My article "An Originalist Defense of the Major Questions Doctrine" is now published in the Administrative Law Review (76 Admin. L. Rev. 819 (2024), available from their website here). Here is the abstract:
According to the U.S. Supreme Court, the major questions doctrine requires “clear congressional authorization” for agencies to exercise delegated authority over “major policy decisions.” But where can the Court find constitutional authority to announce such a rule? That question divides originalist-oriented scholars and judges. Some have criticized the doctrine sharply as departing from a court’s obligation to apply a law’s textual meaning. Others have defended it as arising from congressional intent, ordinary linguistic conventions, or a constitutionally based rule against delegation of legislative power.
This Article undertakes a broader originalist defense. First, it describes the major questions doctrine as a substantive canon—that is, an interpretive rule based not on linguistic conventions but on an extra-textual value of protecting the separation of powers. Second, it assumes that the major questions doctrine need not be derived from a direct constitutional command against delegation. It then argues instead that the major questions doctrine can be seen as part of a broader power of courts to read ambiguous federal laws narrowly to avoid erroneously undermining core founding-era structural assumptions. The article explores early post-ratification judicial practice in support. It concludes that the early judicial practice indicates a discretionary authority, uncontested at the time, to underenforce ambiguous laws in this manner. It thus links early interpretive canons such as the presumption against violations of international law and the presumption against civil retroactivity, with the modern Court’s longstanding presumptions protecting federalism and the present Court’s recent invocation of the major questions doctrine.
In the same issue of the Administrative Law Review, and something of a counterpoint: Kevin O. Leske (Dayton), Major Questions Hypocrisy (76 Admin. L. Rev. 771 (2024)). Here is the abstract:
If asked to name some of the core beliefs of the current Supreme Court Justices, one would undoubtedly identify their allegiance to maintaining the separation of powers and to interpretative methods such as textualism, as well as taking an anti-activist approach in their roles as decisionmakers. Yet several of these bedrock principles, especially textualism, have been trumped in several notable recent cases when the Court has invoked the newly-metamorphosized “major questions” doctrine.
The major questions doctrine, as it stands today, requires courts to scrutinize agency action where the agency is attempting to exercise powers of deep economic or political significance or to exercise powers in a way that would effectuate an enormous and transformative expansion of the agency’s regulatory authority. Only if the court finds that Congress clearly authorized such power can the court sustain the action.
But this approach is not the way the doctrine had previously functioned in our administrative state. In my 2016 article on the major questions doctrine, I highlighted a significant expansion in how the doctrine had recently been applied in Supreme Court cases at that time. As originally conceived in two early cases, the Court raised the doctrine as part of its Chevron Step-One analysis to determine whether the statutory language in question was ambiguous. But upon resurrecting the doctrine in 2014 and 2015, the Court invoked the doctrine in other stages of the Chevron analysis, including to justify that the Chevron analysis should not apply at all.
Now, in a series of very recent cases, the doctrine has transformed into a much more significant —and perilous —doctrine with respect to how it functions in both our administrative state and in our democracy. The doctrine can now be better regarded as a canon of construction employed to strike down agency action —even in cases where there is statutory textual support for agency’s assertion of power and where Congress’s underlying grant of power to the agency does not effectuate an unconstitutional delegation of legislative power.
This presumption against agency power (and the requirement that there be a specific congressional grant) effectively diminishes legislative and executive power. Moreover, it represents a dramatic type of judicial activism that fails to respect accountability principles in our democratic system and the separation of powers. With this new doctrine now firmly in place, this Article analyzes how the major questions doctrine is incompatible with the Court’s fidelity to textualism. The Article concludes that the Court’s application of the doctrine also manifests a hypocrisy because although the Court purports to be protecting accountability principles and Congress’s power (and more broadly the separation of powers) when it invokes the doctrine, the Court is actually subverting these principles.
My article doesn't defend the doctrine on the basis of textualism, but it does defend the doctrine from the perspective of separation of powers.
Posted at 6:27 AM