Antideference: COVID, Climate, and the Rise of the Major Questions Canon

Volume 108

108 Va. L. Rev. Online 174
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*Professor of Law, University of South Carolina.Show More

Skepticism on the Supreme Court toward administrative authority has evolved into open hostility over the course of the past year in two cases related to the COVID-19 pandemic. The legal vehicle was not, as widely expected, rejection of Chevron’s deference rule or a reanimation of the nondelegation doctrine. Instead, it was formal elevation of the “major questions doctrine” into a substantive canon of construction. This new canon significantly curtails not only executive power (via agencies) but Congress’s legislative authority—and, ultimately, democratic control of policy. It adds a new veto point to the American political system, licensing judges to reject any delegation of power they deem economically or politically significant with little regard for statutory text. The only remedy is a super-clear statement in legislation, similarly subject to judicial discretion. For such major cases, the Court has shifted from deference to antideference, actively antagonistic to delegated power. By its architects’ own admission, this canon is simply the nondelegation doctrine in disguise. It threatens to cripple the administrative state, particularly in emergencies and in areas of evolving science, such as pandemics and climate change.

Introduction

Over roughly the last two decades, it has become increasingly clear that a majority on the Supreme Court aims to reduce the power and reach of the administrative state in the American constitutional order.1.SeeGillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 2, 3–6 (2017); see also Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1969–71 (2017) (noting several Justices have “constitutionally inspired anxieties about the modern administrative state”).Show More Most observers of this trend have focused on two potential changes in doctrine: an end to the practice of deferring to agency interpretations of ambiguous statutes (i.e., Chevron deference)2.See, e.g., Nathan Richardson, Deference Is Dead (Long Live Chevron), 73 Rutgers U. L. Rev. 441, 445 (2021) [hereinafter Richardson, Deference is Dead]; seealso Valerie C. Brannon & Jared P Cole, Cong. Rsch. Serv., LSB10204, Deference and its Discontents: Will the Supreme Court Overrule Chevron? (2018) (discussing predictions that Chevron will be overturned).Show More and a revival of the principle that some Congressional delegations of power to agencies are so broad as to violate the Constitution (i.e., nondelegation).3.See,e.g., Heinzerling, supranote 1, at 1970.Show More These two judicial forbearance doctrines have remained stable pillars of the administrative state for decades. A shift in either would reallocate authority over substantial parts of American law and American life from agencies, the President, and Congress to the Court. Despite strong rumblings,4.See Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting); seealsoSAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2017) (“[W]hether Chevron should remain is a question we may leave for another day.”); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring) (calling for Chevron to be reconsidered).Show More neither of these doctrinal changes has happened—at least not yet and not officially. Chevron remains good law (albeit severely weakened at the Supreme Court level),5.See Richardson, Deference is Dead, supra note 2, at 443.Show More and the nondelegation doctrine’s slumber was narrowly preserved in 2019’s Gundy v. United States.6.139 S. Ct. 2116, 2119–20 (2019).Show More

But in two recent cases striking down agency actions related to the COVID-19 pandemic—a CDC eviction moratorium7.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2486–90 (2021).Show More and an OSHA vaccine-or-test mandate for large employers8.Nat’l Fed’n of Indep. Bus. v. OSHA (The Vaccine Case), 142 S. Ct. 661, 662, 665–67 (2022).Show More—the Court made an equally significant but almost completely unheralded anti-administrative doctrinal change. In so doing, it has arrogated to itself broad discretionary power to reject delegations of authority to administrative agencies without openly altering any doctrinal principle. Instead, the anti-administrativists have stolen a march via expansion of the “major questions doctrine” into a substantive canon of statutory construction.

The traditional major questions doctrine emerged in the 1990s, imposing different rules for statutory interpretation in “major” cases, i.e., those that rise above some level of political or economic significance. 9.See,e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000).But see infra Section III.A (discussing possible roots of the doctrine in Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Instit. (The Benzene Case), 448 U.S. 607, 645 (1980)).Show More Until recently, it operated to deny deference to certain agency interpretations of law—that is, courts would not defer to interpretations of ambiguous statutory terms in “major” cases to which they might have deferred in lower-stakes cases. Chevron and its early progeny had shifted interpretive authority from courts to agencies—it was a “counter-Marbury for the administrative state,” as Cass Sunstein famously called it.10 10.See Cass R. Sunstein, Law and Administration after Chevron, 90 Colum. L. Rev. 2071, 2075 (1990).Show More The major questions doctrine, among other doctrines and practices reducing the scope of Chevron,11 11.See Richardson, Deference is Dead, supranote 2, at 453–59 (detailing external erosion of Chevron’s domain by creation of a series of exclusion rules).Show More clawed some of that power back.12 12.Id. at 470–72.Show More

The doctrine has been widely criticized for its indeterminacy, counter-democratic allocation of power from agencies to judges, and other alleged failings,13 13.See Nathan Richardson, Keeping Big Cases from Making Bad Law: The Resurgent “Major Questions” Doctrine, 49 Conn. L. Rev. 355, 390–409 (2016) [hereinafter Richardson, Keeping Big Cases] (cataloging extensive scholarly critiques of the major questions doctrine).Show More though I have previously argued that it might, paradoxically, have benefited agency authority insofar as it protected Chevron in “normal” cases.14 14.Id. at 409–26.Show More Whatever its effects, the doctrine’s influence was limited, largely because it appeared only rarely.

But in recent cases—beginning with Utility Air Regulatory Group v. EPA15 15.Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).Show More in 2014 and maturing in the COVID cases16 16.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021); The Vaccine Case,142 S. Ct. 661 (2022).Show More—the major questions doctrine escaped the confines of Chevron to operate as an independent, substantive canon of statutory construction. The Court now requires Congress to “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”17 17.The Vaccine Case, 142 S. Ct. at 665 (citing Alabama Realtors, 141 S. Ct. at 2489).Show More Cass Sunstein and Lisa Heinzerling have previously noted this nascent doctrinal shift,18 18.See Cass Sunstein, There Are Two Major Questions Doctrines, 73 Admin. L. Rev. 475, 475–77 (2021) [hereinafter Sunstein, Two Major Questions]; see also Heinzerling, supranote 1, at 1944–48 (describing Utility Airas establishing a new “power canon” clear statement rule).Show More but the Court did not openly adopt it until the recent COVID cases. In both cases, the Court rejected agency authority on the grounds that Congress had failed to speak sufficiently clearly.19 19.See Alabama Realtors,141 S. Ct. at 2488–89; The Vaccine Case,141 S. Ct. at 665.Show More In neither case did it even cite Chevron.

This shift from major questions doctrine to canon is subtle but powerful. More than a further pullback from Chevron deference, it is a reversal of it. Chevron gives agencies some range of interpretive authority when statutes are ambiguous. The major questions doctrine discards that deference, allowing courts to engage directly with statutes (and, therefore, with Congress). But the major questions canon is actively hostile to agency assertions of authority, allowing courts to reject agency interpretations in “major” cases of statutes that are insufficiently unambiguous. The major questions canon is thus a super-Marbury for the administrative state. Where the earlier major questions doctrine shifted a reviewing court from a deference regime to one of rough neutrality, the new canon further shifts from neutrality to antideference.

Nor did the Court announce or acknowledge the shift from doctrine to canon. Instead, the Justices act as if the canon is a long-settled part of the Court’s administrative law doctrine.20 20.See,e.g., Alabama Realtors,141 S. Ct. at 2489 (citing Utility Air, 573 U.S. at 324) (failing to acknowledge any doctrinal shift to canon); seealso The Vaccine Case,141 S. Ct. at 668–70 (Gorsuch, J., concurring) (rooting the major questions canon in the Benzene Case and other nondelegation cases dating back to 1825).Show More In one sense this cannot be true—severance of the major questions inquiry from Chevron is a recent innovation. But it is right in another sense: the major questions canon is in fact simply the nondelegation doctrine masquerading as a principle of statutory interpretation. The traditional major questions doctrine was a nondelegation avoidance doctrine;21 21.SeeJohn F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223, 223 (2001).Show More now elevated to substantive canon, that separation has collapsed.

The major questions canon is therefore not (or at least not just) an assertion of judicial power over a modern administrative state. Instead, it asserts power over Congress—and, by extension, over popular rule and representative government. The normal legislative process is no longer adequate for “major” delegations. The new canon is a purely judicial creation, with indistinct and arbitrary boundaries that appear to shift to match the policy preferences of the judges applying it. And it is powerful, trumping statutory text and the Court’s standards for granting preliminary relief.

It is also a new, extra-constitutional veto point in an American political system already crippled by a surfeit of them.22 22.See, e.g., Sanford Levinson, The United States and Political Dysfunction: “What Are Elections For?”,61 Drake L. Rev. 959, 961 (2013).Show More Whether that system can effectively respond to short-term emergencies like pandemics or longer-term challenges like climate change hangs in the balance. In 2022 the Court will again consider the EPA’s authority to regulate greenhouse gas emissions in West Virginia v. EPA,23 23.See Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021).Show More a case I and others have highlighted as a potential vehicle for further erosion of Chevron or reinvigoration of the non-delegation doctrine. 24 24.Nathan Richardson, The Supreme Court’s New Threat to Climate Policy, Resources (Nov. 5, 2021), https://www.resources.org/common-resources/the-supreme-courts-new-threat-to-climate-policy/ [https://perma.cc/96RQ-TQ2A].Show More Armed with the major questions canon, neither is necessary for the Court to impose its veto on the administrative state.

I. Doctrine

A. Birth

The major questions doctrine emerged relatively recently, in a pair of late-1990s Supreme Court cases challenging agency regulations: MCI Telecommunications Corp. v. AT&T Co.25 25.512 U.S. 218, 231 (1994).Show More and FDA v. Brown & Williamson Tobacco Corp.26 26.FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (argued in 1999).Show More By the time these cases were decided, the Court had long since established a doctrine of deference to agency interpretations of law, first as a standard,27 27.See NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 130–31 (1944); seealso Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (deferring to the “experienced and informed judgment” of the agency).Show More then as a rule in Chevron v. NRDC.28 28.Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).Show More Chevron’s domain was never universal, however,29 29.See Richardson, Deference Is Dead, supra note 2, at 453–59 (detailing external erosion of Chevron’s domain by creation of a series of exclusion rules).Show More and over time, the Court reduced its scope.30 30.Id; see also Blake Emerson, Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 Minn. L. Rev. 2019, 2032 (2020) (calling Chevron a temporary simplification of the preexisting deference regime).Show More What came to be known as the major questions doctrine was one such carve-out.

Deference’s foundation is implied delegation—the assumption31 31.Or if one is less charitable, the legal fiction. SeeLisa Schultz Bressman, Reclaiming the Legal Fiction of Congressional Delegation, 97 Va. L. Rev. 2009, 2009 (2011).Show More that Congress intends for agencies to fill statutory gaps.32 32.See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 373 (1986); seealso FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (describing Chevron as reflecting the belief that statutory gaps reflect implied delegation to the agency).Show More Just two years after Chevron, then-Judge Stephen Breyer suggested that this assumption should be discarded in “major” cases.33 33.Breyer, supra note 32, at 390.Show More A decade later, the Court would adopt this principle (though Breyer himself would not).34 34.Brown & Williamson,529 U.S. at 123; seealso id.at 161, 190–92 (Breyer, J., dissenting).Show More

In MCI, Justice Scalia rejected a change in telecommunications rate policy by the FCC, denying deference to the agency in part because the regulation was, he claimed, a “radical or fundamental change” to the statutory scheme.35 35.MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994).Show More The case augured a doctrinal change but did not explicitly announce one; it can be interpreted as a straightforward Chevron case, with the agency’s interpretation simply deemed “unreasonable.”36 36.See Richardson, Keeping Big Cases, supranote 13, at 364–65.Show More

Six years later, in Brown & Williamson, the Court considered a challenge to the agency’s attempt to regulate tobacco products as “drugs.”37 37.Brown & Williamson,529 U.S.at 125.Show More In rejecting the agency’s statutory interpretation, Justice O’Connor characterized the case as “extraordinary” because “the FDA has now asserted jurisdiction to regulate an industry constituting a significant portion of the American economy.”38 38.Id. at 159–60.Show More Subsequent legislation was also interpreted by the Court to imply that Congress did not intend to grant the FDA authority over tobacco.39 39.Id. at 157–58.Show More Justice O’Connor’s opinion included the first clear articulation of the major questions doctrine:

Deference under Chevron to an agency’s construction of a statute that it administers is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.40 40.Id. at 159.Show More

After Brown & Williamson, if a case was sufficiently important to qualify as “extraordinary,” courts would have sole authority to interpret the statute in question, without deference to any agency view.41 41.Brown & Williamson hints at going further, foreshadowing the future major questions canon. The Court was “confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Brown & Williamson, 529 U.S.at 160. This line is itself cryptic, but it can be read to suggest a clear statement rule. The better reading, in my view, is that it is merely an admonition to read statutory language with a view to context and purpose.Show More

B. Rebirth

After Brown & Williamson formalized the major questions doctrine, the Court seemed to forget about it—it was notably absent from 2007’s Massachusetts v. EPA,42 42.549 U.S. 497, 528 (2007).Show More leading one scholar to declare it dead.43 43.SeeAbigail R. Moncrieff, Reincarnating the “Major Questions” Exception to Chevron Deference as a Doctrine of Noninterference (or Why Massachusetts v. EPA Got it Wrong), 60 Admin. L. Rev. 593, 594 (2008).Show More But in King v. Burwell in 2015,44 44.576 U.S. 473 (2015).Show More the Court confirmed that it was alive and well. In King, the Court considered whether the Affordable Care Act could be interpreted to allow tax credits to be granted to customers of federal insurance exchanges, despite language in the statute that apparently limited such credits to users of state exchanges.45 45.Id. at 473–74.Show More The IRS said it could.46 46.Id.Show More In a majority opinion by Chief Justice Roberts, the Court declined to defer to the agency reading of the statute for multiple reasons, among them the major questions doctrine:

[Chevron] is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. . . . In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. . . . Whether . . . credits are available on Federal Exchanges is . . . a question of deep “economic and political significance” . . . [H]ad Congress wished to assign that question to an agency, it surely would have done so expressly.47 47.Id. at 485–86 (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). Justice Scalia’s dissent adopts a different interpretation of the statute but does not contest Chief Justice Roberts’s understanding of the major questions doctrine. Id. at 499–517 (Scalia, J., dissenting).Show More

Having denied deference to the agency’s reading, the Court proceeded to its own statutory analysis, but it ultimately confirmed the agency’s reading, based on traditional textual analysis.48 48.Id. at 486–99.Show More This makes King a perfect illustration of the traditional major questions doctrine: it operates within Chevron or, perhaps more accurately, as a threshold question before reaching Chevron—a Chevron Step Zero.49 49.See Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 191 (2006).Show More But whether a case is “major” has no effect on the Court’s textual analysis.

II. Canonization

The traditional, Chevron-focused major questions doctrine would not hold for long, however—five years later, the COVID cases would elevate it to a substantive canon. But this change was less sudden than it appears. Its roots lie in a separate line of cases dating back to the 2000s—or perhaps the 1980s. By the time King was decided, the Court had already begun moving toward a major questions canon, albeit under a different name.

A. Roots

Twice in complex non-delegation cases, the Court has come close to adopting a major questions canon, but it would not stick. In Industrial Union Department, AFL-CIO v. American Petroleum Institute (The Benzene Case) in 1980, Justice Stevens’ plurality opinion includes a passage that looks much like the major questions canon: “In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry that would result from the Government’s view . . . .”50 50.The Benzene Case, 448 U.S. 607, 645 (1980).Show More Sunstein identifies this as the canon’s doctrinal root.51 51.Sunstein, Two Major Questions,supranote 18,at 484–85.Show More But if so, the Court itself did not acknowledge it: Neither MCI, Brown & Williamson, nor King cite the Benzene Case.

Two decades later, in Whitman v. American Trucking Ass’ns, Justice Scalia’s majority opinion adopted a similar principle: “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”52 52.531 U.S. 457, 468 (2001).Show More Scalia cited MCI and Brown & Williamson, 53 53.Id.Show More but this is a significant and unacknowledged doctrinal shift to a clear statement rule, perhaps identical to the major questions canon. But Whitman, too, was not followed by progeny adopting a major questions canon. The Court would occasionally cite the “elephants in mouseholes” principle, but only once in a recognizable major questions case involving a delegation to an agency.54 54.See Gonzales v. Oregon, 546 U.S. 243, 267 (2006).Show More

In both Whitman and the Benzene Case, the Court also considered disinterring the nondelegation doctrine, only to ultimately decline.55 55.See Whitman, 531 U.S. at 472–74; The Benzene Case, 448 U.S. at 646.Show More But the threat of doing so, and the clear statement rules the cases appear to articulate, were threats to agency authority (and to Congress’ power to delegate)—Chekov’s guns placed silently on the wall.

We are therefore left with something of a puzzle. Whitman and the Benzene Case both offer statements that look like the major questions canon and suggest a connection to nondelegation, but in neither case does the Court acknowledge any shift in doctrine, nor is either case followed by progeny that apply such a canon—at least not until recently. Whitman and the Benzene Case are therefore (at most) important precursors.

B. Utility Air

For Sunstein and Heinzerling, canonization came in Utility Air Regulatory Group v. EPA in 2014. 56 56.Sunstein, Two Major Questions,supranote 18,at 483–84, Heinzerling,supranote 1, at 1944–54.Show More Justice Scalia’s majority opinion applies Chevron’s two-step process, identifying statutory ambiguity but refusing to defer because the agency’s interpretation was deemed unreasonable—making Utility Air an unusual Chevron step two case, but not doctrinally innovative, at least superficially.57 57.See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014).Show More But Scalia’s reasoning was remarkably aggressive:

When an agency claims to discover in a long-extant statute an unheralded power to regulate “a significant portion of the American economy,” we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast “economic and political significance.”58 58.Id. at 324 (first citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. at 159; then citing MCI, 512 U.S. at 231; and then citing The Benzene Case, 448 U.S. at 645–46).Show More

If the roughly contemporaneous King v. Burwell is a clear articulation of the traditional major questions doctrine, this looks like an equally clear articulation of the major questions canon. Scalia cites both the Brown & Williamson and the Benzene Case, pulling two of the canon’s historical threads together.

But (contra Sunstein and Heinzerling), in my view the canon had not yet fully arrived. Although the passage above appears to adopt a major questions canon when read in isolation, Utility Air still operates within Chevron’s deference framework.59 59.MCI is a close parallel, in that both it and Utility Airare best understood as Chevron step two cases. See MCI, 512 U.S. at 229; Utility Air, 573 U.S. at 321.Show More In practice this distinction makes little or no difference to case outcomes: it is inconceivable that the Court would conclude an agency interpretation is unreasonable on major questions grounds yet still accept it. But the major questions doctrine in Utility Air is not enough to resolve the statutory interpretation inquiry. Justice Scalia’s opinion engages in substantial further textual analysis before rejecting the agency’s reading.60 60.SeeUtility Air,573 U.S. at 316–20 (comparing the Clean Air Act provision at issue with similar provisions in the statute).Show More The fact that Utility Air was followed a year later by King confirms that it did not shift—or was not yet understood to have shifted—the Court from major questions doctrine to canon.

But even if Utility Air did not canonize major questions, it opened the door.61 61.See, e.g., Jody Freeman, Why I Worry About UARG, 39 Harv. Env’t L. Rev 9, 16–17 (2015); see also Richardson, The Rise and Fall of Clean Air Act Climate Policy,10 Mich. J. Env’t & Admin. L. 69, 107 (2020) (noting the “substantial legal uncertainty” created by the Court’s move in Utility Air).Show More Jody Freeman called the passage above a “rhetorical flourish[]” and a “‘red meat’ reference[] to potential government overreach that some Justices toss to their conservative audiences.”62 62.Freeman, supranote 61, at 10.Show More But there was more to it than rhetoric, she suggested, calling the case “full of troubling hints and clues as to the Court’s skeptical mood” and armed with “legal improvised explosive devices”63 63.Id. at 21.Show More Utility Air was Scalia’s second such doctrinal IED—just as in Whitman, he advanced a new legal principle, profoundly dangerous to agency authority, in a case that gave the agency its preferred substantive result.

The Court did not immediately go through the door it had opened in Utility Air. The case was followed by an increase in the rate at which the Court cited the “elephants in mouseholes” principle,64 64.After being cited in a majority opinion just twice between 2001 and 2016 (see notes 52, 54), the Court cited “elephants in mouseholes” seven times between 2017 and 2021. SeePuerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 127 (2016), Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1071 (2018), Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 984 (2017), Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1903 (2019), Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1354 (2020), Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1753 (2020), AMG Cap. Mgmt., LLC v. FTC, 141 S. Ct. 1341 (2021). None of these are readily recognizable as major questions cases involving disputed statutory delegations to an agency, however.Show More but not by cases adopting the major questions canon. Utility Air was ahead of its time. But by 2021, the Court’s personnel had changed: Justices Scalia, Kennedy, and Ginsburg had been replaced with Gorsuch, Kavanaugh, and Barrett. Of these, Gorsuch would become the major questions canon’s leading advocate.

And Utility Air did inspire Kavanaugh to adopt the canon—in US Telecom Ass’n v. FCC (2017), then Judge Kavanaugh invoked what he called a “major rules” doctrine.65 65.SeeU.S. Telecom Ass’n v. FCC, 855 F.3d 381, 418–35 (2017) (en banc) (Kavanaugh, J., dissenting).Show More Because the net neutrality rule at issue was, in Judge Kavanaugh’s view, “one of the most consequential regulations ever issued,” it required “clear congressional authorization.”66 66.Id. at 417, 419–22. For this requirement, he cited the Benzene Case, 448 U.S. 607, 645–46(1980); MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000); Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (“elephants in mouseholes” major questions case); and Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).Show More What Kavanaugh called the “major rules” doctrine is nothing more than the major questions canon. Once elevated to the Supreme Court, Kavanaugh confirmed his view that major questions was a canon, “closely related” to nondelegation.67 67.SeePaul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting denial of certiorari).Show More

C. COVID

The Court’s formal adoption of the major questions canon came in two recent decisions staying emergency agency actions arising from the COVID-19 pandemic.

1. Evictions

In Alabama Ass’n of Realtors v. Department of Health and Human Services in 2021, the Court considered a nationwide moratorium on evictions issued by the Centers for Disease Control (CDC). 68 68.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2485 (2021).Show More In deciding six-to-three that a stay was warranted, the Court applied the standard framework, which requires the stay applicant to make “a strong showing that he is likely to succeed on the merits” and show that equitable factors such as irreparable injury and the public interest weigh in favor of a stay.69 69.Id. at 2487 (citing Nken v. Holder, 556 U.S. 418 (2009)).Show More The Court’s consideration of these equitable factors was brief, almost entirely subsumed into the merits analysis.70 70.Id. at 2490.Show More

The merits, in the Court’s view, were resolved by application of two substantive canons: the longstanding federalism canon71 71.Id. at 2489.Show More and the new major questions canon. The latter was triggered because, in the Court’s view, the moratorium asserted agency powers of “vast ‘economic and political significance’” and “a breathtaking amount of authority.”72 72.Id. (first citing Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014); and then citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).Show More

Having concluded this was a major case, the Court considered whether the statute in question, the Public Health Service Act, was sufficiently clear to authorize the CDC moratorium. In relevant part, it authorized the CDC to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases. . . .”73 73.See Public Health Service Act §361(a), 42 U.S.C. § 264(a). The statute then gives examples of actions the agency might take under this authority, including “inspection, fumigation, disinfection . . . and other measures, as in his judgment may be necessary.”Show More In the Court’s view, this statutory language was far from adequate, partly because the relatively pedestrian examples of regulatory actions given in the statute make it “a stretch” to read the superficially broad language to authorize halting evictions. 74 74.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2488 (2021).Show More

Reasonable minds might differ over the degree to which the examples given in the statute limit the scope of agency authority in a pandemic or the degree to which an eviction moratorium is outside that scope.75 75.Id. at 2491–92 (Breyer, J., dissenting) (Justice Breyer would reverse the majority’s presumption: “If Congress had meant to exclude these types of measures from its broad grant of authority, it likely would have said so.”).Show More But the majority’s trump card was the major questions canon. Ambiguity is not enough, says the canon. This is not a Chevron case. Instead, Congress must speak clearly to delegate significant authority. And in the Court’s view, the statute lacked the required clarity or robustness: it was “a wafer-thin reed on which to rest such sweeping power.”76 76.Id. at 2489.Show More

The opinion gives no guidance on what more Congress needed to have done in the statute, beyond warning that the agency’s reading would leave “no limit” on its powers (suggesting a nondelegation problem). 77 77.Id.Show More The opinion does suggest two additional factors were significant. One is the absence of past regulations based on the same statutory provision that (in the Court’s view) “beg[i]n to approach the size or scope of the eviction moratorium.”78 78.Id.Show More This suggests a “use it or lose it” element of delegated authority—if an agency receives a broad grant but construes it narrowly, or lacks a reason to use it fully, those powers may be lost.

The Court also points to lack of post-enactment legislation as evidence of statutory intent and, by extension, requisite clarity. Because Congress had imposed a temporary eviction moratorium by statute, then allowed it to lapse, Congress (the Court reasoned) implicitly denied the CDC power to re-impose it under preexisting law.79 79.Id. at 2490.Show More This echoes and extends Brown & Williamson—in both cases, post-enactment Congressional behavior informs interpretation of the relevant statute, but Alabama Realtors applies that principle to post-enactment inaction.

The complete absence of Chevron from the Alabama Realtors opinion confirms that it is a major questions canon case. Whether to defer to the agency’s reading is never in question—the Court simply goes about interpreting the statute de novo, with analysis dominated by the major questions canon’s clear statement rule.

2. Vaccines

A few months later, the Court removed any remaining doubt that the major questions doctrine had been elevated to a substantive canon. In National Federation of Independent Business v. OSHA (The Vaccine Case) in early 2022, the Court considered an OSHA emergency rule requiring large employers to either “ensure their workforces are fully vaccinated or show a negative test at least once a week.”80 80.The Vaccine Case,142 S. Ct. 661, 663 (2022).Show More Challengers alleged the rule exceeded OSHA’s statutory authority to issue workplace standards “reasonably necessary or appropriate to provide safe or healthful employment . . . .”81 81.Occupational Safety and Health Act § 3(8), 29 U.S.C. § 652(8).Show More and requested a stay.82 82.The Vaccine Case,141 S. Ct. at 662–63.Show More

In a per curiam opinion similar to Alabama Realtors, the same 6-3 majority of the Court granted the requested stay,83 83.Id.Show More relying exclusively on the major questions canon. Like Alabama Realtors, the Vaccine Case opinion does not cite Chevron. Instead, it applies the new two-step major questions canon analysis, considering first whether the regulation is sufficiently significant: “This is no ‘everyday exercise of federal power.’ It is instead a significant encroachment into the lives—and health—of a vast number of employees. ‘We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.’”84 84.Id.at 665 (citing Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021)).Show More The regulation having qualified as a major question, the Court then considered whether the statute “plainly authorized” it. The Court concluded it did not, with a single paragraph of cursory statutory analysis:

The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U.S.C. §655(b) (directing the Secretary to set “occupational safety and health standards”. . . . Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.85 85.Id.Show More

The Court further distinguished COVID from “work related dangers” within OSHA’s purview, instead likening it to “day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases” and concluding the vaccine-or-test requirement was “strikingly unlike” past agency practice.86 86.Id.Show More This analysis is profoundly unpersuasive; OSHA has long regulated general risks that appear in the workplace—one need look no further than the Benzene Case itself to find an OSHA regulation of air pollution.87 87.See The Benzene Case, 448 U.S. 607, 613 (1980).Show More

The opinion is strikingly similar to Alabama Realtors. It suggests that past agency practice with old statutes informs current bounds of authority, and relies on implied repeal by congressional inaction, this time extending to a non-binding Senate vote disapproving of the regulation.88 88.The Vaccine Case, 142 S. Ct. 661, 666 (2022).Show More Where the Court had considered equitable factors only briefly in Alabama Realtors, it simply refused to do that analysis at all in the Vaccine Case, declaring “[i]t is not our role to weigh such tradeoffs.”89 89.Id.Show More Resolution of the case therefore collapsed entirely into the merits analysis.90 90.SeeWill Baude, Balancing the Equities in the Vaccine Mandate Case, Reason: The Volokh Conspiracy (Jan. 14, 2022), https://reason.com/volokh/2022/01/14/balancing-the-equities-in-the-vaccine-mandate-case/ [https://perma.cc/Y7YH-3V7N].Show More

Justice Gorsuch’s concurrence, joined by Justices Alito and Thomas, discusses the canon in more detail. For Gorsuch, the lack of statutory clarity is driven not by text, but by its age (50 years) and by Congressional inaction.91 91.The Vaccine Case, 142 S. Ct. at 668 (Gorsuch, J., concurring). Justice Gorsuch also charges OSHA with flip-flopping, though he appears to have mischaracterized the agency’s earlier position. SeePatterico, An Error in Justice Gorsuch’s Concurrence in the OSHA Vaccine Mandate Case (Jan. 18, 2022), https://patterico.substack.com/p/an-error-in-justice-gorsuchs-concurrence [https://perma.cc/G4AF-95DX].Show More But the concurrence goes deeper into the canon’s roots and rationale:

Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate . . . . It must also act consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: “We expect Congress to speak clearly” if it wishes to assign to an executive agency decisions “of vast economic and political significance.” We sometimes call this the major questions doctrine. 92 92.The Vaccine Case, 142 S. Ct. at 667.Show More

For this, Gorsuch cites Alabama Realtors and his own dissent in Gundy, in which he would have reanimated the nondelegation doctrine by discarding the “intelligible principle” standard in favor of stricter review.93 93.Gundy v. United States, 139 S. Ct. 2116,2138–41 (2019) (Gorsuch, J., dissenting).Show More Completing the doctrinal loop, the Gundy dissent cites the major questions doctrine as an illustration of the Court’s attempts to rein in agency overreach.94 94.Id. at 2141.Show More Though what Gorsuch describes there is the traditional major questions doctrine,95 95.Id.Show More in neither Gundy nor the Vaccine Case does he acknowledge or explain the shift from doctrine to canon. But in both, Gorsuch grounds the rationale for major questions in nondelegation.96 96.Id.; seealso The Vaccine Case, 142 S. Ct.at 668 (Gorsuch, J., concurring) (noting the major questions doctrine covers much the same interests as nondelegation).Show More Indeed, in his Vaccine Case concurrence, Gorsuch writes that were it not for the major questions canon, the vaccine-or-test mandate would be unconstitutional on nondelegation grounds.97 97.The Vaccine Case, 142 S. Ct.at 669 (Gorsuch, J., concurring).Show More The canon, Gorsuch says, is just another way to get at the same separation of powers problem: “The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials. . . . The major questions doctrine serves a similar function by guarding against unintentional, oblique, or otherwise unlikely delegations of the legislative power.”98 98.Id.Show More This suggests the canon is a mere Congressional error correction measure. But Gorsuch continues, clarifying that agencies are the canon’s real target:

Later, the agency may seek to exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond its initial assignment. The major questions doctrine guards against this possibility by recognizing that Congress does not usually “hide elephants in mouseholes.” In this way, the doctrine is “a vital check on expansive and aggressive assertions of executive authority.” 99 99.Id.Show More

Gorsuch thereby merges the Whitman “elephants in mouseholes” line of cases with the major questions mainstream. The “vital check” language comes from then-Judge Kavanaugh’s US Telecom dissent, in which he advanced his “major rules” doctrine.100 100.U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (2017) (en banc) (Kavanaugh, J., dissenting). The citation was not enough, however, to attract Justice Kavanaugh’s vote.Show More For the same sentence, Justice Gorsuch bizarrely cites my 2016 paper in which I defend major questions as protective of Chevron.101 101.Richardson, Keeping Big Cases,supranote 13, at 359.Show More At no point in that paper (and certainly not in the cited portion) do I argue that the doctrine is justified as a means to restrain agencies, much less that they are “expansive and aggressive” extralegal actors.

Justice Gorsuch’s opinion is only a concurrence, joined by two other justices. But it and the majority opinion apply the major questions canon in the same way, with Justice Gorsuch merely going into more depth. And there is no doubt that it now operates as a canon, leaving its Chevron constraints behind—none of the opinions in the Vaccine Case or Alabama Realtors even mention Chevron. In this switch to a canon, the major questions doctrine has subsumed the “elephants in mouseholes” line of cases and emerged, it appears, as the nondelegation doctrine in other clothes.

D. Climate

The COVID cases established the new canon. Two further climate-related cases in 2022 may further illustrate its significance.

Just weeks after the Vaccine Case, Judge James Cain of the Western District of Louisiana issued an order enjoining use of federal government social cost of carbon estimates.102 102.Louisiana v. Biden, No. 2:21-CV-01074, 2022 WL 438313, at *21 (W.D. La. Feb. 11, 2022).Show More As in the COVID cases, Judge Cain’s opinion relies heavily on the major questions canon to conclude challengers are likely to succeed on the merits,103 103.Id. at 29–34.Show More with only the briefest consideration of the equities.104 104.Id. at 40–44 (simply restating plaintiffs’ equities arguments and indicating agreement).Show More Judge Cain concludes that estimation of the social cost of carbon is a “major” action which lacks clear authorization from Congress.105 105.Id. at 30–34.Show More Deference is never on the table. Chevron is not cited. The opinion cites virtually all of the major questions precedents, all the way back to Breyer’s 1986 article.106 106.Id. at 29. The opinion relies most heavily on Justice Kavanaugh’s statement respecting denial of certiorari in Paul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting denial of certiorari).Show More Judge Cain’s order was struck down on appeal on standing grounds; its final fate remains unclear107 107.SeeLouisiana v. Biden, No. 22-30087, 2022 WL 866282 at *2 (5th Cir. Mar. 16, 2022).Show More—but the case illustrates that the major questions canon is not restricted to the Supreme Court.108 108.Michael Coenen and Seth Davis persuasively argued for restricting the major questions doctrine to the Supreme Court in a 2017 paper. See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 839–43 (2017). The Court seems not to have listened, giving no signal in the COVID cases that lower courts should steer clear—and, unsurprisingly, lower court judges seem unwilling to tie their own hands.Show More

The Court will have another opportunity to apply the canon in West Virginia, a third challenge to EPA’s authority to regulate carbon emissions under the Clean Air Act.109 109.Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021).Show More The case stems from the agency’s attempts to regulate fossil-fueled power plants, beginning with the Obama EPA’s Clean Power Plan,110 110.Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (codified as amended at 40 C.F.R. pt. 60).Show More That rule was stayed by the Court,111 111.See West Virginia v. EPA, 136 S. Ct. 1000 (2016) (order granting stay).Show More then repealed by the Trump EPA and replaced with the weaker Affordable Clean Energy (“ACE”) rule.112 112.Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520, 32,521 (July 8, 2019) (codified as amended at 40 C.F.R. pt. 60).Show More Environmental groups and states challenged the ACE rule, and the D.C. Circuit vacated it in early 2021.113 113.Am. Lung Ass’n v. EPA, 985 F.3d 914, 949–50 (D.C. Cir. 2021).Show More In its ruling, the D.C. Circuit denied Chevron deference to the EPA and rejected arguments from the agency that the major questions doctrine compelled its narrow reading of the statute.114 114.Id. at 958–68.Show More Subsequently, the Biden EPA declined to defend the ACE rule, and indicated it had begun working on a replacement. Surprisingly, given the lack of an actual rule in place backed by the government, the Court granted certiorari.115 115.Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021); seealsoJonathan Adler, Supreme Court Agrees to Hear Case Challenging EPA Authority to Regulate Greenhouse Gases, Reason: The Volokh Conspiracy (Oct. 29, 2021), https://reason.com/volokh/2021/10/29/supreme-court-agrees-to-hear-case-challenging-epa-authority-to-regulate-greenhouse-gases/ [https://perma.cc/ZW8U-FMFT] (discussing grant of certiorari in West Virginia v. EPA).Show More

West Virginia’s framing of the question presented invites a major questions ruling:

[Whether, . . . i]n . . . an ancillary provision of the Clean Air Act, . . . Congress constitutionally authorize[d] the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements[.]116 116.Petition for Writ of Certiorari at i, West Virginia v. EPA, No. 20-1530 (Apr. 29, 2021), 2020 WL 9439135, at *i.Show More

So framed, this presupposes that climate rules for power plants are “significant” because of their economic effects, triggering the major questions canon. And by calling the relevant provision “ancillary,” it also presupposes that the statute lacks the requisite clarity. Furthermore, it also raises the specter of constitutional limits—i.e., nondelegation.

West Virginia’s brief refers to “the major questions canon of construction,” defined as the requirement that “Congress must delegate with unmissable clarity if it intends to give an agency economy-transforming abilities to decide major questions. . . .”117 117.Brief for Petitioners at 14, West Virginia v. EPA, No. 20–1530 (Dec. 13, 2021), 2021 WL 5982772, at *14.Show More The brief treats the canon as a constant doctrinal principle dating back to the Benzene Case,118 118.Id. at 44.Show More rooted in nondelegation,119 119.Id. at 46.Show More and a response to “the danger posed by the growing power of the administrative state.”120 120.Id. at 15 (quoting City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting)).Show More It does not mention Chevron deference.121 121.Id. at 43 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,467 U.S. 837, 863 (1984), as a Clean Air Act case only).Show More Another petitioner’s brief goes further, suggesting that the major questions doctrine requires rejecting any statutory interpretation that would convey “vast power to decide matters of great economic or political significance”—if accepted, this would openly merge major questions with the non-delegation doctrine.122 122.Brief for Petitioner the North American Coal Corporation at 15, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Dec. 13, 2021), 2021 WL 5982771, at *15.Show More The respondents’ briefs argue that the doctrine should not apply,123 123.See Brief for the Federal Respondents at 13–14, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 18, 2022), 2022 WL 216161, at 13–14; Brief of Non-Governmental Organization & Trade Association Respondents at 42–49, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 18, 2022), 2022 WL 209765, at *42–49 (denying the applicability of major questions without challenging its existence).Show More but none question the canon.124 124.At least one amicus does question it, however. See Brief of Amicus CuriaeRichard L. Revesz at 5–21, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 25, 2022) (criticizing quality of economic analysis in major questions cases and arguing that “public salience” is not a workable threshold factor).Show More

Perhaps the Court will dismiss West Virginia v. EPA on standing or other threshold grounds, as observers ranging from environmental groups125 125.Brief of Non-Governmental Organization & Trade Association Respondents, supra note 123, at 23–32.Show More to center-right law professor Jonathan Adler have encouraged.126 126.Jonathan Adler, Standing in West Virginia v. EPA Revisited, Reason: The Volokh Conspiracy (Feb. 21, 2022), https://reason.com/volokh/2022/02/21/standing-in-west-virginia-v-epa-revisited/ [https://perma.cc/8TKC-WD98] (arguing that the Court should consider dismissing the case on standing grounds).Show More If not, the major questions canon is highly likely to play a role: major questions was mentioned more than forty times in oral arguments, by every Justice except Gorsuch.127 127.SeeTranscript of Oral Argument, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Feb. 28, 2022), 2022 WL 606593.Show More Judging by the COVID cases, the likely result is a decision by the Court crippling the ability of the federal government to act on climate change.

III. Implications

The Court has moved in a sharply anti-administrative direction in the last decade.128 128.SeeMetzger,supranote 1, at 2–6.Show More Some Justices appear to view agencies (or at least agencies advancing policies they do not like) as rogue actors of questionable constitutionality.129 129.See, e.g., The Vaccine Case, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring); seealsoMichigan v. EPA, 576 U.S. 743, 763 (2015) (Thomas, J., concurring) (suggesting constitutional issues with deference to agencies); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (indicating agency deference permits executive agencies to unconstitutionally exercise legislative and judicial power).Show More So far, this shift on the Court has primarily occurred via sharp decline in Chevron deference.130 130.SeeRichardson, Deference is Dead, supra note 2, at 502–05.Show More There is some appetite on the Court for overturning Chevron131 131.Id. at 494–502.Show More and for reanimating the nondelegation doctrine.132 132.Gundy v. United States, 139 S. Ct. 2116, 2138–41 (2019) (Gorsuch, J., dissenting).Show More

In this environment, a shift from major questions doctrine to major questions canon might seem like small potatoes. But it is at least as great of a constraint on the administrative state and, ultimately, on Congress and popular rule. These dangers were apparent under the traditional major questions doctrine,133 133.See Richardson, Keeping Big Cases,supranote 13, at 390–409 (comprehensively detailing scholarly arguments regarding the major questions doctrine, most of them critical). SeeEmerson,supranote 30,at 2041–42 (critiquing the doctrine on the grounds that it is antidemocratic).Show More but canonization has radically exacerbated them.

A. Deference

The Supreme Court has allowed the administrative state to function by ceding at least some interpretive authority to agencies since the New Deal134 134.Emerson, supranote 30, at 2031–32.Show More (and probably since the founding).135 135.SeeJulian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 293–300 (2021).Show More This forbearance empowered not just agencies but Congress, allowing it to legislate without constantly being second-guessed by the courts. Chevron crystallized this deference regime into a rule in the 1980s.136 136.SeeRichardson, Deference is Dead, supra note 2, at 446–52.Show More The various exceptions to Chevron that emerged in the decades that followed, including the major questions doctrine, eroded that rule, but only partially altered the interbranch balance of power because they did not challenge the basic ability of Congress to delegate authority to agencies.137 137.Id. at 452–74.Show More Even if deference to an agency reading was not due in “major” cases, Congress remained in charge.138 138.King v. Burwell, 576 U.S. 473 (2015),is the best illustration.Show More The Court’s role in both major and “normal” cases, derived from the APA, was merely to interpret statutes as written, blocking agency actions that exceeded their delegated authority.139 139.See 5 U.S.C. § 706. SeealsoBlake Emerson, “Policy” in the Administrative Procedure Act: Implications for Delegation, Deference, and Democracy, Chi.-Kent L. Rev. (forthcoming 2022) at 26–31, https://papers.ssrn.com/sol3/papers.cfm?abstr​act_id=4043899, [https://perma​.cc/697K-S8GT] (arguing that the major questions doctrine and robust nondelegation enforcement by courts are inconsistent with the APA).Show More The major questions doctrine therefore moved the court from a position of deference to one of neutrality with respect to the agency. In so doing, it undermined Chevron, both directly by excluding major cases, and indirectly by drawing into question the assumptions of agency competence and implied delegation on which Chevron relies. 140 140.See Richardson, Keeping Big Cases, supranote 13, at 390–92; seealsoRichardson, Deference is Dead, supra note 2, at 470–72 (noting major questions has increased unpredictability surrounding Chevron’s proper scope).Show More If you think Chevron is good, this is grounds for criticizing the doctrine,141 141.SeeRichardson, Keeping Big Cases, supranote 13, at 405.Show More though an alternative interpretation I have suggested is that it protected Chevron in lower-stakes cases.142 142.Id. at 409–27.Show More

Canonization ends any debate over the relationship to Chevron. As illustrated by the COVID cases, Chevron disappears entirely. More than that, Chevron’s deference rule is reversed—agency interpretations of statutes that trigger “major” questions aren’t just denied deference, they are actively suspect. The Court has moved from neutrality to antideference. For the same reason, the major questions canon cannot fulfill the Chevron-shielding role I have earlier suggested was its sole redeeming feature.143 143.One might suspect that severing major cases from Chevron entirely, as the canon does, protects it even better. But even if that were true in theory, it is irrelevant in practice given the sharp decline in Chevron’s relevance at the Court. There’s just nothing to protect anymore.Show More

B. Indeterminacy

The most prominent critique of the major questions doctrine has been that its boundaries are unclear, unpredictable, and arbitrary. The Court never says what makes a case “major” or “extraordinary,” other than a general reference to “economic and political significance.” 144 144.I have earlier suggested, tentatively, that major questions cases arise when four factors are present: a major shift in regulatory scope, economic significance, political controversy, and thin (i.e., brief) statutory basis. SeeRichardson, Keeping Big Cases, supranote 13, at 381–85. The last of these factors is probably better understood as part of the subsequent inquiry into whether the clear statement rule is satisfied.Show More Whether the regulatory action at issue is a break with past agency practice seems to be another factor.145 145.See,e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (2000); id. at 186–89 (Breyer, J., dissenting).Show More But all of these criteria are woefully indeterminate. Even pedestrian cases can be described as politically controversial—“[e]lephants and mouseholes are in the eye of the beholder.”146 146.Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010). More colorfully, they note that “we cannot easily know that what we find in the mousehole is truly an elephant—and not just a rather plump mouse.”Show More In practice, whether a case qualifies as “major” is a thin line with “no metric . . . for making the necessary distinctions.”147 147.Cass R. Sunstein, Beyond Marbury: The Executive’s Power to Say What the Law Is, 115 Yale L.J. 2580, 2607 (2006).Show More Then-judge Kavanaugh recognized as much in his US Telecom dissent, admitting that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.”148 148.U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 423 (2017) (en banc) (Kavanaugh, J., dissenting).Show More

The major questions canon cases have further muddied boundaries, adding to the list of factors making a case “major” while providing only perfunctory analysis of why factors new and old are met by the regulation in question. In Alabama Realtors, the Court highlights the economic impact of the eviction moratorium, but its analysis of that impact is paper-thin—the $50 billion cost the Court cites is not an estimate of the moratorium’s impact, but an at best tangentially related figure: the total rent relief funding already provided by Congress during the pandemic.149 149.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021).Show More The Vaccine Case Court’s “analysis” of the regulation’s significance is even more perfunctory, little more than a bare assertion that “[t]here can be little doubt that OSHA’s mandate qualifies.”150 150.The Vaccine Case, 142 S. Ct. 661, 665 (2022).Show More The only supporting fact is that an estimated 84 million Americans would have to get vaccinated or test regularly, which the Court characterizes as “no ‘everyday exercise of federal power.’”151 151.Id.Show More This suggests (but does not say) that regulations affecting individual autonomy, perhaps especially medical autonomy, will be more readily deemed “major” questions. In neither of the COVID cases is the political salience of the pandemic and policy responses discussed, though it must surely be a factor.

The COVID cases are not unique—the Court’s analysis of economic impacts in major questions cases is often slipshod and simplistic. As Richard Revesz notes, the Court often focuses on “decontextualized” regulatory costs.152 152.Brief of Amicus CuriaeRichard L. Revesz, supra note 124, at 10–11.Show More This creates perverse incentives for agencies, encouraging them to choose regulations with lower cost even if their preferred option has higher net benefits, or to fragment regulatory actions to avoid their being characterized as “major.” Revesz also argues that reliance on political salience “place[s] the courts in the uncomfortable (and untenable) position of determining what quantum of public attention is sufficient to divest an agency of a previously held power.”153 153.Id. at 20–21.Show More

After decades of major questions cases, the Court has failed to give any clear or consistent guidance on its boundaries. As Revesz suggests, the Court’s criteria for determining majorness “fail to offer ‘limited and precise standards that are clear, manageable, and politically neutral.’”154 154.Id. at 5 (citing Rucho v. Common Cause, 139 S. Ct. 2484, 2500 (2019)).Show More As Justice Kagan asked at oral argument in West Virginia, “how big does a question have to be?”155 155.Transcript of Oral Argument, West Virginia v. EPA, supra note 127, at 28–29.Show More One is left with the distinct impression that a major question is nothing more than a challenge to a regulation that is personally unpalatable to at least five Justices. Under the major questions canon, it is not just statutory interpretation, but the standard of review that comes under judges’ full control.

The indeterminate scope of the major questions doctrine sharply undercuts the claim that it promotes democratic legitimacy. To be sure, it is far from the first substantive canon or clear statement rule.156 156.See generally William Eskridge, Jr., & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 596–97 (1992) (documenting over a dozen substantive canons and clear statement rules).Show More But many other substantive canons have clear (or at least clearer) boundaries.157 157.See Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825, 829–30 (2017) (identifying only a small group of canons that do “meaningful work on the modern Court”).Show More They are also well-established, and Congress can and does therefore legislate in their shadow.158 158.See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 942–47 (2013); seealso John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L Rev. 1, 125 (2001) (citing Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 581 (1990)) (“[O]nce rules of construction ‘have been long indulged…the legislature presumably has them in mind when it chooses its language.’”).Show More Congress is well aware (for example) of the federalism canon, can recognize when it is altering the federal/state balance of authority, and can therefore legislate more explicitly as the canon requires. On the contrary, it is hard or impossible to predict what will become a major question in the future.159 159.Gluck & Bressman, supra note 158, at 945 (finding little awareness of clear statement canons by congressional staff).Show More In many contexts, there is no way for Congress to know when delegated authority may be used, how consistently it will be interpreted, and when it will become politically controversial—and therefore which delegations demand additional clarity to satisfy the major questions doctrine.160 160.Consider, for example, the statutory interpretation issue in King v. Burwell, 576 U.S. 473 (2015), which arose from poor drafting, rather than any attempt to leave a gap for agencies to fill.Show More

C. Text

The Court has given similarly scant guidance on what Congress must do to satisfy the doctrine’s clear statement rule. One might expect the answer to lie in the statutory text, analysis of which the traditional version of the doctrine purports to compel. Direct engagement with text (rather than agency views) is among the canon’s professed virtues.161 161.SeeU.S. Telecom Ass’n v. FCC, 855 F.3d 381, 405 (2017) (Brown, J., dissenting) (“[T]he clear statement rule requires reading the statute, not nodding along with the agency.”).Show More

But the COVID cases show that, in practice, the canon licenses remarkably atextual statutory analysis. Even apparently broad grants of authority may not be upheld. Old statutes are suspect, even those consistently in use,162 162.See Heinzerling,supranote 1, at 1948–50 (describing Utility Air’s disdain for delegations in old statutes as an innovation, and in particular a break with Justice Scalia’s past rulings).Show More if the agency is changing its past practice or relying on an allegedly “ancillary” provision to do something new. 163 163.If Congress makes a broad grant of authority that is immediately used, the Court may regard it as legitimate. But a similarly broad grant becomes suspect if not used for a long period. See,e.g.,FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 144 (2000) (finding FDA lacked authority to regulate tobacco because the agency had repeatedly declined to do so in the past); The Vaccine Case, 142 S. Ct. 661, 666 (2022) (“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind . . . .”). Seealso Jonathan H. Adler, A “Step Zero” for Delegations 27 (Nov. 23, 2021) (unpublished manuscript), https://ssrn.com/abstract=3686767 [https://perma.cc/T4XJ-MHJK] (arguing that courts should be suspect of agencies using old delegations of authority in a new manner).Show More Past agency practice informs the scope of authority—delegated authority appears to be “use it or lose it.” For example, in Alabama Realtors, the statute’s age and an alleged lack of similar past moratoria is relevant. That emergency CDC pandemic powers should be expected to be used only rarely is not.164 164.Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2487, 2489 (2021).Show More Implied repeal by later legislation, normally disfavored,165 165.See,e.g.,Rodriguez v. United States, 480 U.S. 522, 524 (1987) (“[R]epeals by implication are not favored . . . and will not be found unless an intent to repeal is ‘clear and manifest.’”) (citations omitted); see also,Jesse W. Markham, Jr., The Supreme Court’s New Implied Repeal Doctrine: Expanding Judicial Power to Rewrite Legislation Under the Ballooning Conception of “Plain Repugnancy”, 45 Gonzaga L. Rev. 437, 438 (2009) (“[O]ver hundreds of years, implied partial repeals were strongly disfavored . . . .”).Show More is also common in major questions cases.166 166.See,e.g.,Brown & Williamson, 529 U.S. at 143.Show More In both COVID cases, even post-enactment inaction by Congress effected implied repeal, somehow reducing clarity of previous delegations.167 167.See Alabama Realtors,141 S. Ct. at 2490; The Vaccine Case, 142 S. Ct. at 666.Show More Justice Gorsuch’s Vaccine Case concurrence would revive a selectively-imposed one-house veto.168 168.A one-house veto was rejected as unconstitutional in INS v. Chadha, 462 U.S. 919, 959 (1983). As Amit Narang describes, a major questions canon premised on legislative inaction achieves the same result as the never-passed REINS Act, which would have required Congressional approval of major regulations, effectively giving either house a veto. Amit Narang, Twitter (Feb. 14, 2022, 8:00 PM), https://twitter.com/tryptique/status/149331423717​9080719 [https://perma.cc/7966-KSYS?type=image].Show More

As Anita Krishnakumar observes, such statutory analysis in the COVID cases is “decidedly atextual.”169 169.Anita Krishnakumar, Some Brief Thoughts on Gorsuch’s Opinion in NFIB v. OSHA, Election L. Blog (Jan. 15, 2022), https://electionlawblog.org/?p=126944 [https://perma.cc/N​3GT-DVPX].Show More Reliance on substantive canons is not new, of course, but “[u]sually, when the Justices invoke a substantive canon, they also at least attempt to analyze the statute’s text—even if only to conclude that the text is ambiguous, thereby (conveniently) necessitating recourse to a substantive canon.”170 170.Id.; seealso Krishnakumar,supranote 157, at 825 (analyzing Roberts court cases and concluding that substantive canons are “infrequently invoked” and “rarely play an outcome-determinative role” that trumps textual analysis).Show More Not so in major questions cases, where the allegedly extraordinary nature of the regulations at issue trumps any need to seriously engage with statutory text.

As Krishnakumar further notes, this atextuality is particularly surprising coming from the Court’s professed textualists.171 171.See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020) (“Only the written word is the law, and all persons are entitled to its benefit.”).Show More Justice Scalia often warned of the mischief enabled by substantive canons,172 172.See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, The Tanner Lectures on Human Values 100–03 (March 8–9, 1995), https://tannerlectures.utah.edu/_resources/docume​nts/a-to-z/s/scalia97.pdf, [https://perma.cc/3Q9X-LCTV]; but see Heinzerling, supranote 1, at 1941 (characterizing Scalia as “the Court’s most ardent promoter of interpretive canons in general”).Show More exceptions to Chevron’s framework,173 173.See,e.g., United States v. Mead Corp., 533 U.S. 218, 245 (2001) (Scalia, J., dissenting).Show More and the temptations of the nondelegation doctrine.174 174.See Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting) (“[W]e have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”).Show More Freed from the chains of doctrine, he feared, judges would be free to impose their preferences, hidden by ostensibly neutral principles.

But whatever Scalia said about guarding against the temptations of judicial policymaking, he engaged in his share in major questions cases. He accepted Brown & Williamson’s reliance on post-enactment implied repeal, introduced the at best tenuously textual “elephants in mouseholes” principle in Whitman, and ushered in the major questions canon with his Utility Air opinion. Judicial forbearance was just fine for other people. Scalia more than any other Justice was the major questions canon’s architect.

In hindsight, it is possible to reevaluate Justice Scalia’s professed dislike of doctrinal innovations permitting judicial aggrandizement. Serving on a divided Court, such tools could be used by both sides. Not so for Scalia’s successors today. With a six-to-three majority, the Court’s anti-administrativists need fear no turnabout. Atextual opinions like Justice Gorsuch’s Vaccine Case concurrence cannot now be weaponized by the other side of the bench. Justice Kagan, a professed textualist, thinks this has gone too far, expressing frustration in recent oral arguments:

[W]e’re going to be thinking about the supposed major questions canon. There are other canons.

. . . Some of them help the government. Some of them hurt the government. . . . Maybe we should just toss them all out . . . .

. . . .

. . . I think kind of we should, honestly. Like, what are we doing here?”175 175.Transcript of Oral Argument, supra note 127, at 59–60.Show More

But at least the atextualism of the major questions canon lets us see it for what it is: a license for judicial aggrandizement, in the hands of a profoundly anti-administrative Court. We have been down this road before: Chevron itself requires courts to determine statutory clarity. If the Court’s Chevron jurisprudence is any guide, the Justices are unable to do so consistently—Chevron’s statutory clarity standard has relentlessly grown, swallowing the deference rule.176 176.SeeRichardson, Deference is Dead, supra note 2, at 459–70.Show More There is little reason to think the major questions canon’s clear statement rule will be applied any more consistently. None other than Justice Kavanaugh has claimed that judges “cannot make that initial clarity versus ambiguity decision in a settled, principled, or evenhanded way” and that judges instead decide cases by “selectively picking among a wealth of canons of construction.”177 177.SeeBrett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2118–19 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)).Show More

In forsaking text, judges applying the major questions canon have wrested control. Congress is no longer in charge of its own statutes.178 178.See Eskridge & Frickey,supranote 156,at 597.Show More Because what makes a case major and what makes a statute sufficiently clear are entirely within the discretion of judges, there are no meaningful limits to the canon’s reach.

D. Veto

Structurally, the major questions doctrine creates a new policy veto point. Political polarization and the rise of the filibuster have made legislating difficult. The rise of the major questions canon means legislation that has navigated all the other constitutional and political veto points may then be rejected by the courts—not because it is explicitly unconstitutional, nor because an agency has gone further than the text of the statute allows, but because at least five justices have deemed it “major” legislation that is not sufficiently clear. And as Judge Cain’s social cost of carbon decision shows, that judicial veto can be imposed by a single district court judge.179 179.See Louisiana v. Biden, No. 2:21-CV-01074, 2022 WL 438313, at *1, 44 (W.D. La. Feb. 11, 2022).Show More

Even worse, this new veto point makes it harder to navigate the existing ones. Surviving the canon (if it is possible at all) requires explicit delegation. But it is much harder to get legislative consensus behind explicit language.180 180.Consider, for example, the liability standard under CERCLA. Early drafts of the bill included language imposing joint and several liability, but this attracted significant opposition. The language was therefore deleted from the final bill and replaced with a reference to the Clean Water Act’s liability standard. Courts nevertheless subsequently interpreted CERCLA generally (but not universally) to impose joint and several liability. SeegenerallyUnited States v. Chem-Dyne Corp., 572 F. Supp 802, 806–08 (S.D. Ohio 1983) (describing the Congressional battle over joint and several liability).Show More Congress may delegate to agencies not only because they have greater expertise, but also to avoid deciding a politically difficult point, or to delay doing so—that is normal, not illegitimate.181 181.See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2255–56 (2001) (“Sometimes Congress legislated [via broad delegations] because it recognized limits to its own knowledge or capacity to respond to changing circumstances; sometimes because it could not reach agreement on specifics, given limited time and diverse interests; and sometimes because it wished to pass on to another body politically difficult decisions.”).Show More If Congress can never delegate an allegedly “major” question but instead must answer it explicitly, the result may be that legislation cannot pass.182 182.Of course, whether this is bad depends on whether one views legislation as a net positive. In my view, the COVID-19 pandemic and climate change are only the most salient illustrations that it is. ButseeThe Federalist No. 62, at 415–22 (Alexander Hamilton or James Madison) (Jacob Cook ed., 1961) (describing an “excess of law-making” as one of “the diseases to which our governments are most liable”).Show More

Even attempting to overcome the canon’s veto can undercut Congress’s power. New legislation will likely be required to satisfy the clear statement rule. But if politics, procedural barriers, veto points, or sheer complexity make it difficult or impossible for Congress to re-authorize or expand authority,183 183.SeeDaniel Walters & Elliot Ash, If We Build It, Will They Legislate? Empirically Testing the Potential of the Nondelegation Doctrine to Curb Congressional “Abdication,” 108 Cornell L. Rev (forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=404​5079 [https://perma.cc/YS88-R3ZW] (examining legislative behavior in states with robust nondelegation doctrines and finding only limited change in delegation practices—and some evidence that a strong nondelegation doctrine leads to more implied delegation).Show More then that can be weaponized under the major questions canon as indicative of Congressional intent not to do so—retroactive repeal by inaction. This is especially ironic because the difficulty of passing new legislation is often what inspires agencies to look to preexisting authority in the first place. But even if Congress does manage to pass new legislation, it may not be enough. The Court could still rule that it is insufficiently clear to grant authority, permitting only incremental regulation today but nothing more innovative or expansive in the future, or that it delegates more power than the Constitution allows.

E. Democracy

Blake Emerson (among others) argues that the traditional major questions doctrine undermined “democratic-constitutional values . . . by failing to respect the deliberative capacities of administrative agencies.”184 184.SeeEmerson, supranote 30, at 2024; see also Sunstein, Chevron Step Zero, supranote 49, at 233 (arguing Congress may prefer agencies over courts to handle major questions); Richardson, Keeping Big Cases, supranote 13, at 404–09 (cataloging structural critiques of the doctrine).Show More It also reallocated interpretive authority from agencies controlled by Congress and the President to unelected and life-tenured judges, making government less representative and responsive.

The doctrine’s architects allege that it is necessary to restrain agencies that, in their view, are a threat to democratic accountability and constitutionally guaranteed freedoms, ever ready to expand their reach beyond the powers Congress has granted.185 185.See,e.g., The Vaccine Case, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring); seealsoLisa Schultz Bressman, Deference & Democracy, 75 Geo. Wash. L. Rev. 761, 764–65 (2007) (arguing that the major questions doctrine protects against agency overreach).Show More For reasons that are never explained, Congress is asleep at the wheel and unable to restrain agencies. Thus, the task is left to judges. But if, instead, you view administrative government as democratically legitimate, with its authority flowing from the people through Congress and the President,186 186.See,e.g.,Jerry L. Mashaw, Prodelegation:Why Administrators Should Make Political Decisions, 1 J.L. Econ. & Org. 81, 95–96 (1985).Show More the doctrine is a threat to those virtues, concentrated in those cases with the greatest political salience.187 187.SeeEmerson, supranote 30, at 2023–24.Show More

Canonization further increases judicial power. The traditional version of the doctrine could perhaps be defended on the grounds that it was a judicially created exception to implied delegation, itself arguably a judicial creation.188 188.See Bressman, supranote 31, at 2009. ButseeGluck & Bressman, Statutory Interpretation from the Inside, supranote 158, at 993 (finding a very high awareness of Chevron by congressional staff and that a “desire for agenc[ies] to fill gaps results in ambiguities in legislation”).Show More But under the major questions canon, the agency exits the statutory interpretation picture, leaving the courts to deal directly with the statute and inviting judges to substitute their views not just for the agency’s, but for Congress’s. The very democratic and separation of powers principles frequently cited by the Court to justify the doctrine—that the elected legislature, not unelected bureaucrats must make the laws—are violated when judges with even greater removal from the electorate exercise a legislative veto. For David Driesen, the major questions canon is nothing more than “juristocracy”:

In important cases, the Court has abandoned the role that the Administrative Procedure Act assigns it—checking the executive branch when it contravenes the policies that Congress and the President have approved. Instead, it has assumed the role of constraining the faithful execution of the law based on unpredictable judicial fiats.189 189.David M. Driesen, Major Questions and Juristocracy, The Regulatory Review (Jan. 31, 2022), https://www.theregreview.org/2022/01/31/driesen-major-questions-juristocracy/ [http​s://perma.cc/N7UV-HD43].Show More

If the anti-administrativists want to constrain or roll back agency power, they should propose doing so openly and contest elections on that basis, not give courts a veto over policy.

The major questions canon also encodes a status quo bias, potentially crippling the ability of the federal government to deal with the most important public policy problems. Pandemics and other emergencies require flexible authority that can be deployed quickly and at scale. Congress cannot anticipate every policy measure that might be needed, and while it might be ideal if it authorizes them with specific new legislation, that is difficult in normal times and likely impossible in a crisis. Broad delegations of authority to the executive and/or to agencies (with Congressional and judicial oversight) are the only available response. Similarly, long-term problems in areas of evolving scientific understanding like climate change require regulatory durability and flexibility. The success of the Clean Air Act depends on those features,190 190.See Lessons from The Clean Air Act: Building Durability and Adaptability into U.S. Climate and Energy Policy 1–3 (Ann Carlson & Dallas Burtraw eds., 2019).Show More and broad delegations of authority that evolve with new information are at the core of modern administrative government.191 191.SeeMashaw, supranote 186, at 98.Show More

But the major questions canon makes all these delegations suspect. Congress must separately and explicitly authorize every “major” delegation. If the Court means to reshape the post-New Deal order by making all such delegations illegitimate on nondelegation grounds, it should say so and face the political consequences, not hide behind an ostensibly neutral canon of statutory interpretation.

Moreover, the doctrine is further biased because it is only triggered when agencies assert authority to regulate in some new way, never when they decide not to regulate.192 192.See Eskridge & Frickey, supra note 156, at 595–96 (“[U]nlike the linguistic canons or the referential canons, the substantive canons are not policy neutral. They represent value choices by the Court.”).Show More As Lisa Heinzerling puts it,

The major questions doctrine quietly embeds [a] preference [for agency inaction] in the Court’s approach to statutory interpretation.

. . . [This] renders the doctrine not only political, but nonsensical. . . .

. . . [W]hether an agency is deciding not to act on an important problem, or deciding to act on that problem, it is deciding the very same question, with the same degree of economic and political significance. Only the direction, not the magnitude, of these decisions is different.193 193.Lisa Heinzerling (@heinzerlaw), Twitter (Jan. 18, 2022, 11:07 AM), https://twitter.com/​heinzerlaw/sta​tus/1483471214056194068 [https://perma.cc/6XB5-KZFK?type=image].Show More

F. Nondelegation

The major questions canon veto, unlike a Presidential veto, may be impossible for Congress to override with new legislation. A threat of judicial veto via the nondelegation doctrine remains, sometimes implicit and sometimes (as in Gorsuch’s Vaccine Case concurrence) explicit. The Court has sometimes acknowledged194 194.See,e.g.,The Vaccine Case,142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring); Paul v. United States, 140 S. Ct. 342 (2019).Show More and scholars have long identified195 195.See Sunstein, Chevron Step Zero,supranote 49,at 244–45.Show More a connection between the major questions doctrine and nondelegation. The APA grounds judicial review of agency action in statutes. As Driesen argues, by creating a novel and atextual major questions canon, the Court has overstepped that authority. If the canon is not a pure judicial creation, it must therefore be grounded in the Constitution. The only plausible basis is nondelegation. The canon is no longer merely a related principle or an avoidance doctrine, it is the nondelegation doctrine, without speaking its name.196 196.SeeGundy v. United States, 139 S. Ct. 2116 at 2141 (2019) (Gorsuch, J., dissenting) (“We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.”).Show More Critics of administrative power have celebrated Gorsuch’s Vaccine Case concurrence as a “novel, unified theory of separation of powers,” making major questions and nondelegation “two distinct sides of the same coin.”197 197.See Randolph May & Andrew Magloughlin, NFIB v. OSHA: A Unified Separation of Powers Doctrine and Chevron’s No Show 1 (Free State Found., Working Paper, 2022), https://papers.ssrn.com/sol3/papers.c​fm?abstract_id=4067799 [https://perma.cc/U8BQ-TX6​C].Show More This also helps explain the canon’s atextualism. As Justice Barrett has argued, if the source is the Constitution, fidelity to statutory text is secondary.198 198.See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 111 (2010) (“[T]o the extent a canon is constitutionally inspired, its application does not necessarily conflict with the structural norms that constrain judges from engaging in broad, equitable interpretation.”).Show More

In fact, the canon’s indeterminacy makes it even broader than nondelegation. To reject a delegation of authority to an agency on nondelegation grounds requires the Court to say why it is too broad to survive constitutional scrutiny.199 199.See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474 (2001) (finding that the delegation at issue was readily within the Court’s “intelligible principle” standard); seealsoGundy, 139 S. Ct. at 2136–37 (Gorsuch, J., dissenting) (rejecting the “intelligible principle” test, but suggesting it be replaced by a more complex multi-part test).Show More Admittedly this is an imprecise exercise, but at least it’s something. To reject a delegation under the major questions canon, a Court need only say that it is meets a fuzzy majorness standard and fails to meet an even murkier clarity standard.

Conclusion

The major questions canon takes an entire class of cases not only out of Chevron’s deference regime, but out of any meaningful textual or contextual analysis. Instead of avoiding the difficulties of applying the nondelegation doctrine, the major questions canon achieves the same purpose sub rosa. Control over the bounds of the principle is entirely in the hands of judges, with little clarity and no limiting principle. In short, it licenses judicial policymaking while professing to protect Congress and the people from agency overreach. The impacts on democratic accountability and the effectiveness of administrative government are likely to be profoundly negative.

The major questions canon purports to be a matter of principle. It is in reality a matter of power, an assertion of unbounded judicial supremacy in the most important administrative law cases. The danger of major questions juristocracy is that judges—specific people, with lifetime tenure—are empowered to enact their political preferences. Gillian Metzger warned of a “1930s Redux”, a boldly anti-administrative Court relitigating interbranch power struggles thought resolved in the New Deal Era.200 200.SeeMetzger,supranote 1, at 95.Show More But the major questions canon gives the Court powers that its 1930s counterparts never dreamt of.

  1. * Professor of Law, University of South Carolina.
  2. See Gillian E. Metzger, Foreword: 1930s Redux: The Administrative State Under Siege, 131 Harv. L. Rev. 2, 3–6 (2017); see also Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1969–71 (2017) (noting several Justices have “constitutionally inspired anxieties about the modern administrative state”).
  3. See, e.g., Nathan Richardson, Deference Is Dead (Long Live Chevron), 73 Rutgers U. L. Rev. 441, 445 (2021) [hereinafter Richardson, Deference is Dead]; see also Valerie C. Brannon & Jared P Cole, Cong. Rsch. Serv., LSB10204, Deference and its Discontents: Will the Supreme Court Overrule Chevron? (2018) (discussing predictions that Chevron will be overturned).
  4. See, e.g., Heinzerling, supra note 1, at 1970.
  5. See Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting); see also SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2017) (“[W]hether Chevron should remain is a question we may leave for another day.”); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–58 (10th Cir. 2016) (Gorsuch, J., concurring) (calling for Chevron to be reconsidered).
  6. See Richardson, Deference is Dead, supra note 2, at 443.
  7. 139 S. Ct. 2116, 2119–20 (2019).
  8. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2486–90 (2021).
  9. Nat’l Fed’n of Indep. Bus. v. OSHA (The Vaccine Case), 142 S. Ct. 661, 662, 665–67 (2022).
  10. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000). But see infra Section III.A (discussing possible roots of the doctrine in Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Instit. (The Benzene Case), 448 U.S. 607, 645 (1980)).
  11. See Cass R. Sunstein, Law and Administration after Chevron, 90 Colum. L. Rev. 2071, 2075 (1990).
  12. See Richardson, Deference is Dead, supra note 2, at 453–59 (detailing external erosion of Chevron’s domain by creation of a series of exclusion rules).
  13. Id. at 470–72.
  14. See Nathan Richardson, Keeping Big Cases from Making Bad Law: The Resurgent “Major Questions” Doctrine, 49 Conn. L. Rev. 355, 390–409 (2016) [hereinafter Richardson, Keeping Big Cases] (cataloging extensive scholarly critiques of the major questions doctrine).
  15. Id. at 409–26.
  16. Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014).
  17. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021); The Vaccine Case, 142 S. Ct. 661 (2022).
  18. The Vaccine Case, 142 S. Ct. at 665 (citing Alabama Realtors, 141 S. Ct. at 2489).
  19. See Cass Sunstein, There Are Two Major Questions Doctrines, 73 Admin. L. Rev. 475, 475–77 (2021) [hereinafter Sunstein, Two Major Questions]; see also Heinzerling, supra note 1, at 1944–48 (describing Utility Air as establishing a new “power canon” clear statement rule).
  20. See Alabama Realtors, 141 S. Ct. at 2488–89; The Vaccine Case, 141 S. Ct. at 665.
  21. See, e.g., Alabama Realtors, 141 S. Ct. at 2489 (citing Utility Air, 573 U.S. at 324) (failing to acknowledge any doctrinal shift to canon); see also The Vaccine Case, 141 S. Ct. at 668–70 (Gorsuch, J., concurring) (rooting the major questions canon in the Benzene Case and other nondelegation cases dating back to 1825).
  22. See John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 Sup. Ct. Rev. 223, 223 (2001).
  23. See, e.g., Sanford Levinson, The United States and Political Dysfunction: “What Are Elections For?”, 61 Drake L. Rev. 959, 961 (2013).
  24. See Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021).
  25. Nathan Richardson, The Supreme Court’s New Threat to Climate Policy, Resources (Nov. 5, 2021), https://www.resources.org/common-resources/the-supreme-courts-new-threat-to-climate-policy/ [https://perma.cc/96RQ-TQ2A].
  26. 512 U.S. 218, 231 (1994).
  27. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (argued in 1999).
  28. See NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 130–31 (1944); see also Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (deferring to the “experienced and informed judgment” of the agency).
  29. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
  30. See Richardson, Deference Is Dead, supra note 2, at 453–59 (detailing external erosion of Chevron’s domain by creation of a series of exclusion rules).
  31. Id; see also Blake Emerson, Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 Minn. L. Rev. 2019, 2032 (2020) (calling Chevron a temporary simplification of the preexisting deference regime).
  32. Or if one is less charitable, the legal fiction. See Lisa Schultz Bressman, Reclaiming the Legal Fiction of Congressional Delegation, 97 Va. L. Rev. 2009, 2009 (2011).
  33. See Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 373 (1986); see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000) (describing Chevron as reflecting the belief that statutory gaps reflect implied delegation to the agency).
  34. Breyer, supra note 32, at 390.
  35. Brown & Williamson, 529 U.S. at 123; see also id. at 161, 190–92 (Breyer, J., dissenting).
  36. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994).
  37. See Richardson, Keeping Big Cases, supra note 13, at 364–65.
  38. Brown & Williamson, 529 U.S. at 125.
  39. Id. at 159–60.
  40. Id. at 157–58.
  41. Id. at 159.
  42. Brown & Williamson hints at going further, foreshadowing the future major questions canon. The Court was “confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” Brown & Williamson, 529 U.S. at 160. This line is itself cryptic, but it can be read to suggest a clear statement rule. The better reading, in my view, is that it is merely an admonition to read statutory language with a view to context and purpose.
  43. 549 U.S. 497, 528 (2007).
  44. See Abigail R. Moncrieff, Reincarnating the “Major Questions” Exception to Chevron Deference as a Doctrine of Noninterference (or Why Massachusetts v. EPA Got it Wrong), 60 Admin. L. Rev. 593, 594 (2008).
  45. 576 U.S. 473 (2015).
  46. Id. at 473–74.
  47. Id.
  48. Id. at 485–86 (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). Justice Scalia’s dissent adopts a different interpretation of the statute but does not contest Chief Justice Roberts’s understanding of the major questions doctrine. Id. at 499–517 (Scalia, J., dissenting).
  49. Id. at 486–99.
  50. See Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 191 (2006).
  51. The Benzene Case, 448 U.S. 607, 645 (1980).
  52. Sunstein, Two Major Questions, supra note 18, at 484–85.
  53. 531 U.S. 457, 468 (2001).
  54. Id.
  55. See Gonzales v. Oregon, 546 U.S. 243, 267 (2006).
  56. See Whitman, 531 U.S. at 472–74; The Benzene Case, 448 U.S. at 646.
  57. Sunstein, Two Major Questions, supra note 18, at 483–84, Heinzerling, supra note 1, at 1944–54.
  58. See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014).
  59. Id. at 324 (first citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. at 159; then citing MCI, 512 U.S. at 231; and then citing The Benzene Case, 448 U.S. at 645–46).
  60. MCI is a close parallel, in that both it and Utility Air are best understood as Chevron step two cases. See MCI, 512 U.S. at 229; Utility Air, 573 U.S. at 321.
  61. See Utility Air, 573 U.S. at 316–20 (comparing the Clean Air Act provision at issue with similar provisions in the statute).
  62. See, e.g., Jody Freeman, Why I Worry About UARG, 39 Harv. Env’t L. Rev 9, 16–17 (2015); see also Richardson, The Rise and Fall of Clean Air Act Climate Policy, 10 Mich. J. Env’t & Admin. L. 69, 107 (2020) (noting the “substantial legal uncertainty” created by the Court’s move in Utility Air).
  63. Freeman, supra note 61, at 10.
  64. Id. at 21.
  65. After being cited in a majority opinion just twice between 2001 and 2016 (see notes 52, 54), the Court cited “elephants in mouseholes” seven times between 2017 and 2021. See Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 127 (2016), Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1071 (2018), Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 984 (2017), Va. Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1903 (2019), Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1354 (2020), Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1753 (2020), AMG Cap. Mgmt., LLC v. FTC, 141 S. Ct. 1341 (2021). None of these are readily recognizable as major questions cases involving disputed statutory delegations to an agency, however.
  66. See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 418–35 (2017) (en banc) (Kavanaugh, J., dissenting).
  67. Id. at 417, 419–22. For this requirement, he cited the Benzene Case, 448 U.S. 607, 645–46(1980); MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 231 (1994); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000); Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (“elephants in mouseholes” major questions case); and Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).
  68. See Paul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting denial of certiorari).
  69. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2485 (2021).
  70. Id. at 2487 (citing Nken v. Holder, 556 U.S. 418 (2009)).
  71. Id. at 2490.
  72. Id. at 2489.
  73. Id. (first citing Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014); and then citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).
  74. See Public Health Service Act §361(a), 42 U.S.C. § 264(a). The statute then gives examples of actions the agency might take under this authority, including “inspection, fumigation, disinfection . . . and other measures, as in his judgment may be necessary.”
  75. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2488 (2021).
  76. Id. at 2491–92 (Breyer, J., dissenting) (Justice Breyer would reverse the majority’s presumption: “If Congress had meant to exclude these types of measures from its broad grant of authority, it likely would have said so.”).
  77. Id. at 2489.
  78. Id.
  79. Id.
  80. Id. at 2490.
  81. The Vaccine Case, 142 S. Ct. 661, 663 (2022).
  82. Occupational Safety and Health Act § 3(8), 29 U.S.C. § 652(8).
  83. The Vaccine Case, 141 S. Ct. at 662–63.
  84. Id.
  85. Id. at 665 (citing Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485 (2021)).
  86. Id.
  87. Id.
  88. See The Benzene Case, 448 U.S. 607, 613 (1980).
  89. The Vaccine Case, 142 S. Ct. 661, 666 (2022).
  90. Id.
  91. See Will Baude, Balancing the Equities in the Vaccine Mandate Case, Reason: The Volokh Conspiracy (Jan. 14, 2022), https://reason.com/volokh/2022/01/14/balancing-the-equities-in-the-vaccine-mandate-case/ [https://perma.cc/Y7YH-3V7N].
  92. The Vaccine Case, 142 S. Ct. at 668 (Gorsuch, J., concurring). Justice Gorsuch also charges OSHA with flip-flopping, though he appears to have mischaracterized the agency’s earlier position. See Patterico, An Error in Justice Gorsuch’s Concurrence in the OSHA Vaccine Mandate Case (Jan. 18, 2022), https://patterico.substack.com/p/an-error-in-justice-gorsuchs-concurrence [https://perma.cc/G4AF-95DX].
  93. The Vaccine Case, 142 S. Ct. at 667.
  94. Gundy v. United States, 139 S. Ct. 2116, 2138–41 (2019) (Gorsuch, J., dissenting).
  95. Id. at 2141.
  96. Id.
  97. Id.; see also The Vaccine Case, 142 S. Ct. at 668 (Gorsuch, J., concurring) (noting the major questions doctrine covers much the same interests as nondelegation).
  98. The Vaccine Case, 142 S. Ct. at 669 (Gorsuch, J., concurring).
  99. Id.
  100. Id.
  101. U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (2017) (en banc) (Kavanaugh, J., dissenting). The citation was not enough, however, to attract Justice Kavanaugh’s vote.
  102. Richardson, Keeping Big Cases, supra note 13, at 359.
  103. Louisiana v. Biden, No. 2:21-CV-01074, 2022 WL 438313, at *21 (W.D. La. Feb. 11, 2022).
  104. Id. at 29–34.
  105. Id. at 40–44 (simply restating plaintiffs’ equities arguments and indicating agreement).
  106. Id. at 30–34.
  107. Id. at 29. The opinion relies most heavily on Justice Kavanaugh’s statement respecting denial of certiorari in Paul v. United States, 140 S. Ct. 342 (2019) (Kavanaugh, J., statement respecting denial of certiorari).
  108. See Louisiana v. Biden, No. 22-30087, 2022 WL 866282 at *2 (5th Cir. Mar. 16, 2022).
  109. Michael Coenen and Seth Davis persuasively argued for restricting the major questions doctrine to the Supreme Court in a 2017 paper. See Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777, 839–43 (2017). The Court seems not to have listened, giving no signal in the COVID cases that lower courts should steer clear—and, unsurprisingly, lower court judges seem unwilling to tie their own hands.
  110. Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021).
  111. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (codified as amended at 40 C.F.R. pt. 60).
  112. See West Virginia v. EPA, 136 S. Ct. 1000 (2016) (order granting stay).
  113. Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations, 84 Fed. Reg. 32,520, 32,521 (July 8, 2019) (codified as amended at 40 C.F.R. pt. 60).
  114. Am. Lung Ass’n v. EPA, 985 F.3d 914, 949–50 (D.C. Cir. 2021).
  115. Id. at 958–68.
  116. Am. Lung Ass’n v. EPA, 985 F.3d 914 (D.C. Cir. 2021), cert. granted sub nom. West Virginia v. EPA, 142 S. Ct. 420 (2021); see also Jonathan Adler, Supreme Court Agrees to Hear Case Challenging EPA Authority to Regulate Greenhouse Gases, Reason: The Volokh Conspiracy (Oct. 29, 2021), https://reason.com/volokh/2021/10/29/supreme-court-agrees-to-hear-case-challenging-epa-authority-to-regulate-greenhouse-gases/ [https://perma.cc/ZW8U-FMFT] (discussing grant of certiorari in West Virginia v. EPA).
  117. Petition for Writ of Certiorari at i, West Virginia v. EPA, No. 20-1530 (Apr. 29, 2021), 2020 WL 9439135, at *i.
  118. Brief for Petitioners at 14, West Virginia v. EPA, No. 20–1530 (Dec. 13, 2021), 2021 WL 5982772, at *14.
  119. Id. at 44.
  120. Id. at 46.
  121. Id. at 15 (quoting City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting)).
  122. Id. at 43 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 863 (1984), as a Clean Air Act case only).
  123. Brief for Petitioner the North American Coal Corporation at 15, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Dec. 13, 2021), 2021 WL 5982771, at *15.
  124. See Brief for the Federal Respondents at 13–14, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 18, 2022), 2022 WL 216161, at 13–14; Brief of Non-Governmental Organization & Trade Association Respondents at 42–49, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 18, 2022), 2022 WL 209765, at *42–49 (denying the applicability of major questions without challenging its existence).
  125. At least one amicus does question it, however. See Brief of Amicus Curiae Richard L. Revesz at 5–21, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Jan. 25, 2022) (criticizing quality of economic analysis in major questions cases and arguing that “public salience” is not a workable threshold factor).
  126. Brief of Non-Governmental Organization & Trade Association Respondents, supra note 123, at 23–32.
  127. Jonathan Adler, Standing in West Virginia v. EPA Revisited, Reason: The Volokh Conspiracy (Feb. 21, 2022), https://reason.com/volokh/2022/02/21/standing-in-west-virginia-v-epa-revisited/ [https://perma.cc/8TKC-WD98] (arguing that the Court should consider dismissing the case on standing grounds).
  128. See Transcript of Oral Argument, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780 (Feb. 28, 2022), 2022 WL 606593.
  129. See Metzger, supra note 1, at 2–6.
  130. See, e.g., The Vaccine Case, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring); see also Michigan v. EPA, 576 U.S. 743, 763 (2015) (Thomas, J., concurring) (suggesting constitutional issues with deference to agencies); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (indicating agency deference permits executive agencies to unconstitutionally exercise legislative and judicial power).
  131. See Richardson, Deference is Dead, supra note 2, at 502–05.
  132. Id. at 494–502.
  133. Gundy v. United States, 139 S. Ct. 2116, 2138–41 (2019) (Gorsuch, J., dissenting).
  134. See Richardson, Keeping Big Cases, supra note 13, at 390–409 (comprehensively detailing scholarly arguments regarding the major questions doctrine, most of them critical). See Emerson, supra note 30, at 2041–42 (critiquing the doctrine on the grounds that it is antidemocratic).
  135. Emerson, supra note 30, at 2031–32.
  136. See Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 293–300 (2021).
  137. See Richardson, Deference is Dead, supra note 2, at 446–52.
  138. Id. at 452–74.
  139. King v. Burwell, 576 U.S. 473 (2015), is the best illustration.
  140. See 5 U.S.C. § 706. See also Blake Emerson, “Policy” in the Administrative Procedure Act: Implications for Delegation, Deference, and Democracy, Chi.-Kent L. Rev. (forthcoming 2022) at 26–31, https://papers.ssrn.com/sol3/papers.cfm?abstr​act_id=4043899, [https://perma​.cc/697K-S8GT] (arguing that the major questions doctrine and robust nondelegation enforcement by courts are inconsistent with the APA).
  141. See Richardson, Keeping Big Cases, supra note 13, at 390–92; see also Richardson, Deference is Dead, supra note 2, at 470–72 (noting major questions has increased unpredictability surrounding Chevron’s proper scope).
  142. See Richardson, Keeping Big Cases, supra note 13, at 405.
  143. Id. at 409–27.
  144. One might suspect that severing major cases from Chevron entirely, as the canon does, protects it even better. But even if that were true in theory, it is irrelevant in practice given the sharp decline in Chevron’s relevance at the Court. There’s just nothing to protect anymore.
  145. I have earlier suggested, tentatively, that major questions cases arise when four factors are present: a major shift in regulatory scope, economic significance, political controversy, and thin (i.e., brief) statutory basis. See Richardson, Keeping Big Cases, supra note 13, at 381–85. The last of these factors is probably better understood as part of the subsequent inquiry into whether the clear statement rule is satisfied.
  146. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 146 (2000); id. at 186–89 (Breyer, J., dissenting).
  147. Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 45 (2010). More colorfully, they note that “we cannot easily know that what we find in the mousehole is truly an elephant—and not just a rather plump mouse.”
  148. Cass R. Sunstein, Beyond Marbury: The Executive’s Power to Say What the Law Is, 115 Yale L.J. 2580, 2607 (2006).
  149. U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 423 (2017) (en banc) (Kavanaugh, J., dissenting).
  150. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2489 (2021).
  151. The Vaccine Case, 142 S. Ct. 661, 665 (2022).
  152. Id.
  153. Brief of Amicus Curiae Richard L. Revesz, supra note 124, at 10–11.
  154. Id. at 20–21.
  155. Id. at 5 (citing Rucho v. Common Cause, 139 S. Ct. 2484, 2500 (2019)).
  156. Transcript of Oral Argument, West Virginia v. EPA, supra note 127, at 28–29.
  157. See generally William Eskridge, Jr., & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 596–97 (1992) (documenting over a dozen substantive canons and clear statement rules).
  158. See Anita S. Krishnakumar, Reconsidering Substantive Canons, 84 U. Chi. L. Rev. 825, 829–30 (2017) (identifying only a small group of canons that do “meaningful work on the modern Court”).
  159. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 942–47 (2013); see also John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L Rev. 1, 125 (2001) (citing Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 581 (1990)) (“[O]nce rules of construction ‘have been long indulged…the legislature presumably has them in mind when it chooses its language.’”).
  160. Gluck & Bressman, supra note 158, at 945 (finding little awareness of clear statement canons by congressional staff).
  161. Consider, for example, the statutory interpretation issue in King v. Burwell, 576 U.S. 473 (2015), which arose from poor drafting, rather than any attempt to leave a gap for agencies to fill.
  162. See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 405 (2017) (Brown, J., dissenting) (“[T]he clear statement rule requires reading the statute, not nodding along with the agency.”).
  163. See Heinzerling, supra note 1, at 1948–50 (describing Utility Air’s disdain for delegations in old statutes as an innovation, and in particular a break with Justice Scalia’s past rulings).
  164. If Congress makes a broad grant of authority that is immediately used, the Court may regard it as legitimate. But a similarly broad grant becomes suspect if not used for a long period. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 144 (2000) (finding FDA lacked authority to regulate tobacco because the agency had repeatedly declined to do so in the past); The Vaccine Case, 142 S. Ct. 661, 666 (2022) (“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind . . . .”). See also Jonathan H. Adler, A “Step Zero” for Delegations 27 (Nov. 23, 2021) (unpublished manuscript), https://ssrn.com/abstract=3686767 [https://perma.cc/T4XJ-MHJK] (arguing that courts should be suspect of agencies using old delegations of authority in a new manner).
  165. Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2487, 2489 (2021).
  166. See, e.g., Rodriguez v. United States, 480 U.S. 522, 524 (1987) (“[R]epeals by implication are not favored . . . and will not be found unless an intent to repeal is ‘clear and manifest.’”) (citations omitted); see also, Jesse W. Markham, Jr., The Supreme Court’s New Implied Repeal Doctrine: Expanding Judicial Power to Rewrite Legislation Under the Ballooning Conception of “Plain Repugnancy”, 45 Gonzaga L. Rev. 437, 438 (2009) (“[O]ver hundreds of years, implied partial repeals were strongly disfavored . . . .”).
  167. See, e.g., Brown & Williamson, 529 U.S. at 143.
  168. See Alabama Realtors, 141 S. Ct. at 2490; The Vaccine Case, 142 S. Ct. at 666.
  169. A one-house veto was rejected as unconstitutional in INS v. Chadha, 462 U.S. 919, 959 (1983). As Amit Narang describes, a major questions canon premised on legislative inaction achieves the same result as the never-passed REINS Act, which would have required Congressional approval of major regulations, effectively giving either house a veto. Amit Narang, Twitter (Feb. 14, 2022, 8:00 PM), https://twitter.com/tryptique/status/149331423717​9080719 [https://perma.cc/7966-KSYS?type=image].
  170. Anita Krishnakumar, Some Brief Thoughts on Gorsuch’s Opinion in NFIB v. OSHA, Election L. Blog (Jan. 15, 2022), https://electionlawblog.org/?p=126944 [https://perma.cc/N​3GT-DVPX].
  171. Id.; see also Krishnakumar, supra note 157, at 825 (analyzing Roberts court cases and concluding that substantive canons are “infrequently invoked” and “rarely play an outcome-determinative role” that trumps textual analysis).
  172. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020) (“Only the written word is the law, and all persons are entitled to its benefit.”).
  173. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, The Tanner Lectures on Human Values 100–03 (March 8–9, 1995), https://tannerlectures.utah.edu/_resources/docume​nts/a-to-z/s/scalia97.pdf, [https://perma.cc/3Q9X-LCTV]; but see Heinzerling, supra note 1, at 1941 (characterizing Scalia as “the Court’s most ardent promoter of interpretive canons in general”).
  174. See, e.g., United States v. Mead Corp., 533 U.S. 218, 245 (2001) (Scalia, J., dissenting).
  175. See Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting) (“[W]e have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”).
  176. Transcript of Oral Argument, supra note 127, at 59–60.
  177. See Richardson, Deference is Dead, supra note 2, at 459–70.
  178. See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2118–19 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)).
  179. See Eskridge & Frickey, supra note 156, at 597.
  180. See Louisiana v. Biden, No. 2:21-CV-01074, 2022 WL 438313, at *1, 44 (W.D. La. Feb. 11, 2022).
  181. Consider, for example, the liability standard under CERCLA. Early drafts of the bill included language imposing joint and several liability, but this attracted significant opposition. The language was therefore deleted from the final bill and replaced with a reference to the Clean Water Act’s liability standard. Courts nevertheless subsequently interpreted CERCLA generally (but not universally) to impose joint and several liability. See generally United States v. Chem-Dyne Corp., 572 F. Supp 802, 806–08 (S.D. Ohio 1983) (describing the Congressional battle over joint and several liability).
  182. See Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2255–56 (2001) (“Sometimes Congress legislated [via broad delegations] because it recognized limits to its own knowledge or capacity to respond to changing circumstances; sometimes because it could not reach agreement on specifics, given limited time and diverse interests; and sometimes because it wished to pass on to another body politically difficult decisions.”).
  183. Of course, whether this is bad depends on whether one views legislation as a net positive. In my view, the COVID-19 pandemic and climate change are only the most salient illustrations that it is. But see The Federalist No. 62, at 415–22 (Alexander Hamilton or James Madison) (Jacob Cook ed., 1961) (describing an “excess of law-making” as one of “the diseases to which our governments are most liable”).
  184. See Daniel Walters & Elliot Ash, If We Build It, Will They Legislate? Empirically Testing the Potential of the Nondelegation Doctrine to Curb Congressional “Abdication,” 108 Cornell L. Rev (forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=404​5079 [https://perma.cc/YS88-R3ZW] (examining legislative behavior in states with robust nondelegation doctrines and finding only limited change in delegation practices—and some evidence that a strong nondelegation doctrine leads to more implied delegation).
  185. See Emerson, supra note 30, at 2024; see also Sunstein, Chevron Step Zero, supra note 49, at 233 (arguing Congress may prefer agencies over courts to handle major questions); Richardson, Keeping Big Cases, supra note 13, at 404–09 (cataloging structural critiques of the doctrine).
  186. See, e.g., The Vaccine Case, 142 S. Ct. 661, 669 (2022) (Gorsuch, J., concurring); see also Lisa Schultz Bressman, Deference & Democracy, 75 Geo. Wash. L. Rev. 761, 764–65 (2007) (arguing that the major questions doctrine protects against agency overreach).
  187. See, e.g., Jerry L. Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. Econ. & Org. 81, 95–96 (1985).
  188. See Emerson, supra note 30, at 2023–24.
  189. See Bressman, supra note 31, at 2009. But see Gluck & Bressman, Statutory Interpretation from the Inside, supra note 158, at 993 (finding a very high awareness of Chevron by congressional staff and that a “desire for agenc[ies] to fill gaps results in ambiguities in legislation”).
  190. David M. Driesen, Major Questions and Juristocracy, The Regulatory Review (Jan. 31, 2022), https://www.theregreview.org/2022/01/31/driesen-major-questions-juristocracy/ [http​s://perma.cc/N7UV-HD43].
  191. See Lessons from The Clean Air Act: Building Durability and Adaptability into U.S. Climate and Energy Policy 1–3 (Ann Carlson & Dallas Burtraw eds., 2019).
  192. See Mashaw, supra note 186, at 98.
  193. See Eskridge & Frickey, supra note 156, at 595–96 (“[U]nlike the linguistic canons or the referential canons, the substantive canons are not policy neutral. They represent value choices by the Court.”).
  194. Lisa Heinzerling (@heinzerlaw), Twitter (Jan. 18, 2022, 11:07 AM), https://twitter.com/​heinzerlaw/sta​tus/1483471214056194068 [https://perma.cc/6XB5-KZFK?type=image].
  195. See, e.g., The Vaccine Case, 142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring); Paul v. United States, 140 S. Ct. 342 (2019).
  196. See Sunstein, Chevron Step Zero, supra note 49, at 244–45.
  197. See Gundy v. United States, 139 S. Ct. 2116 at 2141 (2019) (Gorsuch, J., dissenting) (“We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.”).
  198. See Randolph May & Andrew Magloughlin, NFIB v. OSHA: A Unified Separation of Powers Doctrine and Chevron’s No Show 1 (Free State Found., Working Paper, 2022), https://papers.ssrn.com/sol3/papers.c​fm?abstract_id=4067799 [https://perma.cc/U8BQ-TX6​C].
  199. See Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 111 (2010) (“[T]o the extent a canon is constitutionally inspired, its application does not necessarily conflict with the structural norms that constrain judges from engaging in broad, equitable interpretation.”).
  200. See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 474 (2001) (finding that the delegation at issue was readily within the Court’s “intelligible principle” standard); see also Gundy, 139 S. Ct. at 2136–37 (Gorsuch, J., dissenting) (rejecting the “intelligible principle” test, but suggesting it be replaced by a more complex multi-part test).
  201. See Metzger, supra note 1, at 95.

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