Notice & Comment

“Major Questions” In The Common Law Tradition, by T.T. Arvind & Christian R. Burset

The Supreme Court’s recent decision in Biden v. Nebraska marks a new chapter in debates about the major questions doctrine (MQD). Writing for a six-Justice majority, Chief Justice Roberts relied partly on the MQD to find that the Biden Administration’s loan forgiveness program lacked statutory authority. Justice Kagan’s dissent criticized the MQD as “made-up” and antidemocratic. And Justice Barrett’s concurrence offered a textualist defense of the MQD as an “interpretive tool.”

All three opinions treat the MQD’s pedigree (or lack thereof) as crucial: Justice Kagan’s most damning charge is that the doctrine is “new.” Scholars have debated the MQD’s history at length, and we won’t try to settle it here. Nor do we opine on whether Biden v. Nebraska was correctly decided. Our goal is more modest: to point out some similarities between the MQD and eighteenth-century approaches to identifying the limits of executive authority. These doctrinal similarities, we suggest, reveal constitutional concerns about executive authority that are deeply embedded in the common law itself. We hope that reflecting on their enduring significance might inform the debate over the MQD today.

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. 

The parallels between this eighteenth-century framework and the MQD are striking. Both demand an exceptionally strong legal justification whenever the executive claims unusually extensive power; and both measure a power’s extensiveness partly in terms of its duration.[1] Which version of the MQD Entick most clearly resembles is a more difficult question. Its demand for “clear” authority calls to mind the “clear-statement” version of the doctrine advanced by Justices Gorsuch and Alito in West Virginia v. EPA (2022). So, too, does Camden’s evident concern to protect the “first Principles” of an ancient constitution from executive encroachment.

In other respects, however, Entick looks more like the contextualist MQD articulated by Ilan Wurman and Justice Barrett.  Camden’s conclusion that the warrant in Entick was illegal was not based solely on a textual construction of the relevant statute. Instead, he examined (at great length) the statute and precedents in their political, historical, constitutional, and common law context. Moreover, as we explain in our article, Camden evaluated governmental power using a sliding scale. He didn’t treat the “extensiveness” of an asserted power as a yes/no question. Instead, he assessed the proportionality between the claimed power and the strength of its legal justification. (Adam Tomkins has made a similar point.) This is comparable, perhaps, to Justice Barrett’s insistence that the MQD “is not an on-off switch.”  What emerges from Entick, therefore, is an approach that in its functioning resembles Justice Barrett’s contextual MQD.[2]  But, like Justice Gorsuch’s MQD, its roots lie in constitutional concerns rather than simply in common sense.

These similarities shouldn’t surprise us. The MQD and Camden’s framework in Entick both reflect a broader pattern in common law reasoning, in which courts tend to require heightened support for heightened claims of authority. As Ryan Doerfler has noted, courts often demand greater epistemic justification in high-stakes settings. Professor Wurman has applied this insight to the MQD. In addition, he and other scholars have shown that courts in a wide variety of contexts have demanded extra-clear authority before allowing the government (or private parties) to exercise “great” powers.

This is not to say that the MQD can claim Entick as a direct ancestor. But its critics would do well to acknowledge that it reflects a deeply held impulse in common law adjudication, which is far more nuanced than mere animus toward the modern administrative state.

T.T. Arvind is Professor of Law and Head of Department at York Law School. Christian R. Burset is Professor of Law at Notre Dame Law School. 

[1] Consider, for example, the implicit contrast in Biden v. Nebraska between the “temporary suspensions of loan repayments and interest accrual” and the permanent forgiveness of loans; or Justice Gorsuch’s concerns in another context about “rule by indefinite emergency edict” (emphasis added). 

[2] Of course, there are important differences between Hanoverian Britain and the modern United States—including a written constitution, different theories of legislation, and different understandings of the separation of powers—which might make a contextual approach to executive power suitable for one system but not the other. Our point is merely that both approaches to the MQD mirror the earlier common law framework; their relative superiority is a question for another day.

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