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Why the Major Questions Doctrine is a Good Idea
Andrew Hyman

The Major Questions Doctrine has been discussed at this blog recently, with Mike Rappaport against it, and Michael Ramsey undecided but leaning in favor.  I’m all for it.

The Major Questions Doctrine is one of many clear statement rules that the Supreme Court has adopted over decades and centuries, and this particular one has a reasonable basis in the Constitution’s original meaning.  According to the founders, both Congress and the President are entitled---indeed obligated by their oaths---to evaluate legislation for constitutionality, rather than just leaving that whole task to judges, and a clear statement rule encourages that to happen, while a clear statement itself is an important sign that perhaps it really did happen.  No one disputes that a President can veto legislation he thinks is unconstitutional, and likewise that Congress can decide not to pass legislation it thinks is unconstitutional, even if the courts remain willing to apply such legislation in cases that come before them, and even if the legislation seems otherwise desirable in the view of the President and Congress.  Such multi-branch respect for the Constitution is an important aspect of our system of government, but as Justice Scalia wrote, "The modern Congress sails close to the wind all the time."

The clear statement rule required by the Major Questions Doctrine (MQD) is closely connected with the first sentence of the Constitution, which vests all legislative power granted by the Constitution in Congress.  Congress is thereby barred from delegating power, and thus (as John Locke said about parliament) is only "to make laws, and not to make legislators."  The U.S. Supreme Court has said it is only willing to do the bare minimum to directly effectuate that nondelegation principle, but in recent years has also wanted a clear indication from Congress about how its legislation is affected by the nondelegation principle.  Accordingly, Congress’s clear statement in legislation does not necessarily have to cite the Constitution or its first sentence, but it does have to affirm congressional intent to do those things that are in substantial tension with the first sentence of the Constitution.  So the MQD seems straightforward and unobjectionable to me.  Chief Justice Marshall once wrote:

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to fill up the details.

Subsequently, the Supreme Court drew a very permissive line, and later invited Congress to weigh in on that constitutional question too, with the MQD requiring Congress to clearly show in statutory text that it has considered the statutory ramifications that are in tension with the first sentence of the Constitution:  "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."  This is not an outright rejection of legislation by the Supreme Court, because Congress can simply rephrase.  And hopefully also face up to its duty to independently assess constitutionality of the stuff it is forced to clearly state.

Professor Rappaport believes that the MQD "neither enforces the Constitution nor applies ordinary methods of statutory interpretation."  But it does make enforcement of the Constitution more likely.  It's basically a big yellow light for Congress, instead of red or green.