After the West Virginia case came down yesterday, I noticed the same conversation playing out across Twitter. Critics of the major questions doctrine would say something to the effect of, “MQD is made up.” This critique provoked replies that “all tools of statutory interpretation are made up.” This trite reply is apparently meant to manage the widespread criticisms of MQD or funnel them in a more productive direction.
Of course, the reply is true in a literal sense—canons generally spring from the minds of judges. They are not facts of nature we can observe through a microscope. But the reply elides the thrust of the critique. Opponents of MQD generally take issue with the doctrine’s internal shortcomings, not with the fact that it was invented by judges. In a very real sense, MQD fails to deliver on the one metric that matters.
Although proponents of MQD have offered up various justifications for the doctrine, only one has been able to consistently garner votes from SCOTUS. That’s the justification focusing on how Congress “speaks” in statutes. MQD reflects the idea that Congress does not delegate questions of major economic or social significance through ambiguous or open-ended text. Congress would speak clearly, so the thinking goes, if it wanted to give the CDC the power to institute an eviction moratorium. That’s really the leading justification for MQD.
The problem, of course, is that the justification is, frankly, bullshit. No serious congressional scholar believes that Congress speaks clearly when addressing major questions as a descriptive matter. In fact, Congress does wide-open grants of authority in very important contexts, like emergency statutes. Aside from the subject-matter experts, admin law scholarship has taken a skeptical bend to MQD’s descriptive case as well. The Administrative Procedure Act, as Blake Emerson notes, was designed with the belief that agencies—not courts—would decide the major questions of the day. And for longer than I have been alive, Congress has been operating against the Chevron doctrine, which cuts in an opposite direction from MQD. The raison d’être of Chevron is the recognition that ambiguity in statutory language operates as a delegation from Congress to agencies. And the post-Chevron argument against the MQD theory only worsens. (see Chad Squitieri’s piece here at 491–95 involving the CRA)
So when opponents of MQD cry out that the doctrine is “made up,” we mean simply that the doctrine has a completely unbearable cover story that masks a deregulatory agenda. (see this thread by one of our best experts on Congress) Are all tools of statutory interpretation “made up” in this sense? Of course not! Some server important constitutional values (lenity), and other forthrightly serve important societal norms with tenure. They are not all judicial hatchet jobs with a implausible cover story.
Now folks will obviously think of the Chevron fiction. Isn’t that “made up?” In a sense, yea, sure! Chevron imposes an across-the-board presumption that ambiguity in statutes is meant to operate like a delegation from Congress to agencies. Now, we generally don’t think that Congress literally intended to delegate in all cases of ambiguity. But the question isn’t whether Chevron is a fiction. Fictions do pervade the law. Again, the question is whether Chevron obscured more that in captures, whether it serves important goals like the other tools of statutory interpretation. Chevron, unlike MQD, probably captures more than it obscures. Congress really does understand that agencies fill gaps, even if it isn’t always aware of where the gaps are or how they will be filled. And apart from its descriptive claims about Congress, Chevron has a litany of normative justifications that have a deep footing in the law. (see, e.g., Stiglitz here)
In the end, the reply that all doctrine is “made up” is not the checkmate folks believe. It would, to draw a comparison, be odd to police the conclusion that the nondelegation doctrine is “made up” after reading Delegation at the Founding. When we as lawyers are communicating with the public about a judicial power grab on a scale like we’ve seen this term, it seems rather petty to police those efforts that clearly communicate the thrust of the point. Whether we like it or not, some doctrines are distinctly “made up” in the sense that they do not have a justification—whether that be originalist or claims about Congress—that survives the faintest scrutiny. MQD, for all its importance, is “made up” in every sense that matters.