Last week, when issuing a stay of the Trump Administration’s construction of a border wall in Texas, a federal judge held that a “violation” of the major questions doctrine is a constitutional violation. We’ve seen the major questions doctrine get used in unusual ways over the past few years. This may be the strangest one yet. The court’s analysis is hard to follow but boils down to the conclusion that “the major questions doctrine is a clear statement rule grounded in separation of powers” and thus “a violation of the major questions doctrine” is a constitutional violation. This conclusion is wrong at least twice over.

First, the major questions doctrine is not a clear-statement rule. The district court primarily cited Justice Gorsuch’s concurring opinions for this proposition. And it is true that Justice Gorsuch conspicuously wants everyone to call the doctrine a clear-statement rule, presumably because he wants the doctrine to be a robust, substantive canon of interpretation that puts a thumb on the scale against the government.

But a majority of the Supreme Court has never referred to the doctrine as a clear-statement rule nor treated it as such (as explained here, here, and here). The Supreme Court’s majority opinions have treated it as a linguistic canon that aids a court in finding the best reading of a statute. The district court was undoubtedly correct that, when it comes to discerning Supreme Court rulings, “tallying is unhelpfully reductive—it cobbles together the justices’ scattered statements on the doctrine and obscures the nuances of the debate.” That is all the more reason to rely on majority opinions, not concurring opinions. And a majority of the Supreme Court has not described or treated the major questions doctrine as a clear-statement rule.

Second, even if the major questions doctrine were a clear-statement rule, you cannot “violate” it—or any clear-statement rule for that matter. As Justice Scalia and Bryan Garner explain in Reading Law, a clear-statement rule is “[a] doctrine holding that a legal instrument, esp. a statute, will not have some specified effect unless that result is unquestionably produced by the text,” with examples including the constitutional-doubt canon, the presumption against retroactivity, and the presumption against waiver of sovereign immunity. You cannot “violate” these doctrines—they are rules of interpretation that apply or do not apply; if they do apply, they only steer a court to a particular interpretation of contested language. They do not independently provide a source of rights or duties that can be violated.

True, the Supreme Court has grounded the major questions doctrine in “‘context’ [that] counseled ‘skepticism’”—namely, “common sense,” “constitutional structure,” “separation of powers,” and “a practical understanding of legislative intent.” But contextual moorings do not convert a rule of statutory interpretation into a constitutional right or duty. 

This is all so basic that it is hard to believe it requires saying at all. As the Solicitor General explains (in his request for the Supreme Court to stay the ruling), the major questions doctrine is a rule of statutory interpretation. It does not set forth a constitutional right or duty that the government can violate. Regardless of what you think of the merits of this litigation or the policy at issue or the shadow docket, no one benefits from this kind of sloppy decisionmaking that only further mangles the major questions doctrine.

Donald L. R. Goodson is the Executive Director of the Institute for Policy Integrity at NYU School of Law. This piece does not reflect the views, if any, of NYU School of Law.