The major questions doctrine seems to know no bounds. In Biden v. Nebraska, the Court blew past what should have been fatal objections to the States’ standing and launched a broader-than-ever version of MQD when invalidating the Biden administration’s loan forgiveness under the HEROES Act. Last term, the Court held that MQD checked substantive statutory authorizations. In Biden v. Nebraska, it went out of its way to announce that MQD and its related separation-of-powers concerns would now extend to laws governing executive spending. According to the majority opinion, it “would be odd to think that [MQD’s] separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.” (Op. at 24) This essay explains why the Court’s new application of MQD to laws that implicate spending and Congress’s power of the purse implicates a far more radical doctrinal upheaval than the majority acknowledged and likely intended. It then explores how Justice Barrett’s concurrence might provide a helpful framework for limiting the far-reaching effects of MQD as it relates to spending laws.
As Mila Sohoni has eloquently explained, the major questions doctrine emerged from the shadow of separation of powers concerns about Congress’s delegation of legislative powers to the executive branch. Recent challenges have asserted that a statute raises nondelegation concerns under U.S. Const. Art. I when Congress hands off important policy questions to the executive branch. The major questions doctrine allows courts to avoid constitutional concerns by determining that Congress did not intend to delegate important policy questions in generally worded statutes. While nondelegation challenges have silently languished in the wake of recent scholarship rebuffing originalist Article I claims (see Bagley/Mortenson, Chabot, Parrillo, Arlyck), the Court has embraced MQD in recent cases like West Virginia v. EPA and Biden v. Nebraska. Indeed, the same outcome would apply regardless of whether a court invalidates a statute under Article I or MQD: the executive branch cannot pursue its desired course of action until Congress passes a law specifically authorizing this action. A strong version of MQD presumes that past congresses have already anticipated such outcomes or for other reasons have generally provided clear statements that specifically pre-authorize the executive branch to resolve major questions. This is quite a presumption, especially considering that the Court has accepted nondelegation challenges in only a handful of cases and has applied this strong version of MQD only very recently.
Many scholars have concluded that the Court’s current MQD framework imposes a clear-statement requirement for substantive congressional delegations. (See, e.g., Deacon/Litman, Sohoni, Walters) The clear-statement version of MQD requires Congress to provide specific pre-authorization and appears primed to decimate many broad delegations that undergird the administrative state. A new clear-statement requirement for spending laws would swing the wrecking ball in another direction and result in even more doctrinal upheaval. The majority’s invocation of MQD in Nebraska v. Biden marks an unheralded development in this area of the law.
As my recent paper, The Founders’ Purse, explains, general spending laws and lump-sum appropriations were common in the Founding era. According to Alexander Hamilton, the Constitution required nothing more than a “previous law” to “ascertain” the “purpose, the limit, and the fund” out of which an expenditure would be drawn. Given this background, it’s unsurprising that scholars such as Michael Rappaporthave excepted laws involving appropriations of public funds from recent attacks on broad delegations of power to regulate private parties. In Lincoln v. Vigil, moreover, the Court treated spending under a lump-sum authorization as a matter that Congress could commit to executive discretion and insulate from judicial review under APA §701. Spending is not an area where Congress has legislated with the specificity required by clear-statement rules, and advocates of more rigorous nondelegation requirements for substantive authorization statutes have conceded that these arguments do not apply to spending laws.
The majority did not acknowledge this background, perhaps because Biden v. Nebraska involved provision of monetary benefits through loan forgiveness rather than appropriations drawn from the Treasury. To further complicate matters, the Court’s earlier application of MQD to a benefits program in King v. Burwellresulted in de novo judicial review rather than a clear-statement requirement. Imposing a clear-statement requirement and specific statutory pre-authorization for all spending laws would be a real game-changer: it would upset longstanding doctrinal understandings and the governing framework for statutory allocations of spending power.
Justice Barrett’s concurrence provides an important off ramp. Her alternative MQD framework has potential to avoid scrapping settled understandings that govern spending laws. As Justice Barrett explained, MQD does not impose a clear-statement rule that always requires “an unequivocal declaration from Congress authorizing the precise agency action under review” (Concurring Op. at 5 (cleaned up)) The doctrine instead “situates text in context” to determine when a delegee went “far beyond what Congress could reasonably be understood to have granted” in a particular statute. Id. at 15 (For additional reading about this argument see Wurman, Baumann, and Sobkowski) It is unfortunate that the majority in Biden v. Nebraska “hit the send button” on a gratuitous and ground-breaking application of MQD while failing to address the potential benefits of Justice Barrett’s alternative approach.
The majority’s analysis suggests a general rule against large-scale spending (in the form of loan forgiveness) without specific pre-authorization under the HEROES Act. As Justice Kagan noted in dissent, this analysis “forces Congress to delegate in highly specific terms—respecting, say, loan forgiveness of certain amounts. . .” (Dissenting Op. at 24) For Justice Barrett, however, lack of specificity would not doom large-scale spending so long as it was grounded in an otherwise reasonable interpretation of a statute. As she notes, skepticism about a delegee’s exercise of power “might be overcome by text directly authorizing the agency action or context demonstrating that the agency’s interpretation is convincing.” (Concurring Op. at 11, emphasis added) Barrett’s contextual analysis might also align with reasoned decisionmaking and Congress’s standing ban on arbitrary and capricious applications of broad statutory directives under §706 of the APA. (See also Shugerman (proposing an “emergency questions doctrine” that emphasizes context and discourages pretext while shunning a clear-statement rule)) Notwithstanding the outcome in Nebraska v. Biden, the context surrounding many other spending laws makes it reasonable to assume that Congress will use general language or lump-sum awards rather than specific language to authorize significant executive spending.
The potential application of MQD to spending laws touches on a number of high-stakes debates. With respect to general applications of MQD, should the Court apply a clear-statement rule or a contextual linguistic canon? Or should the entire doctrine be set aside as a “made-up” concept that merely adds confusion and misdirection to existing standards of review? And with respect to spending, how will emerging debates about public spending align with broader separation of powers challenges to the administrative state? As noted in recent papers by Chad Squitieri and myself, the Court’s impending resolution of challenges to the CFPB’s budgetary independence in CFPB v. Community Financial Services will turn on direct constitutional challenges that cannot be avoided under MQD. Joseph Fishkin predicts that litigation over spending powers will emerge as the next major battleground in the ongoing war against the administrative state. For now, it is important to understand the ramifications of the majority’s decision to invoke MQD’s clear-statement requirement in the context of spending. With respect to this issue, Justice Barrett’s concurrence offers a way for the Court to sidestep a costly major questions battle that it probably did not even mean to join.
Christine Kexel Chabot is an Associate Professor of Law at Marquette University Law School.