When the Supreme Court of the United States issued its decision last year in West Virginia v. Environmental Protection Agency, a tangled case that ultimately limited the extent to which the EPA could regulate greenhouse gas emissions, much of the public commentary centered on the suit’s impact on efforts to mitigate climate change.
For legal scholars, however, there was another critical — and for many, highly unwelcome — part of the Court’s decision that could shape the administrative state for decades to come. In West Virginia, the majority concluded that the EPA’s Obama-era policy involved a “major question,” and that the agency went too far in its attempt to regulate, absent explicit permission from Congress to do so. This new “major questions doctrine” signaled at least a partial shift away from the traditional deference afforded to government agencies under 1984’s Chevron v. National Resources Defense Council. It also seemed to signal a turn away from how the Court traditionally goes about interpreting statutes.
Many advocates of limiting the power of the federal bureaucracy cheered the West Virginia decision, while others decried the new doctrine, worrying that it could prevent the government from taking decisive action on urgent problems like climate change, student loans, healthcare, and more.
But Oren Tamir LL.M. ’15 S.J.D. ’22, a post-doctoral fellow at Harvard Law School, says that many of the critiques of the doctrine tend to miss the mark — and that, with some changes, the major questions doctrine could be fixed in ways that would make it a valuable contribution for our law and democracy going forward, even from the perspective of those who support a robust administrative state. Tamir, who will soon publish an article on his suggested reforms to the major questions doctrine — and the field of administrative law more broadly — in the Columbia Journal of Transnational Law, is also working on a constitutional law casebook with Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard.
A self-proclaimed “administrative law buff,” Tamir’s academic interests include exploring ways to resolve the tensions between those who support a strong administrative state and those who do not, and suggesting ways to reimagine the field. In an interview with Harvard Law Today, he explains what critics of the major questions doctrine, or MQD for short, get wrong — and right — and proposes fixes that could even save much of President Joe Biden’s agenda.
“We live in a democracy, and we don’t always agree on where power should lie,” he says. “But we need to create a legal framework that reflects, not denies, these disagreements and which doesn’t permit any side to lose indefinitely and fatally.”
Harvard Law Today: Where did the major questions doctrine come from?
Oren Tamir: There’s some dispute about that — some (including Justice Neil Gorsuch on the Court) argue that the new major questions doctrine has an old pedigree. I don’t think that’s quite right, but what is clear is that the idea of a distinct doctrinal category of major questions probably started, certainly at the level of the Supreme Court, with a case called Brown & Williamson v. FDA, which was decided in 2000. That case dealt with an attempt by the FDA to regulate quite intensely the sale of tobacco and nicotine products to minors, but the Supreme Court struck down that attempt.
In a key passage, Justice [Sandra Day] O’Connor’s opinion for the majority alluded to the idea that the “majorness” of an issue might figure in the Court’s analysis quite importantly. Finding that the power the FDA asserted was meaningful and extraordinary, and despite the fact that the relevant statute seemed to give the FDA broad authority, Justice O’Connor concluded that, “we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” That passage arguably unleashed the debate and development of what we now call the “major questions doctrine.”
HLT: Where does the major questions doctrine fit within administrative law?
Tamir: That’s tricky not only because the issue is, again, contested, but also because there’s a question of which MQD we are talking about in the first place. The MQD has evolved through the years until it matured to what we now have following West Virginia v. EPA. And the views diverge according to the particular version one is referring to along the continuum of the doctrine’s evolution.
To the extent that the MQD was only a consideration that courts might take when they decide whether to defer to agencies’ construction of the statutes, most prominently under Chevron, it arguably fits with the larger structure of admin law, though it is hotly disputed as a matter of policy or as a sound principle of statutory construction. Courts use canons or presumptions such as this all the time, and so long as these presumptions operate within the larger framework of deference that exists in administrative law, there is, I think, no dramatic conceptual tension — though, again, there’s still dispute.
But in West Virginia, and in fact in some of the “shadow docket” cases the Court also decided last term, the MQD operated differently. Rather than work within the framework courts have developed to determine whether to defer to agencies or not (or to independently interpret statutes), as I just described, now the MQD begins to work as a very strong presumption that the agency loses. Courts are supposed to make an initial finding of whether something has vast political or economic implications — and if so, the agency loses. There’s no real or serious work to interpret the statute or see if the agency’s construction of that statute — which supports what it wants to do — makes sense. In other domains, we call this a “clear statement” rule. And when the MQD operates in that way, it does seem to stand in tension with the larger structure of contemporary admin law and statutory interpretation.
HLT: Why is the doctrine controversial?
Tamir: For so many reasons! But it’s useful to distinguish between two dimensions: consequences and more conceptual or theoretical reasons.
In terms of consequences, for those who want to see active government, the MQD in its new form seems really troubling. The MQD stops agency action when it applies, even if a statute potentially gives them power to do what they want, allegedly until Congress authorizes the action clearly and anew. That seems benign, because Congress can, in principle, still act. But we know that the chances of congressional action today are actually really slim. Given the polarized and hyper-partisan structure of our politics, and other factors, scholarship has shown convincingly that the odds of congressional action are quite poor. Congress, in other words, isn’t going to do what the MQD says it is meant to do.
When you realize this, and when you realize further that the whole point of an administrative state is to allow broad delegations to agencies, then the MQD strikes one as quite harmful. First, it suggests that the Court is not really respecting governmental choices about delegating power to agencies. Rather, the MQD makes the Court look like an imperial court, motivated based on power, not reason. And the MQD also looks highly deregulatory. It stops dynamism and action, especially in domains where it’s most needed — like climate action or regulation of emerging technologies. So, in short, the MQD is an expression of judicial aggrandizement and wholesale libertarianism.
This is on the level of consequences. But as I said, there are also conceptual or legal theoretical critiques of the doctrine; indeed, on my reading, many think that the MQD is essentially lawless and senseless.
Those who think it’s lawless say that the MQD came from thin air and through exaggerated reading of judicial precedents; that the MQD makes judges into political scientists by letting them decide what’s major and that this is not an appropriate “legal” judgment; and that the MQD doesn’t credibly capture congressional intent or textual meaning, which is, it is said, in severe tension with the Court’s commitment to textualism (Justice Kagan in her dissent in West Virginia even characterized the MQD as a “get-out-of-text free card”).
In addition, as I said, some also think the MQD is entirely senseless, implying that ideas of separation of powers and non-delegation, which the Court identified as supporting the doctrine, can’t justify it. These ideas, they believe, should be better left “under-enforced” or are sufficiently enforced today through standard statutory interpretation and previously existing administrative law tools.
HLT: What do you think these critiques get wrong?
Tamir: I should say that I agree to an important degree with the progressive critique of the doctrine; I am no conservative. I agree with the fact that progressives point out that the new MQD we have following West Virginia is, well, new, and is a leap given where we were in the law beforehand. And I agree as well that the current MQD is an unattractive expression of judicial aggrandizement and libertarianism.
But I disagree strongly with the more wholesale critique of the MQD that portrays the idea as entirely lawless and senseless. As I say in the paper, the MQD in my view is completely lawful, and it has a core with much sense. I think that it is important to see that, for three primary reasons. First, because it suggests ways that we can fix the doctrine in ways that will make it entirely benign, even good. Second, I also think there’s a strategic reason to see the normalcy of the MQD: in short, because I think that even the current Court can get behind fixing the doctrine in the way I suggest. Finally, I argue that once we see that the MQD could be fixed to transform into a benign, even good tool, we’ll be opening the door for much more major reforms of our entire administrative law, which will put it on a much more promising footing — especially to make it more compatible and reflective of the real tensions that are animating the field.
“I argue that once we see that the MQD could be fixed to transform into a benign, even good tool, we’ll be opening the door for much more major reforms of our entire administrative law.”
HLT: One of your arguments is that other countries around the world have some form of this doctrine. Where else do we see this deployed? And how is the doctrine different in those contexts?
Tamir: My paper takes first and foremost a kind of internal domestic perspective. I go through the claims that progressives have raised against the doctrine and suggest how they’re weak or not entirely convincing. Why, for instance, the doctrinal evolution of the MQD is not that extraordinary, why the judgment judges are supposed to exercise under the doctrine is entirely legal (rather than political in a pejorative sense), why the MQD can be squared with textualism and statutory interpretation more broadly, and why it’s sensible to have such a doctrine that tries to wake up Congress to act on truly major issues.
But, yes, as part of my attempt to show that the MQD isn’t crazy and that it’s normal and can be good even for progressives, I do delve into a bit of comparative law (which is also why I decided to place the piece with a comparative law journal). I show for example that in both Israel and Germany, there’s something very similar to the MQD — Germany has an “essential matters doctrine,” Israel has a “primary arrangements doctrine,” and both seem to be giving courts a very similar job to what the MQD is giving them in the U.S. And I also suggest briefly and cautiously that the U.K., a system that had traditionally “lived” with very broad delegations, is itself potentially evolving to recognize something like an MQD (largely given a really consequential ruling by the U.K. Supreme Court in the so-called Miller 2 case, which prevented then-Prime Minister Boris Johnson from proroguing parliament during the Brexit negotiations).
There are of course differences between our MQD and comparative versions of the MQD. And I build on these to offer solutions or “fixes” to our own (or to make appropriate adaptations so that our MQD would more closely resemble the benign versions we see across the pond). So, for example, the definition of what’s “major” elsewhere is more sensitive to the necessity of an administrative state than what we have today following West Virginia. In addition, the doctrine is modestly used in these other countries, rather than expansively. And it is accompanied by weaker remedies than what we will see following West Virginia and given the general structure of our existing administrative law.
HLT: What types of solutions does your paper suggest to fix the doctrine so that, as you say, it will become entirely benign even good?
Tamir: I land on three important changes — either to the MQD or to administrative law more broadly — that I think will make the doctrine entirely respectable going forward, and that I think the Supreme Court, and to some extent lower courts, should introduce right away.
First, I talk about the need for softer remedies. The doctrine shouldn’t be used as a kind of freeze on agency action — a “full stop, no matter what.” That means that, essentially, even if there is a finding by a Court that an issue is a “major” one, there is going to be a way for the agency to get out of that finding in two ways. One is to “suspend” the declaration of invalidity — that is, to allow the agency to work through what it’s doing until X amount of time passes (say, two years), hoping that after that time Congress — despite the difficulties it faces — will step in. The other, and probably more feasible and workable, option is not to suspend the invalidity of the action. Rather, after finding that something is a major issue, the Court will halt the action immediately. But, if after some time Congress doesn’t eventually act (let’s say, again, after two years), an agency would be able to go back to the Court and ask it to unfreeze the action. And a Court, at least to the extent that the agency does have a reasonable statutory basis for what it wants to do, should allow it (though I also suggest that a Court might be able to insist then that the agency embraces a course that’s more incremental than what it wanted to do originally). For many, this scheme of flexible remedies might seem strange. But I actually suggest in the paper that there is ample precedent for this type of scheme, both in comparative law, but also domestically.
A second fix I suggest is about the real concern of excessive invocation of the MQD. Even if the remedies are going to be flexible, as I described before, we can’t clutter Congress or try to “wake it up” too excessively. That would strain its capacity and will make the doctrine unattractive rather than benign. A solution is to seriously limit the invocation of the doctrine. The Court said in West Virginia that the MQD is going to be used in “extraordinary cases,” but I argue that in the future it should be even clearer about these limits. I make two suggestions in my paper to achieve that: first, following previous scholarship, I suggest that the MQD should be a Supreme Court doctrine, rather than for any lower court to be able to invoke it. Second, I suggest that the Court say that the MQD is quite close to a “once in every blue moon” canon.
A final fix that I highlight for solving what’s really wrong with the MQD concerns the asymmetry in the system that is the result of its introduction. As I said, one of the problems is that the current MQD is deregulatory and stops agency action and creates a kind of asymmetrical administrative law. This, I think, is problematic because it sort of writes a libertarian principle into the fabric of our administrative law, impermissibly. But I suggest that the Court could even fix that. I go through various suggestions in this respect in my paper, but a key one that I make is that the Court (and lower courts too) should show more willingness in reviewing instances of agency inaction than it (and they) currently do—for example, failures to respond to petitions for rulemaking, failures of supervision, and more. The goal is, as I say, to achieve a sense of rough balance and symmetry in our law, between those who are hopeful of expansive governmental action and those who are concerned about it, to the extent possible.
“I suggest that the Court say that the MQD is quite close to a ‘once in every blue moon’ canon.”
HLT: You write that deploying these changes might be difficult, but that progressives should focus on that rather than trying to get rid of the doctrine entirely. Why?
Tamir: Yes, I acknowledge that the various fixes I propose are ambitious ones. Still, I think that this could be more convincing to the Court than the present attack on the MQD, which, as I said, characterizes it as entirely lawless and senseless. There are some justices on the Court that do seem to be attracted to a vision of minimalism and moderation. And I suggest that showing them a way to achieve that—which is what I think is what I do in the paper—could pull them in better, so to speak, and ultimately solve what’s really wrong with the MQD. I should say, though, that I am not naïve. There’s a good chance that nothing will convince this Court at least that the MQD is a real concern. But even if so, I think that seeing what’s really wrong with the MQD is important, both because it suggests how we might reform the doctrine in the future and because I think the fixes I point to can and should trigger a much wider administrative law reform, which is needed even from a progressive view.
HLT: If the Court buys into your changes, what could that mean for the Biden administration’s agenda, such as the student debt relief initiative?
Tamir: I think it would be really meaningful. Take, as you suggest, the student debt relief case, Biden v. Nebraska. Chief Justice Roberts’s line of questioning in the oral argument in that case did suggest that the MQD is prominent in his thinking. So, supposing the Court buys into my suggested reforms, I think this points to a result that should save the student debt plan from invalidation, even if not immediately then at least eventually. First, there shouldn’t be excessive invocation of the major questions doctrine; it should be, as I say, quite close to a “once in a blue moon” thing. Since the Court just invoked the doctrine last term in West Virginia (and in cases from the Court’s Shadow Docket last term) that, I believe, should weigh on the side of not using it again so soon. It will show the Court is attentive to the limits of the doctrine.
“There’s a good chance that nothing will convince this Court at least that the MQD is a real concern. But even if so, I think that seeing what’s really wrong with the MQD is important.”
Another option (and, in my view, less attractive but still better than what we have currently) would be to use one of the more flexible remedial solutions I proposed. So, the Court could suspend its decision on whether it’s a major question, or suspend the policy now, but allow, after X time, the agency to implement it if Congress does not act.
This was of course specifically about the Biden student debt relief plan. But as I hope is clear, the framework I propose is a general one—and could (and I think should) apply to many other issues that are arguably “major questions” and that the Biden administration is pursuing. And once you see that, I also hope that even for people like me, who are strong supporters of robust and active and dynamic government, the MQD begins to look more normal, and less like the Voldemort of administrative law as many make of it now.
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