The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2016, I wrote an article about Zubik v. Burwell and United States v. Texas. In this piece, I discussed the "major question doctrine." Or was it the "major questions doctrine"? Really, I wasn't even sure what label to use. I remember searching decisions to find some clarity on what to call it, and failed. Hell, it wasn't even a real "doctrine" at the time. For reasons I cannot recall, I settled on "major question doctrine" (singular).
Here is how I described the doctrine in 2016–and it passed the eagle-eyes of the Harvard Law Review editors:
Under the familiar rule established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., courts will defer to an agency's interpretation of an ambiguous statute, so long as the interpretation is reasonable. In a series of somewhat disjointed cases over the past two decades, the Supreme Court has carved out an important but under-theorized exception to Chevron. When a regulation implicates a "major question" the agency is owed no deference.
I then discussed the canonical cases: MCI v. AT&T, FDA v. Brown & Williamson, Whitman v. American Trucking, Gonzales v. Oregon, Utility Air Regulatory Group v. EPA, and King v. Burwell. I observed (how quaint!) that Justice Kennedy was in the majority of each major question case.
Then I identified nine (nine!) factors to determine when the major question doctrine ought to kick in.
The Supreme Court has never fully clarified when the major question doctrine applies. Or to be more precise, the Justices have never given guidance about how to administer the "line between rodent and pachyderm."The case law suggests at least nine factors, none dispositive, to determine if a decision is major: when an agency, lacking the requisite "expertise," (King) relies on an "unheralded power" (UARG) that was "cryptic[ally]" (FDA) delegated through "vague terms or ancillary provisions," (Whitman) to effect a "transformative expansion" (UARG) and "fundamental revision" (MCI) of a law with a "unique political history" (FDA) that is of "enormous importance" (MCI) and "deep 'economic and political significance.'" (King) Not exactly a model of clarity.
Fast-forward to West Virginia v. EPA. We now learn that the proper label is the "major questions doctrine" (plural) not "major question doctrine" (singular). And the Court whittles down the nine factors to a handful–how many exactly, I am not sure. And the MQD is still not a model of clarity.
There was a spirited debate between Chief Justice Roberts and Justice Kagan about whether the "major question doctrine" is even a thing.
Kagan writes that the Court "announced" this new thingamajig.
The majority today goes beyond those sensible principles. It announces the arrival of the "major questions doctrine," which replaces normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules. Apparently, there is now a two-step inquiry. First, a court must decide, by looking at some panoply of factors, whether agency action presents an "extraordinary case."If it does, the agency "must point to clear congressional authorization for the power it claims," someplace over and above the normal statutory basis we require. The result is statutory interpretation of an unusual kind.
Roberts replies that there is nothing new here. FDA is the root:
The dissent criticizes us for "announc[ing] the arrival" of this major questions doctrine, and argues that each of the decisions just cited simply followed our "ordinary method" of "normal statutory interpretation." But in what the dissent calls the "key case" in this area, Brown & Williamson, the Court could not have been clearer: "In extraordinary cases … there may be reason to hesitate" before accepting a reading of a statute that would, under more "ordinary" circumstances, be upheld. Or, as we put it more recently, we "typically greet" assertions of "extravagant statutory power over the national economy" with "skepticism." Utility Air. The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line—a requirement of "clear congressional authorization"—confirms that the approach under the major questions doctrine is distinct.
And, in what must be a first, the Chief Justice gives a fig what scholars think!
As for the major questions doctrine "label,"it took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted. Scholars and jurists have recognized the common threads between those decisions. So have we. See Utility Air (citing Brown & Williamson and MCI); King v. Burwell (2015) (citing Utility Air, Brown & Williamson, and Gonzales).
Reminds me of this line from Obergefell:
Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts
In response, Kagan charges that the "major questions doctrine," to the extent that it existed, was very different before John Roberts corrupted it:
The majority claims it is just following precedent, but that is not so. The Court has never even used the term "major questions doctrine" before. And in the relevant cases, the Court has done statutory construction of a familiar sort. It has looked to the text of a delegation. It has addressed how an agency's view of that text works—or fails to do so—in the context of a broader statutory scheme. And it has asked, in a common-sensical (or call it purposive) vein, about what Congress would have made of the agency's view—otherwise said, whether Congress would naturally have delegated authority over some important question to the agency, given its expertise and experience. In short, in assessing the scope of a delegation, the Court has considered—without multiple steps, triggers, or special presumptions—the fit between the power claimed, the agency claiming it, and the broader statutory design. . . .
What's in a name, anyway?
I'll have a few more posts on the Roberts/Kagan brawl.