Major-Questions Lenity

By JOEL S. JOHNSON. Full Text.

Both the historic rule of lenity and the new major questions doctrine rest on a fundamental commitment to the separation of powers for important policy questions. In light of that shared justification, the logic of the major questions doctrine in the administrative-law context has much to offer lenity in the criminal-law context. In fact, the major-questions framework is strikingly similar to a rationale that has recently emerged in some of the Supreme Court’s decisions narrowly construing federal penal statutes. That emerging rationale can be understood as a modest form of major-questions lenity that may lead to a more robust version of the doctrine—one that would work to restore historic lenity’s insistence on legislative clarity in crime definition, substantially limit the practice of implicit delegation of crime definition, and help to curb lower-court adoption of overly broad and literalistic constructions of penal statutes.