Notice & Comment

The Major Questions Doctrine Reading List, by Beau J. Baumann

[Originally Published: November 7, 2022; Last Updated: November 21, 2022]

Chris Walker had the great idea to assemble a bibliography on the major questions doctrine (MQD) so that we can have a one-stop shop for all things MQD. Below, I’ve listed as much of the existing MQD literature as I could get my arms around. I intend on updating this list periodically so that we can stay on top of the expanding literature.

Below, you’ll see many articles organized by focus and topic. If you’d rather just see all the pieces listed chronologically, there’s a more straightforward bibliography at the bottom of the page. I hope this helps!

The Many MQDs

Considerable work has gone into describing what the MQD is, how it operates, and what purposes it serves. While some have claimed that West Virginia gave us the definitive MQD, there is already disagreement on whether there is one MQD or many. Even folks who supports the MQD disagree about whether it is a way to vindicate the nondelegation doctrine. And in the background, we have a very complicated debate about whether we ought to conceive of the MQD as part of the Chevron framework.

At any rate, the iterative nature of the MQD is essential to understanding its rise, and these pieces will help you get a flavor for that underlying volatility. Watch as the literature moves on and tries to explain why the MQD has been so volatile. (hat tip to the Brunstein and Revesz piece below)

  • Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262, 262–63 (2022) (“But no one should mistake these cases for anything but what they are: separation of powers cases in the guise of disputes over statutory interpretation.”); id. at 263–64 (arguing that the 2022 MQD cases “unhitched the major question exception from Chevron”); id. at 265–66 (distinguishing the MQD “quartet” from the nondelegation doctrine).
  • Louis Capozzi, The Past and Future of the Major Questions Doctrine, 84 Ohio St. L.J. __ at 28 (forthcoming 2023) (writing that in West Virginia decision “the Court resolved preexisting confusion about what the major questions doctrine is”); id. (“There is one version of the major questions doctrine: a clear-statement rule grounded in the ‘separation of powers.’”).
  • Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 Va. L. Rev. __ at 3–4, 16–18 (forthcoming 2023) (describing the MQD as a clear statement rule requiring courts “not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies”); id. at 6 (noting that the MQD “flips the normal Chevron analysis on its head”).
  • Jonathan H. Adler, West Virginia v. EPA: Some Answers about Major Questions, 2021 Cato Supreme Court Review 37, 39, 58 (2022) (distancing the MQD from the nondelegation doctrine and arguing that the Court provided little guidance to lower courts in its West Virginia decision); see also id. at 57 (arguing that the Court erred in West Virginia by not placing its MQD analysis within the Chevron framework, specifically at “step zero”).
  • Eli Nachmany, There Are Three Major Questions Doctrines, Notice & Comment (Jul. 16, 2022).
  • Kristin E. Hickman, Thoughts on West Virginia v. EPA, Notice & Comment (Jul. 5, 2022) (describing the MQD as a “subconstitutional means of checking agency authority”).
  • Nicholas Bednar, Chevron’s Latest Step, Notice & Comment (July 3, 2022) (situating the MQD, post-West Virginia, as a step in the Chevron framework). Note also the handy diagram!
  • Beau J. Baumann, Americana Administrative Law, 111 Geo. L.J. __ at 3–4 (forthcoming 2023) (describing an unexplained transition from the MQD as a tool of construction in the eviction moratorium case to the MQD as “a super-charged rule of interpretation” in the vaccine-or-test case).
  • Randolph J. May & Andrew Magloughlin, NFIB V. OSHA: A Unified Separation of Powers Doctrine and Chevron’s No Show, South Carolina L. Rev. __ (forthcoming 2023) (arguing that the MQD of the vaccine-or-test case is increasingly a standalone doctrine, unrelated and perhaps inconsistent with the Chevron framework).
  • Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 317–20 (2022) (attributing the expansion of the MQD over the last six years to its aggressive use by the Trump Administration).
  • Andrew C. Michaels, OSHA Case Shows Fluidity of Major Questions Doctrine, Law360 (Jan. 26, 2022) (arguing that the MQD is more accurately described as a “vague principle or canon used in construing statutes and determining how much deference is owed to agencies in doing so”).
  • Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955 (2022) (treating the MQD as an outgrowth of the Chevron framework and suggesting that it is a “fig leaf” for the nondelegation doctrine).
  • Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1937–38 (2017) (casting the MQD as a set of clear statement rules that “oust” the Chevron paradigm).
  • Kristin E. Hickman, The [Perhaps] Unintended Consequences of King v. Burwell, 2015 Pepp. L. Rev. 56, 63–66 (2015) (suggesting after King v. Burwell that the MQD is serving as a kind of jurisdictional tool that’s meant to keep agencies from exceeding their zone of expertise, à la Chief Justice Roberts’s dissent in City of Arlington).

The Pro-MQD Literature

Historically, the MQD literature has been one-sided. Recently, Louis Capozzi wrote that, “[e]ven before West Virginia, the major questions doctrine had garnered substantial criticism from academics.” But there’s a budding pro‑MQD literature that will hopefully blossom over the next few years. Note that for this section I’m only including out-and-out MQD supporters and the folks who support some hypothetical and reformed MQD. For a measured piece defending the MQD cases as exemplars of Roberts Era incrementalism—but which I would not necessarily describe as “pro-MQD”—see Kristin E. Hickman, The Roberts Court’s Structural Incrementalism, 136 Harv. L. Rev. F. 75 (2022).

Critique #1: The MQD fiction

The point can be put several different ways: “Congress speaks clearly when addressing major questions”; “we presume that Congress does not intend to delegate major questions to federal agencies in obscure grants”; “we expect Congress to speak clearly when addressing major questions”. Regardless of the formulation, the MQD often turns on a descriptive claim, either explicit or implicit, about Congress. These days, this isn’t a claim about any particular Congress, but an assertion about Congresses in general—they don’t leave the big stuff to federal agencies in ambiguous, capacious, or obscure delegations. These pieces have either identified the MQD fiction or been harshly critical of it.

  • Blake Emerson, ‘Policy’ in the Administrative Procedure Act: Implications for Delegation, Deference, and Democracy, 91 Chicago Kent L. Rev. __ (forthcoming 2023) (noting that the drafters of the APA meant for federal agencies to resolve major question and defending that intention on many grounds).
  • Beau J. Baumann, What we mean when we say that the major questions doctrine is “made up”, Adminwannabe.com (Jul. 1, 2022) (“Although proponents of [the] MQD have offered up various justifications for the doctrine, only one has been able to consistently garner votes from SCOTUS. That’s the justification focusing on how Congress ‘speaks’ in statutes.”); id. (“No serious congressional scholar believes that Congress speaks clearly when addressing major questions as a descriptive matter.”).
  • Chad Squitieri, Who Determine Majorness?, 44 Harvard J. of Law & Pub. Pol’y 463, 491–95 (2021) (criticizing the MQD fiction by pointing to the Congressional Review Act).
  • Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 970–71 (2021) (stating one MQD fiction as: “Congress does not intend to delegate to agencies the ability to alter the fundamental details of a statutory scheme, or to decide questions of great economic significance, through the us of vague or ancillary statutory provisions”); id. at 978 (articulating another form of the MQD fiction: “in extraordinary cases involving questions of great economic and political significance, or questions central to the statutory scheme, Congress does not intend to delegate interpretive authority to an agency unless it expressly says so”); see generally id. (acknowledging that these fictions are related to the Chevron fiction but arguing that the MQD is at odds with Chevron).
  • Tejas N. Narechania, Symmetry and (Network) Neutrality, 119 Mich. L. Rev. Online 46 (2020) (reviewing Daniel E. Walters, Symmetry’s Mandate: Constraining the Politicization of American Administrative Law, 119 Mich. L. Rev. 455 (2020)) (arguing that the MQD exacerbates administrative law’s asymmetric deregulatory bend and, in the process, stands at odds with Chevron “step Zero’s foundational focus on congressional intent”).
  • Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1938 (2017) (casting doubt on whether the MQD has any basis in statutory interpretation, and especially whether they result from “a careful analysis of what Congress likely meant in employing broad or ambiguous language in the relevant statutes”).
  • Blake Emerson Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 Minn. L. Rev. 2019, 2024 (2018) (“The doctrine presumes that the reasonable legislator would not have wanted a bureaucratic body to settle policy questions that were left unanswered by statutory law.”) (link).
  • Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 75 Stan. L. Rev. 901, 1003 (2013) (arguing that the MQD fiction matches the expectations of congressional drafters).

Critique #2: The MQD’s Compatibility with Textualism and Originalism

A more recent critique that’s aligned folks from across the admin law world focuses on the MQD’s compatibility with textualism and originalism. An early leader on this point is Chad Squitieri, who’s written about the MQD’s potential inconsistencies with the conservative justices’ avowed methodologies. We are just now starting to see some responses, tentative and otherwise, so this will be a place to watch over the coming years. To follow this closely, I recommend following Chad on Twitter (@ChadSquitieri).

  • Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262, 282–290 (2022) (questioning the MQD compatibility with the conservative Justices professed textualism).
  • Chad Squitieri, Major Problems with Major Questions, Law & Liberty (Sept. 6, 2022) (arguing that the MQD is “a product of legal pragmatism” and incompatible with textualism).
  • Jed Shugerman, Biden’s Student-Debt Rescue Plan Is a Legal Mess, The Atlantic (Sep. 4, 2022) (“This new approach, known as ‘the major-questions doctrine,’ does not turn on ‘textualism’—reading just the words of the statute on their own—but instead emphasizes the context, purposes, and legislative history of the statute.”).
  • Mike Rappaport, Against the Major Questions Doctrine, The Originalism Blog (Aug. 15, 2022) (arguing that the MQD is indefensible because it “neither enforces the Constitution nor applies ordinary methods of statutory interpretation).
  • Chad Squitieri, Who Determine Majorness?, 44 Harvard J. of Law & Pub. Pol’y 463 (2021) (questioning the MQD’s compatibility with textualism).

These pieces have all defended the MQD against this particular critique:

  • Beau J. Baumann, The mischief rule vs. the major questions doctrine, Adminwannabe.com (Oct. 5, 2022) (arguing that the platonic idea of the MQD may be conceptually compatible with textualism if its “descriptive claim” adds context rather than focusing on legislators’ intent); id. (stipulating, however, that the MQD is indefensible on other grounds, regardless of the textualist critique).
  • Michael Ramsey, An Originalist Defense of the Major Questions Doctrine, The Originalism Blog (Aug. 11, 2022) (defending the MQD on originalist grounds with a comparison to the Charming Betsy canon).
  • Sam L. Bray, The Mischief Rule, 109 Geo. L.J. 967, 1011–12 (2021) (suggesting that the MQD is comparable to the mischief rule, which the author argues is compatible with textualism).

Critique #3: The MQD as “Judicial Self-Aggrandizement”

This portion of the literature has its own flavor. Pieces in this genre generally start from the perspective that the Court is a contestant in an inter-branch contest for the authority to determine outcomes. The MQD is treated as a tool of “judicial self-aggrandizement” or “juristocracy.” (there’s some play in the joints on the proper term if you’re watching closely) By this logic the Court is accruing power unduly at the expense of the political branches. This judicial project is implemented with recourse to rhetorical tools and ideas that justify the accrual of power in the judiciary. For 2022 draft articles, one “move” in this literature was to suggest that the MQD is just the latest instance of judicial self-empowerment, a reoccurring historical phenomenon.

  • Blake Emerson, The Binary Executive, Yale L.J. Forum (forthcoming 2022) (arguing that the MQD is a form of judicial aggrandizement that is impermissible because it results in judges wielding executive power).
  • Allen Sumrall, Nondelegation and Judicial Aggrandizement, 15 Elon L. Rev. __ (forthcoming 2023) (applying an APD perspective and arguing that the nondelegation doctrine is an attempt at “judicial self-aggrandizement”). This one is mostly about the nondelegation doctrine but the footnotes connect the author’s analysis to the MQD. See, e.g., id. at 3–4 n.10.
  • Beau J. Baumann, Americana Administrative Law, 111 Geo. L.J. __ (forthcoming 2023) (showing that backers of the nondelegation doctrine and the MQD have justified a project of judicial self-empowerment by suggesting that Congress is declining or that delegations have corrupted its incentives).
  • David M. Driesen, Major Questions and Juristocracy, The Regulatory Review (Jan. 31, 2022).
  • Blake Emerson, Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 Minn. L. Rev. 2019, 2024 (2018) (“The doctrine channels constitutional power by reserving to the judiciary, rather than the executive, authority to settle questions that statutory law has left unresolved.”); see also id. at 2024 (“The courts, by contrast, are treated as the guardians of principle and policy, who stand ready to prevent over-zealous executive officials from usurping legislative power. These assumptions are rooted in an antibureaucratic philosophy of the modern state, which is visible in significant strands of scholarly literature and in some important case law.”).
  • Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1937–38 (2017) (arguing that the MQDs are a set of “power canons” that reallocate power from the political branches to the agencies).
  • Josh Chafetz, Gridlock?, 130 Harv. L. Rev. Forum 51, 57 (2016) (“The major questions doctrine aggrandizes judges, who decide in any given case both how to frame the issue and how important that issue is.”).
  • See also Niko Bowie & Daphna Renan, The Separation-of-Powers Counterrevolution, 131 Yale L.J. 2020 (2022) (defining the historically anachronistic “juristocratic separation of powers,” through which the Supreme Court has assumed a monopoly on constitutional decisionmaking authority). This is a spiritually aligned piece cited by works in this vein of the literature.
  • Cf. Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 959 (2022) (arguing that the MQD displaces legislative supremacy by “twisting doctrine . . . into a tool used to strike down Congress’s most significant policies”).

Critique #4: Lack of Pedigree

Here the idea is that the MQD kind of appeared out of nowhere and contrasts with the larger public law canon and, especially, our preexisting modes of statutory interpretation.

  • Alison Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955, 959 (2022) (arguing that the MQD contradicts the modes of statutory interpretation that preceded it because the MQD displaces the norm of legislative supremacy).
  • Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1938 (2017) (asserting that the MQD has “no basis in prior judicial opinions,” that they “depart from or ignore prior judicial opinions on statutory interpretation”).
  • But see Louis Capozzi, The Past and Future of the Major Questions Doctrine, 84 Ohio St. L.J. __ (forthcoming 2023) (asserting that the MQD has “roots” in nineteenth century case law surrounding municipal delegations, state administrative law, and in the case law surrounding the Interstate Commerce Commission).
  • See also Beau J. Baumann, Capozzi on the future of the major questions doctrine, Adminwannabe.com (Oct. 19, 2022) (reviewing a portion of Capozzi’s analysis).
  • Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 68 (2010) (defending the pedigree of the elephant-in-mouseholes canon).

Critique #5: Manageability

This critique has been around for about two decades and cuts in two directions. Some suggest that it is too open-ended to ask whether any particular question is “major.” A smaller contingent has suggested that the clarity demanded by the Court is open-ended and subject to abuse. (Note: you see this critique mentioned basically everywhere in the literature, so I’ve kept things shorter here than they might otherwise be in the interest of brevity)

  • Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 Va.. L. Rev. __ at 5 (forthcoming 2023) (critiquing the MQD as “radically indeterminate”).
  • Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 320 (2022) (arguing that the MQD has become more unmanageable because of the Trump Administration’s approach to the doctrine).
  • Josh Chafetz, Gridlock?, 130 Harv. L. Rev. Forum 51, 55 (2016) (“Begin with what ought to be obvious: whether or not a particular question is ‘major’ is a political judgment, not a fact about the world.”).
  • Cass R. Sunstein, Chevron Step Zero, 92 Virginia L. Rev. 187, 194 (2006).

Critique #6: The Field of Dreams Rheory for the MQD

Over the last few decades, some folks in favor of the nondelegation doctrine have argued that the doctrine would give Congress a kick in the right direction. Congress—so the thinking goes—might delegate less, decide more things itself, and draft better laws. You can spot the legacy of that literature in Justice Gorsuch’s writings. Because this pitch for strong judicial doctrine works just as well for the MQD, it’s slowly migrated over to the MQD literature. See, e.g., Jennifer L. Mascott & Eli Nachmany, The Supreme Court reminds the executive branch: Congress makes the laws, The Washington Post (Jul. 1, 2022) (“The result may be a much-needed reinvigoration of Congress’s will to reclaim its legislative prerogative.”). Naturally then, a literature has just started churning out evidence undercutting this way of thinking. These pieces either argue or show that what Dan Walters calls the “field of dreams theory” for congressional reinvigoration is, at best, wishful thinking.

Critique #7: Evaluating the MQD as a Constitutional/Substantive canon

The Supreme Court hinted in 2022 that the MQD serves a mysterious separation-of-powers objective—that it is some kind of constitutional or substantive canon. Because the legislation field has its own rich literature on evaluating substantive canons, one “move” in 2023 will be to evaluate the MQD as a substantive canon. Watch for articles that try to distinguish the MQD from other canons like lenity, the Indian canons, and avoidance.

  • Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262, 267 (2022) (treating the MQD as a substantive canon that hypothetically furthers some subconstitutional values, but noting that it is impossible to tell what values the MQD is serving).

Critique #8: The MQD Is Incompatible with “X”

This is almost a miscellaneous category, but many scholars have argued that the MQD conflicts with either (1) a normatively appealing objective or (2) the rhyme and rhythm of some field. Taken together, these pieces might suggest that the MQD is more broadly inconsistent with modern governance and our public law canon.

Bibliography

Articles and Essays:

Blog Posts:

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

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