Constitutional Conceits in Statutory Interpretation

My new article, Constitutional Conceits in Statutory Interpretation, was published this past week by the Administrative Law Review.  (The Administrative Law Review does not permit authors to post papers online prior to publication, so this is the first time this piece has been publicly available.) Here is the paper's abstract:

For all its talk about textualism, the Roberts Court has a recent habit of ignoring statutory texts in highly politicized cases. In NFIB v. OSHA, West Virginia v. EPA, and Brnovich v. DNC, the Supreme Court steered around broad statutory language to narrow important federal legislation. In each case, the Court brushed aside inconvenient statutory texts, focusing instead on background constitutional concerns. Significantly, though, the policies at issue were not unconstitutional under current doctrine. The challenged policies, then, did not violate constitutional law so much as the conservative Justices’ constitutional sensibilities.

Admittedly, the Court has long interpreted statutes in light of constitutional anxieties, employing a variety of Constitution-based canons of statutory interpretation. The cases examined here, however, either applied those canons unusually aggressively or departed from them altogether. NFIB and West Virginia ostensibly relied on the major questions doctrine but transformed it from a modest interpretive aid into something far more intrusive. Brnovich did not even bother to invoke any of the constitutional canons, though amorphous federalism principles drove that decision.

While the Constitution-based canons of statutory interpretation have always afforded courts substantial discretion, these recent cases go much further. Rather than using constitutional canons to resolve statutory ambiguities, these decisions swept aside clear statutory language to advance the Justices’ constitutional conceits—that is, to further inchoate libertarian values inconsistent with contemporary constitutional law. Collectively, these cases paint an unflattering portrait of a Court willing to navigate around statutory text and constitutional doctrine to limit the scope of federal power.