Notice & Comment

The Major Questions Doctrine Is Not About Delegation, but Usurpation—And That Matters, by James C. Phillips

The U.S. Supreme Court has increasingly invoked the major questions doctrine to police the separation of powers, with a series of cases in the past few terms relying on the doctrine. Observers have noted that the rise of the doctrine appears to compensate for a long-comatose nondelegation doctrine that the Court is undecided on whether to resuscitate. 

So the Court has specifically framed the doctrine as a clear statement rule protecting against improper delegation of legislative authority by Congress to the Executive Branch. For example, in 2021’s Alabama Association of Realtors v. Department of Health and Human Services, the eviction moratorium case, a six-Justice majority declared, “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

In last year’s West Virginia v. EPA, we have perhaps the most developed discussion of major questions as a clear statement nondelegation doctrine. The Court characterized one of its early major-questions cases, Brown & Williamson, as “reject[ing] that ‘expansive construction of the statute,” [and] concluding that ‘Congress could not have intended to delegate’ such a sweeping and consequential authority ‘in so cryptic a fashion.” And the opinion referenced another case, Gonzalez v. Oregon, where the Court “considered the ‘idea that Congress gave [the Attorney General] such broad and unusual authority through an implicit delegation … not sustainable.”

As to the regulations at issue in West Virginia v. EPA, the Court observed that “given the various circumstances, ‘common sense as to the manner in which Congress [would have been] likely to delegate’ such power to the agency at issue made it very unlikely that Congress had actually done so.” Thus, for the Court, “in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking here.” So the Court declared that “‘[t]he importance of the issue,’ along with the fact that the same basic scheme EPA adopted ‘has been the subject of an earnest profound debate across the country, … makes the oblique form of the claimed delegation all the more suspect.’” And the Court concluded that “[a] decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Justice Gorsuch’s concurrence, joined by Justice Alito, was even more explicit in framing the Major questions doctrine as a clear-statement rule protecting against delegation—“Much as constitutional rules about retroactive legislation and sovereign immunity have their corollary clear-state­ment rules, Article I’s Vesting Clause has its own: the major questions doctrine.” Tracing the rule back to an 1897 case that observed that if Congress sought to make “a delegation of power,” “it would have used language open to no misconstruction, but clear and direct,” Justice Gorsuch clearly grounded the major questions doctrine in nondelegation concerns. Thus, the spate of major questions cases following 1980 were instances where “the Court routinely enforced ‘the non-delegation doctrine’ through ‘the interpretation of statutory texts, and, more particularly, [by] giving narrow constructions to statutory decisions that might otherwise be thought to be unconstitutional.’” Additionally, “[t]he major questions doctrine works … to protect the Constitution’s separation of powers,” namely, “the Constitution’s rule vesting federal legislative power in Congress.” Other comments and cited sources in his concurrence reinforce this nondelegation view of the doctrine.

But while there may be relative consensus on the Court that the doctrine is about nondelegation, even if not all see it as a clear statement rule (i.e., Justice Barrett), this just does not seem correct. Rather, instead of legislative delegation, the major questions doctrine is about the flip side of the coin: executive usurpation. In short, under the major questions doctrine, the problem isn’t what Congress gave, the problem is what the Executive took.

The evidence comes from the Court’s focus in these cases—agency overreach—rather than congressional delegation. In Alabama Association of Realtors, the Court focused on the fact that “the CDC has exceeded its authority,” such that “[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.” 

In West Virginia v. EPA, the majority pointed out that the major questions doctrine “developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” Applying the doctrine in the case, the Court concluded that “the Agency’s discovery [of a “newfound power”] allowed it to adopt a regulatory program that Congress had conspicuously and repeated declined to enact itself.” Furthermore, according to the Court, “[t]his view of EPA’s authority was not only unprecedented; it also effected a ‘fundamental revision of the statute, changing it from [one sort of] scheme of … regulation’ into an entirely different kind.”

Likewise, Justice Gorsuch’s concurrence also focuses on agency aggressiveness rather than legislative laziness. He notes that “the agency before us cites no specific statutory authority allowing it to transform the Nation’s electrical power supply,” that a “frustrated … Executive Branch … attempt[ed] its own regulatory solution,” and that “the agency seeks to resolve for itself the sort of question normally reserved for Congress.” More generally, he observes that “the doctrine applies when an agency claims the power to resolve” major issues of political significance. And that “[t]he doctrine … ensur[es] that, when agencies seek to resolve major questions, they at least act with clear congressional author­ization and do not “exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond” those the people’s representatives actually con­ferred on them.”

Additionally, in Biden v. Nebraska, this year’s school loan forgiveness case, the Court declares that “[w]hat the Secretary has actually done is draft a new section of the Education Act from scratch by ‘waiving’ provisions root and branch and then filling the empty space with radically new text.” Similarly, the Court focuses “claims of authority” and “claimed powers” by the Secretary of Education. Ultimately, the Court frames the constitutional problem not as Congress improperly delegating legislative authority, but as “the Executive seizing the power of the Legislature.” Even Justice Barrett, who sees the major questions doctrine as an ambiguity canon rather than a clear statement rule, focuses not on Congress but the Executive when applying it in her Biden v. Nebraska concurrence. She refers to “telltale sign[s] that an agency may have transgressed its statutory authority,” notes that “the Secretary has gone far ‘beyond what Congress could have reasonably understood to have granted’ in the HEROES Act.”

So the Court’s framing of the major questions doctrine as rooted in nondelegation principles is a misdirect as to the branch on which the doctrine really operates and the constitutional violation that is occurring.

This focus on the Executive Branch usurping legislative power rather than Congress delegating legislative power is not just a matter of semantics. It matters because it means the major questions doctrine is dealing with a different problem than nondelegation doctrine and is thus not a substitute for it. This has at least two important implications.

First, it matters doctrinally. The major questions doctrine cannot be a replacement for the nondelegation doctrine because it would not reach the same constitutional violation as it is aimed at a different constitutional actor. Under the doctrine, if treated as merely a nondelegation principle, Congress could still delegate so long as it clearly does so. (In this sense, the doctrine differs from most, if not all other, clear statement rules, perhaps making it more of a pseudo clear statement rule.)[1] It thus does not solve the nondelegation problem, other than making it harder for Congress to delegate. In other words, Congress can delegate all it wants under the major questions doctrine, so long as it is clear. 

Furthermore, the major questions doctrine is not pointed at Congress, but the Executive Branch. But if the Court sees relying on the major questions doctrine as easier than reinvigorating the nondelegation doctrine from its moribund state, the major questions doctrine will fail to cabin Congress within its constitutional confines. So it would be a mistake of constitutional proportions for the Court to treat the two doctrines as essentially interchangeable.

Second, clearly grounding the major questions doctrine in executive usurpation rather than legislative delegation also matter practically. When bringing suit, parties should raise both major questions and nondelegation challenges. That’s because it is technically possible to lose on one and win on the other since only one branch may be violating the Constitution. Granted, few nondelegation challenges will win now under the intelligible principle doctrine. But it would be a mistake for those who desire a more robust nondelegation doctrine to give up on that endeavor and just shift to litigating solely under the major questions doctrine because the latter is distinct and cannot accomplish what the former is capable of in its fuller form. (Nondelegation also applies to minor issues, not just major ones.)

In sum, the major questions doctrine is not about legislative delegation but executive usurpation. Those are independent constitutional violations. And so the doctrine is not a substitute for nondelegation but a complement to it. 

James C. Phillips is an Associate Professor of Law at the Dale E. Fowler School of Law, Chapman University; Fellow at the Wheatley Institute, Brigham Young University; and Academic Affiliate at Schaerr | Jaffe.

[1] Or perhaps, because it has such a subjective element in determining what is a major question, it is a type of clear statement standard rather than a rule.

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