The Volokh Conspiracy

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Executive Power

A Textualist Defense of the Major Questions Doctrine

Critics claim the doctrine is obviously at odds with textualism. But that isn't the case.


Over the last few years, the once-relatively obscure "major questions doctrine" (MQD) has become increasingly controversial, as the Supreme Court has relied on it in several major cases, such as  the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. If yesterday's oral argument is any indication, the Court may also use it to strike down the Biden Administration's massive loan forgiveness plan.

The doctrine requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance.'" If such a broad delegation of power isn't clear, courts must rule against the executive's claims that it has the authority in question. Critics often argue that this rule is at odds with textualism in statutory interpretation—a theory to which many conservative judges are committed. For example, in her forceful dissent in West Virginia v. EPA, Justice Elena Kagan complains that MQD has become "a get-out-of-text free card." If the otherwise-best interpretation of a given text is that it grants the executive sweeping powers, why should MQD overturn it?

But, contrary to popular belief, there is in fact a textualist justification for MQD. Most textualists hold that statutory language should be interpreted in accordance with its "ordinary meaning." And they also recognize that ordinary meaning varies based on context. The same words and phrases might have different meanings depending on the situation. For example, prominent textualist legal scholar and judge Frank Easterbrook rejects  "[a]n unadorned 'plain meaning' approach to interpretation [that] supposes that words have meanings divorced from their contexts." Instead, he emphasizes that "[l]anguage is a process of communication that works only when authors and readers share a set of rules and meanings." And those "rules and meanings" depend on context. Indeed, "clarity depends on context."

Such contextual considerations can justify the major questions doctrine. In most situations, people expect greater clarity and precision when granting an agent broad power, than when authorizing something narrower. For example, my wife and I recently hired a contractor to repair the old and somewhat dilapidated deck attached to our house. Imagine we signed an agreement giving the contractor the authority to "modernize and improve" the deck, and he then proceeded to tear the whole thing down and replace it with a bigger and more modern structure.

As a semantic matter "divorced from context," the contractor could argue that tearing down and replacing the deck counts as modernization and improvement. Indeed, it might result in greater modernization and improvement than a more limited repair job would have! But most ordinary readers of the agreement would readily understand that the contractor had exceeded his authority. Tearing down and replacing the entire deck is a big, expensive step that requires clearer and more specific authorization than a vague mandate to "modernize and improve." By contrast, if the contractor had taken the much more limited step of replacing a few decaying floor boards, most people would agree his actions were properly authorized, even though the agreement doesn't specifically mention such replacement.

The same point applies to statutory language. If anything, most ordinary readers probably assume that vast grants of legal authority over millions of people require even more clarity and precision than do contractual agreements like the deck replacement. For example, in the loan forgiveness case, the Biden Administration relies on a vague provision of the HEROES Act that allows the executive branch to "waive or modify" regulations governing federal student loans to justify cancellation of over $400 billion in student loan debt. Even if semantics "divorced from context" suggests that mass cancellation qualifies as a type of waiver or modification, contextual ordinary meaning indicates that such an enormous delegation of power requires greater precision.

The above analysis doesn't refute all possible objections to MQD. It obviously won't persuade non-textualist critics of the doctrine. Nor does it address claims that broad delegations to executive agencies are desirable, so the latter can use their (supposedly) objective scientific expertise to solve new social problems as they come up—especially in a world where Congress is often gridlocked.

Similarly, the argument made in this post doesn't address the problem that it will sometimes be difficult to tell whether a given assertion of executive authority qualifies as "major" or not. Here, I will only say that such fuzziness at the margin is a characteristic of many legal doctrines. It may be unavoidable in many situations where courts must rely on balancing tests and standards, rather than bright-line rules.

My argument also doesn't necessarily prove that any particular use of MQD to strike down a policy  was justified. While I think the Court got it right in the eviction moratorium and vaccine mandate rulings, and would be justified in using MQD again in student loan forgiveness cases, West Virginia v. EPA strikes me as a tougher case; Justice Kagan's dissent makes a strong argument that the text of that statute is clear enough to satisfy MQD requirements.

Finally, the textualist rationale for MQD doesn't preclude other justifications for it. For example, I and others have also argued that the doctrine helps enforce constitutional nondelegation limits on the transfer of legislative authority to the executive.

But, despite its limited nature, the point made here does rebut one widespread criticism of MQD. Far from being inconsistent with ordinary-meaning textualism, the doctrine actually helps implement it.