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!