There Are Three Major Questions Doctrines, by Eli Nachmany
The Supreme Court ended its most recent term with a slew of blockbuster decisions, one of which was West Virginia v. EPA. Professor Kristin Hickman published a terrific piece about the case on this blog, describing the holding and offering her thoughts on the opinion in general. The opinion rested on what some have described as the “major questions doctrine,” but increasingly it seems that term might be too broad. This brief essay attempts to make some sense of the various moving parts in the Court’s budding major questions jurisprudence while evaluating the meaning of the major questions canon of statutory interpretation, as articulated in West Virginia v. EPA. At bottom, there are now three distinct (yet related) major questions doctrines.
According to Chief Justice Roberts’ opinion for the Court in West Virginia v. EPA, the major questions canon is a rule of statutory interpretation that works in the following way: Agencies must point to “clear congressional authorization” when claiming authority from a statute, if “the history and the breadth of the authority that the agency has asserted, and the economic and political significance of that assertion, provide a reason to hesitate before concluding that Congress meant to confer such authority.” (This quote omits internal quotation marks and alterations from the Court’s opinion.)
To start, this essay uses the term “major questions canon” as opposed to “major questions doctrine” when talking about the rule of West Virginia v. EPA in particular. Some terminological spring cleaning is in order when it comes to “major questions.” Professor Cass Sunstein recently wrote an article taking the position that “there are two major questions doctrines.” First, he hypothesizes that the “weak version” of the major questions doctrine is “a kind of ‘carve-out’ from Chevron deference when a major question is involved,” citing FDA v. Brown & Williamson and King v. Burwell. In practice, this version prevents agencies from obtaining judicial deference to their interpretations of ambiguous laws when a “major question” is involved. Second, he contends that the “strong version” of the major questions doctrine is “a clear statement principle” of statutory interpretation that prevents agencies from asserting broad power when Congress has not clearly granted it.
Professor Sunstein makes the case that “the strong version is rooted in the nondelegation doctrine,” comporting with some of his other writing on what he calls “nondelegation canons.” A nondelegation canon of statutory interpretation is a sub-canon of constitutional avoidance, operating to favor judicial interpretations that would not find a statute violative of the nondelegation doctrine. In that way, interpreting a statute’s grant of authority narrowly might cure a potential nondelegation issue without having to reach the question.
Recently, Justice Kavanaugh may have actually created a third major questions doctrine. In his statement respecting the denial of certiorari in Paul v. United States, Justice Kavanaugh appeared also to conceive of the major questions doctrine as a method of nondelegation triage. His statement respecting denial seemed to express interest in the idea that the nondelegation doctrine should only be applicable to statutes that delegate authority to agencies “to decide major policy questions—even if Congress expressly and specifically delegates that authority.” By contrast, “Congress could delegate to agencies the authority to decide less-major or fill-up-the-details decisions.” This approach suggests deciding cases on the merits of nondelegation claims when a party raises nondelegation, but only in cases involving so-called “major policy questions.”
To that end, we probably now have three major questions doctrines:
- The major questions carve-out to Chevron deference
- Exemplified by: King v. Burwell
- Rule: Courts will not apply the deferential two-step Chevron framework to an agency’s interpretation of a statute when the interpretive question is one of deep economic and political significance.
- Upshot: This carve-out weakens the Chevron doctrine without abandoning it entirely and channels “major questions” cases out of Chevronland.
- The major questions canon of statutory interpretation
- Exemplified by: West Virginia v. EPA
- Rule: In extraordinary cases, courts will demand a clear statement from Congress before an agency can claim broad authority in the context of an issue of national political and economic significance.
- Upshot: This canon of interpretation operates as a sub-canon of constitutional avoidance, skirting issues of nondelegation by resolving cases on statutory grounds.
- The major questions triage rule
- Exemplified by: Justice Kavanaugh’s statement respecting the denial of certiorari in Paul v. United States
- Rule: Apply the nondelegation doctrine to statutes involving major policy questions, but not to provisions of law that are “less-major” or that permit an agency to fill up the details of a statutory scheme.
- Upshot: The nondelegation doctrine would only be applicable in the big cases.
A Thought Exercise
To see how these three versions of the “major questions doctrine” interact with one another, consider a hypothetical case. Congress enacts the following statute: “The Administrator of the Environmental Protection Agency may approve a code or codes of environmental stewardship for the car manufacturing industry, including the imposition of limitations on greenhouse gas emissions by cars manufactured after January 1, 2023. The Administrator may impose a fine of $10,000 per car on any manufacturer who fails to comply with codes promulgated pursuant to this statute, so long as the car for which the fine is imposed is manufactured in a manner inconsistent with the code or codes promulgated pursuant to this statute.” We will call this statute “The Green Cars Act of 2022.” (A nondelegation doctrine enthusiast might recognize this statute as a loose adaptation of the infamous section of the National Industrial Recovery Act of 1933 that the Court declared unconstitutional on nondelegation grounds in A.L.A. Schechter Poultry Corp. v. United States.)
As soon as the Act goes into effect, the EPA Administrator goes through the process of promulgating the following rule: “Beginning on January 1, 2023, no manufacturer may manufacture a car that emits greenhouse gases. The manufacturer of a car or cars that violate(s) this code must pay a fine of $10,000 per car unlawfully manufactured after January 1, 2023. ‘Unlawfully manufactured’ is defined as a car that is manufactured in such a way that it will emit greenhouse gases when driven.” The agency complies with all relevant procedural requirements for notice-and-comment rulemaking in promulgating the rule.
A car manufacturer sues on two grounds: (1) The statute permits “limitations” on greenhouse gas emissions; it does not permit forcing car manufacturers to go all the way down to zero. The word “limitations” implies that the limited amount will be greater than zero. Therefore, the agency’s interpretation of its statutory authority is incorrect and the agency is not acting pursuant to law. (2) The statute provides no guidance for how much of a limitation the Administrator may impose on greenhouse gas emissions, let alone a substantive intelligible principle to guide the Administrator’s exercise of discretion. As such, the statute violates the nondelegation doctrine. The government responds by (1) claiming Chevron deference for the EPA’s interpretation of “limitations” as permitting a zero-emissions rule, (2) defending—on the merits—its interpretation of “limitations” as permitting a zero-emissions rule, and (3) citing the statute’s mention of “environmental stewardship” as an intelligible principle.
Note the manufacturer’s two claims here. The first is a statutory argument—the agency has misinterpreted its authority under the statute. Therefore, without regard to the statute’s constitutionality, the agency is acting ultra vires. The second is a constitutional argument—the statute is unconstitutional (and the court must therefore enjoin its enforcement) because it violates the nondelegation doctrine.
How might a court resolve this case? Consider the three major questions doctrines articulated above.
Begin with the major questions carve-out to Chevron deference. A court would likely find that setting emissions standards for cars raises a question of deep economic and political significance. As such, the EPA’s interpretation should not be evaluated within the two-step Chevron framework.
From there, look to the major questions canon of statutory interpretation. Under West Virginia v. EPA, a court would ask whether Congress spoke clearly in granting the relevant authority to the agency. Here, it could not be clearer. In the hypothetical statute, Congress clearly provided that the Administrator “may approve a code or codes of environmental stewardship for the car manufacturing industry, including the imposition of limitations on greenhouse gas emissions by cars manufactured after January 1, 2023.” A court would have to conclude that Congress meant to confer the sort of authority claimed in this case.
The court would then do statutory interpretation. Suppose the court finds that the term “limitations” encompasses a power to set the amount of permissible emissions at zero (perhaps not an unreasonable read of the statute, at least at first glance). The court would then reject the manufacturer’s statutory argument.
Finally, go to the major questions triage rule, as described by Justice Kavanaugh. Under this rule (which Justice Kavanaugh does not himself necessarily endorse), a court should apply the nondelegation doctrine to declare a statutory provision unconstitutional only if the provision concerns a “major policy question.” Here, the provision undoubtedly concerns a major policy question. With the manufacturer’s statutory claim resolved in the government’s favor, the reviewing court would therefore proceed to the merits of the manufacturer’s nondelegation claim. It seems at least plausible that this statute would violate the nondelegation doctrine, but the precise application of the nondelegation doctrine in practice is a topic for another day. The point is that the court would proceed to the nondelegation analysis.
In all, the Court’s major questions jurisprudence is a bit tricky to sort through. This essay does not even get into the different ways in which the relevant opinions describe the threshold determination before a given version of the doctrine is applied—is the Chevron carve-out’s mention of questions of “deep economic and political significance” (internal quotation marks omitted) different from Justice Kavanaugh’s mention of “major policy questions”? Not clear.
One thing, however, is for sure. The focus on major questions will influence both congressional and agency practice, from legislative drafting to claiming authority to regulate. We just need to be clear about what the major questions doctrine is.
Note: It should be mentioned that Chad Squitieri recently published an article in the Harvard Journal of Law & Public Policy, arguing that the major questions canon is not textualist. This essay takes no position on the major questions canon’s consistency with textualism, but notes that Squitieri’s article advances a meaningful critique with which textualists should grapple.
Eli Nachmany recently graduated magna cum laude from Harvard Law School, where he served as Editor-in-Chief of the Harvard Journal of Law & Public Policy. He is currently a Senior Research Fellow with the C. Boyden Gray Center for the Study of the Administrative State at the George Mason University Antonin Scalia Law School.