The Many MQDs
Anybody telling you that there’s just one MQD is probably selling you something. There’s still a ton of disagreement about what the MQD is, what purpose it serves, and whether it’s properly within the Chevron framework. I think between Daniel Deacon, Leah Litman, and myself, you have an accurate description of how the MQD was deployed last term: as a super-charged rule of interpretation that requires a showing of clarity over and above plain meaning. But that doesn’t mean those other MQDs up and disappeared. They are still out there anytime a lower court judge or one of the associate justice wants to pick them up.
Second, there’s significant disagreement about what purpose the major questions doctrine serves, and this problem makes for odd bedfellows. So Capozzi argues that the MQD is basically a constitutional canon that gets at the same impulses as the nondelegation doctrine. Pg. 5 (“Indeed, history shows the Court has long—if inconsistently—enforced Article I’s lawmaking requirements through the major-questions doctrine and its doctrinal sibling: the nondelegation doctrine.”). But both Deacon and Litman on the one hand, and Jonathan Adler on the other, have convincingly argued that the MQD has little at all to do with nondelegation per se. Adler recently wrote:
All legislative powers are vested in Congress. Although such powers may be delegated to the executive branch, there is no question where they begin. Put another way, the constitutional allocation of powers embodies a nondelegation baseline: Absent legislative action, all legislative power is in the legislature’s hands, and none is in the hands of any administrative agency or part of the executive branch. This is not a nondelegation doctrine, so much as a delegation doctrine; a doctrine that recognizes that delegations are necessary for agencies to have regulatory power
I think the Deacon-Litman-Adler view is winning a lot of adherents. I’m betting people slowly come to realize that the MQD isn’t really getting at the same issue as the nondelegation doctrine or, by extension, the avoidance canon. I think the Gorsuch view of things loses currency by the day.
The Pro-MQD Literature
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