Notice & Comment

Of Major Questions and Nondelegation, by Patrick J. Sobkowski

My goal in this essay is to explain why the Major Questions Doctrine (MQD) has become such a powerful tool to the Supreme Court’s conservative majority and why it seems to be replacing, along with the unitary executive theory, the nondelegation doctrine as one of the primary means of constraining congressional and administrative power.

What the Court has done is elevate the MQD, seemingly at the expense of a reinvigorated nondelegation doctrine. As I see it, there are a couple of reasons for this. First, the MQD as currently formulated is an exercise in “strategic ambiguity”, by which I mean that the Court’s formulation of the doctrine is deliberately vague. This allows the Justices to strike down or uphold policies without being criticized by other actors for judicial activism and aggrandizement. Second, the MQD is more practical. It allows the Court to seemingly constrain itself to statutory—rather than constitutional—interpretation and foists the leg work largely on the lower federal courts. 

As we all know, the Supreme Court struck down President Biden’s student loan forgiveness program in Biden v. Nebraska. After an unpersuasive standing analysis, John Roberts, writing for a 6-3 majority, applied the MQD to the program. He concluded that the HEROES Act of 2003 and its delegation to the Secretary of Education to “waive or modify”, student loans did not explicitly authorize the loan forgiveness. In other words, it was a straightforward application of the “new” MQD that was inaugurated last year in West Virginia v. EPA.

Why the sudden turn to the MQD? To answer the question, we need context. 

In 2019, Neil Gorsuch turned heads with his dissent in Gundy v. US. Those heads did a 360 when Roberts and Clarence Thomas joined the dissent. Gorsuch decried Congress’s decision (and ability) to delegate power to administrative agencies. He confidently declared that the framers understood legislative power to be “the power to adopt generally applicable rules of conduct governing future actions by private persons…” Because administrative agencies seemingly exercise such power, Gorsuch argued, administrative agencies are unconstitutional. 

Fast forward to 2022. When the Court handed down West Virginia, it announced a new tool of statutory interpretation—the MQD. Gorsuch authored a concurrence endorsing the MQD but continued to endorse his view that delegation of legislative power violates the Constitution. But in West Virginia, only Samuel Alito joined Gorsuch’s opinion. At this point, it is important to note an important distinction between the MQD and the nondelegation doctrine: the MQD is a tool of statutory interpretation, while the nondelegation doctrine is one of constitutional interpretation.

Fast forward again. As other scholars have noted, Amy Coney Barrett filed an interesting concurrence in the student loans decision. She signaled her belief that the MQD is inconsistent with textualism when viewed as a substantive canon. Her separate opinion was devoted to arguing that the MQD could be consistent with textualism if viewed as a rule of thumb to discern the legislative context. I will not rehash her opinion here; Beau Baumann and others have already done so. What I will note is that not a single justice joined Barrett’s opinion. 

With that context in mind, let’s turn back to my initial question: why the MQD? Put differently, why would the conservative majority, led by Roberts, inaugurate a tool of statutory interpretation rather than something with a bit more bite like the nondelegation doctrine?

The first answer is that of “strategic ambiguity”. The Court, especially Roberts, wants to strike a middle ground. Barrett couldn’t get anyone to join her concurrence in the loans decision and Gorsuch was losing votes on a nondelegation doctrine last year. This suggests that several justices are uncomfortable with Barrett’s argument that MQD fails as a substantive canon. This is where the distinction between the doctrines as constitutional and statutory becomes important. Gorsuch and Alito clearly believe that the nondelegation doctrine is correct as a matter of original meaning, and Thomas ostensibly does as well. But to revive the nondelegation doctrine is to prohibit the delegation of legislative power wholesale. By contrast, the beauty of the MQD is that it does not purport to prohibit delegation at all, it merely requires that Congress explicitly authorize the given regulation or policy at issue. The point here is that there is clearly some tension amongst the conservative majority on where to go from here. Is the nondelegation doctrine worth it? Or should they pursue a “second best” option in crippling federal power? The answer, I think, lies somewhere in the middle. But as it stands now, it appears that the majority has taken a right turn at the fork in the road, and toward the MQD. 

To support Barrett’s opinion, then, is to support giving the MQD a certain level of clarity. More clarity means more difficulty kneecapping Congress without broader public pushback. As the MQD sits now, when an agency wishes to take action, it must point to clear statutory authorization. It’s an elevated clear statement rule or a “supercharged rule of interpretation”, meaning that the statute must be extra clear. But Barrett’s approach, if it were to become law, would constrain the Court’s anti-statism by requiring it to look at overall context. She admits that the Court should greet sweeping agency action with skepticism, but continues: 

Still, this skepticism does not mean that courts have an obligation (or even permission) to choose an inferior-but-tenable alternative that curbs the agency’s authority—and that marks a key difference between my view and the “clear statement” view of the major questions doctrine. In some cases, the court’s initial skepticism might be overcome by text directly authorizing the agency action or context demonstrating that the agency’s interpretation is convincing. 

In short, if a majority of the conservatives were to join this approach, they may have to consider sources external to the statutory text, uncovering evidence that perhaps Congress intended to delegate such sweeping authority. By contrast, the current elevated clear statement form of the MQD is much less sophisticated, and perhaps lends itself (unconvincingly, in my view) to masking rank judicial aggrandizement

A second answer is practicality. Famously stated by Cass Sunstein, the nondelegation doctrine “has had one good year…” Since 1935 when the Court was using the doctrine to strike down FDR’s New Deal programs, the Court has repeatedly upheld delegations so long as they are subject to a limiting “intelligible principle.” So, ushering in a nondelegation doctrine would require overruling precedent and would invite constant litigation over the constitutionality of agencies that have existed for over 100 years in some cases. This is anathema to John Roberts. 

Instead, the MQD allows Roberts and the conservatives to curb administrative power without busting out the big guns of constitutional invalidation. An added bonus for Roberts is that the MQD will now make its way into the federal district courts and circuit courts of appeal. Roberts and the conservatives need only sit back and relax while the lower courts apply the MQD. One can readily imagine the wildly differing conclusions that the Fifth Circuit and Second Circuit might reach in a challenge to a given policy, where the Supreme Court could then step in to resolve the split as it sees fit. So, it is a beautiful arrangement for Roberts, who gets to feel like he is preserving the Court’s image. And it’s beautiful for the other conservatives (and, yes, Roberts too) because they’ve successfully cooked up a backdoor way to bring the Constitution out of exile.

Patrick J. Sobkowski is a lawyer who writes on administrative and constitutional law. He welcomes all comments via email.

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