The Major Questions Doctrine "Reflects a Deeply Held Impulse in Common Law Adjudication."

The idea that greater assertions of executive authority require greater support than ordinary acts is not a new one.

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."

They write:

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.

Comments

[Martinned]

I thought conservatives were supposed to believe in textualism and originalism instead of the common law method? What happened?

[Neugierige]

How are those exclusive? Law is never written on a blank canvass. Understanding texts always requires understanding context.

It's acontextual textualism that is ahistoric.

[Tom for equal rights]

Conservatives believe in both textualism and originalism.

conservatives believe that the executive branch can only do what is authorized by congress

progressives believe that the executive branch can do what it whats unless banned by congress

guess which one adheres to the constitution.

[Sarcastr0]

This is not how legislatures work these days. The principle that legislatures wouldn't commit a broad and difficult policy question or area to agency discretion requires a close-eyed approach to the politics.

The intentionally do it all the time.

[Neugierige]

Well this is a court's way of saying to the legislature: "If you won't make this law, we won't either."

Good for the court, in that case. They aren't a legislature.

[Ben_]

The difference today is that Democrats have decided that half the population should be excluded from society and should have zero effective voice on any government actions. Leaving any question up to the legislature gives the wrong kind of people a voice to influence governance.

[Martinned]

As so often with American conservatives these days, the accusation is really a confession...

[MaddogEngineer]

I'm sorry, you meant to say "progressives", not conservatives.

After all, Democrats were doing election denial long and other sorts of authoritarian overreach long before Trump made any of that cool.

(Limited government Never-Trumper here, thank you)

[Alpheus W Drinkwater]

Perhaps there is a distinction to be made between cases where the executive is taking an action that is executive in character, in the cited case enforcing laws, and where they are taking an action that would otherwise be legislative in nature, such as making regulations, but which has been delegated to them by the legislature. Perhaps different considerations would apply, for instance the specific language of the enabling legislation.

[Formerly Known as Stash]

Count me unimpressed with the argument and the authority. Lord Camden specifically says the warrant would have been valid if the power to issue it came from an Act of Parliament. He concedes that the Secretary of State has the power, derived from the king and precedent, to issue warrants for High Treason, but finds no authority for the proposition that he can do so for sedition. He nowhere states that there must be something more than the grant of an express power. Find me a common law case that says, "well, the statute grants the power to do x, y and z, but it doesn't really mean that at all" and I'll concede the point.