At Law & Liberty, Robert Natelson: Gorsuch’s Take on the Major Questions Doctrine. From the introduction:
Justice Neil Gorsuch’s concurring opinion in the tariff case of Learning Resources v. Trump rightfully has garnered favorable attention. This is largely due to its clear explanation of the Supreme Court’s “major questions doctrine.” As recited by Justice Gorsuch, the major questions doctrine is that, “to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power.” Not all the members of the court agree with that formulation, but it does seem to command a majority of the justices.
Justice Gorsuch’s statement of the doctrine, however, leaves a circle open that I would like to close. My thesis is that the major questions doctrine is simply the logical obverse of the doctrine of incidental (or implied) authority. This is a doctrine of agency law assumed throughout the Constitution, and embodied specifically in the Necessary and Proper Clause.
And from the conclusion:
Let us return to Justice Gorsuch’s statement of the major questions doctrine: “to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power.” To say that the power is “extraordinary” (i.e., outside the normal order) is to say that (1) it is of equal or greater magnitude than powers expressly granted or (2) it is otherwise discordant—i.e., neither customary nor necessary to exercising powers expressly granted. Thus, if the power is “extraordinary,” it cannot be incidental. Under those circumstances, one can infer that if Congress intended to grant such a power, it would have said so.
The doctrine of incidental authority appeared in some of the nineteenth-century cases Justice Gorsuch cited to show that the major questions doctrine is not new. Here is an excerpt from Hawtayne v. Bourne (1841). I have italicized words referencing custom and necessity:
Now the extent of the authority conferred upon the agent by his appointment was this only—that he should conduct and carry on the affairs of the mine in the usual manner; there is no proof of express authority to borrow money from bankers for that purpose, or that it was necessary in the ordinary course of the undertaking; and certainly no such authority could be assumed.
Similarly, in the 1857 Alabama case of Ex Parte Burnett, the court held that a municipality’s authority to regulate the sale of liquor could not imply the even greater power of prohibiting it.
In summary, the major questions doctrine holds that if an executive agency’s power is extraordinary, it must be express. The doctrine of implied, incidental powers says that for a power to be incidental, it cannot be extraordinary. They are logically the same.
Posted at 6:22 AM