Thomas Merrill on the Major Questions Doctrine
Michael Ramsey
Thomas W. Merrill (Columbia University - Law School) has posted The Major Questions Doctrine: Right Diagnosis, Wrong Remedy (41 pages) on SSRN. Here is the abstract:
The Supreme Court has recently adopted the “major questions” doctrine, the gist of which is that courts should not uphold novel agency efforts to regulate questions of economic and political significance absent clear congressional authorization. Although the new doctrine has been attacked as an attempt to revive the nondelegation doctrine, the better view is that it responds to two perceived failings of the Chevron doctrine: that it contributes to instability in the law and provides an inadequate basis for courts to police agency deviations from the scope of their regulatory authority. The article criticizes aspects of the major question doctrine for asking courts to engage in a type of political punditry and proposes two more conventional modifications to the Chevron doctrine that would preserve the traditional role of courts as legal interpreters.
And from the article (pp. 10-11, footnotes omitted), thoughts about the relationship between the major questions doctrine and the nondelegation doctrine:
[I]t makes no sense as a conceptual matter to enforce the nondelegation doctrine with a requirement of clear congressional authorization. The nondelegation doctrine rests on the proposition that the Constitution gives Congress the exclusive power to legislate, and therefore Congress cannot transfer this authority to another branch of government. Over the
years, the Court has implicitly defined “to legislate” (in the nondelegation context at least) to
mean to transfer great discretionary power to act with the force of law to another branch of
government. Hence the proposition that if Congress cabins the transfer of power with an
“intelligible principle” (or limits it to “filling up the details”), there has been no violation of the
Constitution, because there has been no transfer of great discretionary power. But if Congress
has exclusive authority to legislate, and cannot transfer this to another branch of government by giving it great discretionary power, it makes no sense to say Congress can transfer great
discretionary authority by clearly authorizing the transfer.
Putting this together, the case for characterizing the major questions doctrine as an effort
to revive the nondelegation doctrine in the guise of a “clear statement rule” is weak. There
seems to be a tendency to take the Gorsuch concurrences as the true expression of the Court’s
reasons for adopting the major questions doctrine.41 To be sure, Gorsuch writes with more self assurance and grounds his arguments in jurisprudential ideas wrapped in a quasi-originalist gloss. But the majority opinion in West Virginia and the three per curiam opinions are opinions for the Court and carry the full force of precedent. Justice Gorsuch’s concurring opinions garnered no more than three votes, and thus have no binding authority. The fact that the nondelegation doctrine is not mentioned in any of the majority opinions would seem to belie the claim that a revival of that doctrine is the real objective of the Court.
(I note this in particular because it is somewhat contrary to my own tentative views about the relationship between two doctrines, though I hesitate to disagree with Professor Merrill on anything.)