The Major Questions Doctrine Is Compatible with Textualism
The Supreme Court in several recent cases has explicitly applied what it refers to as the “major questions doctrine” (MQD) when construing the meaning of federal statutes. Under the Doctrine, in “extraordinary” cases the Court will not accept a federal agency’s claim that Congress has authorized the agency to make “major policy decisions” with vast “economic and political significance” unless the statute in question provides “clear congressional authorization”—notwithstanding that there may be a “colorable textual basis” for the agency’s claim. West Virginia v. EPA, 142 S. Ct. 2587, 2608-09 (2022).
The MQD has recently been criticized by some conservative legal scholars as inconsistent with “textualism,” the doctrine that advocates construing a statute based on its text and context rather than by attempting to divine Congress’s underlying purpose in adopting the statute. See, e.g., Mike Rappaport, The Unnecessary Major Questions Doctrine, Law & Liberty (July 27, 2023). They frequently assert that the MQD adopts a “clear statement” rule that departs from traditional interpretive canons. That criticism is unfounded. As Justice Barrett explains at length in her concurring opinion in Biden v. Nebraska, 143 S. Ct. 2355, 2376-84 (2023), the Major Questions Doctrine is a traditional interpretive canon; it simply sets down rules that courts should apply in attempting to discern a statute’s meaning based on the context of its adoption. It is “a tool for discerning—not departing from—the text’s most natural interpretation.” Id. at 2376.
“Interpretive Canons” vs. “Substantive Canons”
“Interpretive canons” are rules of construction designed to assist courts in determining the most likely meaning of statutory text. For example, based on an understanding of English as normally written, courts assume that where a statute sets out general words following particular and specific words, the meaning of the general words is intended to be confined to things of the same kind as those specifically mentioned. This well-accepted canon is known as the ejusdem generis doctrine (Latin for “of the same kind”).
In sharp contrast, “substantive canons” are rules of statutory construction that advance values external to a statute. The constitutional avoidance doctrine is one commonly invoked substantive canon. It holds that when a federal statute has two plausible interpretations, a court ought to avoid the interpretation that would throw the statute’s constitutionality into serious doubt—even if the court concludes it is the best interpretation. The doctrine serves an important value—it decreases the frequency with which courts challenge the constitutionality of a congressional enactment—but at the cost of ignoring Congress’s most likely intent.
The MQD Is Not a Substantive Canon
Some advocates of textualism view the Major Questions Doctrine as a substantive canon that permits courts to ignore a statute’s intended meaning to suit their own policy preferences. They assert that by adopting a “clear statement” rule—and refusing to accept evidence that Congress intended to convey broad powers to a federal agency in the absence of a clear statement to that effect—the Supreme Court is improperly arrogating to itself legislative powers that properly belong to Congress.
That assertion is a misreading of the Supreme Court’s MQD decisions. The Court has not adopted a “clear statement” rule under which Congress cannot convey authority to a federal agency unless it writes a statute that contains magic words devised by the Court. Rather, the Court has explained that a statute’s meaning must be construed by examining both its text and its context, and that context occasionally requires a court to conclude that Congress did not intend to convey powers even if an examination of the text might plausibly suggest the opposite conclusion.
For example, the Court invoked the MQD in West Virginia v. EPA when it determined that Congress had not conveyed authority to EPA to mandate a major restructuring of the nation’s power industry. The Court explained:
[I]n certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there. … To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to clear congressional authorization for the power it claims.
142 S. Ct. at 2609 (citation omitted). The Court never suggested that the requisite “clear congressional authorization” need take the form of a “clear statement.” Rather, the Court explained, when the statutory context strongly suggests that Congress would not likely have intended to convey the disputed agency power, the Court will reject the agency’s position unless the agency can point to “clear” evidence of authorization for the power it claims—whether in the statutory text or context.
The Court’s MQD Decisions Are Textualist
In each of the instances in which the Supreme Court has explicitly invoked the Major Questions Doctrine, its decision is fully consistent with textualist principles. Biden v. Nebraska held that the Higher Education Act of 1965 did not authorize the Secretary of Education to cancel hundreds of billions of dollars of student loan debt. Although the Act authorized the Secretary to cancel or reduce loans under limited circumstances, the Court concluded—based on the context of the Act’s adoption and the extraordinary magnitude of the Secretary’s claimed authority—that Congress intended to reserve for itself authorization for mass debt cancellations. In Alabama Assn. of Realtors v. Dept. of Health and Human Services, 141 S. Ct. 2485 (2021), the Court held that the Centers for Disease Control and Prevention’s general authority to “prevent the … spread of communicable diseases” did not authorize the agency to seize control of the nation’s housing rental market by adopting a nationwide eviction moratorium. West Virginia v. EPA held that EPA could not rely on a long-dormant Clean Air Act provision to vastly expand its authority to transform the power industry. The Court held that statutory context—including the breadth of the authority not previously asserted and the “economic and political” significance of that assertion—strongly suggested that Congress had not granted the authority. In none of those decisions did the Court suggest that it would require a “clear statement” from Congress before upholding the agency’s assertion of power.
Cutting Back on the Chevron Doctrine
Some might ask: if the Court would have reached the same result without resort to the Major Questions Doctrine, what purpose does that Doctrine serve? Why not simply apply traditional, pre-MQD canons of statutory construction and conclude, based on those canons, that the statute in question did not authorize the federal agency to act as it did?
The answer is that the MQD is a necessary antidote to the courts’ over-reliance for the past 40 years on the Chevron doctrine, a substantive canon that has fallen into disrepute in recent years. Under the Chevron doctrine, courts are supposed to construe an ambiguous statute in the manner recommended by the federal agency charged with its enforcement, so long as the agency’s interpretation is reasonable—even if the agency’s interpretation is not the most plausible. The effect of the Major Questions Doctrine is to prevent application of Chevron in those extraordinary cases to which the MQD also applies.
Whatever one’s views on Chevron’s continued viability—and the Supreme Court has agreed to decide in its coming term whether to overrule Chevron—there is little doubt that some federal agencies have abused the discretion granted them by that doctrine. Because agencies realize that courts are supposed to defer to their “reasonable” interpretations of a federal statute, they are frequently tempted to see how far they can stretch their statutory authority rather than to adopt what they honestly believe is the correct statutory interpretation. The Major Questions Doctrine counteracts that tendency by eliminating in “major” cases the benefit-of-the-doubt otherwise granted to agencies.
August 11, 2023