by Beau J. Baumann

Over the holiday season, the Supreme Court granted cert in the Colorado ballots case. That case asks whether § 3 of the Fourteenth Amendment makes former President Donald Trump ineligible for the presidency. This question has become one of the country’s most salient legal issues in large part because of the scholarship of Will Baude and Michael Stokes Paulsen. Section 3 declares that “[n]o person shall . . . hold any office, civil or military, under the United states, . . . who, having previously taken an oath, as a member of Congress, or as an officer of the United States . . . shall have engaged in insurrection or rebellion against the same[.]” In August, Baude and Paulsen published a draft article asserting that § 3 disqualifies Trump from running for president in 2024 because of his schemes to hold onto power after the 2020 election. In December, the Colorado Supreme Court took the bait and held that Trump could not appear on the state’s primary ballot.

The U.S. Supreme Court’s review of the Colorado decision—which is slated for February oral argument—reveals the sclerotic weaknesses of the legal left. Two things are true of the legal left in this moment. First, no one think the Roberts Court will hold that Trump cannot appear on the Colorado ballot. The folks at the Strict Scrutiny podcast unanimously predicted that the Roberts Court would reverse the Colorado Supreme Court. And while Akhil Amar seemed to advise GOP voters in a recent podcast that a vote for Trump is a vote wasted, Amar has not predicted that the Roberts Court will follow Baude and Paulsen’s analysis. Second, we have been told by legal luminaries that the legal resistance to Trump must rush to the Supreme Court to obtain an authoritative ruling, vindicate the Constitution, and save the Republic! This was the mantra of oddball resistance figures like Michael Luttig, who have somehow become important consiglieres to left-wing lawyers fearful of a second Trump term.

Taken together, these features of our legal discourse show that the legal left has offered the Supreme Court an important Reconstruction provision on a silver platter with near unanimous confidence that the Court will vindicate Trump’s run in the 2024 race. Like Charlie Brown in the football, we just can’t seem to walk away from our own entirely predictable humiliation.

The § 3 case is the latest demonstration that there really isn’t a cohesive legal movement on the left that is genuinely progressive in its constitutional politics. Over a century ago, a movement of white protestants in the East and Midwest developed a new constitutional politics that was deeply skeptical of the role of courts. This group, the Progressives, had faith in democracy. They had learned from decades spent at the mercy of a judiciary that was all too happy bloodying the nose of organized labor and social reform movements. They drew on more radical groups—namely socialists—to actively contest the role of courts in our society. In 1912, Teddy Roosevelt’s Progressive Party committed itself to a platform that would limit the power of judges.

Today, the legal left—if there is such a thing—has largely abandoned a progressive constitutional politics. Drunk on the excesses of the Warren Court era, left-leaning lawyers have convinced themselves that the Court can itself be a generator of progressive social change. As many have discussed, this is a delusion. The American judiciary has almost exclusively been a conservative force of retrenchment. The Warren Court is the exception to the rule.

This orientation is bound up in the § 3 campaign. We all know that we’ve given the Roberts Court the opportunity it needed to eviscerate yet another provision of the Reconstruction Amendments. And when the Court vindicates Trump, he will spin this as an illustration of the left’s undemocratic impulses just when President Biden has pivoted to a democracy-saving platform.

This slow-moving crash stems from the left’s enthusiastic embrace of juristocracy and judicial aggrandizement. As I’ve defined it with a coauthor, “[j]uristocracy describes the dramatic rise in constitutionalization and judicial review and the concomitant transformation of political questions into legal questions through judicialization.” The left has participated in the transfer of political questions to judges. With § 3, the left has convinced itself that nine unelected judges should decide whether Donald Trump can run for president. As I have written with Allen Sumrall, this was far from inevitable. Nothing requires § 3 to be enforced by judges, state or federal.

And how was the left goaded into this juristocratic campaign? The left was urged on by the judicial aggrandizement of its questionable bedfellows. I’ve defined “judicial aggrandizement” as “the successful deployment of ideas and norms that reinforce the judiciary’s role as the final arbiter of political disputes at the expense of other governing institutions.” By contrast, “judicial self-aggrandizement refers to when jurists, rather than other actors deploy the same rhetoric.” A few ideas were used to make the rush to SCOTUS seem necessary. Some suggested that we needed a single unified answer, not a patchwork of more legitimate interpretations of § 3. That’s how we got bamboozled into seeking a single answer that we all knew would favor Trump. Relatedly, other resistance figures disparaged political actors’ role in interpreting § 3. This cannot, the idea goes, be left to partisans. Left hanging in the air is what precisely we think judges are for, how they are different from the partisans we are supposed to eye warily.

This whole fiasco is a monument to the colossal errors of the “legal left.” We have too long elevated the role of judges as nonpartisan priests who interpret the sacred scroll passed down by our founders. We might hope that when SCOTUS kills § 3 later this year, that might be the end of the scourge that is progressive originalism. I’m not holding my breath. There is a generation of lawyers who just cannot seem to accept that the Court is against them. Akhil Amar has urged us all to take the originalist case for § 3 seriously. He has even disparaged legal commentators who have pointed out that a 6-3 Court of Republican appointees is not going to vindicate the Baude-Paulsen argument, whatever their originalist bona fides. People like Akhil Amar who have convinced left-leaning lawyers to play by the rules (originalism) and avoid a break with juristocracy, even though we all know that the game will lead to the left losing more than it wins.

The only glimmer of hope is that this vital Court term will finally give rise to a constitutional politics that is genuinely progressive in the old-timey sense of that word. This will, no doubt, require a killing of some idols. Steven Vladeck’s recent book, The Shadow Docket, helped make him into a major figure of the legal left. But a closer examination of the book reveals the author’s surprisingly conservative orientation. Vladeck doesn’t want to curb the juristocracy, he wants to buttress its reasonableness and the legitimacy it derives from an orderly decisionmaking process. Other icons of the legal left have never taken a strong stance against judicial power. When the hosts of Strict Scrutiny complain about the Court, they often disparage its bad reasoning. Would the hosts come out against a juristocratic court that wanted to pursue Roe 2.0? As a longtime listener, I have my doubts. What the legal left needs is a center of leadership that is principled in its commitment to democracy and its rejection of juristocracy—even when it hurts.

There are, I think, two alternatives that we can coalesce around if we want to build a progressive legal movement. First, folks like Niko Bowie and Daphna Rennan have argued for constitutional politics that leave the interpretation/construction of the constitution—to a significant extent—in the hands of political actors. For those who question whether dependence on the Constitution itself naturally leads to a juristocratic orientation, a more radical option may be required. The second option comes in the form of folks like Sam Moyn, who has argued for a more radical break with our culture of constitutionalism.

The parameters of disagreement in a genuinely progressive legal movement would be on the role of constitutionalism. The Bowie-Renan route would have us preserve constitutionalism but deposit authority with political actors. The Moyn route would envision a more serious break with the Constitution. To borrow from Rob Wolfe’s recent and helpful taxonomy of left-legal advocacy, both of these two routes are part of the “disempowering school” of thought. The point of progressive legal thinking is, on this view, to disempower the courts and effectuate a reversal of our country’s juristocratic trajectory. Whatever the distance between Bowie/Renan and Moyn, they’re both clearly in tension with what Wolfe calls the “legitimacy school.” That’s the group of scholars who are just focused on tinkering around the edges. Like Vladeck, these folks have made their peace with juristocracy. On this view, the left’s goal should be to build a juristocracy we can all live with. One that’s reasonable.

What does this have to do with § 3? The silver lining to this pointless kerfuffle might be that it helps finally wake up the left that the legitimacy school doesn’t have much to offer. The Court is going to vindicate Trump and the right on a score of important issues this term. And it will be increasingly clear that the results will have little to do with the law or the arguments on offer. What matters, increasingly, is a juristocracy that is definitionally at odds with any kind of progressive politics that could avert the country’s breakdown into Trumpism or something even worse.

Once the disempowering school has been vanquished, we might have the discursive space necessary to build a legal movement focused on limiting the power of judges and vindicating democracy. By my lights, the last eighty years of left-wing legal campaigning has only proved a colossal failure. We can only move forward and avoid a worse challenge to the system by rediscovering the roots of progressive legal thinking. Maybe the killing of § 3 will finally get leftists to wake up and reject juristocracy.

Beau J. Baumann is a Ph.D candidate at Yale Law School and a former appellate attorney at the Department of Justice.

As many of you may now, Chevron deference is heading back to the Court in the Loper Bright case. Amicus briefs in the case have started rolling in and many are pretty God-awful. An exception to this trend is the amicus brief filed by Chris Walker and Kent Barnett: link. Walker and Barnett don’t support either party and instead are writing to preserve Chevron. It’s a solid overview of where the scholarship is on Chevron. If you read this brief, you’re going to be caught up in time for when the case is argued next term. This is basically your scholarly adendum to the parties’ briefs if you are following the case closely.

Recently, I started diving into Notre Dame’s recent admin law symposium. The pieces from the symposium discuss Administrative Procedure Act (“APA”) interpretation. Because the APA is a unique statute, scholars have long debated how to give it meaning. The different approaches are helpfully categorized by Chris Walker and Scott MacGuidwin’s literature review. Their taxonomy discusses APA pragmatism, administrative common lawmaking, APA textualism, and APA originalism. For the purposes of this blog post, let’s focus in on APA originalism, which has been all the rage the last few years.

APA originalism is a term that was coined by Evan Bernick. Bernick pitched a new approach modeled on originalism that would refocus admin law scholars towards “ascertaining the original public meaning of the APA’s text.” His insight was that the APA is a superstatute that operates almost like a mini constitution for the administrative state. Moreover, the APA is underdetermined in a way that mirrors constitutional text.

As a side tangent, I’ve never been sure how APA originalism is meaningfully different from an APA textualism that contemporary and academically refined textualists might recognize. Let’s turn to friend of the blog and textualist Chad Squitieri for a second. On his view a “textualist” is a person “who understand[s] court to be the faithful agency of ‘the people[.]’” A textualist ascertains statutory meaning by looking to objectified intent. That means “the intent than an objective reader would take a text to have at the time the text was enacted.” Textualists use text, structure, some canons of interpretation, and context to determine objectified statutory meaning. Okay, so what’s Bernick up to? He says to get at APA original public meaning (“OPM”), we must ascertain the “semantic content” of the APA. This includes both the “semantic meaning of . . .  words and phrases, syntax, and grammar” as well as “terms of art” that “carry specialized meanings with which only linguistic subcommunities would be familiar.” Bernick is totally fine with consulting context around the APA as part of a hierarchy of sources. It’s basically just Squitieri’s textualism as applied to the APA in my judgment. So when we’re talking about the APA’s OPM, we’re really talking about meaning that we can discover through text, structure, and certain forms of context. I don’t think any APA originalists would have a problem with consulting certain pre-APA legal conventions to better understand the statute’s provisions.

Now that we’ve gotten that spiel out of the way, I want to talk about my concern that APA originalism is maybe not so great for the literature and is importing what I think of as the “Mortenson-Bagley problem” from con law into APA interpretation (more on that in a minute). Here’s the thing—I really don’t care about the ontological positions that people are debating in the APA-interpretation literature. By ontological positions, I’m referring to people’s positions on what they think the APA is and how we have to interpret it at the level of legitimacy. For example, I get the vibe that Kathryn Kovacs really and truly believes that APA originalism is the only legit way to do APA interpretation. That’s not really how I think. I don’t do methodological labels for reasons that are too complex to discuss here. Let’s just say I’m a practitioner on methods and I don’t think any of these theories has a descriptive lock on how law is actually done by lawyers, judges, and other actors.

My concern is with the epistemics of APA interpretation. (assume for the rest of this blog post that I’m putting on my APA originalist hat on ontology) The epistemics of this conversation have to do with how we assess our knowledge about the APA’s meaning. The “Mortenson-Bagley problem” is that we spend all our time talking about our ontological disagreements and adopt methodologies that do not come prepacked with epistemics. So, as many of you may know, Mortenson and Bagley wrote an article purporting to debunk the nondelegation doctrine with reams and reams of evidence. I think its one of the most impressive pieces of scholarship I have ever read. The problem though—as became apparent in the months following the release of their article—is that the authors didn’t have a shared epistemic framework with their intended audience for parsing evidence and evidentiary burdens. Who has the burden? How do we weigh competing bits of evidence? Nobody frankly knows and the response literature is unavailing on a shared epistemic framework (imho). You frankly just see people talking past each other on what the relevant questions even are.

My concern is that the push for APA originalism has only magnified epistemic problems in the literature surrounding the APA. My issue is made manifest by the piece that Bill Eskridge and John Ferejohn contributed to Notre Dame’s symposium. These guys are legends who have elevated the term “super-statute” in the legislation field. That’s the framework that they use to evaluate the APA.   In addition to a bunch of other points, they have a phenomenal epistemic argument against APA originalism. “There is,” they write, “no static ‘original understanding’ of the APA for issues the framers did not consider and for which progressives and conservatives did not deliberate.” The problem with APA originalism isn’t necessarily anything having to do with ontology. The epistemics are liable to run you off a cliff though.

The problem—and on this Eskridge and Ferejohn are totally right—is that the relevant OPM, broadly construed, is too thin to impose much on contemporary problems. This is an observation that should be legible to most admin people. Y’all remember that “Lost World” literature? We unironically spent a few years running around implying that the “world” of admin from the APA’s passage is “lost” like Jurassic Park. That’s also true and it’s creating a ton of problems for people who are trying to do APA originalism. Don’t get me wrong, I really try to read everything that gets produced in APA originalism literature. But take the debate over universal relief under the APA. People keep trying to do the APA originalism game for that question and nobody has the goods. The people against universal relief have produced pretty cool arguments based off thin evidence, and the other side has done the same. Nobody has a smoking gun. I study congressional drafting from the era around the APA’s passage (as a profession now), and I have seen zero evidence that would allow me to say what the right answer is with any degree of confidence. If we’re being honest, the statute doesn’t have an answer. But you can’t write a law review article saying that, or at least one that will place well. And can you imagine a court ever saying, “well now that we’ve looked at the original meaning of the APA, it has obviously just completely run out”? No!

My concern with the APA-interpretation literature since Bernick coined the term is that we may be replicating some problems in con law land. I will stipulate that there are pieces in this genre that persuade me on issues I don’t have any stake in one way or another. Kovacs’ piece on the “military authority exception” in the APA is a banger, in my opinion. And I truly don’t care at all about what the right answer in that piece is. The list from there gets pretty thin (i.e., I don’t think many other pieces in this genre have evidence of OPM—again, broadly construed—that persuades me one way or another on hot-button disputes). Maybe I’m too much of a stickler for evidence. Alternatively, the literature’s focus on ontological debates is obscuring a thicker discussion that could lead to a shared epistemic framework. I read Eskridge and Ferejohn (two of the most prolific legislation scholars alive) as offering the admin law field an intervention. Their epistemic observation, as applied to disputes about Chevron deference, nationwide relief, the presumption of judicial review, and arbitrariness review, rings true to me. They’re practically shaking us by the lapel and reminding us that there isn’t enough OPM for a lot of the issues we care about—a point that should be intuitive.

So my objection to APA originalism is that its maybe creating a hammer-and-nail problem in the literature. It’s telling folks to apply a method (be a hammer), so that all they see are questions that can be resolved by that same method (nails). Theoretically, you can resolve this question by just pivoting towards epistemics and creating more room for scholars to just admit that OPM ain’t gonna do it. But to leave on a more worrisome note: what does all this mean for judges? If I’m right that the scholarship is having trouble with the epistemics you need to actually do APA originalism, do we really think judges can do this well?

In a transparent rip off of Dan Deacon’s “Ad Law Reading Room” and Larry Solum’s recommendation on the Legal Theory Blog, I want to start a category on here that’s just devoted to highlighting other people’s work. To start out, I recommend Brian Christopher Jones new(ish) piece, The Legal Contribution to Democratic Disaffection. As people who follow me know, I’m very much into what Josh Chafetz and Allen Sumrall call judicial self-aggrandizement. In Americana Administrative Law, I used their concept to argue that judges were pitching a project of judicial empowerment by adopting a cynical and declinist rhetoric about Congress.

Jones’s project is orthogonal to this work and works like it. He’s exploring how law can affect politics for better or worse. In describing the affects of judicial politics on democracy in a way that emphasizes the ways in which the legal and political are inextricably intertwined, I think the paper makes a compelling contribution to the literature.  

Here’s the abstract:

At its best, law and legal processes contain the ability to not just complement the acrimony of politics, but lift it onto a higher plane, where independent thought can lead to valuable and extremely useful revelations. Such insights may help provide solutions for intractable or highly sophisticated societal problems, ensure equality under the law, or help uphold the structures of democratic government. Alas, law is not always at its best. At times law may damage and undermine politics by condemning the political realm or its agents, squandering opportunities to dignify politics, and belittling the people that make difficult, and sometimes poor, decisions. These condemnations can contribute to an unhealthy view of the political realm, which often highlight and accentuate its failures. No doubt much work has been put into law at its best, but its downsides must also be acknowledged.

Law and legal processes may not be the primary drivers of anti-political sentiment, but it would be mistaken to say they do not contribute to it. This article provides an initial theoretical basis for how law may impact democratic disaffection. First, the paper explores what democratic disaffection is, and why the law has been marginalized in the study of disaffection. Next, different relationships between law and democratic disaffection are analyzed: (1) law and courts contributing to disaffection; (2) law and courts working to counter disaffection; and (3) law and courts doing both. The paper goes onto examine the idea of ‘democratic distancing’ within the law, focusing on the following elements: the expansion of court policymaking authority, the implementation and expansion of written constitutions and bills of rights, the proliferation of regional and supra-national courts, and the lack of citizen involvement in burgeoning constitutional adjudication.

Recently, we’ve received a new justification for the major questions doctrine (“MQD”) in the form of Ilan Wurman’s Importance and Interpretive Questions, which aims to recast the doctrine as a linguistic canon. Wurman’s project ask whether the MQD can find a defensible justification as an insight into either (1) how Congress drafts statutes or (2) how ordinary language is used when people in conversation delegate authority. You get the sense from the paper that this project was born of Ilan’s pessimism on the MQD’s pedigree as a substantive/constitutional canon. He says that several version of the MQD are not defensible or are only defensible if the doctrine doesn’t—as most scholars think it does—require clarity over and above plain meaning. What follows is an eclectic collection of evidence that gives Wurman’s piece a kitchen-sink feeling. I don’t mean that as a criticism; Wurman collects evidence from many sources to try to see if anything sticks. I think it’s a creative work that will give everyone a lot to deal with in the literature. But at the same time, it can be dizzying how Wurman toggles back and forth between different sorts of evidence; from (what I think of as) intentionalist evidence about congressional staffers’ views on drafting, to a theoretical work on language. So you’ve got to come into this one with some flexibility.

The evidence includes the following:

1. Evidence of drafting practices—Wurman relies on the results from a question in Bressman and Gluck’s survey (“B-G Survey”) of congressional drafters from a decade ago.
2. Theoretical work on ordinary language—Wurman relies on the work of Ryan Doerfler, whose paper, High-Stakes Interpretation, discussed the role that importance can play in ordinary conversation.
3. The mischief rule—in a move that should be familiar to readers of the blog, Wurman argues that the MQD might serve a similar function to the mischief rule.
4. Historical evidence—Wurman points to the Necessary and Proper Clause, agency law, contract law, and the historical work of Louis Capozzi.

Personally, most of this evidence is not for me because of various methodological commitments and my own assessment of the evidence. For starters, it’s unclear whether the B-G Survey is either relevant or particularly strong evidence. You can get a sense for what I mean here and here. You should also check out Chad Squitieri’s work, with its emphasis on what kind of evidence about Congress textualists ought to look to, here.  Textualists had a lukewarm take on the study because it’s unclear that it adheres to textualists’ methodological commitments. (I doubt a lot of academically refined textualists will take this to heart, but that’s a conversation I’m not part of.) What’s more, even if you accept that the study is relevant evidence, and not just a kind of intentionalism that’s verboten, it’s not clear that it’s particularly strong evidence. The B-G Survey included the following question, which was posed to congressional drafters:

Q55. What kinds of statutory ambiguities or gaps do drafters intend for the agency to fill? (mark one)

a – Ambiguities/gaps relating to the details of implementation

b – Ambiguities/gaps relating to major policy questions

c – Ambiguities/gaps implicating questions of major economic significance

d – Ambiguities/gaps implicating questions of major political significance

e – Ambiguities/gaps relating ot the preemption of state law

f – Ambiguities/gaps relating to the division of labor between state and federal agencies when both are given implementation roles

g – Ambiguities/gaps relating to omissions in the statute

h – Ambiguities/gaps relating to the agency’s area of expertise

i – Other (explain)

To state the obvious, answers “b,” “c,” and “d” above are all modeled against the MQD. According to Bressman and Gluck, 60% of respondents chose the answers that aligned with MQDs premise. 28% of respondents said that “drafters intend for agencies to fill ambiguities or gaps relating to major policy question.” 38% of respondents said that “drafters intend for agencies to fill ambiguities or gaps relating to questions of major economic significance.” And 33% said that “drafters intend for agencies to fill ambiguities or gaps relating to questions of major political significance.” For starters, 40-60 split in the responses is nothing to scoff at. It’s hardly a runaway for the MQD-esque answer choices. But also, it’s important to remember that the congressional drafters in the B-G Study exhibited a general ignorance of many basic linguistic conventions and doctrines. With a few exceptions like Chevron deference, the staffers flunked on recognizing basic canons with long pedigrees like the rule of lenity. With that background in mind, it’s unclear to me whether a congressional drafter might have merely picked one of the non-MQD answers with a more anodyne instinct in mind—that Congress establishes the general outlines of federal policy that federal agencies will fill. Few would dispute—and this is a point relevant to my scholarship—that Congress routinely uses underdetermined language when “speaking” on socially and economically salient questions as a descriptive matter. While it might seem true in the abstract that drafters only “intend” on having agencies fill in the details, that “intention” may not match up with the realities of actual cases as they arise. What’s more, congressional drafters may not perceive major questions or agree with the courts’ characterizations of majorness. The problems with relying on this question are pretty endless. I have a lot of trouble crediting the results—at least for doctrinal purposes—of a single question posed to congressional staffers who seem to be opining on intent in the abstract and who lack the authority by themselves to make law that’s binding on the public.  

A lot of the other evidence rehashes points that have already been discussed on this blog. Wurman points to the mischief rule to argue that the MQD might be understood as really working in a similar way. If that’s true, I don’t know what independent work it’s doing or the Court’s distinct modes of application that do not match the mischief rule proper. I offered my own take on the connection between the mischief rule and the MQD here. I do think the mischief rule operates kind of like the MQD if you squint, and that this observation could be important for textualists in an academic sense. The MQD has long been justified through a descriptive claim about how congresses (plural) “speak” in statutes in the abstract—they “speak” clearly when addressing major questions. The mischief rule provides a similar context to statutory interpretation with the descriptive claim that congresses (plural) legislative against mischiefs. That’s an important perspective but it’s all for not because the comparison does not actually provide any evidence that Congress “speaks” clearly when addressing major questions, a claim that any good student of Congress will find either hysterical or maddening. If the MQD is reframed in a similar vein as the mischief rule, it nonetheless fails because the context it provides is obviously wrong. (more on that in a piece I’m working on) And, finally, I’m not going to relitigate the Capozzi work here. You can read about it here, here, and here.

The rub for me is the portion of Wurman’s paper dealing with the work of Ryan Doerfler. Doerfler explained that “to say that the meaning of a statute is ‘clear’ or ‘plain’ is, in effect, to say that one knows what the statute means.” He continues, “[a]s numerous philosophers have observed, . . . ordinary speaks attribute ‘knowledge’—and, in turn, ‘clarity’—more freely or less freely depending upon the practical stakes.” “In low-stakes situations speaks are willing to concede that a person ‘knows’ this or that given only a moderate level of justification.” But if the stakes are high, “speakers require greater justification before allowing that someone ‘knows’ that same thing, holding constant that person’s evidence.”

For Wurman, Doerfler’s work connects nicely to the MQD:

The application to some of the major questions cases is intuitive, at least as to the threshold question of ambiguity. The meaning of an “occupational health and safety standard” may seem straightforward in an ordinary, relatively low-stakes regulation of the workplace. We might “know” that the statute permits such regulations, or find the statute is “clear” in this regard. But when dealing with a regulation that imposes a requirement on millions of individuals, that persists beyond the workplace itself, and which requirement is itself hugely controversial, it is intuitive to think that ordinary speakers would in fact demand more epistemic confidence before concluding that the statute in fact authorizes such a requirement. In other words, ordinary readers and speakers are more likely to find the statute ambiguous in that context than in a relatively lower-stakes context.

This is an interesting attempt to find a plausible justification for the MQD. Of course, you’d want to back up the intuitive appeal behind Doerfler’s work. (Word on the street is that folks are already on that project—more to see over the next few years on the empirical end of things.) Do all linguistic canons have empirical backing? Of course not. But many were adopted before we had the means for testing their premises. We wouldn’t want to make doctrine turn on linguistic insights that have not been sufficiently tested for the same basic reasons that we don’t drown people to test if they’re witches. We’ve come a long way!

On a more basic level, I’m skeptical of this approach, or more specifically, that it is anything like a proper linguistic canon or gives the MQD an acceptable pedigree. As Doerfler’s work suggests, and as Wurman seems to realize on page 45 of his draft, this linguistic insight cuts both ways. Doerfler’s work suggests that if an agency will foist a “hugely controversial” requirement on a ton of folks, the agency ought to seek out clear authority from Congress. But agencies aren’t the only folks who are in conversation with Congress. So are judges. We could reframe the question from the vaccine-or-test case as follows: should federal judges strike down an agency action if it poses significant consequences (e.g., the death of thousands of people). The upshot of Doerfler’s work is that judges should not strike down agency actions if they will be causing tremendous consequences—like, you know, exacerbating the devastation caused by a once-in-a-century pandemic. Wurman sees this problem and offers up the following:

Fortunately, the legal system already contingently addresses this question of framing differently: because agencies are creatures of statute, they must demonstrate authority for their actions. Thus, as a matter of constitutional structure, the agencies are the asserters of the legal claim and bear the burden of proof. Even if one does not buy this distribution of proof burdens, it is enough to say that the question addressed here is the meaning of the statute, which is not necessarily the same question as whether the agency has acted unlawfully; and on that former question, the insights about high-stakes interpretation militate in favor of a major questions canon of some sort.

Do I find this convincing? No, not really. I take as a given that when Congress gives an agency authority X, it’s really giving a federal agency the authority to do a range of things from agency actions A, B, C, and D. That’s just a view that turns on the hopeless indeterminacy and underdeteminacy of language. When a judge has to interpret a federal statute de novo, A, B, and C might be plainly within the authority granted to the agency. The remaining question is whether D, the agency action taken, is outside the realm of the permissible. We call that ultra vires. But in answering that question about agency action D that entails terrible consequences—death, destruction, yada yada—there’s no good reason I see that Doerfler’s linguistic insight does not counsel in favor of a kind of deference. Indeed, this kind of sounds like how many judges approached judicial review during a time in which we had a healthier separation of powers dynamic. They would strike down government actions only if those actions were plainly impermissible. That approach has fallen out of favor, but that’s the result of a social-legal movement that has cast deference as judicial abnegation. It’s all contingent. There are no right answers.

I think we’re all used to the observation that different canons can be in conflict and lead to different results. But it’s rarer that a linguistic insight seems to augur in favor of both deference and tighter judicial review simultaneously. I think this poses a question that should be on our minds; maybe not every insight into ordinary language lends itself to the construction of workable judicial doctrine. At the very least, we should not fool ourselves that the MQD as linguistic canon has some kind of clean pedigree. If the insight works both ways—in favor of both deference and stricter judicial review—then the choice between those options is a normative one. We’re back to where we started, the MQD’s feeble case as a substantive or constitutional canon. In the end, I’m trying to keep an open mind but am incredibly skeptical that this ordinary meaning provides a working pedigree for the MQD. At the same time, I would urge folks to monitor the empirical/theoretical work on this subject that’s bound to come out over the next few years. And I urge all the blog readers to grapple with the Wurman paper themselves. Although we depart on the merits of recasting the MQD as a linguistic canon, I think it’s a thought-provoking work that we should all engage with.

A Twitter thread started by Jed Shugerman kept going the other day, and I want to breakdown some of its contents. As I’ll explain below, this thread contains two conversations that really have nothing to do with each other except for their capacities to confuse. The Shugerman portion of the conversation has to do with his reading of King v. Burwell. It is very easily confused with the portion of the conversation involving Richard Re about what makes a legal doctrine “purposive.” A word to the wise: this is the not the blog post for anyone who’s not really into the major questions doctrine (“MQD”) or invested in the pedantry behind the word “purposive.” Be wary.

By the way, I put “purposive” and “purposivism” in quotes when I’m referring to its commonplace usage. I italicize purposivism and intentionalism (along with their derivations) when I’m referring to the narrower and scholarly usages of those words.

As a final aside before we get started, I truly don’t care whether the MQD is “purposive” or not. Because that term is bandied about with very little precision, I only hope to clarify what we’re saying about the MQD. I really don’t walk around with a self-conception rooted in one of the theories of statutory interpretation. The only reason I care about the use of these words is because of their capacity to confound our understanding of key legal doctrines and different cases. This blog post is basically an exploration of those pitfalls.

First thoughts: what does “purposive” mean?

Legal academics and practitioners tend to use “purposive” as the antithesis of plain meaning textualism. In common parlance, its content is almost entirely defined by its relationship with its supposed opposite. Let’s start with some definitions from Larry Solum’s Legal Lexicon series. Larry says that when folks say “purposivism” they’re really often combining purposivism proper and intentionalism. He defines the latter as “a subjective approach [to statutory interpretation] that emphasizes legislative history as guide to the will of the legislature.” He defines purposivism as “an objective approach that focuses on an inquiry into the purposes than an ideal legislature would have had if it had enacted the statute to achieve the public good.”

These definitions track the Eskridge-Brudney-Chafetz (“EBC”) hornbook on Legislation and Statutory Interpretation (3d Ed. 2022). EBC write that intentionalism is a theory “valorizing the ‘specific intent’ of the democratically elected and accountable legislators.” (pg. 188) Okay so that’s focused on what lawmakers were actually thinking when they were enacting a particular piece of legislation. They write that purposivism is more related to the Legal Process School, which was concerned with reconstructing a reasonable legislature’s take on the overall purpose of a statute. (See pgs. 189–90). So you’re sitting back and thinking, what would the purpose of this statute have been if I were a “reasonable legislature” (whatever that means). I don’t think any of this is particularly controversial, check out Krishnakumar from 890–892.

Okay, so a cursory approach to “purposive” as we use that term in daily usage demonstrates that it’s a conflation of purposivism and intentionalism proper that is defined by its opposition to textualism. (See ECB pg. 185). So already, we’re getting to a place where we understand that the word is a little tricky. Worse, “purposivism” is referenced in opposition to “textualism.” Sometimes people use “purposivism” when they’re talking about anything that’s apart from the semantic meaning of text.

So now that we’ve gotten some of the basics out of the way, we must get at limitations. All three major theories, intentionalism, purposivism, and textualism, have hazy relationships with context. People need an approach to two different kinds of context—context specific to a particular piece of legislation and context that we might think of as generalized facts about the world. The former category was embraced by the earliest purposivists who, for example, were down to clown with the mischief rule where it helped them uncover the mischief that animated the legislation being interpreted. I am totally unaware of any canonical take on that other kind of context—the kind that’s not about any particular Congress and not particular to any piece of legislation. The problem, as we shall see below, is that this is the kind of context implicated by the MQDs (there are more than one) of the last decade or so. I’m not trying to give an elaborate explanation of each approach to context. I’m just flagging this as a problem for all three theories.

Is the MQD “purposive?”

Richard Re’s participation in the Shugerman Twitter thread was related to the MQD fiction and whether or not it makes the MQD “purposive.” The most consistent justification for the MQD has nothing to do with constitutional law or anything like it. It’s a simple legal fiction that Congress “speaks” clearly when addressing major questions. Most sane people understand that Congress does not, in any meaningful sense, “speak” clearly when addressing major questions. In the long run, Congress passes statutes that delegate sweeping authority to federal agencies and courts to establish entire fields. Some substantive areas are, in fact, defined by Congress’s propensity for “speaking” in a frequency falling far short of the MQD’s level of clarity. (This is a point that comes to me pretty intuitively as an appellate immigration lawyer.)

As I’m arguing in an upcoming paper, Original Sin: The Major Questions Doctrine Fiction, the Court’s disfigurement of this fiction across several cases is responsible for the worst features of the doctrine. To understand the MQD fiction, and whether or not it makes the doctrine “purposive,” we have to talk about how it’s changed over time.

Vanilla MQD. Back in a case from 1994 called MCI Telecommunications Corp v. AT&T, the FCC seized on the word “modify” in the text of the Communications Act of 1934 to exempt small telephone carriers that were competing with AT&T. Justice Scalia approached the cases as a Chevron question. Although the agency claimed that the Court should defer to their interpretation of the Act under Chevron, the Court disagreed and wrote that the agency’s reading was an improbable read of the word “modify” because it would have allowed the agency to fundamentally rewrite the terms of the statute. If you consider MCI an MQD case, it stands for the principle that there are *some* circumstances where the Chevron fiction–the idea that Congress means for agencies to fill gaps in statutes–doesn’t make sense because of the broader statutory context. That’s broadly “purposive,” and my reading of the case is that Scalia is doing purposivism proper.

This vanilla MQD, which operated as an anti-Chevron rule, made a big appearance in another case, FDA v. Brown & Williamson Tobacco. B&W concerned an FDA reading of the the Food, Drug, and Cosmetic Act that would have allowed the agency to regulate tobacco products. Although Congress had considered but failed to enact legislation authorizing the regulation of tobacco products, the agency pressed a new interpretation of the ACT that would have permitted the FDA to regulate nicotine as a “drug” and cigarettes as “combination products” that deliver nicotine into the body. In a decision written by Justice O’Connor, the Court invoked the MCI precedent: “As in MCI, we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” The Court’s deployment of what we now call the major questions doctrine was again used as an anti-Chevron rule. It came after the Court had laid out the relevant statutory text in greater context. Again, I think it’s defensible to say that this anti-Chevron version of the MQD is, broadly speaking, “purposive.” It’s just a tough ask to think that Congress really meant for the agency to have the power to make this kind of reading, given the statutory and policy history behind the Act.

Contemporary MQD. Over the next decade, the Court changed the weaker and more purposive versions of the doctrine so that the fiction is now free-floating. What do I mean by free-floating? Contemporary cases treat the MQD as bound to a transsubstantive fiction that Congress “speaks” clearly when addressing major questions. It’s not really rooted in the same kind of policy or statutory analysis that takes place towards the end of the interpretive process. This is a big problem and it’s responsible for the MQD’s disfigurement over the last two decades. For example, we can’t really say that the core reasoning of the MQD should apply to some emergency statutes, because Congress clearly went to great lengths to give the Executive the ability to respond to disasters, etc. The Roberts Court made the most basic mistake when dealing with legal fictions–it started taking the MQD fiction way too seriously. This is laid bare at oral argument. Recently, during the student-loan arguments, you could hear a beleaguered Chief Justice just repeating (and I’m paraphrasing), “I don’t get it, this is a big deal, so how could this possibly survive the MQD?” That’s the level of sophistication we’ve kind of devolved down to. The MQD fiction operates against big deals, without much in the way of statutory or policy analysis. The key is that it’s not about any congress in particular anymore, definitely not the one that enacted the legislation that comes before the Court.

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So this is where Re starts arguing with Blake Emerson and myself. He came in hot on a thread and asserted that the MQD is “purposive” “like Holy Trinity.” Re says, as many people do, that the MQD fiction makes the MQD “purposive.” It’s kind of up in the air whether either the Court really thinks this fiction is about legislative purpose or legislative intent properly understood. So let’s just ask whether the MQD fiction is “purposive,” in the more loose meaning of that phrase. The question is whether the MQD fiction’s role in the doctrine means that the Court is either (1) engaging with Congress’s subjective intentions or (2) asking what a reasonable Congress thought of the statute’s general purpose. Re points to a quote from Justice Kavanaugh from his lower court days where he says that judges “presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.” Re’s point here is pretty straightforward: “they said it’s about intent explicitly! What more could you want?”

I think the Kavanaugh is, at best, referring to that early anti-Chevron version of the MQD. We’ll never really know though. One problem, of course, is that the judges rarely discusses “intent” with any sophistication or distinguishes between intentionalism and purpose proper. Because we refer to “intent” and “purpose” so loosely, often as something in opposition to plain-meaning textualism, that the Kavanaugh quote is less than helpful here. It’s not clear to me what he means when he says its about “intent.” Does he mean that this is his best reading of the subjective mindset of the lawmakers behind the law? Or does he mean that this is a kind of useful fiction about congressional intent across time and space, kind of like how we talk about the Chevron fiction? Early on, the MQD read like a tool that was activated by a deeper contextual reading of the underlying statute. That’s MCI and Brown & Williamson. But the free-floating MQD of recent years is not based in either intentionalism or purposivism because the Court does not treat the MQD as triggered by either a subjective or objective reading of the Congress that enacted the relevant legislation. It’s just a fiction about how congresses use language when doing the big stuff. That the MQD of Kavanaugh’s tenure has this free-floating quality undercuts his claim that the MQD is about congressional intent proper (if that’s even what he meant).

So whether Kavanaugh said that the MQD was about congressional intent is kind of useless information to me. Worse, the Court tends to say that certain devices that have nothing at all to do with either intent or purpose are in fact related to a statement of congressional intent. As I say, the MQD is one of many devices that is not really about any particular Congress at all. The MQD, Chevron, constitutional avoidance (sometimes), lenity (sometimes), and the mischief rule (sometimes) are premised on claims about how congresses (plural) work. They’re judge-made fictions that aren’t really about the subjective or objective mindset of the Congress that passed the statute! So the obvious question to ask here is whether intentionalists or purposivists are using methods that are focused on a particular Congress, either real or imagined, that passed the law in question.

One reason that it’s anachronistic to even ask whether these are tools of purposivism and intentionalism is that this kind of tool predates the rise of legal theory and modern statutory interpretation. They serve a more primordial end. Judges interpreting statutes need some context. Many textualists even acknowledge the need for context to supplement plain meaning analysis in at least some situations.

So I pushed back on Re for saying that the MQD is “purposive” because I don’t think the *contemporary* MQD or these other tools have anything to do with purpose or intent. The contemporary MQD is not about intent because it has nothing at all to do with the subjective intentions of the lawmakers who enacted the legislation before the Court. Whether the contemporary MQD is purposive is a closer call. I bet Re would say that the MQD fiction looks a lot like asking about what purpose a reasonable legislature had. The problem—and this is the rub—is that when I think of purposivism, I am referring to a process by which we reconstruct the purpose of the reasonable legislature with respect to the statute before us. If the MQD were purposive, it would work like MCI—you’d have to have an analysis specific to the statute in front of you that triggered the MQD fiction. Do a few old MQD cases look like that, sure! Sort of! I think whether the question of whether the MQD was purposive when I was in elementary school might have been a tough call! Does the MQD work that way today? Hell no!

But in case you haven’t picked up on this yet, there is not a right answer. Re and I are running around with different words that just sound the same in our ears and look the same to our eyes. His version of the word “purposivism” includes these kinds of context canons that are just legal fictions. Mine doesn’t. Neither of us are “right” in any meaningful way. This reminds me of Larry Solum’s work on originalism. That word is really just a heuristic to refer to a bunch of different theories that share only a family resemblance. In a similar way, I am pretty confident that there’s no right answer as between me and Re because the word “purposive” is most useless without elaboration. In the end, Re and I can disagree, but I don’t think either of us is right or wrong in any meaningful sense.

So why bother writing a blog post about this portion of the thread if it’s small beans? Well because the Re contribution to the post might confuse a separate problem having to do with an exceptional reading of King v. Burwell.

What in God’s name did the Chief Justice do with the MQD in King v. Burwell?

So for a while now, Jed Shugerman has been running around saying that the MQD was “purposive” in cases like King v. Burwell. For the longest time I–and I suspect others–took him to be saying that the MQD was purposive in the Re sense. I (we) thought he meant that the MQD was deployed in a way that we could broadly describe as “purposive” because of its use of the MQD fiction.

Again, this would be kind of small beans if that was what Jed meant. In the orange parts of the opinions above, we see the Court apply the MQD to axe Chevron deference. That’s basically the conventional reading of King v. Burwell and the role the MQD played in the case. The Court applied the MQD and then proceeded to interpret the statute without deference as an obstacle. This is the reading of the case (I believe) that comports with the writings of Kristin Hickman, Jonathan Adler (see also here), and pretty much every other admin maven I’m familiar with. Again, I assumed that this is what Jed was talking about for the last several months.

What Jed really means clicked for me when I was listening to his podcast. He said something like “Roberts used the MQD to save the ACA.” That made my head spin around like The Exorcist. You have to understand, that’s not what the conventional understanding of King really is about. Under that conventional understanding, the Chief used the MQD to axe Chevron (probably part of a project to limit Chevron‘s domain) and then saved the ACA with a questionable reading of the statutory text that gave pride of place to context over the semantic meaning of text. I asked Jed what he meant.

In a series of Tweets, Jed explained that he has a different reading of King. Jed thinks that the MQD is both the doctrinal explanation for why Chevron didn’t apply and why Roberts was able to get beyond the semantic meaning of the ACA’s text. He thinks the MQD caused the outcome in King in a way that no other scholar I’m aware of thinks of the case.

So what separates the conventional reading of King from Jed’s reading? Okay, dear reader. So scroll up to the screenshots. Basically, the way 99% of the legal community–according to my subjective reading of the commentary–reads King is that after Roberts axes Chevron in the text highlighted in orange, Roberts proceeds with a straight-up interpretation of the text in the paragraph highlighted in green. By “straight-up interpretation” I mean interpretation without deference or any canon putting a thumb on the scale for either side. Roberts–and I don’t mean to offend here–basically lies and says that the relevant statutory text is ambiguous. Once that finding is made, he says that context is allowed to come in and illuminate the meaning of the statutory text. ACA saved.

Jed thought that it was the application of the MQD that allowed Roberts to create ambiguity and look into context. For support, Jed relies on the King Court’s citation to B&W.

Because King cites B&W–the quintessential MQD case–for the idea that we have to put words in context, Jed has concluded that the MQD operated in King and B&W to require the Court to look beyond the boundaries of petty textualism. In Jed’s head, the MQD was a command to put words in context so that the guts of Roberts’s statutory analysis in King could loosely be described as an MQD analysis. The problem, of course, is that the green paragraph above is set off an alternative form of interpretation to the Chevron/MQD paragraph in orange that proceeds it. Note the “[i]t is instead our task to determine.” This is an alternative form of statutory interpretation that I referred to above as “straight up” interpretation. The Court gives every indication that the MQD is limited to its anti-Chevron role.

What of Jed’s reliance on the citation to B&W? My dude has jumped to conclusions. Here’s the part of the B&W that the King Court is citing to.

What the Court is doing is referencing a black-letter rule of statutory interpretation that predates the MQD and requires courts to put ambiguous statutory text in context. That’s the whole game for Roberts in King. He doesn’t want to use Chevron because he’s in the heights of Chevron skepticism, which was running around like Reefer Madness. But he doesn’t want to strike down the ACA for all kinds of political reasons and institutional concerns that I’m not getting into here. So he axes Chevron with the MQD and then uses this “context canon”, along with a “creative” reading of the underlying statutory text, to reach his preferred outcome.

I would say that there is almost no evidence to support Jed’s reading of King. It’s really something you have to go into the opinion looking for. Whether Jed’s context-forcing MQD is normatively attractive is another question that is implicated in his amicus brief in the student loan litigation. With this Tweet thread behind us, Jed might double down on his reading of King. I think he’s pivoting towards casting this reading as “doctrinalist reconstruction,” which he defines as a “traditional mode of doctrinal analysis to make sense of what a judge does, when what the judge said was incomplete or had a gap in the steps.”

I totally concede that scholars have to do some of this doctrinalist reconstruction. But I would really implore Jed to just say that his is a reading of how the MQD ought to work, not how it was actually deployed in King. As I told Jed, the MQD has never actually worked the way he describes. While a few early MQD cases might be described as “purposivist” in the Re sense, the Court has basically abandoned that version of the MQD. And even if the MQD is “purposivist” in that Re sense, it’s “purposivism” was limited to providing a pragmatic limitation on the domain of the Chevron fiction. The MQD does not provide some kind of free-floating exception to textualist interpretation. It never has. Not in the sense Jed means it.

Acknowledging that we can do some doctrinalist reconstruction, we have to have some standards. Jed’s reading of the MQD does not pass a reasonable doubt standard in my mind. It’s kind of like the Alex Murdaugh trial. Could I invent a scenario where Murdaugh didn’t do it? Sure. Could I imagine a world where Roberts’s contextual King analysis is caused by the MQD?Maybe in a David Lynch fever dream. But it’s just not a plausible reading. You’d have to ignore the much more plausible explanations in both cases–namely that Roberts used the context canon and a creative textual reading to save the key accomplishment of the Obama Administration.

Conclusion

At one point, Jed seemed kind of frustrated because he’s been maintaining this reading of King for years and nobody ever mentioned that it might be different from the conventional story. I’ll submit, as an explanation to Jed, that the words “purposivism” and “context” are really to blame. For months, every time Jed said the MQD was about “purpose,” “context,” or “intent,” I thought he meant that the MQD was “purposive” because it relied on a fiction about Congress to nix Chevron. I really had no idea what he was saying *exactly* until his podcast came out.

The lesson here is please, please, please, let’s all just agree that were gonna start using these words intentionally and with more explanation. I pretty regularly read lawyers and law professors using these words and have no clue what they mean. Now there are obvious points of disagreement in how these words can be used. Re and I are disagreeing about what the word “purposivism” includes. But that’s fine. It’s totally cool to disagree as long as we can pinpoint the differences in how we’re using these words.

There are so many pitfalls in legal commentary and scholarship. “Purposivism,” “intentionalism,” and “textualism” are among the scariest of them. Beware!

As y’all probably know, the Biden Administration’s student loan forgiveness program is before SCOTUS, and everyone is predicting that the Court kills the program. On the way to the program’s seemingly inevitable demise, the case raises two interesting issues. First, there’s a question of state standing involving the doctrine of special solicitude. Second, the merits implicate the major questions doctrine.

Jed Shugerman, a legal historian at Fordham Law, filed an amicus brief arguing that the Court should reach the merits and strike down the loan-forgiveness plan. This brief predictably pissed off Progressives who favor loan forgiveness. I think this raises a ton of interesting questions about the role of legal scholars who do public advocacy and amicus briefs. Upfront, I must acknowledge that I am currently bound to a truly ghastly amount of student loans. (Fun fact: the loan servicer that haunts my dreams at night is Mohela! That’s the same service whose interests the state is trying to assert before SCOTUS!) And as anyone who knows me or follows this blog realizes, I think the current version of the major questions doctrine is a dumb scourge on the public law canon. Dumb in that it is so ham-fisted that it would be funny if not for the stakes in many of the relevant cases.[1]

A short guide to the Shugerman brief

So should folks be mad at Jed Shugerman for this brief? Let’s chat about what’s in it. Towards the beginning of his brief, Jed argues that the student-loan program is pretextual.

The Government could have relied on a better fit, the Higher Education Act of 1965, which required [notice and comment] . . . . Instead, the Government used COVID as a pretext to use the post-9/11 Higher Education Opportunities for Students (HEROES) Act, to evade the process that Congress chose for such policies.

This focus on statutes has been a feature of Jed’s advocacy on student-loan forgiveness for months—he thinks that the Biden Administration basically whiffed in choosing to operate through the HEROES Act. Early on, he was also harshly critical of the government memos laying out the Biden Administration’s options. Later on in his brief, Jed argues that the Court has to reach the merits because the Government’s standing rule to the contrary would allow the Executive to shield its programs from judicial review. Jed argues that the Administration (or the left?) is playing the standing game in bad faith:

It is worth noting that, during the Trump Administration, its opponents (and indeed, the allies of this administration) litigated the abuse of executive power based on standing from indirect injuries and indirect causation. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392(2020); DHS v. Regents, 140 S. Ct. 1891 (2020) . . . . It is all too convenient for those recent opponents of the last administration’s abuses to argue for a new directness rule against standing now that they are in power.

And on the major questions doctrine, Jed says that the Court should embrace a new “emergency questions doctrine.” According to Jed, emergency statutes pose a unique threat of executive aggrandizement. We must, he argues, be vigilant against the threat that these statutes pose. The emergency questions doctrine that he’s proposing isn’t really a substantive canon like the version of the major questions doctrine from West Virginia. Instead, he throws the major questions doctrine back to its root and treats it as an escape hatch for textualism and Executive deference. Jed’s emergency questions doctrine would elevate context over text. Context must provide for limitations on what Congress would have thought it was authorizing.

Should we all be mad at Jed?

I chose to write this post so that I could think about how we should critique legal scholars who do public advocacy. Here’s where I landed. First, legal scholars ought to take consistent positions that don’t alternate with election cycles. Second, legal scholars should probably make their priors as clear as possible so that they are playing it straight with the courts and the public. And third, legal scholars should meaningfully engage with scholarship cutting against their positions. There is, of course, room for analysis and disagreement of legal scholars with whom we disagree but who nonetheless follow these three criteria.

Looking at these criteria, I think we ought not to be mad at Jed. Jed has been very consistent and transparent throughout the loan-forgiveness saga that he’s mostly concerned with executive aggrandizement. That’s Jed’s “Rosebud.” Personally, I find this concern with executive aggrandizement a bit old-fashioned. Recently, the lefty legal community has reexamined its fixation on executive aggrandizement and—at least in some corners—concluded that judicial aggrandizement is the greater threat.[2] In the words of a recent panel in D.C., “Judges are the enemy.”

This has all been a crescendo. Years ago, Nicholas Bagley critiqued the Procedure Fetish, lawyers’ faith that agencies can achieve legitimacy by pursuing endless procedure. You could argue that Jed is the kind of guy Bagley was critiquing—much of his analysis of the student-loan program is based around the Biden Administration’s avoidance of notice and comment. In another context that’s more administrativist than left-learning, Eric Posner’s and Adrian Vermeule’s Tyrannophobia critiqued the legal culture’s fixation on averting a tyrant that, according to Posner and Vermeule, is unlikely to emerge. (I know that events having to do with one of these authors have changed how we ought to engage with Tyrannophobia.) As I said above, executive aggrandizement is Jed’s Rosebud; he’s pretty much always going to be open to the tyrannophobia critique unless he balances his work against other values and concerns. Maybe the best critique of Jed’s approach was offered on Jed’s podcast by Sam Moyn. Moyn has been critical of constitutionalism writ large. As Jed was pushing him on whether Moyn’s approach was too risky, Moyn responded that we must choose whether we want a “liberal[ism] of fear or of opportunity.” That kind of critique can be applied by Progressives who want to critique Jed’s approach to emergency authorities that we can use to accomplish Progressive ends.

This is all to say, there are plenty of ways—both from a Progressive and Administrativist perspective—to critique Jed’s whole approach, but that can’t be the criterion by which we grade legal scholars who are doing public advocacy. Progressive legal culture is too eclectic for all that.

Instead, I think we really ought to stick to those criteria outlined above. In the merits section of his brief, Jed goes to great pains to balance his native, forthright, and consistent concern with executive aggrandizement against criticisms that people have been sending his way over the last several months. Jed has gotten flak from folks like me for ignoring the threat posed by judicial aggrandizement. As the literature has recently established, the major questions doctrine is an example of a tool that the judiciary uses to reach its preferred outcomes and increase its decisionmaking authority vis-à-vis the political branches. Even if it limits Executive power, that authority flows to a super-charged judiciary in a way that can be just as threatening to democracy. So Jed’s critics have been ringing the alarm bell for him that he has to be mindful that he doesn’t unwittingly play in to the hands of the project for judicial self-aggrandizement.

To Jed’s credit, he’s found a clever way of redeveloping (restoring?) the major questions doctrine so that it can balance administrative law’s competing instincts. In Americana Administrative Law, I wrote:

The Nation faces a similar disequilibrium to the one that occurred in the early twentieth century. Administrative law these days is always dancing between its Scylla and Charybdis, presidential administration and judicial self-empowerment.

When I was writing this very pretentious reference, I thought—and still do think—that the legal left must reorient itself around Congress, legislative supremacy, and legislative constitutionalism. That option was the only path I could see forward. Jed’s not quite there with me. He’s very wed to an old school constitutionalism where we can trust courts to protect rights and our democracy. That perspective seems kind of nuts to me, but c’est la vie. But Jed’s version of the major questions doctrine has several attractive features that respond meaningfully to his critics. The version he’s espousing doesn’t seem to turn on the corrupting legal fiction that Congress “speaks” clearly when addressing major questions. Instead, Jed frontloads a second-order objective associated with the major questions doctrine: checking the Executive. Because he’s not relying on a crazy fiction about how Congress talks in the abstract, Jed’s free to limit his version of the major questions doctrine to areas where Executive aggrandizement is the most threatening. That change in rationale clears up one major issue with the major questions doctrine, that it’s a transsubstantive canon.[3] What’s more, Jed straight up tells the Court that the purpose of his major questions doctrine is too also check the colossal threat of judicial aggrandizement.

So on the three criteria that I think we ought to use to evaluate scholars in the context, I think Jed’s brief passes—at least on the merits. He’s been consistent, transparent about his priors, and has meaningfully engaged with criticisms of his work and with the literature.

I think on standing, Jed’s got more work to do to get a passing grade. Jed’s approach to standing is effectively a giveaway to the courts and to the states that are increasingly coming to dominate federal policymaking in areas like immigration. Jed would probably defend himself by saying, well that’s an equitable and remedial problem. Courts shouldn’t be granting nationwide injunctions even if states are allowed to bring suit. That’s very unsatisfying where the courts have given very little indication that they are contemplating a big shift in remedies and equity. At an oral argument earlier this term, several SCOTUS justices seemed genuinely indignant when an advocate argued that the Court had probably been misreading §706 of the APA as granting a vacatur power. Don’t hold your breadth for a decision limiting courts’ equitable power anytime soon. With that in mind, you have to call for a standing doctrine that balances the threats of Executive and judicial aggrandizement, must the same as Jed did with his version of the major questions doctrine.

Conclusion

This ultimately sucks for all the people who need relief. Although I’m not desperate for loan-forgiveness, its availability brought my wife and I some measure of emotional relief after staring at our colossal loan forms year after year. But I think the essence of a constructive Progressive legal culture is room for folks like Jed to insist on principles that they believe will serve the public’s interests in the long run, even if there’s a very non-academic pain to be inflicted on folks in the short term. For better or worse, Jed’s version of Progressivism is rooted in a constitutionalism where courts are a meaningful check on a threatening Executive branch. I don’t think his position is in any way a repudiation of anything essential to what makes a legal scholar or advocate a Progressive. Hell, he even wants the Administration to start over under another statute.[4]

This was a subjective post that selfishly helped me explore what I think law professors ought to try to do in their public advocacy and in litigation. That said, I would still plead Jed’s case. Even where I disagree, I think he’s been a consistent, transparent, and openminded advocate for his perspective. That’s pretty much all we can ask.

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[1] Okay, it’s still funny. In West Virginia, the Chief for the first time in a majority opinion hints that the major questions doctrine serves constitutional values after thirty years of the doctrine’s existence. What’s more, he spent zero time explaining what possible constitutional value the doctrine could be serving. It’s the dumbest mic-drop moment in the Court’s history. I mean, if you can’t smell the post-hoc rationalization here, I really can’t help you. These people are not even trying anymore!

[2] To be honest, as a person who falls in this bucket, I’m already starting to feel passe. The more extreme position is the one I associate with Sam Moyn; that constitutionalism writ large is the real problem.

[3] For a discussion of this feature of the major questions doctrine, you really ought to check out Dan Walter’s latest piece here.

[4] I tried to look at these two statutes a few months back. On a question on which I am far from expert, I concluded then that both statutory options had their pros and cons. I did not leave with any confidence that any loan-forgiveness program could survive this federal judiciary, at least under the current major-questions-doctrine paradigm.

When I was younger, I was singularly obsessed with Congress. I spent my undergraduate years reading the congressional literature and obtaining as much experience as I could get on the Hill. Two events guaranteed my love and affection for the House of Representatives in particular. First, when I was an undergraduate, I obtained an Archer Fellowship that allowed me to intern for Speaker John Boehner at the height of his power. That internship was not in Boehner’s personal office. Instead, I got to sit in the Capitol in what was then called the “TACC” (short for the “Tommy Andrews Command Center”).[i] The TACC was filled with staff assistants who handled the daily staffing activities that helped keep the show running on time. It was right next to the offices occupied by Boehner’s formidable policy experts. Collectively, that floor I was on—located, if I remember correctly, two floors above the Speaker’s Lobby and one above the Majority’s Whip’s Office—was a locus of activity for the House GOP. My time there helped me understand the duality of Boehner’s position. As befitting a Speaker in an era of the strong speakership, he had tremendous control over the floor and the agenda. At the same time, there were cracks appearing in the foundation. That duality, and the struggles of lawmaking, helped kindle my love for the House of Representatives.

The second thing that lured me into later studying Congress was a chance encounter with the work of the late Barbara Sinclair. I read her book, Unorthodox Lawmaking, like a religious text. Sinclair spent her life explaining the rise of the modern Congress, marked as it was by the powerful Speaker of the House. Sinclair treated the structure and operation of the House as a byproduct of complex forces operating around members of Congress:

[C]hanges in the legislative process can be seen as the responses of members to the problems and opportunities the institutional structure and the political environment present to them as they pursue, as individuals or collectively, their goals of reelction, influence in the chamber, and good public policy.

Sinclair thought that Congress was constantly evolving. The slow centralization of authority that started in the 1970s was, in her words, merely “the latest installment in an ongoing story.” In Sinclair’s telling, efforts to reform the committee-centric system in the house devolved power down to individual members only at first. Devolution eventually led to a massive rise in amendments on the floor, which created a ton of headaches for the majority party. Eventually, the Democrats in the House looked to party leadership as an alternative to the chaos on the floor and began centralizing authority in the Speaker’s Office. The Speaker could be given authority so long as he or she served the median member of the majority faithfully. That process, which began earlier, was sent in hyperdrive by the polarization of both parties in Congress.

I loved Sinclair’s work because it provided the best way to understand institutional developments in Congress during the post-bellum period. The allocation of power in the House was a response to a variety of factors: polarization, competitive elections, the media environment, and other social forces. Congress, in Sinclair’s telling, operated almost like an immune system. It evolved to meet the demands of the moment so that it could continue to play its constitutionally assigned role.

This perspective gave Sinclair’s work an edge that I really appreciated. She avoided much of the nostalgia that defines elite characterizations of Congress. Up until the end of her life, Sinclair openly questioned whether we even had the tools to evaluate the modern “unorthodox” lawmaking on the level of normativity.[ii] She concluded that proposed attempts to fix Congress with mere procedure would only mitigate underlying problems because the forces creating “gridlock” and dysfunction were much larger than anything having to do with the rules. Instead, she treated the Congress we have as an organic response to contemporary conditions with no yearning for some fabled earlier model. Sinclair introduced me to a wonderful world of scholarship wherein a calling card of a congressional expert was the understanding that the “regular order” of the Schoolhouse-Rock! model of Congress was probably a myth. Even if it ever did exist, it’s not quite as desirable as folks often assume.

So long before I ever arrived at a law school, I tended to think of Congress as dynamic. To the extent that there was genius in the drafting of Article I, it was in shutting up. The undefined nature of the House’s operations is, in my opinion, a major stroke of luck that has contributed to the success of the Republic. Congress is not weighed down by the formalisms that are usually cast on the other branches of government, precisely because the Constitution is so sparse in defining Congress’s internal dynamics. This open-ended texture has allowed Congress to adapt to a variety of circumstances. When polarization gets so high that it would impede the legislative process, members have a greater incentive to centralize authority. When polarization declines, or when one party has effectively captured Congress such that the minority has greater incentive to play ball, centralization is likely to decline. While elites of various stripes have complained about Congress for much of the post-Civil War period—often with little awareness that they are recycling century-old laments—they are often missing a dynamic and constant process of reinvention.

I thought about Sinclair and Boehner a lot last week when Kevin McCarthy faced a mini-insurrection from members of his own party. The rebels seemed to lack a coherent demand or ideology, but they sought and (apparently) obtained concessions from McCarthy that would weaken his speakership considerably. This led some folks to express sympathy with the rebels’ complaint that the modern House has become too centralized. Alexander Sammon, writing in Slate, lamented party leadership’s “exorbitant control over rulemaking and the legislative and appropriative processes.” Others picked up the ball and argued that some kind of decentralization would be beneficial because it would allow for more deliberation in the House.

Contrarian that I am, I pushed back against this optimism both online and with folks in my life. By my vantage, decentralization without addressing the circumstances that led to centralization in the first place (polarization, competitive elections, etc.) is unlikely to stick or achieve desirable results. While a return to a mythologized “regular order” may seem attractive, any kind of decentralization is probably both unlikely and undesirable. (on this point, I recommend Walter J. Oleszek’s recent CRS report on “Regular Order”). Without some change in societal circumstances, rank-and-file members have little incentive to operate with the kind of bipartisanship that is a prerequisite to a decentralized model for the House. If they can’t operate in bipartisan manner, well then the needs of legislating incentivize the House to centralize so long as the Speaker faithfully serves the rough median of his or her caucus.

At some points, I was accused of embracing the same kind of strong-man thinking that has been deployed to justify centralized power in the Executive branch. I don’t think that’s quite right. Unlike the seemingly inexorable centralization of authority in the Executive branch, centralization in the House depends entirely on factors like polarization. As soon as those factors change, the rank-and-file members lose their incentive to delegate extensive authority to the Speaker. In this sense, Congress has a self-regulating feature.

What of deliberation? What of the disincentive to serve in Congress for folks outside of leadership? I regard the hope for a more deliberative House that empowers rank-and-file members as *probably* a pipedream. I’m not sure that the committee-lead system that predated the strong Speaker model was more deliberative in any meaningful sense. Instead of party leadership controlling things, committee chairs wielded incredible power. This was an era when a young lawmaker like Lyndon Johnson chafed at their own uselessness in the House power structure. I’m not sure that the House has ever really operated like folks think in the modern era. On a deeper level, I’m not sold that deliberation is really the point of the House as a description of how it’s operated for the last century. Centralization has been the name of the game, it’s just all about where you allocate that power.

Overall, I could be wrong about decentralization. Maybe some other factors, like the small majority and a media environment that rewards the rebels for obstruction, are complicating the internal logic of centralization beyond repair. Hell! Maybe this really is a paradigm shift for the House. But the more important point is that we should all be skeptical of that nostalgia for a mythologized Congress of the past that worked. It’s not just probably wrong, it’s incredibly unhelpful for how we think about Congress today. There is no Congress for all seasons. So when we talk about decentralization, we should ask ourselves whether it would produce good outcomes today under the circumstances we’re living in. In the words of a great congressional scholar, “we should talk about whether the procedures we have are good or bad, healthy or pathological.” The myth of “regular order” “seems to be about something slightly orthogonal to that, and perhaps less helpful.”

In the end, all we have to evaluate congressional procedure by is that: Will they produce good results or bad in the Congress that we have?

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[i] Tommy was, when I knew him, already on his way towards becoming a legendary Hill staffer. He rose from the bottom of the Hill hierarchy to being Boehner’s Special Assistant.

[ii] Sinclair ended up being less sanguine about Congress’s ability to fulfill its constitutional role but concluded that the problems facing Congress are much deeper than questions of power allocation or procedure. Instead, she concluded that the American system of governance is poorly equipped to handle polarization and divided government simultaneously.

Today, the Federalist Society hosted a debate between Ilan Wurman and Chad Squitieri on the major questions doctrine (the “MQD”). The debate was interesting and it reminded me about something I was pondering over the holidays. The debate was framed around whether the MQD is consistent with textualism/originalism. The textualist critique of the MQD has a really different flavor from the non-textualist critiques. When Chad and Ilan are debating the MQD, they’re holding a canon of statutory interpretation up against a pre-loaded conception of the judicial role in statutory interpretation. In an important sense, they’re talking about whether the MQD is a legitimate tool of statutory interpretation by channeling their shared grammar for evaluating judicial doctrine.

That conversation, the textualist debate on the MQD, has all the warm familiarity of a genre movie. A textualist who wants to write that paper can call on all the “moves” that people have been making in textualist papers for thirty years. That’s not to say that textualists don’t have sub rosa disagreements that we often just glide right over. But they at least have a shared language for debating whether the absurdity doctrine, avoidance, lenity, and Chevron deference are inconsistent with a textualist’s take on the judicial role in statutory interpretation. Justice Barrett, for example, wrote a paper examining substantive canons’ consistency with textualism and legislative supremacy. Whether a textualist critique of the MQD is a good or bad paper just turns on the level of craft, kind of like the director of a straight-up western.

By contrast, non-textualist critiques of the MQD have focused on describing the MQD’s horrendous consequences. To be clear, that’s important work. We have papers describing the likelihood that the MQD will calcify political polarization into judicial doctrine, make it more difficult for the federal government to tackle global issues like climate change, and undermine our national security apparatus. And you have many papers suggesting that the MQD makes for bad judicial doctrine because it is unmanageable. But while these papers suggest that the MQD is bad doctrine, they only discuss whether the MQD is an appropriate tool of statutory interpretation when leveling a hypocrisy charge at the conservative and avowedly textualist justices for moving beyond text. So if you, like me, cynically think that the consequences and imprecision of the MQD are entirely foreseeable and perhaps intentional, then it’s hard to think that these papers will persuade anyone not already disposed towards viewing the MQD with suspicion. (I don’t think anybody still supporting the MQD will be turned around by charges that the doctrine—gasp—has a deregulatory bend.)

I think there’s at least a few reasons why non-textualist critics of the MQD have avoided making similar claims. First, and most obviously, non-textualist critics of the MQD lack a preloaded and ascendant conception of the judicial role in statutory interpretation. Second, and relatedly, non-textualists are probably feel pretty queasy about reinforcing the kind of formalism that defines modern textualism and originalism. The best way to approach the MQD is as judicial policymaking. Once we acknowledge that the descriptive case for the MQD—the idea that Congress “speaks” clearly when addressing major questions—is just a really bizarre fiction, all roads lead to acknowledging that the MQD is judicial policymaking. I don’t think anybody seriously thinks the MQD is required either by the Constitution or anything else. Even the most hardcore pro-MQD constitutional formalists think it is a second-best option to the nondelegation doctrine. But if you think the MQD is about “second-best originalism,” that’s still a question of policymaking.[i] Non-textualist critics of the MQD can evaluate the doctrine as judicial policymaking—there’s plenty of work to be done there—but to do so critically may require approaches that are unpalatable to purposivists and pragmatists.

Regardless, there’s a noticeable hole in the literature where the non-textualist take on the MQD’s legitimacy should be. Just as an avid consumer of the literature and low-level participant, I’m hoping 2023 is the year where we get more of these kinds of critiques of the MQD. I don’t really mean to suggest that MQD critics ought to adopt any particular conception of the judicial role in statutory interpretation. I just think that whatever your priors on judicial policymaking, folks can do a lot of work in making those priors explicit and evaluating the MQD accordingly. I think there’s a ton of ways to do this without dipping a toe into textualism.

My own thinking on this has evolved over the last year. I’m trying to more rigorously separate my reasons for thinking that the MQD is bad from my suspicions that the doctrine is illegitimate. For me, it all goes back to interpretation-construction distinction (which is a concept for the judicial role that may be older than the Republic). My whole worldview in statutory interpretation acknowledges that there’s some role for judicial policymaking at the tail end of the interpretive process—at least as it has been done in this country since the Founding. But it’s not limitless and the limits are what I’m bringing to the table when I call the MQD an illegitimate tool of judicial self-aggrandizement. Confining courts’ policymaking to construction keeps them from overriding statutory text, undoing legislative supremacy, and subverting democracy. Reinforcing the interpretation-construction distinction is basically what the Court already did in Kisor. (Dibs on the “we just need to Kisor the MQD” essay.) Before Kisor, Chevron and Auer skeptics complained that deference was leading to judicial abnegation. Judges were deferring without giving an honest go at following their best read of statutory and regulatory text. So the Kisor Court made abundantly clear that lower courts are only to defer after they jump through a bunch of hoops. Chevron and Auer are tools of construction, only to be applied in cases of ambiguity as a last resort. MQD just does what critics were always accusing Chevron and Auer of doing. If we did manage to Kisor the MQD, well then the construction zone is a more acceptable place for judicial policymaking. Afterall, judges need to decide cases somehow, even if statutes are hopelessly ambiguous. (I’d prefer if they minimized their judicial policymaking more aggressively but c’est la vie.) If the MQD were a tool of last resort, it would still be awful in my eyes—you know, judicial self-aggrandizement, “made up” yada-yada—but I couldn’t say that there was anything illegitimate about it—at least as a question of judicial practices that have existed for hundreds of years. I wouldn’t even bother to write about that MQD.

Overall, I think that it’s important to start addressing the legitimacy of the MQD. When the shoe was on the other foot, when Chevron skepticism was in its highest gear, scholars, practitioners, and activists objected that Chevron was illegitimate. That language of legitimacy is important for persuasion when folks disagree about their policy priors. To do that kind of work with the MQD, you have to invoke some theory of the judicial role explicitly and hold it up against what the Court is doing.

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[i] The choice between second-bests is itself a policy decision that implicates judicial craft as much as anything else. If you really think the MQD is a second-best nondelegation doctrine, that’s hardly the end of the conversation. The range of possible second-bests is potentially endless. Which ones would advance the relevant constitutional objective in a way that is most consistent with the norms and expectations of statutory interpretation? When should the second-best apply in the interpretive process? If you think, as I do, that judicial craft is partially about managing the necessary role of judicial policymaking in statutory interpretation, then your embrace of a second-best ought to be paired with some strong case that the second-best will keep judicial policymaking within acceptable bounds. 

Yesterday, I posted a reading list for the major questions doctrine on the Notice & Comment blog. It doubles as a cry for help as I cope with the fact that I spend way too much time reading and thinking about this stuff. But everyone was really kind and seemed to appreciate the work, so I thought I’d add a little color with my unvarnished take on the state of things with respect to each of the categories I outlined in that post.

The Many MQDs

Anybody telling you that there’s just one MQD is probably selling you something. There’s still a ton of disagreement about what the MQD is, what purpose it serves, and whether it’s properly within the Chevron framework. I think between Daniel Deacon, Leah Litman, and myself, you have an accurate description of how the MQD was deployed last term: as a super-charged rule of interpretation that requires a showing of clarity over and above plain meaning. But that doesn’t mean those other MQDs up and disappeared. They are still out there anytime a lower court judge or one of the associate justice wants to pick them up.

Second, there’s significant disagreement about what purpose the major questions doctrine serves, and this problem makes for odd bedfellows. So Capozzi argues that the MQD is basically a constitutional canon that gets at the same impulses as the nondelegation doctrine. Pg. 5 (“Indeed, history shows the Court has long—if inconsistently—enforced Article I’s lawmaking requirements through the major-questions doctrine and its doctrinal sibling: the nondelegation doctrine.”). But both Deacon and Litman on the one hand, and Jonathan Adler on the other, have convincingly argued that the MQD has little at all to do with nondelegation per se. Adler recently wrote:

All legislative powers are vested in Congress. Although such powers may be delegated to the executive branch, there is no question where they begin. Put another way, the constitutional allocation of powers embodies a nondelegation baseline: Absent legislative action, all legislative power is in the legislature’s hands, and none is in the hands of any administrative agency or part of the executive branch. This is not a nondelegation doctrine, so much as a delegation doctrine; a doctrine that recognizes that delegations are necessary for agencies to have regulatory power

I think the Deacon-Litman-Adler view is winning a lot of adherents. I’m betting people slowly come to realize that the MQD isn’t really getting at the same issue as the nondelegation doctrine or, by extension, the avoidance canon. I think the Gorsuch view of things loses currency by the day.

 The Pro-MQD Literature

Things used to be so thin on the pro-MQD side of things that scholars would put out an open call on twitter for anything at all—they needed something, anything, to cite to in their footnotes. Hopefully the reading list helps those folks by pointing to some of the new pieces in this portion of the literature.

Obviously, I’ve been as big a critic of the MQD as anyone. That being said, I will point out that Adler’s piece for CATO is the best in the pack so far. The problem with the pro-MQD side of things is that they are a mess and there’s a lot that’s frankly indefensible. Critiques #1 (“The MQD fiction”) and #4 (“Lack of pedigree”) are lost causes. Critique #3 (“The MQD as ‘Judicial Self-Aggrandizement’”) is pretty tough to counter on its own institutional terms. (no one has really even tried)

Adler sidesteps a lot of this by framing the MQD as a vanilla extension of the Chevron framework that keeps agencies from operating ultra vires. I don’t think he’s really relying at all on the fiction that Congress speaks clearly when addressing major issues. And he’s not resting his case on a bank shot connection with the nondelegation doctrine. Of course, Adler is pushing a platonic version of the MQD that he admits isn’t on sale at the Supreme Court just yet.

This isn’t to say that Adler sails through. Even a platonic MQD requires justification, and Adler has to rely here on the desirability of some degree of “judicial skepticism” whenever courts are confronted with “broad, unprecedented, and unusual assertions of agency power.” So if you’re skeptical of that kind of judicial power, this isn’t the MQD defense for you. And regardless, there’s just too much distance between Adler’s MQD and what’s being practiced in the courts—which Adler himself is criticizing. Don’t hold your breathe for the Supreme Court to figure out how to apply an MQD as sophisticated as Adler’s. The defensible MQD is still just a dream in the hearts of the faithful.

Oh, and as a final note, I’m not sure what Adler can do to win over the Chad Squitieri’s of the world. I’ve always read Adler as being more methodologically loose than some of the hardcore textualists and originalists. (that’s not a knock) And looking at his MQD pitch, I’m not sure the formalists are going to find a tonic for what ails them. So to the extent that one point of the pro-MQD literature is to win over the skeptical textualists and originalists, I’m not sure Adler has the goods. That’s probably for others to opine on though.

Critique #1: The MQD fiction

This critique of the MQD is mostly assumed but not established. Most everyone realizes that the Supreme Court has deployed a fiction to justify the MQD: “Congress speaks clearly when talking about major questions.” Most people realize that’s crazy. But most of the literature has not dragged readers through just how nuts of a proposition that is. Blake’s piece suggests that the entire point of the admin law apparatus was to get agencies in a spot where they could resolve major questions themselves. The Meyer and Sitaraman piece gives you a flavor for how wrong the MQD is in the present day; it’s basically inconsistent with the modern national security regime for starters. But few folks are doing this work. We haven’t done a good enough job of walking everyone through it, showing our work.

I think MQD critics would be messing up if we gave this critique short shrift. My guess is that some think this isn’t a powerful critique. Afterall, the law has a ton of fictions, what’s the big deal? But that’s the wrong way of looking at it. By demonstrating that the MQD runs counter to the entire public law canon—to the long-run rhyme and rhythm of every field in which it could be invoked—we can demonstrate that the MQD is a freakish aberration in the field of statutory interpretation. This analysis also gives lie to the MQD’s constitutional pedigree. If Congress is a legislature and legislatures do not talk about major questions with clarity, then this has nothing at all to do with the separation of powers. Afterall, it’s an odd separation-of-powers paradigm that puts the screws to Congress when it’s just doing what all legislatures can be expected to do. What’s left on the other side of this critique is the realization that the MQD is a judicial power grab. (see critique #3)

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

Chad’s doing the Lord’s work out here, but there’s more work to be done. If you try to critique the MQD on textualist or originalist grounds, then the problem you are going to run into is that both of those methodologies come in different flavors. I guarantee you that some folks are going to figure out that they can dodge this critique entirely by pointing to a more methodologically pure MQD and claiming that it just adds an acceptable amount of “context” to our statutory interpretation. That will work for some people because the role of context is somewhat up in the air in textualism land. Now I’m not sure that *should* work because the doctrine doesn’t really add any context that matters—this is just wishful thinking—but there’s going to be a lot of action here over the next few years.

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

This is really the critique that does it for me. We owe a tremendous debt to Lisa Heinzerling and Josh Chafetz for being the godparents of this awesome subgenre. (the Heinzerling piece has a strong claim to being the best MQD paper of all time) What’s refreshing about this critique is that it’s not taking the doctrine too seriously. You can lose the forest for the trees on the MQD if you don’t wake up and realize that the doctrine is of a piece with the Roberts Court’s accrual of power and with other instances of judicial aggrandizement. I don’t think it’s an accident that two really good players in this space, Josh and Allen Sumrall, are coming at it with perspective outside of law.

So if you haven’t started reading these pieces, I really think you’re missing out. If I were a betting man, I think you’re going to start seeing more and more pieces suggesting that the MQD is antithetical to the separation of powers (that it’s basically unconstitutional). I think people get put off by talking about judicial doctrine that way, but that’s the direction I think the literature is heading. Basically, SCOTUS is accruing power at the expense of the political branches. As a result, it’s coming to wield an undue amount of legislative/executive power itself.

But that’s just my prediction! Time will tell!

Critique #4: Lack of Pedigree

Not much to see here. This is another mainstay of the literature. We’ve seen Capozzi’s counter to this critique, but as I’ve explained, I think we need more work on this front before we can come close to saying that the MQD has a pedigree that predates the 1990s. Adler claims that the MQD is compatible with the concepts behind ultra vires review, but I don’t take him to be suggesting that the MQD somehow was around and kicking in the 19th century. I think he would say this is a new way of getting at old concerns.

Critique #5: Manageability

Again, not much to see here. Watch though as we get a ton of new MQD pitches on how to make it more manageable. Again, the sad thing here is that I’m pretty confident that SCOTUS is never going to adopt an academically rigorous version of the MQD. I wouldn’t be surprised if we have an originalism problem where there are “academic MQDs” that minimize the manageability issues and the “judicial MQDs” that are a mess. But again, we shall see.

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

(yes, I saw the typo in the reading list to my great shame)

So this section is devoted to just a few pieces that push back against the notion that we can somehow get better results out of Congress with the MQD. I call this pitch “Americana Administrative Law” and harshly criticized it as a bankrupt tradition. At the same time, Dan Walters and Elliott Ash provided a more empirically rigorous take on the same theory. I think the Walters-Ash piece hasn’t gotten enough attention, perhaps because it got put out at around the same time as Dan’s agonism article, which is a certifiable blockbuster. But I think we’ve all come to the same conclusion: there’s very little reason to think, and practically no evidence to suggest, that either the nondelegation doctrine or the MQD will make Congress draft tighter laws or take the reins from the administrative state. And there’s definitely no way that the results of such judicial meddling would be predictable. Some evidence suggests that Congress might respond by drafting vaguer laws. And as I’ve suggested, we’ve already run this simulation before with middling results.

But this is a place where people should focus if they want to do some MQD work. You don’t need to be an empirical wizard like Dan (although that certainly helps). You can do case studies or uncover historical evidence that might shed more light on how Congress responds to judicial doctrine. Once enough time has passed, we might also look to see whether there are any appreciable benefits from the Court’s MQD crusade. But the answer will almost certainly be no.

Conclusion

We have a robust MQD literature. Overall though, the biggest takeaway should be that the distance between the academy and the Court has grown vast. Even the Adler take on the MQD is miles from the realities on the ground. I think we’re seeing the limit of the academy’s influence on the Court. Undeterred, the Court seems to be pursuing the MQD down a rabbit hole that no one, or at least very few, can support.

One problem is just the justices’ ability to persevere. The MQD was always harshly criticized. But it’s now lasted for long enough that its almost non-existent pedigree is enough to give the justices permission to do what they want. There are only three institutions with enough admin sway now to really provide course correction: the D.C. Circuit, the DOJ, and the Federalist Society. If these institutions agitated against the MQD for long enough, I think we might see some progress. But I’m not sure the justices care at this point how indefensible the doctrine seems to academics and practitioners.

But regardless, this literature is a ton of fun! I am hoping to be able to update the reading list as more works come out. Not only do I just love these pieces, but I think they are a real testament to the academy’s commitment to projecting a little honesty onto the Supreme Court. I hope you enjoy reading the pieces in the reading list as much as I have!