'Major questions' as major opportunities.

• Author: Svikhart, Riley T.

"[T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." (1)

INTRODUCTION

Just three days after securing complete control of Congress in a dominant midterm election that netted their party nine additional Senate seats and a strengthened House majority, (2) Republican opponents of President Barack Obama's signature healthcare legislation received more good news in the Supreme Court's announcement that it would hear King v. Bunvell. (3) The case--in which challengers asserted that residents of states that had declined to establish health insurance exchanges were ineligible to receive tax credits for the purchase of health insurance through federally created exchanges (4)--offered what would likely be a final chance for opponents of the Affordable Care Act (5) to dismantle the sweeping law by judicial review.

When the Court ultimately held for the Obama Administration, (7) the ruling's implications on the future of "Obamacare" dominated the public's attention. (8) However, this political focus obscured another important legal ramification tucked away in Chief Justice Roberts's majority opinion--in refusing to afford Chevron (9) deference to the IRS's interpretation of the ambiguous legislative draftsmanship at issue, (10) the Court gave new life to the "major question exception." (11) This exception, its companion legal doctrines, and its potential to play a critical role in restoring the separation and balance of powers envisioned by the framers of our Constitution will be the subject of this Note. Against the backdrop of this discussion, this Note will argue that faithfulness to the Constitution demands that federal courts reinvigorate their reliance on the exception in a narrow and principled way.

The future of the major question exception is a live question in the wake of King. This Note calls on federal courts to embrace the exception, for where a toothless nondelegation doctrine has failed to curtail the ceaseless growth of executive power experienced over the past century, a more aggressively applied major question exception can succeed in ensuring that policy questions of the deepest "economic and political significance" (12) are left exclusively to the people's representatives in Congress. In declining to defer to an executive agency's interpretation of an ambiguous statute, federal courts must themselves assume "the task [of] determin[ing] the correct reading" of Congress's work. (13) This move aggrandizes federal judges and lawmakers at the expense of regulators, but achieves a worthwhile result of blunting overgrown executive power in the process. And while increased reliance on the exception is surely incapable of completely reapportioning domestic policymaking power among the three branches, (14) it will also do little to upset the modern reality that agencies must bear the responsibility of being detailed where Congress has only the ability to be general. Viewed through this lens, this Note's core contention becomes clear--major questions are major opportunities.

This Note will proceed in three parts. Part I will review the baseline doctrine provided by Chevron. Part II will chronicle the legal history of the major question exception. And Part III will make the aforementioned practical and constitutional argument; documenting the broad expansion of executive power that has accompanied Congress's increased tendency to rely exclusively on agencies to craft policy details in Section III.A, and arguing for a reinvigorated conception of the major question exception in Section III.B.

1. CHEVRON DEFERENCE: THE BASICS

   The Supreme Court's decision in Chevron U.S.A. v. Natural Resources Defense Council, Inc., (15) has become an essential staple of administrative law. (16) Before examining Chevron and the doctrine it has created, an initial look at the sort of situations in which the doctrine applies is warranted.

   In an era in which Congress is forced to leave executive agencies considerable discretion to fill in policy details, (17) agencies must nevertheless tailor their actions to statutes passed by Congress. Though the Supreme Court has been extraordinarily accommodative of Congress's routine desire to grant executive agencies broad authority to fill in the blanks in pursuit of certain policy objectives, it has always acknowledged that naked congressional delegations of legislative power are unconstitutional. (18) Thus, in order to avoid running afoul of the Constitution, Congress must "lay down by legislative act an intelligible principle to which the person or body authorized [to act] is directed to conform." (19) In practice, this standard has been remarkably easy for Congress to meet. (20) Indeed, only two statutes in history have flunked this test. (21)

   Open-ended legislative arrangements rubber-stamped by the Court have included: the Communications Act's empowerment of the FCC to act as "public convenience, interest, or necessity requires;" (22) the Renegotiation Act's creation of a Renegotiation Board tasked with determining "excessive profits;" (23) the Public Utility Holding Company Act's authorization of the SEC to stamp out "unfair[] or inequitabl[e]" distributions of voting power; (24) and, the Emergency Price Control Act's creation of a Price Administrator to "effectuate the purposes of [the] Act" by fixing "fair and equitable" commodity prices. (25)

   Under the resulting legal regime, the nondelegation doctrine is indeed a "dead letter," (26) and Congress is free in practice to leave statutes as designedly vague as it pleases. (27) Quite commonly, then, executive agencies are charged with issuing rules and adjudications that bind the public at a greater level of specificity than whatever broad outlines Congress provided. (28) Any such action on the agency's part must be based on a permissible interpretation of the underlying statute from which the agency gleans its authority to act in the first place. (29) Thus, parties opposed to a regulation often seek to persuade reviewing courts that an agency based the regulation on a flawed interpretation of the organic statute at issue. The famous two-step inquiry outlined by the Court in Chevron deals with this type of case, functionally tipping the scale in favor of agencies by instructing reviewing courts to defer to any reasonable statutory interpretation proffered by the agency. (30)

   Formally speaking, Chevron directs courts to first assess "whether Congress has directly spoken to the precise question at issue." (31) If the court finds "the intent of Congress [to be] clear," it may disregard the agency's interpretation and "must give effect to the unambiguously expressed intent of Congress." (32) If, on the other hand, the court deems the statute to be "silent or ambiguous with respect to the [interpretive question]," then it must uphold any "permissible construction of the statute" adopted by the agency. (33) "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." (34) Thus, as long as an agency's resolution of a statutory ambiguity is reasonable, its "position [with respect to that ambiguity] prevails" under Chevron, (35)

   For all its simplicity, Chevron relies on no shortage of persuasive theoretical justifications. (36) Indeed, although separate camps have emerged along familiar lines with respect to Chevron's actual application, Chevron's principal rationale is one that Justice Breyer (37) and Justice Scalia (38) always agreed upon: "Courts defer to agency interpretations of law when, and because, Congress has told them to do so." (39)

   Broadly speaking, Congress issues this "implicit ... delegation of law-interpreting power to administrative agencies" (40) in the recognition that resolving statutory ambiguities necessitates policymaking, a function better performed by "those with great expertise," who, as agents of the president, are "accountable to the people" for "resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities." (41) Agencies are expert and accountable; courts are not.

   Of course, Congress retains the constitutional prerogative to deny agencies this interpretive function, as in the ordinary course Congress alone has the power to legislate, (42) and the judiciary alone the power "to say what the law is." (43) This reality requires federal courts to engage in a threshold consideration of whether Congress has indeed intended to delegate interpretive authority to the agency at issue. (44) Here, what Thomas Merrill and Kristin E. Hickman have famously dubbed " Chevron Step Zero," (45) became "the central location of an intense and longstanding disagreement" between Justices Breyer and Scalia that remains largely unresolved today. (46) While Justice Breyer's favored approach would require a functional evaluation of Congress's most likely intention in the particular case at hand, (47) Justice Scalia's approach would instead call on courts to establish and maintain "a background rule of law against which Congress can legislate." (48)

   This classic tension between formalism and functionalism is not unique to Chevron, but has still prompted the Court to formally consider when deference is appropriate under a preliminary finding that Congress has indeed enacted the statute at issue with a fictional intent to delegate interpretive authority to the responsible agency. (49) In United States v. Mead Corp., (50) the Court implemented a framework for distinguishing those delegations that...