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Ilya Somin on Textualism and the Major Questions Doctrine
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: A Textualist Defense of the Major Questions Doctrine.  From the introduction:

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.

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?

But, contrary to popular belief, there is in fact a textualist justification for MQD. ...

And from later on:

[C]ontextual 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 increasingly 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.

As a semantic matter "divorced from context," the contractor could argue that tearing down and replacing the deck counts as modernization and improvement. Indeed, it might result in greater modernization and improvement than a more limited repair job would have! But most ordinary readers of the agreement would readily understand that the contractor had exceeded his authority. Tearing down and replacing the entire deck is a big, expensive step that requires clearer and more specific authorization than a vague mandate to "modernize and improve." By contrast, if the contractor had taken the much more limited step of replacing a few decaying floor boards, most people would agree his actions were properly authorized, even though the agreement doesn't specifically mention such replacement.

The same point applies to statutory language. If anything, most ordinary readers probably assume that vast grants of legal authority over millions of people require even more clarity and precision than do contractual agreements like the deck replacement. For example, in the loan forgiveness case, the Biden Administration relies on a vague provision of the HEROES Act that allows the executive branch to "waive or modify" regulations governing federal student loans to justify cancellation of over $400 billion in student loan debt. Even if semantics "divorced from context" suggests that mass cancellation qualifies as a type of waiver or modification, contextual ordinary meaning indicates that such an enormous delegation of power requires greater precision.

I think there's something to this argument -- it's a version of the no-elephants-in-mouseholes idea.

More broadly, I've become increasingly convinced that something like the MQD is needed to constrain executive power.  It's puzzling to me that scholars, particularly on the left, who purport to be concerned about excessive executive power are so negative on the MDQ.  The current state of executive overreach arises mostly from the combination of voluminous vague federal legislation and aggressive executive branch lawyering.  It has pushed us very far from the Constitution's design.