Barrett, J., concurring
obligation (or even permission) to choose an inferior-but-tenable alternative that curbs the agency’s authority—and that marks a key difference between my view and the “clear statement” view of the major questions doctrine. In some cases, the court’s initial skepticism might be overcome by text directly authorizing the agency action or context demonstrating that the agency’s interpretation is convincing. (And because context can suffice, I disagree with Justice Kagan’s critique that “[t]he doctrine forces Congress to delegate in highly specific terms.” Post, at 24.) If so, the court must adopt the agency’s reading despite the “majorness” of the question.[1] In other cases, however, the court might conclude that the agency’s expansive reading, even if “plausible,” is not the best. West Virginia, 597 U. S., at ___ (slip op., at 19). In that event, the major questions doctrine plays a role, because it helps explain the court’s conclusion that the agency overreached.
Consider Brown & Williamson, in which we rejected the Food and Drug Administration’s (FDA’s) determination that tobacco products were within its regulatory purview. 529 U. S., at 131. The agency’s assertion of authority—which depended on the argument that nicotine is a “ ‘drug’ ” and that cigarettes and smokeless tobacco are “ ‘drug delivery devices’ ”—would have been plausible if the relevant statutory text were read in a vacuum. Ibid. But a vacuum is no home for a textualist. Instead, we stressed that the “meaning” of a word or phrase “may only become evident when placed in context.” Id., at 132 (emphasis added). And the critical context in Brown & Williamson was tobacco’s
- ↑ I am dealing only with statutory interpretation, not the separate argument that a statutory delegation exceeds constitutional limits. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 474 (2001) (describing a delegation held unconstitutional because it “conferred authority to regulate the entire economy on the basis of” an imprecise standard).
