[Why a relatively young legal doctrine has become all the rage
among the court’s right-wing majority]
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THE SUPREME COURT CONSERVATIVES’ FAVORITE NEW WEAPON FOR
KNEECAPPING THE ADMINISTRATIVE STATE  
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Matt Ford
March 13, 2023
The New Republic
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_ Why a relatively young legal doctrine has become all the rage among
the court’s right-wing majority _

, ERIC LEE/BLOOMBERG/GETTY IMAGES

 

Over the last two years, the Supreme Court’s six conservative
justices have wielded tremendous power over federal decision-making by
striking down a wide range of consequential policies: the Centers for
Disease Control’s national eviction moratorium
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the Occupational Safety and Health Administration’s Covid-19
testing mandate
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and a moribund Obama-era rule on power-plant emissions
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If the justices likewise nullify President Biden’s executive order
on student debt relief, they will use the same mechanism as in those
prior examples: the major questions doctrine.

That doctrine, which allows the justices to overturn a federal
regulation if they think Congress didn’t “speak clearly” enough
to authorize it, has seen a meteoric rise amid the court’s
increasingly conservative tilt. And unlike most legal doctrines
frequently cited by the court, this one does not have a long and
distinguished history. _The New York Times_’ Adam Liptak noted
earlier this week
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it first appeared by name in a federal court opinion in 2017, when
then-Judge Brett Kavanaugh mentioned it in a dissenting opinion on the
D.C. Circuit Court of Appeals. Before then, it had spent only a few
years percolating in conservative legal circles.

That is, the major questions doctrine is not some finely wrought canon
of legislative interpretation or a time-honored rule of constitutional
law. Instead, it is the result of a dedicated campaign by the
conservative legal movement to make it harder for federal regulatory
agencies to carry out their mission—to hamstring the so-called
administrative state. It was developed in a moment of American
political paralysis, and its expanding use will make that paralysis
worse than ever.

In the court’s telling, or at least the court’s conservatives’
telling, the major questions doctrine is a staple of American
constitutional law. Like many staples of American constitutional law,
it first began to emerge in the 1990s. In 1994, the court ruled
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the Federal Communications Commission couldn’t use its statutory
authority to “modify” telecommunications tariffs in a way that
effectively abolished them. The justices later ruled in a 2000 case
that the Food and Drug Administration could not regulate
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products even though nicotine is a drug, pointing to a series of other
federal laws that intended to treat it differently. In these cases,
the court appeared to recognize that there was some outer bound when
federal agencies tried to interpret federal law to their own ends.

The Roberts court went one step further in _West Virginia v.
Environmental Protection Agency._ That case was,
like _Seinfeld,_ about nothing
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A group of Republican-led states challenged a defunct Obama-era
regulation for carbon emissions from power plants. The conservative
majority blocked it during litigation in 2015, marking the first time
in the Supreme Court’s history that it had ever stayed a regulation
while it was being reviewed by the lower courts. When the Trump
administration took power in 2017, it repealed the rule. When the
Biden administration arrived in 2021, it announced it would start from
scratch.

That did not stop the justices from holding a cadaver synod of sorts
for the policy and kneecapping future ones. Chief Justice John
Roberts, writing for the 6–3 majority
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that the Clean Air Act could not be read to justify the policy. “It
is not plausible that Congress gave EPA the authority to adopt on its
own such a regulatory scheme in Section 111(d),” he wrote. “A
decision of such magnitude and consequence rests with Congress itself,
or an agency acting pursuant to a clear delegation from that
representative body.” He summarized the doctrine itself by quoting a
2014 decision to explain that “we expect Congress to speak clearly
if it wishes to assign to an agency decisions of vast economic and
political significance.”

The court’s liberals sharply criticized this development. “Some
years ago, I remarked that ‘[w]e’re all textualists now,’”
Kagan wrote in her dissent. “It seems I was wrong. The current Court
is textualist only when being so suits it. When that method would
frustrate broader goals, special canons like the ‘major questions
doctrine’ magically appear as get-out-of-text-free cards. Today, one
of those broader goals makes itself clear: Prevent agencies from doing
important work, even though that is what Congress directed. That
anti-administrative-state stance shows up in the majority opinion, and
it suffuses the concurrence.”

In the concurring opinion to which Kagan referred, Justice Neil
Gorsuch hailed the decision as a major step forward in reining in the
“administrative state,” a term often used by conservative legal
thinkers to describe (and perhaps make sound more menacing) federal
regulatory agencies like the Environmental Protection Agency and the
FDA. He wrote that strictly policing Congress’s delegations of
legislative power is “vital because the framers believed that a
republic—a thing of the people—would be more likely to enact just
laws than a regime administered by a ruling class of largely
unaccountable ‘ministers.’”

In practical terms, the major questions doctrine allows unelected
judges to veto federal regulations based on laws written by a
democratically elected Congress and drafted by federal agencies that
answer to democratically elected presidents.

Whether Gorsuch appreciated the irony of that statement is unclear. In
practical terms, the major questions doctrine allows unelected judges
to veto federal regulations based on laws written by a democratically
elected Congress and drafted by federal agencies that answer to
democratically elected presidents. Congress, not keen to constantly
decide which pharmaceutical drugs should be sold or which air and
water pollutants should be banned on a case-by-case basis, has set the
bounds by which federal agencies can make those decisions. The
“administrative state” is not a republic usurped; it is a republic
in action.

Just look at how amorphous the doctrine itself is in the court’s own
words: “We expect Congress to speak clearly if it wishes to assign
to an agency decisions of vast economic and political significance.”
What does it mean to “speak clearly”? Where does the court draw
the line between a broad grant of authority by Congress and a
usurpation of power by a rogue federal agency? When does a federal
regulation _not_ address a question of “vast economic and
political significance”? What is vast? What is significant? Is there
a dollar amount? A threshold market capitalization for an industry? Or
does the court, as it once did
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when it sees it?

It’s hard to avoid the conclusion that the major questions doctrine
is less about law and more about power. Its existence flows from two
basic facts about American governance in 2023. One is that Congress,
both as a legislative body and as an independent branch of government,
is barely functional at the moment. It struggles to pass significant
legislation even when one party has a democratic mandate to do so. It
has not passed a budget
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normal procedures since 1997. It failed to keep the federal government
funded and open three times in the last 10 years. It’s uncertain
whether lawmakers will be able to raise the debt ceiling later this
year.

For the doctrine’s purposes, it doesn’t really matter why Congress
is currently broken. Possible explanations include the filibuster’s
continued existence, the broader hyperpartisan divide in American
politics, the elimination of competitive districts through
gerrymandering, the centralization of power within congressional
leadership offices, the erosion of campaign-finance regulations—I
could go on for hours. The point is that Congress, for varying reasons
and with few exceptions, isn’t able to function as consistently and
as credibly as it did 30 years ago, and the Supreme Court knows it.

If the court consisted of six liberals and three conservatives, you
would not be reading an article about the major questions doctrine
right now.

The other basic fact is that the Supreme Court has six conservative
justices and three liberal ones. If the court consisted of six
liberals and three conservatives, you would not be reading an article
about the major questions doctrine right now. I wouldn’t be writing
about it. Lawyers wouldn’t be looking up precedents about it and
incorporating them into their arguments. Plaintiffs wouldn’t dream
of bringing cases based on it. The doctrine is a product of a very
specific ideological moment in the Supreme Court’s history.

Those six conservatives are products of the conservative legal
movement. It’s often assumed from the left that the conservative
legal movement is some sort of monolithic entity, with the Federalist
Society’s Leonard Leo handing down marching orders to handpicked
jurists and lawyers. In reality it is just a social network of
powerful and not-so-powerful conservative and libertarian legal
professionals. Like any large group of people, its members
occasionally disagree with one another, sometimes about important
things
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one of the movement’s defining traits is a deep skepticism (at
minimum) of the powers currently wielded by federal agencies.

The court’s conservative justices have tried to figure out how best
to chip away at those powers in recent years, but until recently their
efforts always seemed to fall a little short of movement expectations.
One of their would-be chisels was the “nondelegation doctrine.” As
its name suggests, it holds that Congress cannot delegate its
legislative powers to another branch of government. At a certain
level, this principle is obvious: Congress can’t just write a law,
for example, that says the Supreme Court can try impeachments instead
of the Senate.

Some conservatives have taken an even broader view of the doctrine,
arguing that Congress has effectively “delegated” its lawmaking
powers to federal agencies by giving them broad legal authority to
carry out their missions. The Supreme Court only briefly entertained
this idea—in two decisions in 1935, when it struck down portions of
the New Deal—and then swiftly retreated from it. The prevailing view
thereafter was that as long as Congress laid down at least an
“intelligible principle” to guide the other branch, then it did
not qualify as an impermissible delegation of congressional power.

The court’s liberals have warned of the immense real-world
consequences if the court embraces a more expansive view of
nondelegation. Nondelegation cases appeared to peak in 2019 when the
justices heard _Gundy v. United States_, which challenged a federal
law that gave the attorney general broad authority to set up a federal
sex-offender registry and prosecute those who didn’t comply with it.
The justices may have realized that reviving the doctrine in full
would be a sledgehammer instead of a mere chisel. If that law was
unconstitutional, Kagan wrote for the plurality in _Gundy,_ “then
most of government is unconstitutional.”

Another option for the justices was to move away from Chevron
deference. Under that doctrine, which was crystallized in the
case _Chevron v. Natural Resources Defense Council,_ federal courts
will generally defer to federal agencies when those agencies
reasonably interpret the federal statutes that give them their
authority. The Chevron court reasoned that the specialized agencies
were better equipped and more democratically responsible to decide
those questions than unelected federal judges. Conservative judges and
legal scholars generally argue, on the other hand, that it gives too
much leeway to agencies when deciding how much power they should
wield.

Scrapping Chevron deference, as with reviving the nondelegation
doctrine, would give judges more leeway to block new regulations under
existing statutes. Multiple justices have called for the court to
overturn Chevron deference, but it hasn’t done so. Instead, it
appears to be ignoring it altogether. The justices did not apply
Chevron deference by name in any of the above-mentioned cases. It
wasn’t part of the analysis whatsoever in _West Virginia v.
EPA._ Indeed, that silence has led some scholars to question whether
Chevron has been effectively overturned through the court’s implicit
avoidance of it.

The major questions doctrine is a particularly clever tool because it
does not do what the other options would have: permanently foreclose a
specific policy action as unconstitutional. The doctrine instead
suggests without stating that, if Congress had just been a little
clearer, the policy could go forward as enacted. All one has to do,
the conservative justices implied in _West Virginia v. EPA,_ is
somehow push a new environmental law through a gerrymandered House and
a filibuster-happy Senate before the loosened campaign finance laws
allow donors to dissuade lawmakers from voting “yes.” Just as the
Founders intended.

If this sounds familiar, it’s because the Supreme Court used the
exact same tactic to gut the Voting Rights Act in _Shelby County v.
Holder_ 10 years ago. In that decision, the court’s five
conservative justices broke the VRA’s preclearance regime—which
required certain states to get approval for potentially discriminatory
changes to voting laws from the courts or the Justice Department—by
striking down the formula used to decide which states qualified for
it. Roberts suggested that Congress could simply pass a new formula,
even though the previous one had been unanimously approved in 2006.
Republicans on Capitol Hill declined to do so at the time, and
subsequent efforts have stalled out thanks to the filibuster.

The major questions doctrine, in short, lets the justices strike down
federal policies on hazy and amorphous grounds while ostensibly
blaming Congress and agencies for overreaching. It shuffles blame onto
the elected branches for not taking further action after the ruling,
even though the least democratic branch is responsible for the problem
in the first place. And it is flexible enough to avoid accidentally
abolishing the Federal Reserve or the Securities and Exchange
Commission. (Even the justices have 401(k)s, after all.) It just might
be the perfect tool for a conservative Supreme Court to make
progressive governance impossible. And they’re just getting started
with it.

_MATT FORD is a staff writer at The New Republic._

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* Supreme Court
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* law
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* Politics
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* democracy
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* Congress
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* U.S. Constitution
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