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Chad Squitieri on Textualism and the Major Questions Doctrine
Michael Ramsey

At NRO Bench Memos, Chad Squitieri (Catholic): Can Major-Questions Doctrine Actually Get Congress to Legislate Again? On textualism and major questions doctrine in West Virginia v. EPA

In [West Virginia v. EPA], the Court’s conservative majority invoked the “major questions doctrine.” That freshly minted doctrine holds that an administrative agency may only regulate matters of “vast economic and political significance” when the agency is empowered to do so via statutory language that puts matters regulated within the agency’s authority in an especially clear way. In her dissenting opinion, Justice Kagan explained how the major questions doctrine is inconsistent with textualism — the theory of statutory interpretation associated with the late Justice Scalia, pursuant to which judges focus on statutory text, structure, and history. Justice Kagan is correct.

I am a committed textualist and a law professor who researches administrative law topics such as those at issue in West Virginia. Although I strongly agree with the majority opinion and Justice Gorsuch’s concurrence in West Virginia that the Court must enforce constitutional limits on Congress’s ability to delegate lawmaking authority to administrative agencies, the major questions doctrine is not the right way for textualists to do it, as I’ve argued at length elsewhere. That is so for two reasons.

First, the major questions doctrine purports to empower a judge to change how he interprets a statute based on whether he thinks a case presents a question of “major” political and economic significance. But a statute says what it says irrespective of whether it implicates a major political controversy. In any event, judges are not politicians. Judicial decisions premised on political calculations are therefore a risky endeavor, as a judge might be mistaken as to which questions are of true political significance. Indeed, because federal judges are constitutionally insulated from politics, they are particularly ill-suited to identify which questions are of enhanced political importance. Such decisions are better left to our elected representatives, whose political calculations can be assessed at the ballot box.

Second, the major questions doctrine is statutorily suspect. The doctrine flows from the judge-made presumption that Congress intends to decide major political questions itself rather than empower administrative agencies to decide such questions. But the Congressional Review Act exhibits that Congress presumes the precise opposite. Specifically, the Congressional Review Act acknowledges that administrative agencies — not Congress — will answer major questions through “major rules.” The Act’s definition of “major rule” similarly considers economic and political significance, and the Act requires that each major rule be given legal effect unless Congress affirmatively enacts new legislation stating that a particular major rule should be rejected. The major questions doctrine — which essentially refuses to give legal effect to major rules unless Congress clearly granted the agency authority to issue the rule — turns Congress’s chosen regulatory procedure on its head. In short, the Congressional Review Act demonstrates that judges are wrong to presume that Congress intends to decide major questions itself.

I hope to post a few of my own thoughts on West Virginia v. EPA shortly, but as a general matter I think there's a lot of force to this analysis.

RELATED:  At Volokh Conspiracy, Jonathan Adler: Justice Kagan Throws Down the Gauntlet: We Are Not "All Textualists Now" - In her forceful West Virginia v. EPA dissent, Justice Kagan challenges the majority's commitment to textualism.  After describing Justice Kagan's dissent, Professor Adler comments:

While her analysis is powerful, Justice Kagan does not fully grapple with the portions of the Clean Air Act that undermine her conclusions. Rather, she focuses on the word "system" in "Best system of emission reduction," without really engaging with those portions of the Act that indicate such systems must be adopted on a source-specific basis. To be fair, however, the majority opinion does not really call her on it, resting more heavily on the major questions doctrine than on close and careful statutory analysis. (In this regard, the majority opinion has some parallels with the opinion in NFIB v. OSHA.) Justice Gorsuch's concurrence defends the provenance of the major questions doctrine, but it too fails to square off with Kagan on the statutory text.