미국 헌법 판례상 중요문제원칙(Major Questions Doctrine)의 전환과 사법부 권한의 확장:새로운 MQD의 진화과정, 법적 성질, 그리고 권력분립 관점에서의 함의

This article explores the recent transformation of the Major Questions Doctrine(“MQD”) in the U.S. Supreme Court’s constitutional jurisprudence and the resulting expansion of the Judicial power. Under the New MQD, if an executive agency intends, based on a certain statute, to exercise a novel type of authority that entails “vast economic and political significance,” it must prove the existence of a clear congressional authorization. The MQD was originally devised as a supplementary guiding principle supporting the application of the Chevron deference framework. However, between 2021 and 2023, it transformed into an independent canon of statutory interpretation that is separated from the Chevron framework. The resulting ‘New MQD’ operates as a clear statement rule. Because the MQD potentially applies to all types of statutes, because the courts exercise wide discretion in determining whether to apply the MQD, and because, when applied, the MQD effectively nullifies the legal effects entailing the most plausible interpretation of a particular statute, in practice the MQD essentially functions as a ‘partial judicial veto power.’ Also, because the MQD is a recently-invented novel clear statement rule with a weak connection to a specific constitutional norm, it is in great tension with textualism, an interpretive methodology that seeks to restrict the judiciary’s powers relative to the legislative branch. Due to these characteristics, the MQD does not alter the legal landscape in the regulatory field in a way that replaces a system of executive supremacy with a system of legislative supremacy, but instead, replaces the former with a system of judicial supremacy over both the executive and legislative branches. The MQD is likely to increase the probability of triggering instances where the judiciary, based on a standard of review that relies heavily on the subjective policy perceptions of individual judges, interferes more frequently and more deeply in decisions that have a highly political character. This, in turn, is likely to harm legal stability and damage the social trust the judiciary enjoys. Recognizing that the MQD’s transformation in the U.S. legal system is a problematic phenomenon, the Korean judiciary should, in principle, refrain from newly adopting a novel doctrine of statutory interpretation that shares similar characteristics with the MQD. And as for the Korean Constitutional Court’s doctrine on the Principle of Statutory Reservation, which shares substantial structural similarities with the MQD, the Constitutional Court needs to take care, in the process of specifying that doctrine, to ensure that its phase of application and legal effects do not evolve to resemble those of the MQD.