It simply ignores plain text in statutes long thought settled to create politically-convenient "GOP endorsed" rights. . . out of thin air. Let's read Justice Kagan's dissent (starting at page 28), instead of the majority:
. . .Some years ago, I remarked that “[w]e’re all textualists now.” Harvard Law School, The Antonin Scalia Lecture Series: A Dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015). It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed.
That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence. See ante, at 19, 25–26; e.g., ante, at 3–6 (GORSUCH, J., concurring). The kind of agency delegations at issue here go all the way back to this Nation’s founding. “[T]he founding era,” scholars have shown, “wasn’t concerned about delegation.” E. Posner & A. Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1734 (2002) (Posner & Vermeule). The records of the Constitutional Convention, the ratification debates, the Federalist -- none of them suggests any significant limit on Congress’s capacity to delegate policymaking authority to the Executive Branch. And neither does any early practice. The very first Congress gave sweeping authority to the Executive Branch to resolve some of the day’s most pressing problems, including questions of “territorial administration,” “Indian affairs,” “foreign and domestic debt,” “military service,” and “the federal courts. . . .”
These are. . . indeed, perilous times -- for the rule of non-partisan law in the United States. But KBJ is now on the job. Let's go! Grin!
नमस्ते
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