Faculty & Research
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Meyer warns that the rise of the Major Questions Doctrine has troubling implications for national security
In The National Security Consequences of the Major Questions Doctrine, 122 Mich. L. Rev. 55 (2023), Timothy Meyer and co-author Ganesh Sitaraman warn that the Supreme Court's increasing willingness to require "clear Congressional authority" when acting on issues of major national significance may imperil the president's ability to fight global conflict and ensure U.S. resilience, with troubling implications for foreign affairs and national security.
The executive branch has long relied on broad delegations of power by Congress to take actions such as imposing tariffs, sanctions and other forms of economic warfare in issues of national security and foreign affairs. Such actions have been taken under authorities such as the International Emergency Economic Powers Act, which serves as the basis for most of the sanctions against Russia; the Defense Production Act to expedite the production of critical medicines in the pandemic; and the Trade Expansion Act, which has been used to impose tariffs on steel and aluminum imports.
But recent Supreme Court decisions invoking the Major Questions Doctrine call executive actions under these delegations into question and may curtail the president's ability to pursue policies in the national interest on a range of foreign affairs questions, giving judges a bigger role in shaping American national security.
The Major Questions Doctrine (MQD) is a relatively recent principle of statutory interpretation that holds that there must be clear Congressional authorization when a regulatory agency makes a policy decision on an issue of major national political or economic significance. In the past 25 years, it has increasingly been invoked by the Supreme Court to reject claims of regulatory authority by agencies such as the FCC, the FDA, OSHA, and the EPA. Narrowly, it is a limitation on deference to agencies; more broadly, it requires a clear statement of specific statutory intent.
"[The Court seems to have landed on a clear statement rule. This approach will likely result in courts setting aside executive action in a much wider range of cases than they would if the consequences of applying the MQD were merely reduced deference or even finding some agency actions unconstitutional," Meyer and Sitaraman write.
"The MQD, as the courts are currently developing it, presents a significant challenge to the government’s ability to conduct economic foreign relations, a problem that the courts are not well-suited to manage because they are not equipped to distinguish between international and domestic economic policies in a globalized economy."
Meyer is the Richard Allen/Cravath Distinguished Professor in International Business Law and co-director, with Rachel Brewster and Laurence Helfer, of Duke Law's Center for International and Comparative Law. Sitaraman is the Chancellor's Chair in Law and director of the Program in Law and Government at Vanderbilt University.
Revkin receives two research grants to study civilian harm, effectiveness of transitional justice mechanisms
A research team that includes Associate Professor of Law and Political Science Mara Revkin has been awarded a National Science Foundation (NSF) grant to study how the design of transitional justice institutions in countries affected by conflict and/or authoritarianism impacts public opinion and shapes long-term national outcomes such as regime type and conflict recurrence.
The three-year study, "Legitimacy and Efficacy of Transitional Justice Institutions in Comparative Perspective,” will be funded by a $612,000 grant from the NSF's Law & Science Division. Revkin will be joined by co-investigators Roya Talibova, assistant professor of political science at Vanderbilt University, and Gabriella Levy, a postdoctoral research associate at Brown University who received her MA and PhD in political science from Duke University.
The researchers will collect comparable survey measures across Iraq, Ukraine, and Colombia that vary along several theoretically relevant dimensions and build a cross-national dataset. They will then develop and test a novel theory about how public attitudes mediate the relationship between transitional justice institutions and long-term outcomes. Their study will shed light on what forms of transitional justice effectively promote peace, democracy, justice, and reconciliation, as well as provide insights into how countries’ unique histories may shape the impact of transitional justice there.
Revkin says there's an urgent need for more empirical research to develop evidence-based policies in transitional justice, given its widespread use in post-conflict and post-authoritarian countries as well as democracies around the world. In April she co-authored a feature article in The Yale Law Journal identifying a major problem in the field: some of the most well-known transitional justice mechanisms, including those employed in South Africa, Rwanda, and Cambodia, failed to achieve their objectives of peace-building and reconciliation and have even retraumatized the population.
Revkin, who teaches Property and Transitional Justice, uses qualitative and quantitative empirical methods in her work and has conducted field research in Egypt, Iraq, Syria, and South Sudan. She has worked with and advised United Nations agencies and other humanitarian organizations on the design of evidence-based programs and policies that aim to strengthen rule of law and the protection of human rights, support peaceful reconciliation after conflict, and mitigate the root causes of political violence and extremism.
In February Revkin and a separate research team were awarded a £1.5 million grant from the NSF and the UK Economic and Social Research Council to develop an evidence-based law and policy framework to reduce civilian harm in conflict-affected areas, particularly Iraq and Gaza.