Notice & Comment

­­Let’s talk about that Barrett concurrence (on the “contextual major questions doctrine”), by Beau J. Baumann­­

As many of you know, the Supreme Court just shot down the student-loan forgiveness plan in Biden v. Nebraska. The majority opinion written by John Roberts predictably held that the HEROES Act does not empower the Secretary of Education to cancel loans on the scale envisioned by the Biden Administration. In a separate subsection (see pgs. 19–25 of the slip op.), Roberts bats away the Biden Administration’s arguments about the capaciousness of the HEROES Act and its nature as an emergency statute with the major questions doctrine (“MQD”). That portion of the majority opinion is fairly straightforward. The Government’s distinction between regulation and government benefits failed—the MQD applies to both forms of agency actions. Not too many surprises.

The more interesting development is Amy Coney Barrett’s concurrence. In a move that many admin scholars will appreciate, myself included, Barrett suggests that the MQD is probably indefensible as a substantive canon. She wrote that she “take[s] seriously the charge that the doctrine is inconsistent with textualism.” And she granted “that some articulations of the [MQD] on offer—most notably, that the doctrine is a substantive canon—should give a textualist pause.” [*pause for claps*] But any glee in the hearts of the MQD’s critics spoils pretty quickly from there.

Barrett pivots to context in a move that mirrors Ilan Wurman’s work (channeling Ryan Doerfler) on the MQD. By context, she means that there are basically two things supporting the MQD. One is a descriptive claim about how Congress operates; it doesn’t use underdetermined and ancillary statutory text to greenlight agency actions of political or economic significance. We’ll call that the MQD’s descriptive claim. Second, you have a theory of language. Ryan has written about this; it’s basically the idea that we would expect principals to speak clearly if they were telling their agents to do something big. In a nutshell, it’s the empirical claim that folks don’t empower their agents to do some high-stakes without speaking clearly. Barrett illustrates this herself with an example: 

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction?

Barrett’s move here seems big because it she is offering them a story about the MQD that’s designed to sit more comfortably with textualism. I would not be surprised if this were the future of the MQD. That’s a bold prediction—after all, none of Barrett’s colleagues joined her opinion. But as someone who spends an unhealth amount of time thinking about and absorbing MQD content, something has to give. The contradictions with textualism are too apparent. And the charges that we’re living through a “judicial power grab” basically write themselves. 

That’s not to say that this context-based rebrand does much better. As I’ve described elsewhere, the contextual MQD suffers from a host of issues. The MQD’s descriptive claim is wrong. As lawyers, we have all come upon examples of Congress’s propensity to do “major” things through underdetermined statutory provisions. A word we use to describe some such statutes is “superstatutes.” But we can describe entire fields—like my own, immigration—as being shot through with counterexamples. While Barrett cites some evidence of drafters’ intent, it’s all evidence that many who read this blog know doesn’t actually support the MQD. See, e.g.Walters at 56. Really, the MQD is a fiction about legislative intent like Chevron’s old fiction. Fictions pervade the public law canon—there’s nothing inherently wrong with them. But the first rule of fictions is you don’t forget that they’re not real. They have to have second-order justifications. As a result, the descriptive case isn’t “context,” it’s just judicial policymaking under another label.

The language-based understanding of the MQD does no better. No one has actually tested the empirical claim that undergirds this understanding of the MQD. As I told Richard Re recently, I understand that courts have long used dubious descriptive empirical claims to back their reasoning. But we also used to burn witches. I think we can probably aspire to more. Word on the street is that people are working on empirically testing this claim now—keep an eye on this space. More importantly, even if the empirical claim is accurate, it doesn’t always support the MQD. That was Ryan’s key insight. Ryan thought that the linguistic insight he was writing about cut against both of Congress’s agents, both courts and agencies. Agencies should pause before doing something major. But the same goes for courts. We could reframe the question from the vaccine-or-test case as follows: should federal judges strike down an agency action if it poses significant consequences (e.g., the death of thousands of people). The upshot of Doerfler’s work is that judges should not strike down agency actions if they will be causing tremendous consequences—like, you know, exacerbating the devastation caused by a once-in-a-century pandemic. This linguistic insight supports Thayerian deference as much as it supports the MQD. 

Wurman definitely sees this coming in his work. He writes: 

Fortunately, the legal system already contingently addresses this question of framing differently: because agencies are creatures of statutes, they must demonstrate authority for their actions. Thus, as a matter of constitutional structure, the agencies are the asserters of the legal claim and bear the burden of proof. Even if one does not buy this distribution of proof burdens, it is enough to say that the question addressed here is the meaning of the statute, which is not necessarily the same question as whether the agency has acted unlawfully; and on that former question, the insights about high-stakes interpretation militate in favor of a major questions canon of some sort.

Is this convincing? No! Here’s the problem: if the linguistic insights at the center of this conversation between Barrett, Ilan, and Ryan’s works applies against courts and agencies, the choice between the MQD and Thayerian deference is just a policy decision. We’re right back to where we started and none of this should comfort textualists. Again, this isn’t context, it’s just policymaking. 

Here are two concluding thoughts. First, Barrett’s hawkish take on substantive canons is cold comfort because judges can easily accomplish policymaking under the label of “context.” Second, her contextual version of the MQD has rhetorical strength that masks its substantive weaknesses. I strongly suggest everyone bone up on this version of the MQD! Here’s a short reading list if anyone is interested.

Beau J. Baumann is an appellate attorney at the Department of Justice. He welcomes all comments via email.

(1) Ryan Doerfler, High Stakes Interpretation, 116 Mich. L. rev. 523 (2018). 

(2) Ilan Wurman, Importance and Interpretive Questions, Va L. Rev. __ (forthcoming).

(3) Beau J. Baumann, A healthy skepticism for the MQD as a linguistic canon, (Mar. 29, 2023).

(4) Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. 967 (2021).

(5) Beau J. Baumann, The mischief rule vs. the major questions doctrine, (Oct. 5, 2022).

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