The Major Questions Doctrine

A Trialogue on the Supreme Court

1

The Major Questions Doctrine (MQD) is one of the most interesting, and maybe one of the most important, doctrinal developments of recent years. The basic idea is that when the executive branch seeks to interpret a statute so as to exercise “transformative” and “unheralded” authority, it must show that Congress has clearly or unambiguously authorized it to do so.

Please don’t fall asleep? The MQD is important in itself. It is also important because it raises disputed questions about the uses and limits of textualism, which is on the ascendancy in the Supreme Court.

In part because of the MQD, the Biden administration lost some important cases, involving forgiveness of school loans, climate change, and COVID-19.

In part because of the MQD, the Trump administration lost the tariffs case.

The MQD is all over the lower courts, which have been showing high levels of confusion.. And here is A fair question: How can textualists embrace the MQD, which seems contrary to textualism?

On the Court, three views have emerged, associated with Justices Kagan, Barrett, and Gorsuch. My main purpose here is to sketch a sympathetic version of each (drawing on the views of the three Justices, without claiming to have tracked their views precisely).

2

Begin with a skeptical view of the MQD:

(a) There is a nondelegation doctrine. It requires Congress to state an intelligible principle. But the Court has not invoked the doctrine often, and it should not invoke the doctrine often. See Justice Kagan’s careful opinion here: https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

(b) There is an Avoidance Canon. Statutes should be construed so as to avoid raising serious constitutional questions. The Avoidance Canon is time-honored and is properly used to construe statutes so as to steer clear of the domain of doubtful constitutionality. To be sure, the Avoidance Canon is not part of textualism - it is a bit anti-textualist - but textualists can embrace it because of its long historical pedigree. (Textualism is an approach, not a religion.)

(c) If we put (a) and (b) together, we should be able to agree that statutes should be construed, if fairly possible, so as not to run afoul of the nondelegation doctrine. Suppose that two interpretations are imaginable. Interpretation A sets out an intelligible principle. Interpretation B does not. Courts should select Interpretation A. See again Justice Kagan’s opinion: https://www.supremecourt.gov/opinions/18pdf/17-6086_2b8e.pdf

(d) There are other canons of interpretation with a substantive component. For example, one such canon holds that statutes should be construed not to apply extraterritorially, and the rule of lenity holds that in the face of doubt, statutes should be construed favorably to criminal defendants. Whatever their justification, these canons tend. to be time-honored. They can be seen as “nondelegation canons,” requiring clear and specific legislative judgments on certain issues. Even so, some textualists have problems with substantive canons. (In my view, they shouldn’t. Such canons have long been built into the fabric of our law. Still, note well: they might be on a collision course with textualism.)

(e) The MQD cannot easily be defended as time-honored. It is new. You could argue that it was first formally named and recognized in 2022! https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf (True, it had some antecedents, and you can trace it back to 2000 or perhaps well before - but before 2022, there was nothing firm or clear.)

(f) The MQD cannot be defended by reference to the Avoidance Canon. The interpretation that the MQD usually forbids would not violate the nondelegation doctrine. If, for example, the Biden Administration had won the Clean Air Act case, there would not have been a serious constitutional question. Or if there were such a question, we would not need the MQD. All we would need is (c) above.

(g) Court should interpret statutes the best they can, using the standard tools. They should not invoke the MQD, which is a recent concoction.

All this, in any case, is the core of the skeptical view.

3

How do we interpret words? How does communication work? Here is a version of Justice Barrett’s view.

Consider this footnote from Wittgenstein: “Someone says to me: ‘Shew the children a game.’ I teach them gaming with dice, and the other says ‘I didn’t mean that sort of game.’ Must the exclusion of the game with dice have come before his mind when he gave me the order?”

The answer to Wittgenstein’s question is “no.”

If someone asks me to show a “game” to children, gambling is not ordinarily taken to be included in the category of “game,” even though it is technically a game. The same is true of Russian roulette, spin-the-bottle, and boxing. We can understand Wittgenstein to be using a form of the MQD, applied to ordinary conversation.

If someone asks me to show the children a game, to get lunch at the grocery store, or to make a restaurant reservation for Wednesday night, “extraordinary” or “staggering” choices, on my part, require strong contextual justification. “I didn’t mean that sort of lunch” or “I didn’t mean that sort of restaurant”—in ordinary conversation, people anticipate that response, and they do not interpret words in a way that that would elicit it.

In this light, and in Justice Barrett’s view, the MQD need not be anything fancy, and it might not need a fancy justification. It can be understood in a way that textualists like (and so Justice Barrett argues).

Suppose that an agency is suddenly understanding a statute in a dramatically new way, giving it significantly broader power than ever before. We might wonder: Did Congress really mean that kind of game?

If that is the justification for the MQD, it is a linguistic canon, reasonably used by textualists, and not a substantive canon at all. Justice Barrett is a textualist, and she does not love substantive canons, certainly not new ones.

When courts say that an agency lacks authority to do X or Y or Z, even though the text is ambiguous, and when courts say that because the relevant authority is transformative and unheralded, they are not loading any dice, or imposing any “clarity tax” on Congress. They are doing their best to capture congressional instructions.

4

Justice Gorsuch is the most vigorous defender of the MQD, and he understands it as an emphatically substantive canon, grounded in the separation of powers.

Article I, section 1 vests legislative power in Congress. If the president is acting, it is generally because Congress has authorized him to do so.

True: Ordinarily courts ask about the meaning of the legislative text, period. But (in Justice Gorsuch’s words): “The Constitution lodges the Nation’s lawmaking powers in Congress alone, and the major questions doctrine safeguards that assignment against executive encroachment. Under the doctrine’s terms, the President must identify clear statutory authority for the extraordinary delegated power he claims.”

And so (in the same Justice’s words): “The major questions doctrine teaches that, to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power.”

This is a unabashedly substantive idea, and a proudly substantive canon. It is not about how communication works.

Thus Justice Gorsuch responds to Justice Barrett: “Commonsense principles of communication do not explain many of our major questions cases—this one included. And if common sense really does go so far as to embrace a rule counseling ‘skepticism’ of claims by executive officials that Congress has granted them extraordinary powers, that is common sense in name only. The reason for such skepticism must be Article I, a ‘substantive’ source ‘external’ to any statute.”

Nor, in Justice Gorsuch’s view, is there anything illegitimate or odd about this. Because Article I vests lawmaking authority in Congress, it is perfectly reasonable to demand clear authorization, from Congress, if the executive seeks to exercise extraordinary powers.

5

These points raise many questions. Here are a few of them, alongside a few observations:

a. Is the MQD really necessary? Does the Supreme Court need it? That is not at all clear. All of the cases decided by reference to the MQD might plausibly have been decided the same way without the MQD. The Court, and the courts, got along for a long time with an MQD.

b. How clear is clear? How clear is clear enough to meet the requirements of the MQD? In some contexts, the Court has not liked these questions at all. In overruling Chevron, in fact, the Court emphasized (and deplored) the difficulty of deciding when a statute is “ambiguous,” so as to trigger Chevron, or clear, so as to render Chevron irrelevant. The MQD seems to force courts to decide the very same question in a new doctrinal box.

c. The line between Justice Kagan’s view and Justice Barrett’s view is not so thick. They can agree on many things.

d. In explaining what he sees as the pedigree of the MQD, Justice Gorsuch refers in part to Lochner era cases, from the late nineteenth and early twentieth centuries, that seemed to demand clear legislative authorization for administrative action. The cases to which he points seemed to exist in the same conceptual universe as those cases that relied on the canon to the effect that “statutes in derogation of the common law must be narrowly construed.” That canon has fallen by the wayside. Lochner-era cases might not be the best imaginable sources of wisdom for the current period.

e. It is not clear that ordinary language principles are sufficient to justify the MQD as Justice Barrett understands it. She probably needs Article I, section 1 as well. (For a fairly detailed discussion, see https://scholarship.law.ufl.edu/flr/vol76/iss1/5/.) Indeed she seems to say as much. If she does need Article I, the apparently heated disagreement between her and Justice Gorsuch might be less sharp than appears. .

f. Despite (e), it is both interesting and important to see that a committed textualist, and one of the best minds on the Court, is nervous about the MQD insofar as it is styled as a substantive canon.

In general: Textualism is in; substantive canons seem to be out. If so, the category of “ambiguity” might start to shrink. The resulting debates will emphatically include the MQD, but they will go far beyond it.