Readers of Jotwell’s administrative law section need no introduction to the major questions doctrine—either in its older forms, or in its new and more muscular incarnation as a clear statement rule that requires that Congress speak in pellucid terms in order to authorize an agency to regulate a question of “major” significance. What some readers may not have noticed is that the stream of commentary on the new major questions doctrine has already burgeoned to such an extent that simply keeping up with it all is no small challenge. In his own recent contribution to this growing corpus, Professor Chris Walker recalled Justice Scalia’s Brand X dissent, which sardonically saluted the Court for creating “a wonderful new world … full of promise for administrative-law professors in need of tenure articles and, of course, for litigators.” But that list is far too short. The new major questions doctrine is also evidently “a wonderful new world” for podcasters, bloggers, essayists, and op-ed commentators—not to mention quite a few administrative law professors who already have tenure (including me).
Professors Daniel Deacon and Leah Litman, in their impressive article The New Major Questions Doctrine, presented an early assessment of the doctrine within mere weeks (!) of the Term’s end. They begin by situating the doctrine against other tools available to courts to constrain the exercise of authority by administrative agencies: statutory interpretation and nondelegation doctrine. (Pp. 8-12.) They correctly detect an “evolution” (P. 13) in the Court’s approach to the major questions doctrine beginning with the Court’s decision in the case challenging the CDC’s imposition of a nationwide eviction moratorium. In that decision, in the subsequent challenge to the OSHA vaccine mandate, and in West Virginia v. EPA, the Court gradually shifted its application of the major questions doctrine, ultimately shaping it into a rule that “frames—and alters—the entire enterprise of statutory interpretation.” (P. 23.) As the Court left matters at the close of the last Term, the new major questions doctrine requires that statutory authorization to address a major question “jump off the page.” (P. 25.)
Can this doctrine be justified on the grounds that the doctrine serves to enforce the “values underlying the nondelegation doctrine?” (P. 29.) Not really: as they note, “the major questions doctrine, again at least as articulated thus far, does not itself prohibit agencies from exercising delegated authority under open-ended guidelines. It just requires Congress to specifically list potentially major things an agency might do pursuant to those open-ended guidelines.” (P. 30.) Thus, while the new major questions doctrine imposes “a significant practical limit on agencies’ authority,” it “does not avoid constitutional issues with broad or open-ended delegations to agencies.” (P. 30.) The authors tease out various ways in which the Court departed from textualism in the cases articulating the doctrine, ultimately likening its effects to a diluted variant of the absurdity doctrine that allows for a “resort to purposivism.” (Pp. 30-32.)
Many commentators on the new major questions doctrine have focused on the doctrine’s indeterminacy and its susceptibility to manipulation by courts. Deacon and Litman, however, devote considerable attention to its manipulability by entities other than courts—notably, by political parties and special interest groups. They contend that because the new major questions doctrine regards politically controversial rules as “major” rules, the doctrine permits “a motivated political party to functionally amend a statute through political opposition rather than through the legislative process.” (P. 38.) They make the provocative argument that this result sits uneasily with the structural constitutional principles enforced in INS v. Chadha and Clinton v. City of New York, both of which pivoted on the proposition that laws may not be amended without passing the hurdles of bicameralism and presentment. (Pp. 39-40.) They also stress that the new major questions cases have relied on Congress’s failure to enact legislation as a reason to reject regulatory measures that resemble the failed legislation. (Pp. 45-46.) This reliance, they argue, means that a party that controls just one house of Congress can block legislation and thereby increase the odds that a similar regulatory policy will be deemed “major.” Indeed, a minority party that controls only enough votes to filibuster legislation in the Senate may wield that power “to effectively amend existing legislation.” (P. 47.) And special interest groups that were on the losing end of the political process when a statute such as the Clean Air Act was enacted can now leverage the new major questions doctrine to get another bite at the apple in the courts. (P. 48.)
The paper does a lovely job of connecting the new major questions doctrine to broader debates about constitutional doctrine and its methodology. Building on Litman’s prior scholarship critiquing the “anti-novelty principle” at work in constitutional law cases, the authors argue that “regulatory novelty does not signal an agency’s (or anyone’s) views about the meaning of a statute,” for regulatory novelty may simply be a necessary response when an agency is faced with, and has to tackle, novel problems—such as, for example, a global pandemic or climate change. Similarly, they show, the slippery-slope-style reasoning that underpinned cases such as NFIB v. Sebelius and United States v. Lopez has now come to roost in the new major questions cases. (Pp. 51-52.) The odd consequence, they argue, is that the legality of what an agency is doing today will be measured not by the yardstick of the statutory text as written, but rather by the reach of what an agency might claim it wants to do in the future. The substantive consequence of the doctrine, predict the authors, will be to produce a kind of selective judicial deregulation of important subjects rather than to enhance Congressional resolution of major regulatory questions. The doctrine, they therefore charge, is “faux judicial minimalism” (P. 58), rather than genuine judicial modesty.
Throughout their wide-ranging paper, Deacon and Litman remind us that a doctrine that in form purports to be accomplishing one task—keeping agencies within the bounds of their statutory ambit—may, in substance, be doing something quite different: selectively deregulating private conduct, exacerbating political polarization, empowering minority rule, and inviting courts to engage in ad hoc determinations of political salience that they are ill-suited to adjudicate dispassionately. In articulating a clear statement rule ostensibly linked to “separation of powers principles,” the Court set out what seems to be a simple formal rule. But in its functional operation, and in its substantive effects, the doctrine wires together politics and ideology with law in a complex and combustible combination. Of course, the veneer of a formal rule has its benefits—at least to the institution applying the veneer. As Duncan Kennedy once reminded us in an entirely different context, “there will often be a great tactical advantage, for a court which wants to expand its power at the expense of another institution, in casting the norms it wants to impose in the rule form.” On reflection, maybe it’s not such a “wonderful new world,” after all.
