Notice & Comment

The New Nondelegation: Response to Piatt and Morgan’s “The Three Major Questions Doctrines,” by Brian Chen

There is much hubbub over the major questions doctrine. For good reason. The Supreme Court has lately invoked the doctrine to invalidate sweeping regulatory initiatives, such as the EPA’s Clean Power Plan, OSHA’s workplace vaccine mandate, and the CDC’s eviction moratorium. There is now a cottage industry of law reviews trying to make sense of it. The reviews are in, and critics are not pleased. In an Essay for the Texas Law Review, Professor Samuel Estreicher and I respond to these criticisms. We explain why the major questions doctrine poses no real danger to the administrative state. Indeed, the doctrine serves two important functions: It steers courts away from a robust nondelegation doctrine, while preserving the primary of Congress as the Nation’s policymaker-in-chief.

The nondelegation doctrine lays down the uncontroversial principle that legislation must come from the legislature. But federal courts have struggled to put that principle into practice. The Supreme Court has formally applied the nondelegation doctrine only twice, both times in 1935 to invalidate unprecedented New Deal programs. But since then, the nondelegation principle has found home elsewhere. The Supreme Court has relied on statutory interpretation to police the boundaries between legislative and executive power. As we explain, this functionalist move strikes an appropriate balance between separation-of-powers values on one hand, and robust governmental administration on the other. Our administrative law doctrine should account for different institutional roles and competences. Congress decides big picture policy. Agencies fill up residual details by dint of their flexibility and expertise. The major questions doctrine ensures that both stay in their respective lanes, in a relatively unintrusive fashion.

Austin Piatt and Damonta Morgan conclude that Congress’s “safest course” is to delegate agency authority by “speaking clearly” on specific policy programs. In other words, Congress can skirt the major questions doctrine by answering “major questions” themselves. True enough, as far as that goes. But Congress resorts to delegation precisely because it cannot muster sufficient consensus and foresight to decide major questions. So it entrusts agencies to make important decisions for unforeseen circumstances. To tell Congress to “speak clearly” misses the point. Congress would if it could. The problem is it cannot, and that is why we have agencies. 

The Supreme Court is rightfully eager to push back when Congress delegates too much power with too little instructions. Whether the Court does so via statutory interpretation or constitutional decisionmaking remains an open question. The answer will determine whether the administrative state will persist in its present form. When courts strike down an agency action as ultra vires, the agency may return to the drawing board. The agency can still advance its desired policy, albeit through nonmajor strides. But when courts strike down a statute under the nondelegation doctrine, even nonmajor agency rules are off limits. The question goes back to Congress, where bicameralism and presentment (and our polarized politics) usually doom prospects for new legislation. By vindicating nondelegation principles, the clear statement rule averts the need for the Supreme Court to resort to an austere nondelegation doctrine. In short, the major questions doctrine is bitter medicine. It is the price paid for a dynamic and enduring administrative state. So we should appreciate the major questions doctrine for what it is—a good bargain.

Brian Chen is a law student at NYU. After graduation, he will clerk for Judge Martha Pacold on the U.S. District Court for the Northern District of Illinois, Judge Britt Grant on the U.S. Court of Appeals for the Eleventh Circuit, and Judge Justin Walker on the U.S. Court of Appeals for the D.C. Circuit. 

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