“[i]f nothing more were required, in exercising a legislative trust, than a general conveyance of authority—without laying down any precise rules by which the authority conveyed should be carried into effect—it would follow that the whole power of legislation might be transferred by the legislature from itself, and proclamations might become substitutes for law.”
— James Madison, Federalist 4

 

In recent years, the Supreme Court has used the Major Questions Doctrine to decide cases involving administrative agencies or the Executive Branch asserting novel and sweeping powers over American life on the basis of vague, decades-old statutes. In every case, this doctrine has been used to strike down what the court sees as unconstitutional overreach on the part of these institutions and enforce separation of powers. Despite these worthy goals and impressive accomplishments, the doctrine itself is difficult to square with a textualist interpretive philosophy grounded in the Constitution. This problem is particularly acute when Major Questions is compared to the Non-Delegation Doctrine. Because the Non-Delegation doctrine is more internally consistent with separation of powers and the rule of law while achieving the same results, the court should begin to phase out Major Questions in favor of Non-Delegation.

First, a quick overview of both doctrines. Major Questions is typically invoked in cases where a vague or non-specific provision of a statute is being used to justify expansive, transformative unilateral actions by the Executive Branch, either through the President or an agency. The Court has held that, when such ‘major questions’ arise, the statute must contain an explicit grant of the expansive power being asserted. Generally, when Congress creates administrative agencies and passes their organic statutes, there is almost never an explicit grant of power sufficient to allow the actions to stand. However, Major Questions notably does not undermine the laws or agencies themselves. A Major Questions decision prevents the specific application of power but leaves the agencies intact to regulate many other things and persist in asserting new powers that they calculate will not cross the “Major” line of Major Questions.

In contrast, the Non-Delegation doctrine sweeps much more broadly. At its core, it claims that legislative power can only be vested in the Congress of the United States, and that no other organization or branch of government can hold or assert such powers. This applies even if Congress wants to give up the power, and the other branch wants to accept the power. Thus, cases decided with a Non-Delegation approach are much stronger and more effective rebukes of the Administrative State. The challenged action is not just prevented, but the statutory authority under which the action was justified is closed off permanently. Not only would such decisions pare down the Administrative State directly, but they would also create a chilling effect on administrative agencies future expansion. Agencies would engage in fewer arbitrary applications of power in the first place, because each action they took would increase the risk that they would lose the ability to take novel actions at all. More Americans would live without the government sticking its tendrils where they don’t belong.

The differential effect of Major Questions versus Non-Delegation is likely a large part of why the court has adopted Major Questions over Non-Delegation. After almost a century of creeping expansion of the administrative state, to suddenly revive Non-Delegation would be a massive shift in how the country is run. Additionally, it would be highly susceptible to strawman arguments in the media, which would contribute to the current bad-faith attacks on the Court. Major Questions, in contrast, is a slower walk-back of Administrative State authority. In some ways, it’s not even a walk-back so much as a pause button, halting the expansion but not hastening the decline. While I understand why such an option would appeal to the Court, there is a heart of darkness at the core of Major Questions.

Where does Major Questions come from? It’s nowhere to be found in the Constitution. It’s not in any statute. It’s not even in any regulation. It has been entirely created by the Court in the past few years. It can’t be squared with a textualist interpretive philosophy.  Indeed, such judge-made and malleable doctrines are exactly what textualism was supposed to prevent. Judges should not be creating ways to interpret the law that ignore the words of the constitution.

(A quick aside to those who want to claim that this is proof Major Questions is just the court legislating from the bench. 1) Not quite legislating, more like requiring that Congress legislate “better”. 2) You should be happy this is happening, because the alternative is Non-Delegation and the court taking away all your toys instead of just some of them. Once again, the Court is making things up to prevent the intended structure of government from existing.).

Additionally, Major Questions is very difficult for courts to apply. It almost seems to be a return to the “I know it when I see it” obscenity standard, as there are no rules about what makes something a “major” question. Chief Justice Roberts’s opinion basically states as much through his articulation of the “eyebrow-rais[ing]” nature of the asserted powers in each Major Questions case. This means that lower court application of Major Questions, something that hasn’t happened much yet because of the novelty of the doctrine but will come with time, will be highly judge-dependent and require frequent Supreme Court review in order to keep things consistent.

Major Questions is also a poor excuse for statutory interpretation. It’s explicitly rooted in purposivism, a highly suspect interpretive philosophy. Justice Barret attempted to create through explanation a distinction between Major Questions and purposivism in her concurrence in Nebraska v. Biden. She argued that Major Questions was nothing more than attempting to read statutes in context. However, the examples she chose demonstrate the purpose driven nature of the doctrine, and even explicitly states “[s]urrounding circumstances, whether contained within the statutory scheme or external to it, can narrow or broaden the scope of a delegation to an agency.” Her explanation makes clear that what matters for Major Questions is not what the statute allows, but whether the claimed delegation makes sense in light of the idea that Congress would “[delegate] away only ‘the details.’” This explanation’s shortcomings are clearest in an instance where the delegation statute’s text quite explicitly authorizes the authority being claimed by the agency. Major Questions would have nothing to say in such a case, despite the clear admonition in Marbury v. Madison that “a law repugnant to the constitution is void.”

These problems with Major Questions doctrine are thrown into sharp relief by the fact that an alternative method that does uphold the Constitution exists. This, of course, is Non-Delegation. It has a clear textual basis in the Constitution, which requires a separation of powers between the branches of government. Non-Delegation relies on this “vesting” of law-making power in the Congress alone, rather than a court’s interpretation of what a statute allows, to be a far more effective push-back against administrative power. It is also much clearer. Rather than courts all over the country applying different standards for what is and isn’t a “major” question, Non-Delegation makes the answer simple and easy to apply for any court that acknowledges—as they all must—that Art.1 Sec.1 vests “all” lawmaking power in Congress. Legislation must come from Congress, and the judicial function must be limited to judicial application of the laws actually passed by Congress. Such a doctrinal shift would improve both the consistency of the courts and the integrity of the rule of law.  A doctrine grounded in law rather than one created to address external concerns like “bigness” or “raised eyebrows” will be both more legitimate and stop the relentless, incremental growth of the Administrative State.

In an ideal world, all the branches of government would operate with integrity – and there would be lions, unicorns and puppies roaming the hills and valleys at will, and the Lakers would never win another basketball game. The judiciary acts as the watcher of the watchmen, and if there can only be a single branch of government that is run with integrity, the one charged with ensuring the Government conforms to the constitution seems like the obvious option. Major Questions has done good work in halting the excesses of the Executive Branch. However, it is ultimately a futile, ill-defined and unmanageable sword against a Hydra-headed Administrative State, ambitious Executive and complacent Legislature. Because Major Questions never addresses the critical issue of the source of the asserted power, the second half of Madison’s concern, it will fail to ever truly resolve the Administrative State’s threat to turn “the land of the free” into a hollow promise. For that, the Court will have to turn to Non-Delegation and reap the consistency, clarity, and constitutional grounding provided by a doctrine that addresses the entirety of Madison’s worry that proclamations might one day substitute for law.