Grappling with the major questions doctrine (MQD) can feel like punching water largely because the scholarship is so one sided. For the last few years, the admin mavens have united to decry the MQD as thinly veiled judicial self-empowerment, among other charges. So when I saw Louis Capozzi’s new piece in support of the MQD, I knew I wanted to read it.
I don’t know Capozzi, but it appears that he is an associate at Jones Day and an adjunct law professor. It also appears that he’s coming off a clerkship with Justice Gorsuch.
Ultimately, I focused on Capozzi’s claim that the MQD has roots in the nineteenth century. I thought that an incredible claim. As a result of diving into that initial claim, I ultimately spent much less time with the back half of the paper. I would suggest everyone should read and grapple with Capozzi’s analysis.
The future of the major questions doctrine
Capozzi provides a straightforward version of the MQD post-West Virginia: “When an agency tries to implement a major regulation, courts must presume it lacks the power to do so.” To that effect, an agency must point to “clear congressional authorization” before issuing regulations of “economic and political significance.” Capozzi also doesn’t hide the ball on the end this doctrine is likely to achieve: “the doctrine is likely to substantially reduce the power of administrative agencies unless Congress can muster the political will to specifically grant them new powers to solve new problems.” Moreover, he recognizes that the doctrine has been criticized by most of the legal academy. But Capozzi doesn’t mince words in his defense of the doctrine.
To detractors who claim that the MQD is made up, Capozzi offers a defense:
Contrary to some scholars’ claims, the Court did not invent the doctrine in the past few decades. The clear statement rule applied in West Virginia claims roots extending at least into the mid-to-late nineteenth century, when courts demanded clear evidence that legislatures had delegated power to agencies.
I don’t want to overlook the boldness of this claim; Capozzi is suggesting that the MQD has roots in the nineteenth century when most of the academy has assumed that the doctrine is essentially rootless. That’d be big if he’s got the receipts.
If I had to guess, I’d imagine that Capozzi’s intended audience is comprised of the originalist and textualist cohorts that are worried about the MQD’s bona fides. I won’t dither on whether “mid-to-late nineteenth century” case law precedents would matter to either a textualist or an originalist worried about the lack of Founding era equivalents. I’ll let others address that issue. But I think it’s worth checking the receipts on Capozzi’s claim.
State court precedents
The first bucket of evidence Capozzi relies on is state court doctrine in the mid-nineteenth century. Industrialization and the railroads, in Capozzi’s telling, led to the “original” MQD: “Conflicts between state agencies and railroads led to the birth of the major questions doctrine in the state courts.” He claims that state courts used a general presumption against implied delegations by legislatures. And that’s where things start to go off the rails for me.
Let’s start with Matter of City of Buffalo, 68 N.Y. 167 (1877). This old chestnut asks whether Buffalo could take rail road lands, which were under the doctrine of the day being put to a public use, and use them for a separate public purpose. The Court took for granted that the state of New York, acting through its legislature, had the power to reassign the land from one public use to another. It also assumed that the state legislature could delegate that sort of power to municipalities. The only question is whether the state actually had delegated this authority to the city. The court answered in the negative because Buffalo couldn’t carry its burden of pointing to clear language delegating the needed authority. You see, back in ye olden days, state courts were putting the screws to municipalities. The municipalities, the courts reasoned, were creatures created by the state. So Dillon’s Rule required that these municipalities had to show that any power they claimed came from a clear delegation of authority from the state.
Suffice it to say that I find Capozzi’s parallel here unconvincing. There’s the obvious: these are cases of state law usually turning on a mode of interpretation that is itself a gloss on state constitutional law. But what’s more, many substantive canons look like the MQD if stated at a high enough level of abstraction. For example, the rule of lenity requires a heightened level of clarity in criminal cases where it might be ambiguous as to what conduct Congress was criminalizing. In this sense, the rule of lenity keeps the delegator’s (Congress’s) delegation to a minimum so that the delegee (sometimes federal agencies, sometimes federal courts) must point to some clear authority. And this similarly shouldn’t be surprising—both the MQD and the rule of lenity are (or I should say, can be) clear statement rules. Capozzi, by my lights, has tried justifying the MQD by pointing vaguely to another sort of clear statemen rule. Of course, we already knew such rules existed, it’s their justification that matters. By giving short shrift to these state law cases, Capozzi is ripping them from their historical context in a way that leaves us with very little means of understanding whether the cases meaningfully support the MQD.
Another case he cites is a new one for me: Board of Railroad Commissioners of Oregon v. Oregon, 17 Or. 65 (1888), which is about a state agency’s ability to set rates for the railroads. Here, the Oregon Supreme Court states that it won’t credit implied delegations. To that end, the court imposes a clear statement rule on any assertion of agency authority, not just the major stuff—“The jurisdiction of such commissions is not given by implication.” In justifying this rule, the court lays out a parade of horribles. If implied delegations were credits, then the state agency could “adopt its own code of procedure, formulate its own rules of evidence, be unembarrassed by the presence of a jury, and adjudicate in accordance with its own caprices[.]” The Court was unwilling, under these circumstances, to assume that the legislature had intended to “confer such an important prerogative” without a clear delegation.
What we’re left with after a few—and I do emphasize few—of these state law cases is the sense that state courts in the late nineteenth century took a firm line against implied delegations for various reasons. However, the claim that “[c]onflicts between state agencies and railroads led to the birth of the major questions doctrine in the state courts” seems overstated. The major questions doctrine posits that legislatures answer major questions clearly. Supreme Court majorities have also cryptically suggested that the doctrine serves separation-of-powers aims. But either way, a general stand against implied delegations is not “the birth of the major questions doctrine in state courts.” And its entirely unclear what to make of this development once we factor in the rise of implied delegations at all levels of the law after the nineteenth century. What methodology is going to credit a time-limited smattering of state law cases that do not directly relate to the MQD? Who is this meant to persuade?
The Queen and the Crescent case
If you’re wondering, “gosh are you telling me this entire article is based on obscure state law cases,” the author does discuss a U.S. Supreme Court case at length. Capozzi claims that Interstate Commerce Commission v. Cincinnati, New Orleans & Texas pacific Railway Co., 167 U.S. 479 (1897), the so-called Queen and Crescent case, is a kind of proto-MQD. The case asked whether the ICC could engage in prospective rate setting. The underlying statute, the Interstate Commerce Act, required railroads to charge “reasonable and just” rates and made unjust rates “unlawful.” Separately, the statute specified that the ICC had the power to “execute and enforce the provisions of [the] Act.”
The resulting opinion from Justice Brewer—the much-maligned jurist of Holy Trinity fame—held that the ICC could not lawfully engage in prospective rate setting. Brewer’s opinion is an odd read. Brewer drops a paragraph towards the beginning of his opinion suggesting that the power of rate setting is a big deal:
The views thus expressed have been vigorously and earnestly challenged in this and in other cases argued at the present term. In view of its importance, and the full arguments that have been presented, we have deemed it our duty to re-examine the question in its entirety, and to determine what powers congress has given to this commission in respect to the matter of rates. The importance of the question cannot be overestimated. Billions of dollars are invested in railroad properties. Millions of passengers, as well as millions of tons of freight, are moved each year by the railroad companies, and this transportation is carried on by a multitude of corporations working in different parts of the country, and subjected to varying and diverse conditions.
Note here that Brewer does not say that the importance of the question involved somehow determines the outcome or the Court’s methodology.
(edited note: I’m adding here an explanation because a reader expressed confusion. Here, Brewer is explaining why the Supreme Court is taking up this issue after having already heard an ICC case a few months prior. That’s why he says “re-examine.” This is Brewer saying that “this is a big deal, so we’re back at it.” He’s not suggesting in this portion of the opinion that the big deal nature of the case affects the mode of review.)
From there, Brewer says that an implied delegation won’t cut it:
The grant of such a power is never to be implied. The power itself is so vast and comprehensive, so largely affecting the rights of carrier and shipper, as well as indirectly all commercial transactions, the language by which the power is given had been so often used, and was so familiar to the legislative mind, and is capable of definite and exact statement, that no just rule of construction would tolerate a grant of such power by mere implication.
You could read this like Capozzi, the Court is imposing something like a MQD here because the power asserted is a big deal. If you squint, you see an old school version of the MQD asserted in cases like MCI Telecom, where “majorness” is triggered by the importance of the power asserted relative to the statutory regime. But this is a strained reading of the Queen and Crescent case.
Brewer spends a lot of the opinion just reviewing state drafting equivalents from Alabama, California, Florida, Georgia, Illinois, Iowa, Minnesota, Mississippi, and others. Why is Brewer doing this if he’s employing a proto-MQD? Well, he told you upfront, in language Capozzi omits, that “the language by which the power is given had been so often used, and was so familiar to the legislative mind, and is capable of definite and exact statement, that no just rule of construction would tolerate a grant of such power by mere implication.” The point of Brewer’s analysis is that the relevant language the ICC needed wasn’t a mystery—there was already an extant drafting convention that Congress need only have copied to delegate a rate setting power. It seems to me that Capozzi has misread the case; that the better reading is that Brewer thinks it totally improbably that Congress would have whiffed on a widely accepted drafting convention when so much was at stake and when dealing with an issue of national importance. Notably, that ain’t MQD, which oftentimes only faintly suggests what language Congress could have used to satisfy the Roberts Court.
To be clear, my views on this case are probably impacted by the work I’ve been doing. I’ve been engaged in primary document research on congressional drafting conventions from the late nineteenth and early twentieth century. (more on that later) But a view that I and others have come to is that from the 1890s to the 1930s, much of the dialogue between the courts and Congress was about learning to stick to several really important drafting conventions. You can get a flavor for that here, here, and here. Writing in 2002, Thomas Merrill and Kathryn Watts placed the ICC case in a broader context. To them, the clear statement requirement was imposed because the ICC was asserting a prospective power to bind the public. That context tells us a lot about what’s going on in the case; the Court is pushing against implied delegations and looking for Congress to follow the relevant drafting convention.
When you place this case in context, the comparison to the MQD becomes very faint. The MQD is a free-floating canon that often gives Congress no clue what language should have been adopted. Here, the Supreme Court was merely crediting Congress’s failure to follow an extant drafting convention. And the reason, the force of law drafting convention, was one that the Court persisted in putting Congress on notice of for forty years. Although Capozzi presents the case as having to do almost entirely with the majorness of the ICC’s reading of the Interstate Commerce Act, the case is much more complicated. In context, the case is only the weakest support for the MQD.
The failure to meaningfully deal with the Queen and Crescent case is, perhaps, the most glaring problem with the paper or at least the portion of the paper I’m interested in.
Conclusion
The Capozzi paper worries me. Lately, the administrative law literature has kicked the legs out from under doctrinal analyses from the 1990s and 2000s that were, in retrospect, incredibly weak. Part of the problem was that scholars were ripping out case law support from historical context. Scholars were sometimes relying on scant evidence to make leaps in support of, among other things, the nondelegation doctrine. The Capozzi paper reads much the same way; vaguely analogous substantive canons are cited as support for a mostly unrelated doctrine. But hey, maybe you think I’m being unfair or you disagree with my reading of the cases. Okay, but the problem is that the little evidence Capozzi has mustered simply does not match the confidence of his assertions:
Contrary to some scholars claims, the Court did not invent [the MQD] in the past few decades. The clear statement rule applied in West Virginia claims roots extending at least into the mid-to-late nineteenth century, when courts demanded clear evidence that legislatures had delegated power to agencies.
While Capozzi’s paper may provide interesting case law citations to support the MQD, the record he has uncovered does not support the claim that most sparked interest in this paper—that the MQD is anything other than a late twentieth century invention by an increasingly anti-administrativist Court.
2 replies on “Capozzi on the future of the major questions doctrine”
Doctrine implies an analytical tool that has withstood the test of time… sucessfully and coherently reconciling apparently divergent circumstances. MQD has no such roots and has not demonstrated such power.
Very true. I don’t think the doctrine has balanced its two competing instincts–Chevron and the MQD–with anything we could describe as coherence. I thought notice and comment had an interesting post on this subject earlier today: https://www.yalejreg.com/nc/administrative-fidelity/