I don't accept that the Supreme Court majority is engaged in a good faith effort to manage the balance between executive and legislative branches. That is for the voters and the elected branches to work out. The Court is engaged in judicial aggrandizement motivated by ideological hostility to the practical necessity of effective administrative agencies - the life-blood of the modern state. By framing its arrogation of power as unreviewable constitutional interpretation the Supreme Court majority masks its ideological crusades.- GWC
The Major Question Doctrine, Nondelegation, and Presidential Power, by Daniel Farber
*This is the seventh post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here.
In West Virginia v. EPA, the Supreme Court struck down Obama’s signature climate regulation based on the major question doctrine. The Court’s rationale was that EPA needed a clear directive from Congress before it could decide an issue of such political and economic importance. Peter Shane had anticipated that possible outcome in a Washington Monthly article about the case, describing the doctrine as a “cousin of non-delegation.” The implication of the doctrine, he added, is that “statutory readings that give agencies too much discretion to adopt policies of vast economic and political significance would wind up approving unconstitutional delegations and should thus be avoided.”
Viewing the major question doctrine as an offspring of the nondelegation doctrine seems to be the conventional wisdom. It is also an idea that Justice Gorsuch in particular has done everything possible to promote. Shane’s new book, Democracy’s Chief Executive, does not discuss the major questions doctrine, so far as I can tell. But some of Shane’s observations in the book point toward a different understanding of the major question doctrine, one aimed more at constraining the President than at disciplining Congress for giving away too much power. From this perspective, the major questions doctrine has more to do with the Steel Seizure case and its concerns over unsanctioned executive action than with the nondelegation doctrine.
Several insightful comments in the Shane book hint at this concern. Shane complains that Presidents of both parties “assert arguably attenuated readings of existing statutory law as delegating to the executive branch broad administrative powers.” As examples of such actions, he points to Clinton’s bombing of Kosovo and Obama’s interpretation of the Affordable Care Act. [p. 28] Shane later expresses concern that emergency laws provide the President with too much power to implement their own policies, pointing to a proposal by Sen. Bernie Sanders to use an economic emergencies law to impose sanctions on carbon emitters. [p. 211] And in the area of foreign affairs, he applauds a Supreme Court opinion incorporating a “preference for legislative deliberation to precede executive action,” including a requirement for a clear statement before a treaty impacting areas of state law will be considered self-executing. If the President were allowed to carry out a treaty domestically in the absence of a clear statement, Shane adds, the President would be “effectively making law, not executing it.” [p. 189]
None of these statements directly address the major question doctrine. But they all point toward a reason to require clear delegations from Congress on matters that are critically important—not so much as a way of preventing Congress from giving away too much power as a way to prevent Presidents from snatching powers they were not given.
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