Concurring in Nebraska v. Su, decided at the end of last year by the Ninth Circuit but increasingly relevant, Judge Ryan Nelson argues that the major questions doctrine should apply to delegations to the President as well as delegations to executive agencies. From the opinion:
I write separately to explore a more fundamental question: Does the major questions doctrine apply to statutes that delegate authority to the President? The answer, in my view, is yes. The Supreme Court has never suggested that the President is exempt from major questions analysis. And it makes little sense to think that he is. Broad legislative delegations to the Executive Branch—whether to the President or to administrative agencies—are inherently suspect. …
Much ink has been spilled on the “source and status” of the major questions doctrine. Biden v. Nebraska, 143 S. Ct. 2355, 2376 (2023) (Barrett, J., concurring). Some view the doctrine as a substantive canon rooted in non-delegation principles. See Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 595 U.S. 109, 124 (2022) (per curiam) (Gorsuch, J., concurring) (the major questions doctrine and nondelegation doctrine are both “designed to protect the separation of powers”). [Ed.: this is my view. See here.] Others understand the doctrine as a linguistic canon—“an interpretive tool reflecting ‘common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.’” Nebraska, 143 S. Ct. at 2378 (Barrett, J., concurring) … The Supreme Court in West Virginia—its clearest explanation of the major questions doctrine—does not take a side on that debate. 597 U.S. at 723 (the doctrine’s justifications include “both separation of powers principles and a practical understanding of legislative intent”).
Regardless of its source, the major questions doctrine does not yield because Congress delegated authority to the President and not an agency.
Let’s assume major questions is fundamentally a separation of powers doctrine. On that view, the doctrine keeps Congress in its constitutional lane, preventing it from delegating “fundamental policy decisions” to the Executive Branch. Indus. Union Dep’t, AFL-CIO v. Am. Petrol. Inst., 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring in the judgment); see U.S. Const. art. I, § 1. It makes no difference which Executive Branch officer has received an unlawful delegation: the “entire ‘executive Power’ belongs to the President alone.” Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 213 (2020) (quoting U.S. Const. art. II, § 1). Yet “it would be ‘impossib[le]’ for ‘one man’ to ‘perform all the great business of the State,’” thus why the President enlists subordinates to assist him in “faithfully execut[ing]” the laws. Id. (quoting 30 Writings of George Washington 334 (J. Fitzpatrick ed. 1939); U.S. Const. art. II, § 3). But the “buck stops with the President.” Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 493 (2010). Article II “makes a single President responsible for the actions of the Executive Branch”—whether they stem from the White House or a federal agency.1 Id. at 496–97 (quotation omitted); see Louisiana v. Biden, 55 F.4th 1017, 1031 n.40 (5th Cir. 2022) (“[D]elegations to the President and delegations to an agency should be treated the same under the major questions doctrine.”).
Indeed, a unitary executive is entrenched in our constitutional structure. The Founders envisioned a system in which the executive power is concentrated in a single President who does not make the laws, but executes them. See The Federalist No. 51 (James Madison), Nos. 70, 77 (Alexander Hamilton). The Supreme Court’s major questions cases recognize that basic premise: “Under our system of government, Congress makes laws and the President, acting at times through agencies . . . ‘faithfully execute[s]’ them.” UARG, 573 U.S. at 327 (quoting U.S. Const. art. II, § 3). Unconstitutional delegations are no less problematic when they are directed to the individual who ultimately “bears responsibility for the actions of the many departments and agencies within the Executive Branch.” Trump, 144 S. Ct. at 2327.
Distinguishing between presidential and agency delegations also ignores the realities of administrative decision-making. The President is likely to be closely involved in major policies, even if they are ultimately promulgated by an agency. [Ed.: this is especially apparent under the new Trump administration.] Take student loans. President Biden campaigned on a promise to provide student debt relief for low- to middle-income borrowers. Fact Sheet: President Biden Announces Student Loan Relief for Borrowers Who Need It Most, The White House (Aug. 24, 2022), https://perma.cc/492Y-5LZ9. After taking office, President Biden announced, “that the Department of Education will provide targeted debt relief to address the financial harms of the [COVID-19] pandemic, fulfilling [his] campaign commitment.” Id. Six days later, the Department of Education published a memorandum interpreting federal law to give the Education Secretary authority “to effectuate a program of targeted loan cancellation directed at addressing the financial harms of the COVID-19 pandemic.” Notice of Debt Cancellation Legal Memorandum, 87 Fed. Reg. 52,944 (Aug. 30, 2022). That agency interpretation— which satisfied a presidential campaign promise—was later found to violate the major questions doctrine. Nebraska, 143 S. Ct. at 2372–75.
Agreed, there's no basis under the major questions doctrine for distinguishing between an agency controlled by the President and the President himself. The difficult question is whether there are some presidential powers to which the doctrine does not apply (Judge Nelson acknowledges this point in a footnote) — but that question is raised regardless of whether the delegation is to the President or to the agency carrying out the President's directions.
(Via Ilya Somin at Volokh Conspiracy, who has additional thoughts: Why the Major Questions Doctrine Applies to the President, Not Just Executive Agencies.)
Posted at 6:09 AM