A Major New Defense of the Major Questions Doctrine

Legal scholar Ilan Wurman argues the controversial doctrine is justifiable on textualist and linguistic grounds.

The once-obscure major questions doctrine  (MQD) has become a major focus of controversy, since the Supreme Court used it in three—yes,  major –  rulings over the last two years. The three cases are the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. MQD may also end up playing a decisive role in the loan forgiveness cases currently before the Court.

The doctrine requires Congress to "speak clearly when authorizing an [executive branch] agency to exercise powers of vast 'economic and political significance.'" Critics had advanced a variety of charges against the major questions doctrine and the Court's use of it, including that it is politically motivated, that the line between "major" and relatively minor questions is arbitrary and unclear, and that the doctrine is incompatible with textualism.

In a forthcoming Virginia Law Review article, prominent constitutional law scholar Ilan Wurman offers an important and in some ways compelling new defense of  MQD. Here is the abstract:

In its past term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach anti-administrativist results. One can explain at least some of the cases, however, in a way that constructs a coherent doctrine in which importance has a significant but narrow role in resolving interpretive questions involving ambiguity or uncertainty. Thus understood, such a doctrine could be defensible, if not as a substantive canon, then as a kind of linguistic canon. Unlike other linguistic canons, such a canon would be about how people and lawmakers use language to accomplish results in a circumscribed range of contexts—namely, the delegation of important authorities, whether to other private actors, to government actors in Constitution, or to government actors in the executive department. But unlike substantive canons, it would not relate to a substantive value encoded in the Constitution or in longstanding tradition. Existing empirical work about how legislators legislate, and insights from the philosophy of language, suggest that such a doctrine may be consistent with textualism, and historical research further reveals that a canon of this type may be a longstanding feature of constitutional, contract, and statutory interpretation in related contexts. More provocatively, these same intuitions about importance may explain some substantive canons that are difficult for textualists to justify.

The usual defense of MQD is that it is a tool for enforcing constitutional constraints on the delegation of legislative power to the executive. Wurman argues that it can instead be justified on textual and linguistic grounds.

In the article, he outlines a number of justifications for this conclusion. For example, he cites survey data indicating that most people involved in drafting laws on Capitol Hill support some form of presumption against delegation of major issues to the executive. This evidence is significant for purposivists who advocate interpreting laws in accordance with congressional intent. But it also matters to textualists, as drafters' views provide at least some evidence of the "ordinary meaning" of a statute at the time of enactment.

Most interestingly, Wurman highlights linguistic studies showing that ordinary people expect greater clarity and more evidence to resolve important issues than relatively minor ones. I think that he is on to something here. But it is not, by itself, enough to justify MQD. If people seek greater clarity and evidence on important issues, that may support greater judicial scrutiny of major issues, as opposed to minor ones. But it doesn't necessarily lead to a presumption against delegation of major questions to the executive. It could be people want more evidence and clarity to decide such an issue either for or against delegation.

In an earlier post, I outlined what I think is a stronger textualist justification for MQD, one that actually points in the direction of a presumption against delegation:

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…

[M]ost 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.

I also think that MQD can potentially be justified by nondelegation considerations, at least so long as the Supreme Court is unwilling to rigorously enforce nondelegation directly.

Wurman's article is a major contribution to the debate over major questions, and there is much more there than the points I have highlighted in this post. Obviously, however, it probably won't be the last word in this important debate.

I should also emphasize that neither Wurman's reasoning nor my own necessarily proves that any specific judicial use of MQD was justified. As I have previously written, I believe the Court got it right in the eviction moratorium and vaccine mandate rulings (though I differ with some of the details of its reasoning in the latter case), and would be justified in using MQD again in student loan forgiveness cases (though I also think the Court could justifiably rule against the Biden Administration even without reference to the doctrine). West Virginia v. EPA strikes me as a tougher case; Justice Elena Kagan's dissent makes a strong argument that the text of that statute is clear enough to satisfy MQD requirements. Obviously, even readers who accept the general idea of MQD might differ with my assessment of one or more of these cases.