Antideference: COVID, Climate, and the Rise of the Major Questions Canon - Richardson // Virginia Law Review

"The major questions canon purports to be a matter of principle. It is in reality a matter of power, an assertion of unbounded judicial supremacy in the most important administrative law cases."

Antideference: COVID, Climate, and the Rise of the Major Questions Canon - Virginia Law Review

By Nathan Richardson 108 Va. L. Rev. Online 174 (2022)

Skepticism on the Supreme Court toward administrative authority has evolved into open hostility over the course of the past year in two cases related to the COVID-19 pandemic. The legal vehicle was not, as widely expected, rejection of Chevron’s deference rule or a reanimation of the nondelegation doctrine. Instead, it was formal elevation of the “major questions doctrine” into a substantive canon of construction. This new canon significantly curtails not only executive power (via agencies) but Congress’s legislative authority—and, ultimately, democratic control of policy. It adds a new veto point to the American political system, licensing judges to reject any delegation of power they deem economically or politically significant with little regard for statutory text. 

The only remedy is a super-clear statement in legislation, similarly subject to judicial discretion. For such major cases, the Court has shifted from deference to antideference, actively antagonistic to delegated power. By its architects’ own admission, this canon is simply the nondelegation doctrine in disguise. It threatens to cripple the administrative state, particularly in emergencies and in areas of evolving science, such as pandemics and climate change.

Conclusion:

The major questions canon takes an entire class of cases not only out of Chevron’s deference regime, but out of any meaningful textual or contextual analysis. Instead of avoiding the difficulties of applying the nondelegation doctrine, the major questions canon achieves the same purpose sub rosa. Control over the bounds of the principle is entirely in the hands of judges, with little clarity and no limiting principle. In short, it licenses judicial policymaking while professing to protect Congress and the people from agency overreach. [emph.added] The impacts on democratic accountability and the effectiveness of administrative government are likely to be profoundly negative.

The major questions canon purports to be a matter of principle. It is in reality a matter of power, an assertion of unbounded judicial supremacy in the most important administrative law cases. The danger of major questions juristocracy is that judges—specific people, with lifetime tenure—are empowered to enact their political preferences. Gillian Metzger warned of a “1930s Redux”, a boldly anti-administrative Court relitigating interbranch power struggles thought resolved in the New Deal Era.²⁰⁰ But the major questions canon gives the Court powers that its 1930s counterparts never dreamt of.