A short while ago, I wrote an essay for Law and Liberty criticizing the Major Questions Doctrine. In the Unnecessary Major Questions Doctrine, I argue that the doctrine is both inconsistent with statutory originalism (often described as textualism). I also maintain that the doctrine is not needed to cut back on excessive actions by administrative agency because a true statutory originalism would largely accomplish the same purpose.
What features of statutory originalism would limit excessive agency action? First, there is the correct view “that one should not find significant delegations of authority with a weak textual basis.” This view is often known as the “Congress does not hide elephants in mouseholes canon.” But while this canon invalidates many aggressive statutory interpretation by agencies,
the elephants in mouseholes canon does not yield a clear statement rule for politically and economically significant agency authority. Suppose that a law does not have a clear statement of significant agency authority but does have some moderate textual support for that authority. Perhaps the agency’s authority is supported by general language, structural inferences, and the purpose of the statute. In this situation, the elephant is not in a mousehole and thus an inquiry into the actual meaning of the statute might lead an interpreter to conclude that the statute supports the significant authority, even though the statute does not provide a clear statement. The more general point is that the actual meaning of the statute will depend on various factors and the significance of the authority is merely one factor, albeit an important one.
I point to several other originalist canons that would constrain agency interpretations. First, I recommend a version of the mischief rule – one that is consistent with textualism – that would help to prevent agencies from using older statutes to address new matters not contemplated by the original statute. Second, another originalist canon that would address the same concerns “is that of contemporaneous exposition, which holds that interpretations reached near the time of a statute’s enactment are entitled to greater weight than later interpretations.”
Finally, I argue that an originalist should overrule Chevron deference:
Another important function of the MQD concerns Chevron deference. In simplified form, the Chevron doctrine requires courts to defer to agency interpretations of statutes. Chevron thus has allowed agencies to exercise significant power based on questionable interpretations. For that reason, a majority of the Court appears to have become dissatisfied with the Chevron doctrine, refusing to invoke it but not overruling it.
The MQD allows the courts to bypass Chevron in many cases. By requiring that a statute clearly authorize significant exercises of authority, the Court can conclude that an agency interpretation asserting such authority without a clear statement is an unreasonable interpretation. So, as with the nondelegation doctrine, the MQD allows the Court to reach a result—avoiding the Chevron doctrine—without having to overrule it.
But the proper originalist method for dealing with Chevron is to overrule it. In a recent article, I have argued that Chevron is inconsistent with the original meaning of the Administrative Procedure Act—the statute that generally governs administrative agencies. Chevron deference is inconsistent with the language of the APA and did not exist when the APA was enacted. Thus, originalism justifies eliminating Chevron and does not require the MQD workaround.
There is much more at the link. As they say, read the whole thing!
Posted at 8:00 AM