Professor Chad Squitieri, a fellow at Catholic Law's Project on Constitutional Originalism and the Catholic Intellectual Tradition, had his essay “Placing Legal Context in Context” selected for publication in the Harvard Journal of Law & Public Policy: Per Curiam. Squitieri's article was developed for a January 2024 symposium jointly hosted by the Pacific Legal Foundation and the Harvard Journal of Law & Public Policy. In line with his field of expertise, Squitieri's recent publication concerns the major questions doctrine and proposes how textualists jurists should account for the President’s role on the federal lawmaking process.

Squitieri's article is available for viewing here. Below is the abstract. 

Abstract

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In Biden v. Nebraska, Justice Barrett authored a concurrence in which she characterized the major questions doctrine as a linguistic canon that accounts for the “legal context” surrounding delegations of power. Some scholars have critiqued Justice Barrett's concurrence on the grounds that empirical research suggests that ordinary readers do not account for “majorness” in the way that the major questions doctrine requires. This Essay argues that those critiques miss the mark because they conflate factual context with legal context.

Justice Barrett’s concurrence should be considered within the broader textualist tradition of understanding “ordinary meaning” as a legal concept, and not simply an empirical fact. But to say that Justice Barrett’s concurrence should be understood within that broader textualist tradition is not to say that her concurrence is immune from criticism. To the contrary, this Essay contends that Justice Barrett's concurrence does not account fully for legal context concerning the President's lawmaking functions. The upshot is that textualists eager to embrace the major questions doctrine are better off reconceptualizing the doctrine as a substantive canon that polices the precise lines delineating the lawmaking powers vested in the President and Congress.
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