Notice & Comment

The Major Question Doctrine, Nondelegation, and Presidential Power, by Daniel Farber

*This is the seventh post in a symposium on Peter Shane’s “Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.” For other posts in the series, click here.

In West Virginia v. EPA, the Supreme Court struck down Obama’s signature climate regulation based on the major question doctrine. The Court’s rationale was that EPA needed a clear directive from Congress before it could decide an issue of such political and economic importance.  Peter Shane had anticipated that possible outcome in a Washington Monthly article about the case, describing the doctrine as a “cousin of non-delegation.” The implication of the doctrine, he added, is that “statutory readings that give agencies too much discretion to adopt policies of vast economic and political significance would wind up approving unconstitutional delegations and should thus be avoided.”

Viewing the major question doctrine as an offspring of the nondelegation doctrine seems to be the conventional wisdom. It is also an idea that Justice Gorsuch in particular has done everything possible to promote.  Shane’s new book, Democracy’s Chief Executive, does not discuss the major questions doctrine, so far as I can tell. But some of Shane’s observations in the book point toward a different understanding of the major question doctrine, one aimed more at constraining the President than at disciplining Congress for giving away too much power.  From this perspective, the major questions doctrine has more to do with the Steel Seizure case and its concerns over unsanctioned executive action than with the nondelegation doctrine.

Several insightful comments in the Shane book hint at this concern. Shane complains that Presidents of both parties “assert arguably attenuated readings of existing statutory law as delegating to the executive branch broad administrative powers.” As examples of such actions, he points to Clinton’s bombing of Kosovo and Obama’s interpretation of the Affordable Care Act. [p. 28] Shane later expresses concern that emergency laws provide the President with too much power to implement their own policies, pointing to a proposal by Sen. Bernie Sanders to use an economic emergencies law to impose sanctions on carbon emitters. [p. 211] And in the area of foreign affairs, he applauds a Supreme Court opinion incorporating a “preference for legislative deliberation to precede executive action,” including a requirement for a clear statement before a treaty impacting areas of state law will be considered self-executing. If the President were allowed to carry out a treaty domestically in the absence of a clear statement, Shane adds, the President would be “effectively making law, not executing it.” [p. 189]

None of these statements directly address the major question doctrine. But they all point toward a reason to require clear delegations from Congress on matters that are critically important—not so much as a way of preventing Congress from giving away too much power as a way to prevent Presidents from snatching powers they were not given.

The Court’s opinion can be reasonably read in this way. Unlike Gorsuch’s dissent, the majority opinion never refers to the nondelegation doctrine. Instead, it only vaguely refers to separation of powers principles, without ever saying precisely which ones. And, although part of the majority’s test involves a qualitative assessment of the power claimed by the agency, the opinion places more emphasis on factors showing that the President is shortcutting legislative determination and is adopting “attenuated readings of current law as delegating to the executive branch broad administrative powers” (in Shane’s words).  

There’s a crucial final indication that the majority’s concern is not with nondelegation. The nondelegation rationale implies that there is constitutional doubt about whether Congress could constitutionally delegate to the agency the power to decide the issue in question. But the majority clearly says that Congress could have done so.  Near the close of the majority opinion, the Court says that “a decision of such magnitude and consequence rests with Congress itself” – which sounds like a nondelegation argument. But then the Court adds that such a decision could properly be made “by an agency acting pursuant to a clear delegation from that representative body.”  In other words, EPA could decide whether to phase out coal or otherwise transform the energy system if there had been a clear delegation from Congress.  Thus, the Court makes it clear that the issue is whether the executive branch has been given authority, not whether Congress has the power to convey that authority.

This strikes me as a much more satisfactory basis for the major questions doctrine, one that is not based on nostalgia for some supposed past era in which Congress made all the policy decisions and the President merely managed routine implementation. Requiring executive action to be authorized by Congress wouldn’t mean much if it only required the President to find a few words in the vast domain of federal statutes that could be read broadly enough to be a source of authority. 

That being said, there is another reason to worry about the major question doctrine, which is whether there is any way of applying it that doesn’t come down to ideology. Shane himself emphasized this issue in another Washington Monthly article written after the West Virginia case. The fact that the test triggers a stringent clear statement rule makes it crucial to identify the dividing line between major and non-major questions. Perhaps the two vaccine mandate cases may provide some guidance in identifying this dividing line, given that the Court struck down a general workplace mandate but upheld one under a different statute limited to healthcare facilities. It remains to be seen whether the courts will succeed in applying the test is a reasonably principled way. That in turn may depend on how willing the swing Justices in the vaccine cases, Roberts and Kavanaugh, are to police overuse of the doctrine.

Regardless of whether Shane’s forebodings about ideological abuse play out, the effort to view the doctrine as a way of limiting congressional delegation seems misplaced. Rather, it would be better tied to Shane’s concern about the tendency of presidents to “assert arguably attenuated readings of existing statutory law as delegating to the executive branch broad administrative powers.” Shane himself may or may not be willing to embrace that interpretation, but this observation – like many in this important book – provides a fertile basis for reconceptualizing separation of powers law.

Daniel Farber is the Sho Sato Professor of Law at the University of California, Berkeley, and the author of Contested Ground: Understanding the Limits of Presidential Power (University of California Press 2021).

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