Monday, February 6, 2023

Resistance or Accommodation? `The Major Questions Quartet at the Boundaries of Interpretive Law


West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) 
 Alabama Ass’n of Realtors v. Dep’t of Health & Human Services. 141 S. Ct. 2485 (2021) (per curiam). 
 National Federation of Independent Businesses v. Department of Labor, 142 S. Ct. 661 (2022) (per curiam). 
Biden v. Missouri, 142 S. Ct. 647 (2022) (per curiam).  

Four years ago Neil Gorsuch lamented that the high court’s` Auer deference doctrine embedded “a systematic bias in favor of the federal government, the most powerful of parties, and against everyone else.”   Pining for the days before the Administrative Procedure Act [APA] Justice Gorsuch , concurring in Kisor v. Wilkie, wrote “[O]verruling Auer” would take us “directly back to Skidmore [v. Swift & Co. (1944],  liberating courts to decide cases based on their independent judgment and `follow [the] agency’s [view] only to the extent it is persuasive.” (emph. added)

In West Virginia v. EPA Justice Gorsuch got his wish. The Chief Justice, writing for the court, embraced the shapeless but expansive `major questions doctrine’. Gorsuch celebrated in a concurrence.  Embracing a  "solemn duty" he declared "administrative agencies must now be able to point to “‘clear congressional authorization’” when they claim the power to make decisions of vast “‘economic and political significance.’” To others it is an ambush or as Georgetown's Josh Chafetz sees it A New Judicial Power Grab.

The West Virginia v. EPA majority - in the last of what San Diego law professor Mila Sohoni labeled the Major Questions Quartet - has now declared itself to be implementing a "doctrine".  Chief Justice John Roberts in West Virginia v. EPA  rather breezily promulgated the term in the majority opinion.  The EPA, he wrote

determined that the interpretive question raised by the Clean Power Plan fell under the major questions doctrine. Under that doctrine, it determined, a clear statement is necessary for a court to conclude that Congress intended to delegate authority “of this breadth to regulate a fundamental sector of the economy.”  It found none.  [84 Fed 32529.]

 The Chief Justice demands not  merely good faith execution of  laws of breadth or ambiguity: "[S]omething more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to clear congressional authorization for the power it claims".  The demand for such legislative clarity in foresight is novel.

Underlying the expressions of John Roberts  and other Justices in the Republican  super-majority  is a fundamental hostility to the structure of modern government.  This can be seen in  an antecedent case - City of Arlington v. FCC.  A decade ago Roberts  wrote 

accumulation of all powers...may justly be pronounced the very definition of tyranny James Madison, The Federalist No. 47.  Such “ a central feature of modern American government.

 Elena Kagan, Associate Justice, in her dissent in the EPA case saw a power grab "stripping the EPA of the power Congress gave it" to meet the climate change crisis:

This Court has obstructed EPA’s effort from the beginning. Right after the Obama administration issued the Clean Power Plan, the Court stayed its implementation. That action was unprecedented: Never before had the Court stayed a regulation then under review in the lower courts. See Reply Brief for 29 States and State Agencies in [WVA v. EPA] No. 15A773, p. 33 [2016] (conceding the point). 

The label 'doctrine' for such an unbounded and newly coined slogan as the `major questions doctrine'  is dangerous .  Its ex cathedra feel gives authoritative license to the three Justices and 245 federal judges screened by the Federalist Society's Leonard Leo, nominated by Donald Trump, and shepherded to the bench by then Senate leader Mitch McConnell.  Momentum matters in litigation as in football.  Those recently confirmed  judges are surely encouraged to pursue results directed by the  policy preferences for which they presumably were selected.

On the other hand the doctrine's  bold imprecision  constrains judges taking a more conventional approach to any arguably implicated issue.  The hallowing term "doctrine" will deter  judges reviewing under the APA 5 U.S.C. 706 from deferring both to expert agencies, and to a Congress which sketched objectives but did not command with specificity.  A mainstream judge must confront and claim to respect the "doctrine" to avoid the road to reversal.  

Thrust into recession by the bold new `doctrine' are the traditional constraints  that earned the judiciary the sobriquet the least dangerous branch. Such doctrines include constitutional avoidance, presumption of the lawfulness of Congressional and agency action, and deference to the presumed good faith and competence of executive branch administrative agencies.  The judiciary may be more aptly characterized as the least competent branch - a reflection of its limited resources and lack of popular mandate. Judges, Antonin Scalia once said, are to be governed by "text and tradition".

The "clear statement" demand places sharp retroactive limits on Congress. When, henceforth, Congress employs general terms to guide us - as it must - drafters can have no confidence that a law will not be sufficiently clear  to satisfy a future court facing a novel problem.  Thus in Alabama Realtors Association the Department of Health and Human Services in a per curiam opinion was barred from sustaining its pandemic-based home eviction moratorium.  The court found that the Public Health Service Act's  provision 42 USC 264 `Regulations to Control Communicable Diseases' was not clear enough. Adopted in 1944 it provides:

​The Surgeon General, with the approval of the Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment​ are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. [emph supplied]

That was plainly spoken but insufficient to satisfy a conservative court decades later in the face of a pandemic which would claim over 1,000,000 lives in our country alone. The conceit of the conservative supermajority on the high court is most vividly expressed by Neil Gorsuch.  The Associate Justice, concurring in the Chief Justice's judgment, makes extraordinary demands.  In language paying little heed to the urgency of the crisis Gorsuch demands restraint

Admittedly, lawmaking under our Constitution can be difficult. But that is nothing particular to our time nor any accident. The framers believed that the power to make new laws regulating private conduct was a grave one that could, if not properly checked, pose a serious threat to individual liberty. See The Federalist No. 48, at 309–312 (J. Madison)

But the now-hallowed Framers (as only the 18th Century leaders are labeled, excluding the slaveless second founders of the post civil war era) were propertied, not followers of a landless carpenter.  They confronted a distant Parliament and a Monarch for whom no colonist cast a vote.  The leaders of the post-New Deal regulatory state govern by Notice and Comment rule-making within statutory confines and subject to judicial review. The constraints are embedded in the Administrative Procedure Act. Yet the language of the judges nominated by Republican Party Presidents  evokes tyranny, as does the language of adherents of that party who again hold a majority in the House of Representatives.  One can locate recent origins in FDA v. Brown & Williamson (2000).  The Justices,emphasizing "overall statutory design" rejected the Obama administration efforts to extend to tobacco the reach of the FDA under the Food Drug and Cosmetic Act.  Nine years later the FDA gained the ability to address the problem via  the Tobacco Control Act.


We face  choices of whether to accommodate the Supreme Court's rulings as barriers not to tyranny but to executive overreach in emergency as does Jed Shugerman as amicus opposing the Biden administration's brief in defense of its student debt relief plan; name and challenge the MQD as judicial  self empowerment as does  Beau J.Baumann in Americana Administrative Law,  submit, or wage a long campaign to resist and restructure the judiciary's vision of its role, as suggested by Josh Chafetz who sees a bipartisan Judicial Power Grab, and by Daniel Walters in the essay below.  

. The problems, of course are in certain ways endemic to law making.  Thus Aristotle in his Rhetoric Book 1, ¶13 wrote 2,700 years ago:

    Equity’s existence partly is and partly is not intended by the legislators; not intended where they have noticed no defect in the law; intended where they find themselves unable to define things exactly, and are obligated to legislate as if that held good always  which in fact only holds good usually.

To Aristotle `equity' meant what Adrian Vermeule in The Original Scalia describes as "what the classical lawyers would have called aequitas or epikeia, case-specific adjustments necessary in hard cases, when general rules of positive law are ambiguous, silent, incomplete or absurdly broad in the circumstances."

Today the dispensers of such case-specific adjustments are the often-maligned highly structured agencies to which the German Social scientist Max Weber gave the name bureaucracy.  Of these agencies Vermeule recently declared:

There is no alternative to the administrative state. There is no dismantling of it. To dismantle it would be to dismantle the American constitutional order.

 In West Virginia v. EPA a majority of the self-aggrandizing Supreme Court formally declared the existence of a new doctrine: the Major Questions Doctrine - a hammer to break the power of the national government's administrative agencies.

As Texas A&M law professor Daniel Walters explains

Substantive canons of interpretation come in all kinds of different forms, from weak presumptions to clear statement rules to super-strong clear statement rules. They also cover all sorts of policies, and now we can add to their ranks the major question doctrine’s requirement that Congress supply a clear statement of its intent to delegate major regulatory authority to agencies before a statute will be interpreted to grant that authority."  

Christopher Walker at University of Michigan presumes we will be laboring under the current super majority.  He calls for Congress to devise   a Rapid response procedure similar to the Congressional Review Act5 USC 801-808.  Walker suggests that when a court rejects an action relying on the `doctrine' that Congress in an expedited procedure not subject to the Senate filibuster rule address the provision found insufficiently clear.

Embrace of such expedition is not available in today's divided Congress but could, with bi-partisan vision, be welcomed.

- George Conk 2/9/2023

The Major Questions Doctrine at the Boundaries of Interpretive Law

Daniel Walters

Texas A&M University School of Law

Date Written: February 4, 2023


The Supreme Court’s transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions will have wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost entirely alone in its structural features. With the exception of the much-maligned absurdity doctrine, the new major-questions-doctrine-as-clear-statement-rule is the only substantive canon that combines two extreme design elements of canons: first, a weak relationship to existing authoritative constitutional law, and, second, unbounded potential applicability. While courts and scholars have accepted or created many canons that have one or the other of these extreme features, they have conspicuously avoided combining these two features in any new canon—perhaps because the combination exponentially increases the potential interference of canons with Congress’s exercise of the legislative power. This avoidance has helped to keep the Court’s use of substantive canons within recognizable boundaries that preserve a limited role for the judiciary. Now that the modern Court has, for the first time, taken this step in the recognition of a new canon, it is time to assess the limits of canons in a system of limited judicial power.

This article undertakes that project, finding that the major questions doctrine’s novel features are a tell of serious theoretical and constitutional infirmities. If canons can take on this unique combination of features, there are no speed brakes to stop the unraveling of the faithful agent model at the center of standard textualist and intentionalist accounts of the judicial power to interpret statutes. If such canons could be justified at all, it would only be under a more dynamic statutory interpretation approach that explicitly departs from legislative supremacy, but the extremity of the major questions doctrine potentially goes beyond partnership to judicial takeover of the legislative power, putting significant pressure even on these justifications. In sum, the major questions doctrine’s novel step in the law of interpretation raises new questions about the limits of substantive canons. It is not enough for the Court and defenders of the doctrine to identify the major questions doctrine as a canon; they must explain why newly recognizing this form of canon is consistent with core theoretical, normative, and constitutional commitments in our legal system.

Keywords: major questions doctrine, statutory interpretation, west virginia v. epa, chevron, substantive canons, separation of powers, judicial power, legislative power, delegation, administrative law

Walters, Daniel, The Major Questions Doctrine at the Boundaries of Interpretive Law (February 4, 2023). Available at SSRN:

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