Professor Joel Johnson Presents "Major-Questions Lenity" -- University of Arizona Rogers College of Law

Professor Joel S. Johnson presented "Major-Questions Lenity" at the seventh annual National Conference of Constitutional Scholars held at the University of Arizona Rogers College of Law. Professor Johnson spoke on his Minnesota Law Review article, Major-Questions Lenity (SSRN).

Abstract of Major-Questions Lenity

There is a fundamental connection between the historic rule of lenity and the new major questions doctrine. At their core, both doctrines reflect a commitment to the separation of powers on important questions of policy. In light of that shared justification, the logic of the newly articulated major questions doctrine in the administrative-law context has much to offer lenity in the criminal-law context, and the major-questions framework is strikingly similar to a rationale that has begun to emerge in some of the Supreme Court’s recent decisions adopting narrow constructions of 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.

The Court significantly weakened lenity in the mid-twentieth century, and it now plays virtually no role in the construction of federal penal statutes. Instead, the Court relies on a set of more targeted interpretive tools for narrowly construing certain penal statutes.  The practical effect is a regime of partial leniency that deprioritizes the generic separation-of-powers value on which historic lenity was based while elevating more targeted concerns.  As a result, for most penal statutes, the principle that clear crime definition is the legislature’s obligation has been lost, and outcomes often turn on whether courts will exercise implicitly delegated lawmaking authority to adopt narrow constructions on a largely discretionary and ad hoc basis.

A robust major-questions lenity would work to restore historic lenity’s insistence on legislative clarity in crime definition.  It would promote the separation of powers by disciplining prosecutors, courts, and ultimately Congress.  Major-questions lenity would substantially limit the practice of implicit delegation of crime definition and help to curb the adoption of overly broad and literalistic constructions of penal states in the lower courts.

Additional information on the conference may be found at 2025 National Conference of Constitutional Law Scholars