argument, Justice Gorsuch and Justice Barrett make similar claims about this bargain, and wondering whether the elimination of the removal power leaves the president in a commanding position that maybe Congress might not have wanted.
I think that’s a great comment by Justice Kagan, and it shouldn’t be surprising because she taught administrative law for many years, and she’s an expert—a field expert.
So let me tell you a story that exemplifies what she’s worrying over. When the Consumer Bureau was created, I was in the government and spent a lot of time working on the legislation that led to it. And we discussed a lot whether the Consumer Bureau should be an executive agency or an independent agency.
And whatever the right call as a matter of policy, it was completely clear at the time that to get that legislation through Congress with the Consumer Bureau being an executive agency would have been really difficult and possibly impossible. And pause over that, if you would.
It’s the deal that Justice Kagan is discussing in action, where Congress thought, okay, we’ll create this Consumer Bureau, and it’s going to have a lot of power, but we’re not going to make it subject to the president, because if we did, then the president would have a lot of power.
And you can see this through agency after agency. With respect to the Federal Communications Commission, whatever exactly happened at the time, the idea of Congress creating an FCC that controls the communications sector and that is run by employees of the president—it doesn’t matter what your political party is—that should make people’s blood run cold.
So the deal that she’s describing—that’s real. Now, what to do about that is a very nice question. If you say all of these agencies exercising rulemaking and adjudicatory authority are now under the president’s thumb, that does unsettle the congressional understanding that led to the creation of those agencies.
Does that argue—I don't think you talked about this in your book, and I actually don't know if you've written about this, but you probably have—what severability regime does that argue for? Does that argue for getting rid of the removal restrictions, or does it argue for taking down the whole thing, because Congress would not have given the one without the other?
This is really hard. So if you believe that the strongly unitary vision is constitutionally correct, then you just have to insist on that, and the severability questions become very reasonably answered in the direction of throwing the whole statutes into the garbage. But that itself is a cataclysm.
And that’s something that’s a little like a French Revolution, which a tradition-loving, occasionally Burkean court should be really nervous about. So we throw the SEC statute down, we make the NLRB not exist anymore, because of a contentious but plausible, maybe more likely than not, right—we’d have to investigate that severability argument.
So my own view is that the constitutional attack on the independent agencies should be resisted on the ground that the constitutional question either is an originalist matter or as a matter of what do we do, given where we are, which is what Justice Kagan is asking.
It’s a hard question. And to throw out decades of precedent on which our government’s institutions rely on the basis of a contentious, maybe right theory—that we shouldn’t do.
So I would be in favor of amping up a little bit the president's policy control over the independent agencies through interpretation of the existing statutes, which give him power to fire for inefficiency, neglect of duty, malfeasance in office. I'd ramp those up a little bit, but basically not throw Washington on these issues into a tailspin where it's going like this.
Okay. Here’s my last question. It’s clear that the court’s moving in the direction of unitariness and a broader removal power and more presidential vertical control.
Some people, including some conservatives on the court, think that the complement to that—the important complement to that—is to narrow the president’s ability to rely on vague statements to do novel things. And this comes under the heading of the major questions doctrine. And there are some people that see those things as going hand in hand.
I think Justice Gorsuch is the loudest articulator of this view. So you talked about the major questions doctrine in the book. Just what do you think of the major questions doctrine, especially given the more unitary executive?
And how do you read the Learning Resources tariffs case and the major questions doctrine after that? This case came down after your book.
Yeah. Okay. So let me state two views and then try to figure out which I like better.
So view one is the major questions doctrine is a made up thing by people who don’t like administrative authority. And as Justice Barrett has said repeatedly, to create made up substantive canons isn’t a very judicial thing to do. It sounds more like policy stuff.
And, you know, if the president lacks authority under the statute as rightly interpreted, which I think is correct in the school loans case, then the executive should lose. But to have a doctrine that puts a special thumb on the scales against the executive when it’s doing something big—that’s a little like the old canon that statutes in derogation of the common law shall be narrowly construed, which seems, by current lights, a little too policy-generated, and we shouldn’t do it.
So that, I think, has a lot of force behind it. And it says don’t develop new canons of construction that suit your policy preferences.
The other idea is we should be a bit more upbeat on the major questions doctrine, partly because of the breadth of current executive power, partly because of the misallocation, by constitutional lights, of discretionary action—let’s just call it—from the legislature to the executive.
And on that view, the major questions doctrine isn’t a terrible idea. It says if, you know, the president is going to try to forgive school loans, or the president is going to try to shift from coal to solar and wind, or the president is going to have a tariff regime, Congress must explicitly authorize it.
I’m kind of talking myself into it as a plausible idea that isn’t bizarrely adapted to the situation in which we find ourselves. So the second view, which is a little bullish on the major questions doctrine, I like better than I did seven years ago.
So the second view—you can disagree if you disagree—strikes me as closer to Justice Barrett’s conception of the major questions doctrine, which is a little softer, more contextual, as she puts it. She views it as just an instantiation of textualism, although it’s a very—it seems to me—I don’t want to say squishy, but soft version of textualism.
I mean, is that—is her—and, by the way, she and Justice Gorsuch, who have sharply opposing views, substantive canon versus contextual interpretation of the major questions doctrine, both joined the formulation by the Chief Justice, which was shrewdly ambiguous on this debate.
I mean, is that the more attractive way to see the major questions doctrine?
It is, it’s more humble. So what Barrett’s doing—there’s a passage by Wittgenstein in Philosophical Investigations, where he says, I tell you, teach the children a game. You teach them gambling.
Is that consistent with the instruction—simplifying Wittgenstein—but the basic idea is it isn’t—that if you say teach the children a game, you didn’t mean gambling.
And Barrett says, basically, that if you have a reaction to what the interpretation is, you need Congress squarely to have authorized it. And that’s because the what—“what?”—the skeptical “what” reflects how communication works.
And so if there’s some agency doing something completely new, and it seems, you know, well beyond what anyone had ever thought, Congress must squarely authorize it. That is humbler.
I think in the end, the distance between Gorsuch and Barrett is less substantively large than it seems. There’s clearly a big difference in temperament, where the separation of powers—heavy artillery—Gorsuch loves, and Barrett is very cautious about.
But Barrett needs some claims about Article 1, Section 1, I think, to get her more cautious, maybe softly textualist wannabe argument going. So it’s—I like it better. I even think that the Barrett view isn’t so far from Kagan’s view in the end.
But it’s—it is singing a slow, soft, quiet, short version of Gorsuch’s song.
It also seems more on the road to—or resonant of, or in the vicinity of—some kind of purposivism, because you can only say “what?” if you have a sense of what the statute was for.
Yeah, I think so.
You have a sense that some executive action is just not what they meant. So it seems—it seems like a modified, strongly modified to me version of what I understood textualism to be.
Yeah, I think so. I think, you know, I really admire her effort to be within textualist boundaries and not wanting judges making things up. That’s kind of her thing.
And it does have a disciplining effect. And it is part and parcel of her caution and humility. You’re right that in I teach the children a game, I teach them gambling, you need a sense of the purpose of the instruction to get that gambling answer to be the wrong answer.
Okay, Cass, thanks very much. Terrific book. It’s about much more than executive power, which is what we focused on, and well worth reading.
Thank you.
Thank you so much.
