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Abstract

Since President Donald Trump’s first term in office, the Supreme Court has become increasingly dominated by justices who identify as textualists. In recent years, the Court’s environmental decisions (and the Court itself) have become the center of public scrutiny. As President Trump proceeds through his second term in office, how can legal experts and policymakers better understand the trajectory of the current court? Answering this question is vital as the legal community faces new questions surrounding the Rule of Law.

This Article centers on recent Supreme Court case law, including the Court’s controversial Clean Water Act (“CWA”) decision in Sackett v. Environmental Protection Agency, to present a logical, normative approach to understanding statutory interpretation. This Article leverages positivist theories of the law and textualist methods of interpretation to establish a New Normative Framework of interpretation. Legal experts, policymakers, and the public will all benefit from approaching the law under the New Normative Framework because it produces clear, intelligent guidelines for statutory interpretation and prevents legal decisions from being criticized solely based on their effect. Ultimately, a normative approach to interpretation better serves the Constitution and protects the separation of powers. By revisiting the interpretive role the Judiciary plays, policymakers can focus their efforts on establishing clear positive law through Congress rather than relying on court-based policy directives.

I. Introduction

II. Theories of the Law ... A. Natural Law ... B. Legal Postitivism ... C. Legal Realism

III. The New Normative Framework ... A. Legal Positivism—a Normative Theory of Law ... 1. Norms and Facts ... a. Validity of Norms ... b. Criticisms of Legal Positivism and Validity ... 2. Norms and Morals ... 3. Interpretation of Legal Norms ... B. Textualism ... C. Connecting Legal Positivism and Textualism

IV. Applying the New Normative Framework ... A. The Clean Water Act and Sackett ... 1. “The Waters of the United States” ... 2. Protection of Wetlands Under the Clean Water Act ... 3. Justice Kagan’s Concurrence

V. Conclusion

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