When the sun sets in New York City, it rises in Tokyo. Okay, maybe not exactly, but you get the idea: setting somewhere, rising somewhere else. Now substitute Chevron for N.Y.C. and the Major Questions Doctrine for Tokyo. For the past forty years, administrative law scholars have been arguing over Chevron, and now that the sun has set on that doctrine, it’s time to turn our attention to the new rising sun, the Major Questions Doctrine (“MQD”). The sudden emergence and prominence of the MQD in administrative law has led scholars to ask just what kind of legal doctrine the MQD is. If the voluminous scholarship on Chevron is any indication, there will be much, much more to come.
Sometimes, to figure out what something is, you first have to figure out what it isn’t. That is what Professor Anita Krishnakumar has helped us do with her excellent article What the New Major Questions Doctrine is Not. In this article, Professor Krishnakumar persuasively argues that neither scholars nor jurists have provided convincing characterizations of the doctrine. After illustrating how all attempts thus far to categorize the MQD have failed, she offers her own tentative characterization, recognizing that a definitive answer is impossible because it’s relatively early in the life of the current MQD and because the Court’s opinions invoking the MQD are somewhat inconsistent and unclear, making a definitive characterization impossible. Remind anyone of Chevron scholarship?
Professor Krishnakumar tells us that scholars and Supreme Court justices have offered at least four potential characterizations of the MQD: (1) a proxy for the nondelegation doctrine; (2) a textualist device requiring that statutory language be read in its ordinary context as understood by the reasonable reader; (3) a linguistic canon; and (4) a return to purposivist or intentionalist statutory construction. Professor Krishnakumar offers two possible characterizations of her own: (1) a standard of judicial review concerning the implementation of statutes and (2) “old-fashioned pragmatic reasoning akin to the absurd results doctrine. (P. 1120.)”
Professor Krishnakumar’s explanation for why the MQD is not a proxy for or even a “close cousin” of the nondelegation doctrine is as simple as it is insightful. She shows, using the two vaccine-mandate cases as examples (one in which the Court rejected a mandate for all workers and another in which the Court upheld a mandate for health care workers), that the MQD is concerned with agency overreach while the non-delegation doctrine is concerned with the clarity of delegations. Professor Krishnakumar’s analysis compels the conclusion that an explicit statutory delegation to an agency to do “whatever the agency finds necessary no matter how major” might violate the nondelegation doctrine, but a court would be unlikely to be able to invalidate agency action under that statute based on the MQD.
Professor Krishnakumar also examines and rejects “Justice Barrett’s attempt to characterize the major questions doctrine as part of the ‘common sense’ context surrounding congressional delegations of power to administrative agencies. (P. 1130.)” Professor Krishnakumar notes that others have criticized Justice Barrett’s view on two grounds, first that “her definition of ‘context’ is ‘so broad’ that it leaves no distance between textualism and the more capacious interpretive approaches,” and second that “judges can easily accomplish policymaking under the label of ‘context.’ (P. 1130.)” Professor Krishnakumar adds to these critiques that “Justice Barrett’s ‘common sense’ context consists of a lot of background considerations that far exceed the capacity or awareness of most ‘reasonable readers’ or users of English—the textualist guidepost for determining a statute’s ordinary meaning. (P. 1131.)” In other words, the MQD cannot be textualist if ordinary readers do not understand the text in the ways that the MQD requires.
Professor Krishnakumar also refutes Ilan Wurman’s characterization of the MQD as a linguistic canon by noting that the MQD “does not share the usual features of a linguistic canon in that it is not triggered by sentence structure or grammar, and that it leaves courts too much wiggle room to determine what counts as “‘important.’ (Pp. 1121-1122.)” Importance, Professor Krishnakumar argues, is not a linguistic matter; it’s a practical understanding of the situation addressed by the statute on which there is likely to be significant disagreement. As she puts it “what counts as ‘important’ is a subjective, open-ended, often difficult to define inquiry—different in kind from the more straightforward determination that a statute contains a particular grammatical device or sentence structure. (P. 1137.)”
Finally, in the “what it’s not” portion of the article, Professor Krishnakumar rejects the notion that the MQD is a return to a more purposivist and less textualist form of statutory interpretation. She acknowledges that this characterization appears facially sensible, but she finds a fatal flaw. She explains that the Court’s MQD cases do not rest on any “objective historical or legislative record (P. 1145)” to establish the relevant statutes’ purposes. Rather, they appear to be based on the Justices’ own intuitions about what powers Congress would have likely delegated to an agency in language that at least plausibly does so. Further, she argues that the Court focuses on the wrong congressional purposes because the Court looks not at the legislative purpose of the enacting Congress but rather seems more concerned about what powers the current Congress would want the agencies to exercise. This, again, seems more about the Justices’ views than the purposes underlying the statutes involved in the cases.
Okay, so now we know what it’s not. What is it? Here, Professor Krishnakumar admirably admits that it is a bit early to come to a definitive answer to this question, especially in light of the numerous factors the Court invokes when it applies the MQD. She offers a couple of possibilities and encourages us to stay tuned as the courts elaborate the MQD in future cases. For now, her most plausible tentative characterization of the MQD is that it is a form of “practical consequences reading” similar to the absurdity canon, which counsels against reading statutes in a way that produces absurd results. Her support for this view lies in the way the Court has deployed the MQD: it “is open-ended, leaving it entirely up to courts to determine what counts as economic or political ‘significance,’ or as a matter of ‘robust’ political debate, or a ‘novel’ as opposed to typical agency practice. (P. 1158.)” Finally, the fact that the Court has been inconsistent in how and when it applies the MQD supports the theory that the doctrine most closely resembles a practical-effects-based test.”
I have to confess that ordinarily I have little patience for statutory construction scholarship, probably because I have never been convinced that any of the traditional principles of statutory construction, rather than the policy views of the deciding judges, explain the results in interesting cases. Professor Krishnakumar’s article is a refreshing exception to my usual aversion to this sort of scholarship. It was a pleasure to read and I learned a great deal from it. My advice: read it!
