The Volokh Conspiracy
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Over at the Yale Journal on Regulation's Notice and Comment blog, T.T. Arvind and Christian R. Burset have an interesting post explaining that the basic impulse underlying the Major Questions Doctrine has common law roots. Without expressing any opinion on the merits of recent Supreme Court decisions that rely upon MQD, their post aims "to point out some similarities between the MQD and eighteenth-century approaches to identifying the limits of executive authority."
Our starting place is Entick v. Carrington (1765), an English case well known to the Founders. It concerned (among other things) the power of a Secretary of State to issue a warrant for seizing an author's papers in an investigation for seditious libel. Lord Camden, the chief justice of Common Pleas, held that such warrants were illegal. Here's how he explained his decision (according to the best report we have of his opinion):
As this Jurisdiction of the Secretary of State is so extensive; therefore the Power ought to be as clear as it is extensive.
In other words, as executive officials claim greater authority, their burden of proving the lawfulness of that authority rises. Or, as another reporter summarized Camden's decision, "one should naturally expect that the law to warrant [the exercise of executive power] should be clear in proportion as the power is exorbitant." In Entick itself, Camden found that seizing an author's papers involved "extensive" power, in part because of the (related or unrelated) secrets that might be disclosed as a result. Therefore, the government and its agents bore a heavy burden in proving that such power was lawful. They failed to meet that burden, and they lost the case.
As we explained in a recent article, Camden's framework was widely shared at the time. Even Lord Mansfield—Camden's great political and jurisprudential rival—agreed that exceptionally broad claims of executive power had to be supported by exceptionally clear legal authority. By the same token, a relatively minor exercise of power required a lesser showing of legal authority. The "extensiveness" of a power depended in part on how long its exercise lasted. The disclosure of secrets in Entick was irreversible and therefore "extensive." In contrast, Camden presented the temporary suspension of grain exports as relatively insignificant because of its limited duration.
As they note, this approach may align more closely with that suggested by Justice Barrett, than the more full-throated, nondelegation-inspired version of MQD. Put another way, the underlying impulse here "reflects a deeply held impulse in common law adjudication, which is far more nuanced than mere animus toward the modern administrative state."
This is in line with the approach that I have advocated, and (in my view) contrasts quite a bit with the Chief Justice's approach in West Virginia v. EPA. As I explained in my Cato Supreme Court Review article on the decision, the Chief Justice treated the QD as an on-off switch: If a question is "major," suddenly a higher threshold applies. This approach is problematic on many levels, not just that it lacks a grounding in basic agency law or common law principles. As I wrote:
In place of a threshold inquiry into whether the economic or political stakes of a case are sufficiently "major" or "extraordinary," courts would be better off focusing on the root question of whether Congress delegated the asserted authority to the agency and whether the evidence of such a delegation is commensurate with the nature of the authority asserted. In this way, the major-ness of the question at issue would be less of a threshold to be crossed than a continuum to be incorporated into the statutory analysis. The weight of evidence necessary to support an asserted delegation should be proportional to the breadth, scope, and novelty of the delegated power claimed.
In this regard, Biden v. Nebraska is a step in the right direction insofar as it departed from WVa v. EPA. In rejecting the Biden Administration's claimed authority to forgive student loans under the HEROES Act, the Court focused first on the relevant statutory language, only turning to the MQD to confirm its conclusions. Turning even further toward the approach suggested by Justice Barrett in her concurrence would be another step in this direction and, as the Arvind and Burset post suggests, do more to ground the Court's recent MQD jurisprudence in longstanding legal principles.