Genevieve Wood:
Welcome to the Heritage Foundation. I’m Genevieve Wood and I’m delighted to personally welcome you today. Whether you came from across the street or across the globe, we’re glad you’re here. At Heritage, we believe ideas shape the future and that you have a role to play in that. That’s why we host events on the biggest challenges and opportunities facing our country. These events are spaces for real conversation, bold ideas, and principled solutions. No matter if you’re a seasoned policy expert, a passionate advocate, or simply just curious about the issues that shape our society, you’re welcome here. So pull up a seat, ask questions, engage with us and be part of something bigger than politics. The fight for the soul of our nation. Thanks again for joining us and please enjoy the program.
Speaker 2:
Please welcome John Malcolm, Vice President of the Heritage Foundation’s Institute for Constitutional Government.
John Malcolm:
Good afternoon and welcome everybody to the Heritage Foundation. We are delighted to be co-hosting this event with the Catholic University Center for the Constitution and Catholic Intellectual Tradition. So last year in Loper-Brite versus Raimondo, the Supreme Court overturned the Chevron Doctrine and said that once more it will be up to courts to interpret vague and ambiguous statutes, not to defer to the interpretations offered by executive branch agencies that are charged with implementing those statutes. In the last several years, the court has on various occasions invoked what it calls the Major Questions Doctrine, which to paraphrase Justice Antonia Scalia might as well have been called the Congress does not hide elephants in mouse holes doctrine, the court has demanded that Congress be explicit when it wants to delegate authority to executive branch agencies to decide issues of “vast economic and political significance.” So what is the status of the Major Questions Doctrine and what role is it likely to play in future cases now that the Chevron Doctrine is gone?
We have four distinguished scholars who are here to address this issue and at this time I would invite you all to the stage. So first you’re going to hear from my colleague Paul Larkin, who was the senior legal fellow here at Heritage in the Mies Center. A graduate of Stanford Law School, Paul clerked for Judge Robert Bork on the D.C. circuit. He’s also served in the Senate as Council to the Senate Judiciary Committee. He served in the Justice Department and the Criminal Division’s Organized Crime and Racketeering Section and also in the Solicitor General’s Office where he argued 27 cases before the US Supreme Court.
Then you’ll hear from Michael Rappaport. Michael is the Hugh and Hazel Darling Foundation professor of law and director of the Center for the Study of Constitutional Originalism at the University of San Diego Law School. A graduate of Yale Law School, Michael clarked for Judge Dolores Slobiter on the 3rd Circuit and then worked in the Office of Legal Counsel at the Department of Justice. Then you will hear from Chad Squattery. Chad is a professor at the Columbus School of Law at Catholic University. A graduate of the University of Virginia Law School, Chad clerked for Judge D. Brooks Smith on the 3rd Circuit and previously worked as a special assistant to Secretary Eugene Scalia at the Department of Labor. And finally you’ll hear from Natalie Schmidt, who also teaches at Catholic Law School. A graduate of Harvard Law School, she too clerked on the 3rd Circuit for Judge Peter Phipps. With that Paul, microphone is yours.
Paul Larkin:
I want to thank you for coming or joining us online. We always appreciate when people are willing to take the time out of their day to listen to issues that we are going to debate and discuss here at Heritage. So please accept my thanks for coming here. There are two different doctrines that we’re going to be discussing today. One is the so-called Chevron Doctrine and the other is the so-called Major Questions Doctrine. Each of them dealt with issues of statutory interpretation, but they looked at different aspects of that whole problem.
Chevron ultimately was more about who decides. Congress, the agency, and the courts, whereas the Major Questions Doctrine is really directed more at the courts and to some extent the agencies than it is to Congress. It is directed to Congress in part, I suppose, by telling Congress how it has to legislate in order to avoid the courts getting wrong what Congress intended, but it really is a direction for the courts.
What Chevron said was this, if Congress says something clearly, that’s the law, but if it’s ambiguous or unclear, the agency is entitled to adopt a reasonable interpretation of whether the statutory term is and the courts under the Chevron doctrine have to accept a reasonable interpretation of an ambiguous or unclear statute.
The Major Questions Doctrine is different. It doesn’t address who as much as it addresses what is at issue. What the doctrine tries to get at is essentially a problem of language and language as used not just in everyday conversation but also in the law. It talks about the same problem that Wittgenstein talked about in philosophical investigations. He recognized that terms like game have a core meaning but also have meanings at the periphery. For example, everyone would understand that baseball is a game including the baseball All-Star game, but is batting practice a game generally or is it a game if two people compete to see who can hit more home runs and batting practice?
What about Pepper where there are three or four guys who just hit the ball back to who is ever throwing it? Is that a game? What about the World Series where the White Sox played but it was rigged? Can it be a game if the outcome is rigged or is it always a game simply because you have two opposing people? Well, what about soccer? Soccer is generally recognized… By soccer, I mean the term the Americans use, the world calls it football perhaps rightly so, but is soccer or football a game? Of course. What about a soccer player who’s training and just learns to bounce the ball off his knee and wants to see if he can do that and go back and forth? Is that a game if he’s only playing against himself or whatever record he had? But the Major Questions Doctrine says is simply this because we’re going to have words by necessity in statutes and words will not be clear and unchangeable like crystals.
We are not going to treat these words as if they’re duffel bags and you can throw any meaning you want into it and stretch it as much as you can because the duffel bags material is elastic. If it’s a major question, now we’re going to expect that Congress probably had something in mind and that sort of interpretation is something that is going to survive going forward because it existed long before Chevron came into being and adopted its multi-part analysis. Let me give you a couple of examples. In McBoyle versus United States, the court had to deal with the question of whether an airplane was a motorized vehicle under a statute that said any conveyance powered by an engine that does not move along rails is a motor vehicle. Well, is an airplane a motor vehicle? Holmes said no. He said yes, you can perhaps stretch the term to include an airplane because it has a motor and it doesn’t run along rails, but the average interpretation in everyday discourse is that it only applies to cars, trucks, and the like.
What about the famous fish case, Yates versus United States? Is a fish which was said to be too small for someone to catch a tangible object for purposes of the Sarbanes Oxley Act, which dealt with people trying to use different types of computers and the like to finagle numbers and the Supreme Court said no, they weren’t getting at fish because you don’t store financial information in fish. Well, what about NFID versus Department of Labor, the case not too long ago where the question was can the Department of Labor interpret the Occupational Safety and Health Act to require vaccinations?
And the Supreme Court said no, it’s not like safety equipment. And yes, the statute does have the word health in there, but every state in the nation has a vaccination requirement of some type for children to go to school and in that they use the word vaccination, inoculation, or immunization. They don’t use those in the Occupational Safety and Health Act. They were talking about external protections. So the Major Questions Doctrine is going to continue because it existed prior to the Chevron Doctrine and serves a valuable purpose in trying to ensure that words are given their average everyday meaning. Thank you.
Michael Rappaport:
Well, thank you so much for organizing this and inviting me. I’m delighted today to talk about the Major Questions Doctrine and a little bit about Chevron. Since I have only limited time, I’m going to confine my initial remarks to three main points. First, my opposition to the substantive canon interpretation of the Major Questions Doctrine, but my qualified support for the linguistic version of the doctrine. Second, why I believe the substantive canon approach probably does not apply to foreign affairs and foreign commerce, but the linguistic version probably does.
And then third, how we should evaluate, I’ll call it a quasi originalist court employing a substantive canon version of the Major Questions Doctrine. Well, let me start with my view of the Major Questions Doctrine, which is somewhat mixed and nuanced. In general, I oppose a strong version of the Major Questions Doctrine that views it as a substantive canon of interpretation. Under an originalist approach, judges are not free to make up substantive canons of interpretation.
Doing that’s just a weaker form of living constitutionalism. Nor can the Major Questions Doctrine be easily justified as a means of enforcing the non-delegation doctrine. Justifying it as a means of enforcing the non-delegation doctrine requires that the court actually articulate the original meaning of the non-delegation doctrine. Otherwise, there’s no way to know whether one is actually or not enforcing the non-delegation doctrine. But the court has not articulated the non-delegation doctrine and seems far away from doing so. For example, the court has not discussed whether the non-delegation doctrine applies to all laws or simply those that impact private rights, nor is the court supplied a test for determining how much discretion can be given to the executive.
On the other hand, I should say I’m sympathetic to the underlying motivations that have led the court to the major questions. Doctrine agencies have argued that statutes that were never intended to allow certain regulations in fact permitted such regulations based on aggressive interpretations of language. And this was especially problematic in a world where Chevron deference conveyed additional powers on the agencies, but one does not need the substantive canon interpretation of the Major Questions Doctrine to address these concerns. Instead, it’s sufficient to simply apply originalist statutory interpretation. And one important aspect of originalist statutory interpretation is, as Paul said, the canon that Congress does not hide elephants in mouse holes.
One does not need a special doctrine for this canon. It’s simply an aspect of how people, especially in careful written documents, use language. Goes back at least to the founders and continues today. And this canon plus other originalist interpretive rules such as Loper-Bright’s elimination of Chevron does much to constrain overly aggressive exercises of agency powers. My position here is similar to the linguistic version of the Major Questions Doctrine as articulated by Justice Barrett, although I should note I disagree with Barrett on some things, but I think it’s even better to dispense with having a separate Major Questions Doctrine and simply decide cases based on the original meaning. Okay, well, a second question that arises is especially given the tariff case, maybe you’ve heard about it, is whether the Major Questions Doctrine applies to foreign affairs or foreign commerce.
Now in my view, the substantive canon approach probably does not apply to foreign matters, but the linguistic version probably does. So let’s start with the substantive canon version of the Major Questions Doctrine that uses the doctrine to enforce the non-delegation doctrine. Now in my view, this version is unlikely to apply to at least some matters of foreign affairs and foreign commerce. The reason is that I believe that there’s a two-tiered theory of the non-delegation doctrine. The non-delegation applies strongly to private rights in the domestic sphere, but less so or maybe not at all in the foreign sphere.
And therefore the Major Questions Doctrine would not fully apply there as well under the substantive approach. But the argument is different as to the linguistic version. Some people argue that the Major Questions Doctrine should not apply as to foreign matters in the linguistic version because Congress has delegated broadly to the president in this area. Thus, one should not be reluctant to find delegations of major questions. But this argument has some problems. First, Congress is not only delegated significantly as to foreign matters, but also as to domestic matters, right? Hence, this thing we call the administrative state, but we still apply the linguistic version of the Major Questions Doctrine to the domestic area.
Second, the reason that the Major Questions Doctrine applies in the domestic area, even though there have been broad delegations, is that the linguistic version does not really turn on whether there have been major delegations. Instead, it turns, at least in my view, on whether Congress has delegated elephants in mouse holes in that area and Congress has not delegated elephants in mouse holes in the domestic area. But similarly, it seems likely that Congress has not delegated elephants in mouse holes in the foreign matters as well in the foreign affairs area. So I would say that the linguistic version of the Major Questions Doctrine probably applies as to foreign matters. Of course, whether the executive is using a mouse hole in a specific case such as the tariffs case is a separate question. Finally, let me conclude by explaining how I think about the way the Major Questions Doctrine is being applied by the Supreme Court and my view is that the court is using a politically convenient but jurisprudentially problematic shortcut to enforcing the non-delegation doctrine that will sometimes lead it astray.
So in short, the court’s approach is a mixed bag. I believe the court using the Major Questions Doctrine as a substantive canon to enforce the non-delegation doctrine since it’s not willing to enforce the non-delegation doctrine directly, right? Continues to approve delegations case after case, but the court is not even willing to do what is necessary to properly use the Major Questions Doctrine to enforce the non-delegation doctrine. To properly apply at least under an originalist approach the substantive canon of the Major Questions Doctrine as a means of enforcing the non-delegation doctrine, one would have to do several things. One would have to define the non-delegation doctrine based on the original meaning. Then one would need to say that the non-delegation doctrine would be violated if the statute actually authorized the challenged agency interpretation.
And then one could say that the statute should not be interpreted to confer such broad authority. Instead, though the court uses the Major Question Doctrine to avoid all of that, it can invalidate the agency action without having to tell Congress that it violated the Constitution or might’ve violated the Constitution. Instead, it can tell Congress that all it needs to do to allow the delegation is to more clearly authorize it. Don’t blame us, it’s on you.
The court’s approach has political advantages for the court, but it might lead to mistakes as a method for enforcing the non-delegation doctrine. The Major Questions Doctrine might mistakenly be applied to laws that would not violate the non-delegation doctrine or it might mistakenly not be applied for laws that would violate the non-delegation doctrine. So one way to think about this is that the court is unwilling or unable on political grounds to pursue a full originalist approach. It pursues a politically feasible approach instead. Now this approach is animated by some originalist concerns and so appears to move the law in an originalist direction. Still, it’ll sometimes reach results that cannot be justified by originalism. One might view this imperfect situation optimistically as the glass being half full. Under this view, despite the imperfections, it’s better than the alternative of the court not applying the Major Questions Doctrine and not applying the original meaning of the non-delegation doctrine, but we really can’t be sure that that is the case. Thank you.
Chad Squattery:
All right, so a lot of interesting discussions so far from my co-panelists. I look forward to our discussion later on. From my remarks, I’m going to be sharing some ideas that I have coming in a forthcoming essay in the Pepperdine Law Review Annual Volume. That essay is entitled Finding the Major Questions Doctrine. And the idea behind that title is that to suggest that the Major Questions Doctrine might be in the process of being found by judges rather than being created by judges. And if that’s right, it has some important payoffs for what we might expect to find about the Major Questions Doctrine after Loper-Bright. So I think to have an idea about what the Major Questions Doctrine is going to look like in the future, we should consider about what we have found about the Major Questions Doctrine so far in the past. So the origins of the Major Questions Doctrine are somewhat debated.
Some have argued that something like the Major Questions Doctrine can be traced back to the late-1800s, perhaps even earlier in principles of agency law. Others have contended that the Major Questions Doctrine was more recently created as an exception to the Chevron Doctrine and some of those later camp people that hold that later view suggest that, well, because the Major Questions Doctrine was created as an exception to Chevron, then perhaps the Major Questions Doctrine should die along with the death of Chevron. And in arguing as much, these scholars have essentially contended that the Major Questions Doctrine is a limit on a form of legislative authority rule-making authority. Now in my essay, I disagree with that, and in doing so, I not only suggest that it’s a mistake to suggest that the Major Questions Doctrine should be limited to the old Chevron regime. I actually suggest that it might be a bigger mistake.
It might be a mistake to suggest that the Major Questions Doctrine was created at all. It could be the case that the doctrine is in the process of being found. And so while yes, the doctrine has only been found in certain areas to date and might be found in other areas in the future. So my essay is split into three parts and I’ll just kind of briefly go through those three parts in my remarks today. Part one, I discussed the idea of the major Questions, Doctrine being found. Part two discusses what has been found to date and part three discusses about what we might find in the future. So part one, various scholars including Professor Steve Sachs, for example, have done tremendous work on what it means to find law rather than to create law. As Sachs notes, it’s common today to act like finding the law is something of a fairy tale.
The idea being that, well, certainly it’s either the legislatures or the judges that are making the law. So it’s nonsensical to suggest that the law is simply found. But as Sachs convincingly argues, he says, we follow some things made by nobody all the time. For example, people routinely conform their conduct to familiar norms of fashion, adequate, or natural language, even though nobody is seen as having created those norms. So yes, a schoolteacher might say that a student has violated a rule of grammar or a fashion magazine might that my tie is in or out of style. But in doing so, the school teacher hasn’t created that rule of grammar and the fashion magazine person hasn’t created rules of fashion. They’re simply finding those rules and implying it to my grammar or my tie so to speak. So my essay therefore assumes that law like these things like fashion and grammar can indeed be found.
So working within the assumption, I turn to a more media point, whether the Major Questions Doctrine, a principle of interpretive law, whether that can be found as well. For those familiar with some of the mainstream critiques of the Major Questions Doctrine, this might sound absurd, right? After all, we have heard some rather, if you’re familiar with the academic literature, there’s some rather hyperbolic claims that the Major Questions Doctrine was allegedly created by conservative judges to get at administrative agencies or what have you. But if we move beyond hyperbole and look at what the court has actually said to date, it seems that the court itself has acted as if the Major Questions Doctrine has been found rather than created. To wit and as some of my co-panelists have flagged, there is essentially two camps on the current Supreme Court about what the Major Questions Doctrine is, and both camps have said things to suggest that the doctrine is in the process of being found.
So start with Justice Barrett who argues that the doctrine is a linguistic canon. According to her view, similar to how a babysitter might not give major authority without being quite clear, Congress does not give major authority without being quite clear. Now note how in making that argument, Justice Barrett is not purporting to create how babysitters or how Congress speaks. She’s simply purporting to say there’s something out in the world how babysitters in Congress speaks. I’m finding that and I’m applying it here and I’m calling it the Major Questions Doctrine. So that’s one camp. The second camp is the Justice Gorsuch Camp. I put Gorsuch and Alito in this camp together. They argue that the Major Questions Doctrine is a substantive canon that enforces some sort of constitutional value, namely the non-delegation principle. And West Virginia Justice Gorsuch wrote that some version of the doctrine can be traced back to at least 1897 when the Supreme Court confronted a case involving Interstate Commerce Commission, which has been referred to as the federal government’s first modern administrative regulatory agency.
So then with time and in particular after the explosive growth of the administrative state in 1970, the Major Questions Doctrine began to take on more importance. So when Justice Gorsuch’s telling the animating idea seems to be that while something like the doctrine first arose alongside the initial rise of the administrative state, and then as the administrative state began to grow and unfold, the Major Questions Doctrine began to further emerge as an important aspect relevant to the interaction between courts and these new things called administrative agencies. So on this telling, one could argue that the doctrine was not necessarily created courts, but instead could be understood as having been slowly developed or discovered by courts as new legal circumstances, the rise of the modern administrative state, as that came into being.
More recently, the court in general has acted because those two camps I just talked about were concurrences from single justices or not on behalf of the full court, but the full court has acted as if the doctrine has been found as well in Nebraska, which was the student loans case. The dissent critiqued the court for a made up Major Questions Doctrine saying you guys created this.
And in response, the court majority stated said, while the major questions label may be relatively recent, it refers to an identifiable body of law that has developed over a series of significant cases spanning decades. So one might put that point more simply by explaining that the doctrine has not been made up, but instead in the process of being found. So part two, what has been found to date? Well, except for perhaps an exception or two, the Major Questions Doctrine has no about been found, applied in the rulemaking context where an administrative agencies make rules and regulations. And some scholars have argued that the Major Questions Doctrine should be restricted to that context. In particular, they argue that the Major Questions Doctrine can only be reasonably applied to agency actions that are legislative in character, right? But as I argue and lots of others, although the Major Questions Doctrine has applied to agency action that seems legislative, rulemaking, the agency action is actually not legislative. Right?
Rulemakings by administrative agencies must be exercises of the federal executive power. If they’re not, if they are exercises of legislative power, then we’ve run into a problem with the Article One Vesting Clause, which places that legislative power in Congress, not executive branch administrative agency. So as Justice Scalia explained, although agencies make rules and conduct and make rules and also adjudicate that might look like legislative or judicial power, they’re actually both forms of executive power. So when viewed in that light, it becomes clear that the Major Questions Doctrine has always applied to purported exercises of executive power. So to say that it needs to be restricted to legislative power just misunderstands how it’s been applied in the past.
I will skip ahead to part three for time, where the Major Questions Doctrine might be found in the future. So although the Major Questions Doctrine has been primarily observed in relation to a particular form of executive power, the rulemaking context, future courts might find that the Major Questions Doctrine applies in other exercise of executive power as well. And there are at least three other types of executive power. Those are adjudications decisions to adjudicate and then enforcement actions. And because we’re short on time, I’ll just focus on one of those, the adjudicative context, I’ll explain why, although we might not have found the Major Questions Doctrine in the adjudication context yet we might expect courts to find it in the future. So what are adjudications? Although adjudications might look judicial, they are no more judicial than rule-makings are legislative. They are instead exercises of executive power, or again, they must be, otherwise we’re going to have a constitutional problem.
Now, under current doctrine, specifically a case called Chenery II, agencies can create new policy through adjudications similar to how agencies can create new policies through rule-makings. That’s a controversial decision, but that’s the lay of the land at the moment. I think it would be natural then for the Major Questions Doctrine to apply to policy created through adjudications, just like the Major Questions Doctrine applies to policy created through rule-makings.
One potential difference to flag, however, is that in the adjudicative context, a policy’s majorness should be considered on an aggregate basis. So that means court should review the majorness of an agency adjudication. They should assume that, okay, well, this policy that the agency’s using in this adjudication, it will apply similarly to similarly situated people and other adjudications in the future. Because if you just zoom in on one adjudication of one business owner, it might not seem major, but if you assume the agency’s going to treat all of those similar business owners the same, you can see how the majorness can kind of stack up.
And indeed that is kind of similar to how the court already considers majorness in the rule-making context. In West Virginia, for example, there was only one party who the court ruled to have standing officially. That was the state of West Virginia, but the court nonetheless considered majorness on a national basis, not just limiting it to the state of West Virginia. So in short, it could be the case that the Major Questions Doctrine is in the process of being found. Indeed, that is how the Supreme Court seems to have talked about the doctrine to date. And yes, the Major Questions Doctrine might’ve only been found so far in the rule-making context. That is just one type of an exercise of executive power. And because the Major Questions Doctrine is a limit on executive power, one that ensures that the President does not overstep the kind of limited law-making process assigned to him in Article I, section VII, in their recommendations clause, we would expect courts to begin finding the Major Questions Doctrine and other exercises of executive power as well in the future, and that includes the adjudication context. Thanks.
Speaker 7:
Well, thank you to our distinguished panelists for sharing their opening remarks. And on behalf of the Center for the Constitution and the Catholic Intellectual Tradition, I would just like to thank Heritage for hosting this event and co-sponsoring it with us. I will now moderate a discussion between our panelists and give them a chance to respond to each other’s remarks. But I would like to start by talking about the title of this event and the intersection between Chevron and the Major Questions Doctrine. And as some scholars have discussed, and as Chad mentioned as well, there is a version of the Major Questions Doctrine that is derived from or said to derive from certain cases surrounding the Chevron doctrine cases like Brown and Williamson or King V. Burwell as kind of a gateway to determining whether the Chevron doctrine applied to that agency’s interpretation. So the Major Questions Doctrine as kind of an on-off switch for Chevron.
In the wake of Loper-Brite then, if we no longer have a Chevron and no longer have a need for this on-off switch, the argument goes that then the Major Questions Doctrine goes with it. However, we have now seen it apply in multiple scenarios that are not necessarily this Chevron switch, particularly in West Virginia versus EPA, the OSHA case that was discussed as well. And so the question I would like to give to all of you, if any of you would like to take it, if this Major Questions Doctrine continues to exist after Loper-Brite, is it really the same Major Questions Doctrine that was being applied in those Chevron cases? Has it transformed in some way? And if it is something different, then perhaps maybe we talk about where it is coming from. If we can’t kind of pull on these Chevron cases like King V. Burwell or Brown V. Williamson.
John Malcolm:
I can start.
Speaker 7:
Perfect.
John Malcolm:
I think the Major Questions Doctrine will always continue, at least in the linguistic form that Justice Barrett talked about and that my two colleagues had mentioned. Because what Chevron did was essentially give a lot of decision-making authority from courts to agencies, and now Loper-Brite gave that back to the courts. But what the courts are deciding what a statute means, they’re still going to take into account what the agency says. Why? Because they’re going to look and realize that agencies become experts in making statutes work and they’re going to treat their interpretations with respect.
If you have a question of evidence law, the court’s going to treat what Wigmore said with respect. Contract law, they’re going to treat Williston or Corbin with respect, so they’ll treat the agency with respect. They’ll keep the final decision-making authority in the hands of people who wear black robes. But the linguistic version of the doctrine certainly is going to come into play because agencies, either because they’re being pushed by the political people to expand an interpretation of a statute or because they’re trying from the other direction to expand their own empires by having more that they can regulate are going to want to push the edges of the terms in a statute. And the linguistic version of it is clearly going to continue to apply because the courts are going to say some interpretations push terms too far.
Michael Rappaport:
So back before Chevron was overruled, Cass Sunstein wrote an article, said “There are two versions of the Major Question Doctrine,” and now I get to say something I don’t often say. I agree entirely with Cass Sunstein. So there was a version that said, oh, when certain major questions are involved, we would not apply Chevron. Well, since Chevron is gone, that version is gone as well, although Chevron may be gone, but still the question that whether Congress has delegated deference to the agency is still there to some extent. And so maybe that sliver of the version of the Chevron version of the doctrine still exists, but the other version of the doctrine which was not tied to Chevron, which is just should we conclude that Congress gave this broad authority to the agency apart from any Chevron deference? I think that continues and that’s what we are going to continue to see. And so that’s where the action is.
Chad Squattery:
Yeah, I think as a doctrinal matter, the Major Questions Doctrine broke away from the Chevron framework before West Virginia or maybe in West Virginia, but definitely before Loper-Brite. So the Major Questions Doctrine was its own freestanding thing before a Loper-Brite finally put Chevron out of its misery.
I will say that it seems that not to put words in my co-panelist’s mouth, it seems like there’s more support for the linguistic canon of the doctrine than the substantive canon of the doctrine. I’m on record in an article I wrote in the Baylor Law Review that I defend a substantive canon version, the Justice Gorsuch version of the Major Questions Doctrine, though I have a kind of tweak to it though I make, and I do so because I think the linguistic version in particular has a problem and it uses this babysitter-type example and says, how would the parent talk to the babysitter? But then elsewhere, Justice Barrett says, well, context matters. And if the babysitter is talking to another parent who’s the babysitter or a grandparent who’s a babysitter, then that context will suggest that babysitter who is a parent or a grandparent, that babysitter we know has more authority than another babysitter who’s like a teenager something.
And that’s a situation we find ourselves in the federal lawmaking process. Congress doesn’t legislate alone. Congress has to legislate and concert with the president. Now, of course, Congress can seek to override a presidential veto, but if you do that, you’re going to have to change the legislative text in order to have a veto-proof majority, which you’re going to have to kind of appease the fringes on both sides of the aisle. So what does that mean is that I think the president, knowing that the president can exert this influence constitutionally over the lawmaking process, the president is going to use that power to routinely get major authority for his administrative agencies that exercise executive power on his behalf. Sometimes the president won’t win and won’t get the major authority, but sometimes the president will win and will get the major authority. So I don’t think we can get there as a linguistic version.
I do think you can get there as a substantive canon version, however, because the substantive canon version says how are laws made? They’re made through a special process outlined in the Constitution that includes the Congress and the President. So the best way to look at it’s to look at what was the political bargain struck there and then see if the power is held within there because otherwise you are kind of disrespecting the constitutional process of making a law. So I think for it to survive, I think it has to be a substantive canon version rather than a linguistic version.
Speaker 7:
If you wanted to.
Michael Rappaport:
Well, there’s a lot there. I think most of it I disagree with, but so-
John Malcolm:
This is the John, you ignorant slut part of the discussion.
Michael Rappaport:
Chad. I guess I think that maybe the analogy with the babysitter question is… So you imagine the parent saying to the babysitter, okay, so this is what I want you to do. Are you okay with that? Any questions or concerns about that? The fact that the parent might seek to get the approval, or at least… I’ll just call it the approval of the babysitter doesn’t change the fact as Justice Barrett said that there would be limited authority just given the babysitter’s role. So the fact that the president is going to be enforcing these agency statutes and has a veto, I don’t think necessarily should lead us to say, oh, okay, the language should be understood differently. So anyway, that would be my response.
John Malcolm:
I mean, I think the substantive features of whatever is under discussion has to come into play. For example, Congress couldn’t pass a statute of telling an agency to promulgate regulations that enforce this, and the only direction we give to the agency is do the right thing. Maybe that would be enough if the only enforcement mechanism were civil or administrative, but they couldn’t do that if the enforcement mechanism were criminal because that clearly wouldn’t give enough notice to the public as to what is involved or to the agency as to what the right thing means. So the linguistic part will always be there in part I think because there’s a normative aspect to that as well. In some areas, the norm will come into play that you have to have fairly well-written and easily understood terms so that the average person can comply with the law without going to the who scale.
It also will come into play in other types of settings where there is a normative aspect. The president has certain authority in the case of foreign affairs that he wouldn’t have otherwise. So if Congress is setting out rules about how you punish countries for whatever the particular Congress finds doesn’t satisfy its own norms, the president being the one that can recognize foreign nations and the one that has to implement whatever other statutes are necessary, which includes protecting the nation has a certain amount of normative authority, I think, in some instances to say, no, I’m not going to punish this country even if they technically satisfy a particular statutory definition because I need them for X, Y, and Z that are in the national interest. So you’re going to have norms come into play even if you have a purely technical linguistic version of the Major Questions Doctrine. I’m just not sure that you’ll ever have one where you won’t have to look to the words of the statute to see exactly what the agency is doing and whether it’s permitted to do that.
Chad Squattery:
One follow up on that. I do think those are both excellent points by my co-panelists. I do think another problem that the linguistic version has though is that if it’s purporting to understand things as the man on the street or the ordinary congressional outsider might understand things, well, if we ask the kind of ordinary person or ordinary lawyer, does the president have influence over federal legislation? Of course the answer is yes. Obamacare, the big beautiful bill, the ordinary person understands that the president is exerting policy influence over that legislation. And I think sometimes as more conservatives, we might think that’s some hangover from the New Deal with FDR or something like that. But it’s not. The president does have constitutional authority to flex policy muscle in the lawmaking process through the recommendation clause and through the veto clause. So I do think that the ordinary man on the street already is aware of the president’s role in the lawmaking process, and perhaps us as lawyers need to kind of catch up to that.
John Malcolm:
The OSHA example, however, that was passed in the seventies I believe, and whatever influence the President would’ve had in trying to guide how rigorously an agency should regulate the type of protective equipment somebody would’ve had, I don’t think anybody in the seventies contemplated that it would authorize the Department of Labor to have an immunization program for any type, not just a pandemic, but for any type of virus or other pathogen. And so you’re going to have the problem unfortunately, that even if the president can influence how the legislation works when it’s passed, if someone 30, 40, 50 years down the road tries to expand it because of a new problem, then the president is stuck with whatever that legislation was. He can’t influence unless he tries to get it changed. And so now the courts have to try to rein in what the agencies are doing. And in that circumstance, I think there are both substantive or normative and linguistic limitations on what agencies can do independent of the authority the president may have to influence what a legislature does today.
Chad Squattery:
I agree with a bunch of what you just said, but I think you can get there through the substantive version by saying, look, President Obama, I’ve got a phone and a pen thing. I’m just going to make the statute do what I want it to do. No, you can say there’s a substantive constitutional value to require the president to go through the lawmaking process, and if you want a COVID policy, it might be a good idea. Recommend that to Congress and then get the new legislation. I don’t think you have to rely on the linguistic version to get there. I think the substantive canon does get you there.
Michael Rappaport:
I guess I would just say one thing about this substantive canon version of it. Let me put it this way. If you took away, let’s say on the Supreme Court… No, that’s a good idea. If you took away the Supreme Court’s authority to say what was unconstitutional or not, but you just gave it the authority to kind of make up, if you will, substantive canons of interpretation, maybe that’s more power. So if they don’t have to be enforcing the statutes, but they can just come up with canons of interpretation and they change over time, that’s a lot like living constitutionalism.
Yeah. If Congress can agree to override the clear statement, sure, they get the final say, but otherwise the court gets to decide what’s in the statute and therefore what’s being enforced, and I guess at the heart of it, that’s my concern. It is one thing if there’s a strong norm as Paul says, that’s out there that Congress knew about, and that we would just simply say, oh, it’s really unlikely that Congress wanted to give this criminal power to an agency when they’ve never had this kind of thing in the past. That’s one thing, but to come up with new norms, that’s another thing entirely. And that’s the gist of my concerns about the substantive canon.
Speaker 7:
Well, if I could just follow up on some great thoughts that you all put out there. It almost seems to me that we might not need a Major Questions Doctrine per se, if it really works in the way that I think various of you are describing. If the substantive canon version of the Major Questions Doctrine is really just trying to enforce the non-delegation doctrine, we could just enforce the non-delegation doctrine and solve delegation problems through that doctrine instead, if it’s doing the work of a semantic or linguistic canon. Why do we need that on top of textualism or kind of ordinary tools of statutory interpretation? To use the OSHA example, if you read that statute, you might, through textualism or other methods of interpretation, similarly come to a conclusion that those words in that statute don’t mean vaccines.
That just whether or not you’re looking at it from a textualist standpoint and saying semantically, maybe those words don’t mean vaccine. They would’ve used the word vaccine or maybe venturing on a more intentionalist. I think of Justice Alito’s dissent in Bostock, for example. No one thought that that statute back then when it was passed meant this now, although he takes the mantle of textualism in that as well. So in either case, is the Major Questions Doctrine doing independent work beyond either ordinary statutory interpretation or what the non-delegation doctrine is doing?
John Malcolm:
Something similar is in the dissenting opinion by Justice Clarence Thomas dealing with the void for vagueness doctrine in criminal cases, what he said was the void for vagueness doctrine really should be just applied as a way of saying the particular activity that’s at issue here isn’t within the scope of the statute, and that seems to be a reasonable way of interpreting.
He said, in fact, that’s the way in the 19th century we construed this. We didn’t say the statute was vague because it could apply to A, B, C, and X, Y, Z. We just said X, Y and Z don’t fall under the statute and vagueness doctrine came up later. Yet that’s a reasonable way of going at it. And maybe the court have just done that from the beginning. They certainly could have done that in the NFIB versus Department of Labor case, but courts like to make up new doctrines, just like legislators like to pass new laws. I mean, we have the prongification of the law throughout constitutional law. We have over-breath as a doctrine that they created. I think that’s hard to say they found that one, that one they just made up and courts like to do that. They make things up and it becomes the doctrine of whoever made it up. People, it’s theirs. People like doing that.
Chad Squattery:
Yeah. Well, I would push back a little bit that it’s on made up, and I think Mike would know better than me, but I’m pretty sure Mike Ramsey has kind of a soft originalist defense of the Major Questions Doctrine, or at least the defense of the idea that courts can create substantive canons. I might be mistaken on that, but to the precise question from Professor Schmidt, I do think the Major Questions Doctrine is doing something slightly different. It’s asking whether Congress did delegate authority, and whether Congress can delegate authority. The latter question being the non-delegation doctrine, but I am in favor of, to the extent that the Major Questions Doctrine is a distraction from reinvigorating the non-delegation doctrine, then I think we should not pay as much attention to the distraction and turn towards what I think is the more important issue, which is reinvigorating and enforcing the non-delegation doctrine.
Michael Rappaport:
Well, on the point that Chad brings up about whether or not you can give an originalist defense of substantive canons, now that’s an interesting question in and of itself. If one goes back, and back when she was a professor, Professor Amy Coney Barrett wrote an article about this, it’s quite an interesting piece where she goes through and she says, ah, what about all these canons, these substantive canons of interpretation from the very beginning? And so if one wanted to make a defense of substantive canons, and I think Ramsey does this to an extent, one says, ah, look at these substantive canons from the beginning. This is okay, then Professor Barrett cuts back on that, but we’ll leave that part out.
So the way I read those early canons, and it is different than Professor Barrett, but they’re all things that are very plausible presumptions about what Congress would’ve intended. They either applying on the one hand pre-existing doctrines that the Congress knew about when they were enacting the statutes or things that were widely held values that people would then say, well, of course, Congress didn’t mean to interfere with international law at the time. So that’s how I read those early substantive canon cases. So if one were to then look at those canons and say, ah, can we find in the Major Questions Doctrine the same kind of status, I think you would have to show, oh, we really do have this underlying value of not giving agencies significant authority. And certainly in the 20th and 21st century, I don’t think we have that world. We have a linguistic version maybe, but I don’t think we have that wide value. In fact, how could we with the administrative state?
Speaker 7:
Well, in our last couple minutes here, I do want to talk about tariffs because it has already poked up in a couple places. So just as kind of final thoughts from each of you on whether or not you think the Major Questions Doctrine will show up in the court’s decision on tariffs, and if so, do you predict one way or another which version of the doctrine we’ll see?
Chad Squattery:
From oral argument, it definitely sounds like the Major Questions Doctrine is in play. I don’t have a prediction about what version or how it might come out, but it did seem like there was a recognition that the relevant statutory phrase, regulate importation could plausibly delegate tariff authority. But I think there might be some hesitation about finding that that was delegated because it’s major. So I do think the Major Questions Doctrine is potentially in play, but as Justice Kavanaugh noted last term, this would kind of be a new aspect, perhaps another part of the doctrine that we’re finding to apply in the foreign affairs emergency context because the court has not applied it there yet.
Michael Rappaport:
Yeah, you would think that it would be in play, given that we’ve got a arguably ambiguous statute. And if you want to interpret it to cover tariff authority and in a freewheeling way, that really is a very significant delegation of major questions to the executive. It’s a little hard to say because the justices at oral argument were a lot of times the attorneys would make a reference to the major questions and the justices would say, “Yeah, yeah, I know all about that. You don’t need to waste our time with that.”
So that makes it a little harder to predict. But I do think this point about whether or not the Major Questions Doctrine applies to in the foreign facing, I guess was the term, foreign facing legislation is a big one. I think the non-progressives on the court could easily split on that. So it makes it very hard to figure out what’s going to happen.
John Malcolm:
Think about football. When the offensive coordinator’s putting the game plan together for the following Sunday, he decides from what we know, we’ve got a hundred plays in the playbook. I’m just going to use the passing plays and I’m going to use the running plays. Okay, what about a lateral? Does that mean the lateral makes it into the game plan? Is that a running play or a passing play? The ball goes through the air to get to somebody who’s then going to run with it.
You could decide the question in that case without even reaching the Major Questions Doctrine. So I’m not sure to what extent that’s going to come into play. I mean, maybe it’s… Since you’re making a decision by a majority, if you’ve got a majority to people that say the Major Questions Doctrine applies, whichever way you want to come out on the judgment to be entered, that would be a rationale for saying the major questions does or does not apply. But you also have to look at the text of all the different statutes and see whether they answer the question in this case, and if all the statutes do is have passing plays and running plays and you’re trying to decide is a lateral in there, you’ve got a case involving an interpretation of the words. And that may be a major questions case, but only an linguistic one rather than a substantive one.
Speaker 7:
Well, with that, I’d like to thank all of you for coming and thank our distinguished panelists for joining us today.