Today, the Federalist Society hosted a debate between Ilan Wurman and Chad Squitieri on the major questions doctrine (the “MQD”). The debate was interesting and it reminded me about something I was pondering over the holidays. The debate was framed around whether the MQD is consistent with textualism/originalism. The textualist critique of the MQD has a really different flavor from the non-textualist critiques. When Chad and Ilan are debating the MQD, they’re holding a canon of statutory interpretation up against a pre-loaded conception of the judicial role in statutory interpretation. In an important sense, they’re talking about whether the MQD is a legitimate tool of statutory interpretation by channeling their shared grammar for evaluating judicial doctrine.
That conversation, the textualist debate on the MQD, has all the warm familiarity of a genre movie. A textualist who wants to write that paper can call on all the “moves” that people have been making in textualist papers for thirty years. That’s not to say that textualists don’t have sub rosa disagreements that we often just glide right over. But they at least have a shared language for debating whether the absurdity doctrine, avoidance, lenity, and Chevron deference are inconsistent with a textualist’s take on the judicial role in statutory interpretation. Justice Barrett, for example, wrote a paper examining substantive canons’ consistency with textualism and legislative supremacy. Whether a textualist critique of the MQD is a good or bad paper just turns on the level of craft, kind of like the director of a straight-up western.
By contrast, non-textualist critiques of the MQD have focused on describing the MQD’s horrendous consequences. To be clear, that’s important work. We have papers describing the likelihood that the MQD will calcify political polarization into judicial doctrine, make it more difficult for the federal government to tackle global issues like climate change, and undermine our national security apparatus. And you have many papers suggesting that the MQD makes for bad judicial doctrine because it is unmanageable. But while these papers suggest that the MQD is bad doctrine, they only discuss whether the MQD is an appropriate tool of statutory interpretation when leveling a hypocrisy charge at the conservative and avowedly textualist justices for moving beyond text. So if you, like me, cynically think that the consequences and imprecision of the MQD are entirely foreseeable and perhaps intentional, then it’s hard to think that these papers will persuade anyone not already disposed towards viewing the MQD with suspicion. (I don’t think anybody still supporting the MQD will be turned around by charges that the doctrine—gasp—has a deregulatory bend.)
I think there’s at least a few reasons why non-textualist critics of the MQD have avoided making similar claims. First, and most obviously, non-textualist critics of the MQD lack a preloaded and ascendant conception of the judicial role in statutory interpretation. Second, and relatedly, non-textualists are probably feel pretty queasy about reinforcing the kind of formalism that defines modern textualism and originalism. The best way to approach the MQD is as judicial policymaking. Once we acknowledge that the descriptive case for the MQD—the idea that Congress “speaks” clearly when addressing major questions—is just a really bizarre fiction, all roads lead to acknowledging that the MQD is judicial policymaking. I don’t think anybody seriously thinks the MQD is required either by the Constitution or anything else. Even the most hardcore pro-MQD constitutional formalists think it is a second-best option to the nondelegation doctrine. But if you think the MQD is about “second-best originalism,” that’s still a question of policymaking.[i] Non-textualist critics of the MQD can evaluate the doctrine as judicial policymaking—there’s plenty of work to be done there—but to do so critically may require approaches that are unpalatable to purposivists and pragmatists.
Regardless, there’s a noticeable hole in the literature where the non-textualist take on the MQD’s legitimacy should be. Just as an avid consumer of the literature and low-level participant, I’m hoping 2023 is the year where we get more of these kinds of critiques of the MQD. I don’t really mean to suggest that MQD critics ought to adopt any particular conception of the judicial role in statutory interpretation. I just think that whatever your priors on judicial policymaking, folks can do a lot of work in making those priors explicit and evaluating the MQD accordingly. I think there’s a ton of ways to do this without dipping a toe into textualism.
My own thinking on this has evolved over the last year. I’m trying to more rigorously separate my reasons for thinking that the MQD is bad from my suspicions that the doctrine is illegitimate. For me, it all goes back to interpretation-construction distinction (which is a concept for the judicial role that may be older than the Republic). My whole worldview in statutory interpretation acknowledges that there’s some role for judicial policymaking at the tail end of the interpretive process—at least as it has been done in this country since the Founding. But it’s not limitless and the limits are what I’m bringing to the table when I call the MQD an illegitimate tool of judicial self-aggrandizement. Confining courts’ policymaking to construction keeps them from overriding statutory text, undoing legislative supremacy, and subverting democracy. Reinforcing the interpretation-construction distinction is basically what the Court already did in Kisor. (Dibs on the “we just need to Kisor the MQD” essay.) Before Kisor, Chevron and Auer skeptics complained that deference was leading to judicial abnegation. Judges were deferring without giving an honest go at following their best read of statutory and regulatory text. So the Kisor Court made abundantly clear that lower courts are only to defer after they jump through a bunch of hoops. Chevron and Auer are tools of construction, only to be applied in cases of ambiguity as a last resort. MQD just does what critics were always accusing Chevron and Auer of doing. If we did manage to Kisor the MQD, well then the construction zone is a more acceptable place for judicial policymaking. Afterall, judges need to decide cases somehow, even if statutes are hopelessly ambiguous. (I’d prefer if they minimized their judicial policymaking more aggressively but c’est la vie.) If the MQD were a tool of last resort, it would still be awful in my eyes—you know, judicial self-aggrandizement, “made up” yada-yada—but I couldn’t say that there was anything illegitimate about it—at least as a question of judicial practices that have existed for hundreds of years. I wouldn’t even bother to write about that MQD.
Overall, I think that it’s important to start addressing the legitimacy of the MQD. When the shoe was on the other foot, when Chevron skepticism was in its highest gear, scholars, practitioners, and activists objected that Chevron was illegitimate. That language of legitimacy is important for persuasion when folks disagree about their policy priors. To do that kind of work with the MQD, you have to invoke some theory of the judicial role explicitly and hold it up against what the Court is doing.
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