What’s A “Major” Question?

If I had kept my notes from Con Law, I would check to see whether there was any mention of the “Major Questions Doctrine” taught when I was in law school that I’d somehow forgotten over the years. After all, memory is the 13th thing to go. But it’s emerging as a potent tool in the Supreme Court’s arsenal against Executive Branch administrative actions. Is there really such a doctrine?

The doctrine requires Congress to “speak clearly when authorizing an [executive branch] agency to exercise powers of vast ‘economic and political significance.’” If such a broad delegation of power isn’t clear, courts must rule against the executive’s claims that it has the authority in question.

Critics often argue that this rule is at odds with textualism in statutory interpretation—a theory to which many conservative judges are committed. For example, in her forceful dissent in West Virginia v. EPA, Justice Elena Kagan complains that MQD has become “a get-out-of-text free card.” If the otherwise-best interpretation of a given text is that it grants the executive sweeping powers, why should MQD overturn it?

As Ilya Somin notes, it’s been raised in numerous cases over the past few years, by both wings of the Court, to rein in admin actions, and loomed large during the Biden student loan cancellation oral arguments.

Over the last few years, the once-relatively obscure “major questions doctrine” (MQD) has become increasingly controversial, as the Supreme Court has relied on it in several major cases, such as  the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. If yesterday’s oral argument is any indication, the Court may also use it to strike down the Biden Administration’s massive loan forgiveness plan.

But if it is a legitimate doctrine, what is it? What are its parameters? When should it be invoked and where is the line over which the MQD comes into play?

Most textualists hold that statutory language should be interpreted in accordance with its “ordinary meaning.” And they also recognize that ordinary meaning varies based on context. The same words and phrases might have different meanings depending on the situation. For example, prominent textualist legal scholar and judge Frank Easterbrook rejects  “[a]n unadorned ‘plain meaning’ approach to interpretation [that] supposes that words have meanings divorced from their contexts.” Instead, he emphasizes that “[l]anguage is a process of communication that works only when authors and readers share a set of rules and meanings.” And those “rules and meanings” depend on context. Indeed, “clarity depends on context.”

Context is one of those tricky words that are simultaneously useful but squishy. Context, like Justice Potter Stewart’s “I know it when I see it” definition of obscenity, enables justices to pull circumstances from the air that influence their interpretation of text to achieve whatever reading they believe proper. Or, if one is more cynical, to reach the desired result while pretending to be textualist about the law.

Such contextual considerations can justify the major questions doctrine. In most situations, people expect greater clarity and precision when granting an agent broad power, than when authorizing something narrower. For example, my wife and I recently hired a contractor to repair the old and somewhat dilapidated deck attached to our house. Imagine we signed an agreement giving the contractor the authority to “modernize and improve” the deck, and he then proceeded to tear the whole thing down and replace it with a bigger and more modern structure.

Having made the argument many times that laws are made of words, and words often fail to adequately express the meaning and parameters their smiths hope they would at the time or their re-smiths seek to impose upon them decades later (see, for example, the word “sex” as used in Title VII and reimagined in Bostock), it’s understandable that justices find themselves searching for a conceptual ledge to prevent the excesses of power usurped by bureaucrats when Congress handed them authority with the understanding that it would be used humbly and within what were considered reasonable parameters at the time.

As Congress became paralyzed by partisanship, presidents and bureaucrats saw administrative agencies as the weapon to seize power and take action that Congress couldn’t, or wouldn’t, grant. For example, bills were introduced annually in Congress to expand the groups protected under Title VII to include sexual orientation, and were defeated year after year. Yet, the Supremes reinterpreted sex to do exactly what Congress refused to do. Is that a “lack of clarity” problem or a Court run amok?

In the student debt cases, the invocation of the MQD had to do with the cost, cancelling about $400 billion by using the declared emergency of COVID to invoke the HEROES Act to “waive or modify” regulations governing federal student loans. Does that phrase cover cancellation? Would anyone have cared if it was some small number of students, some insignificant amount of student debt? But if canceling one student’s debt is within the purview of the Secretary of Education, why not ten? Or ten thousand? Nowhere in the text of the enabling statute is there a limit as to how much money, how many students, come within the agency’s ambit.

But then, does the issue arise because of the COVID emergency, or is the president engaging in a political act, keeping a campaign promise to cancel debt because he favors it as a matter of policy and his supporters want it as a matter of self interest in exchange for their vote, and hitched it to the HEROES Act’s authorization because he can’t find any other way to do what he wants to get done?

Regardless, if the authority to act was provided by Congress, even if they never thought it would be used in such a fashion when the authority was handed over on a silver platter, is the Supreme Court any more legitimate in rejecting it under the Major Questions Doctrine, a judge-made rule in response to bureaucratic excesses that has no limiting principles and where the line that can’t be crossed moves with the whims of the Court?