THE MINOR QUESTIONS DOCTRINE.

• Author: Nielson, Aaron L.

INTRODUCTION 1182 I. UNDERSTANDING CHEVRON AND MAJOR QUESTIONS 1187 A. The Basics of Chevron 1187 B. The Major Questions Doctrine 1192 II. UNDERSTANDING COLLECTIVE-ACTION DYNAMICS 1196 A. The Logic of Collective-Action Dynamics 1196 B. Collective-Action Dynamics and Theories of Government 1199 C. How to Address Collective-Action Dynamics 1202 III. CHEVRON AND COLLECTIVE-ACTION DYNAMICS 1203 A. An Intuitive Explanation 1204 B. A Mathematical Explanation 1209 C. Real World Applications 1213 IV. THE MINOR QUESTIONS DOCTRINE 1218 A. Mirroring the Major Questions Doctrine 1218 B. A New Form of Chevron Waiver 1220 C. Reverse the Chevron Presumption 1222 D. Which Version Is Best? 1223 V. COUNTERARGUMENTS. 1223 A. Do Minor Questions Matter? 1224 B. Why Hasn't Congress Already Acted? 1225 C. A More Realistic Understanding of Policymaking? 1226 D. Are There Better Solutions? 1229 E. What About Delegation Generally? 1231 CONCLUSION 1232 INTRODUCTION

One of the most controversial features of modern administrative law is the major questions doctrine--the rule that courts do not defer to an agency's otherwise reasonable interpretation of an ambiguous statute if the interpretation "concerns a question of deep economic and political significance that is central to the statutory scheme." (1) In a series of cases, the Supreme Court has applied the major questions doctrine to prevent agencies from adopting policies with "extraordinary" consequences. (2)

As one might expect, the major questions doctrine is not popular in all circles. (3) Critics argue that there is no reason why major questions merit closer scrutiny, (4) if, indeed, there is a reliable way to tell the difference between major questions and regular ones. (5) Critics also worry that this doctrine's emergence is part of a broader attack on the administrative state. (6) In light of the recent elevations of Justices Gorsuch and Kavanaugh, two major supporters of the major questions doctrine, (7) both the doctrine's supporters and critics believe that the Supreme Court will soon begin targeting major questions more vigorously. (8)

Yet in this back and forth, something important has been overlooked: Chevron's application to minor questions also merits attention. Minor questions--i.e., relatively uncontroversial, often bipartisan policies that help the public but that are not especially salient--are ubiquitous. They include "good government" measures like making information more accessible, updating obsolete rules, or closing loopholes. (9) The public is often better off when the government addresses such minor questions. Yet contrary to the conventional view that Chevron deference inherently results in a more active federal government, (10) there is reason to fear that sometimes minor questions are not addressed because of deference.

This counterintuitive claim is explained by collective-action dynamics. When two branches of government share the same policymaking space, a shared temptation to freeride may systemically push both toward inactivity. Policymaking for even relatively uncontroversial issues can be costly. Even if a policy is beneficial overall, moreover, the costs to bring it about are not evenly distributed; the branch that acts will bear most of the costs but will only receive a portion of the benefits, creating positive externalities for the non-acting branch. Hence, where overlapping policymaking power exists, we sometimes should expect both Congress and the White House (11) to prefer the other to act. And because both Congress and the White House often have that same incentive, it is possible that the equilibrium outcome is that no one acts. (12) Professor Daniel Hemel has examined this collective-action dynamic in the context of tax law. As he has explained, it appears that even when the White House has the power to increase tax revenue via regulation pursuant to policies that the President openly favors, sometimes nothing happens precisely because Congress could also implement that policy. (13)

This collective-action observation is relevant here because Chevron deference, by design, gives the White House greater power to fashion policy. (14) After all, at bottom, Chevron is a form of policymaking discretion that is grounded in a theory of implied delegation from Congress to the agency. (15) Because of deference, agencies have a freer hand to make policy. The expanded policymaking discretion that Chevron provides agencies in turn creates a larger overlapping policymaking space between Congress and the White House (i.e., the universe of policies that either branch can create), amplifying the risk of stagnation caused by collective-action dynamics.

Notably, the risk of stagnation may be particularly pronounced for at least two categories of policies. First, stagnation is presumably more likely for policies with diffuse benefits and concentrated costs. Most models of government action already predict that policymakers are less likely to act if the benefits are shared broadly and the costs fall on a narrow group. (16) That dynamic may be exacerbated, however, when policymaking power is shared and freeriding becomes possible. Because minor questions often fit that diffuse-benefits-concentrated-costs mold (which is a reason why they tend to be less salient), the collective-action problem caused by deference may disproportionately affect them. (17) Second, stagnation is also presumably more likely for technical issues that require relatively more resources to address. (18) When policymaking authority is shared and the costs of making policy are high, freeriding should become relatively more attractive. This characteristic also disproportionately applies to minor questions because technical issues are often inherently less salient. Minor questions thus should be unusually susceptible to a collective-action problem. Yet because minor questions are, well, minor, no one to date has recognized the danger.

Compounding that danger, moreover, is the fact that collective-action dynamics may disproportionately have long-term effects for minor questions. By definition, major questions prompt widespread debate and political action, which may moot the need for judicial review. For instance, the Court had no need to consider whether to apply the major questions doctrine to the FCC's "net neutrality" regulations--which then-Judge Kavanaugh urged should be treated as a major question (19)--because intervening events mooted the issue, namely, the election of a different president. (20) The same is true for the Obama Administration's Clean Power Plan, which the Supreme Court stayed on major questions grounds, (21) but which also was later mooted by a new presidential administration. (22) Even ordinary policies--those that are neither major nor minor, such as (perhaps (23)) the policy in Chevron itself about whether the term "stationary source" allows the "bubble concept" (24)--often are addressed by someone because they are deemed important enough. Yet for minor questions like whether to close small tax loopholes that Congress may never have intended to begin with, eliminate outdated tariffs that no longer achieve their policy objectives, or make technical changes to environmental law, each of which is discussed below, stagnation may be much more long-lasting.

The conventional wisdom that Chevron necessarily enables greater government activity is thus incomplete. Sometimes deference leads to more action, but sometimes it might prevent action that would otherwise occur. The time, therefore, may have come for what this Article calls the minor questions doctrine. There are at least three options for such a doctrine. One involves expanding Chevron Step Zero (25) in a way similar to the major questions doctrine. Another involves recognizing a new species of Chevron waiver (26) that would allow agencies to prospectively renounce deference to certain possible interpretations. And the third involves flipping the Chevron presumption so that agencies only receive deference when Congress says so. The common denominator is that each option would eliminate overlapping policymaking space for minor questions. Although there are important counterarguments to a minor questions doctrine, reform may be necessary to counter the risk that deference sometimes thwarts rather than enables policymaking.

1. UNDERSTANDING CHEVRON AND MAJOR QUESTIONS

   To appreciate the need for a minor questions doctrine, it is helpful to understand Chevron deference and the emergence of the major questions doctrine, which is an exception to the ordinary Chevron framework.

   1. The Basics of Chevron

      The story of Chevron has been told many times before. (27) The gist is that the Supreme Court has held that Congress implicitly delegates to federal agencies interpretative discretion over the statutes they administer, within certain bounds, unless Congress directly speaks to an issue. (28) The Court famously articulated the two-step rule as follows:

      When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. (29) A reviewing court's conclusion about which reading of a statute is the "best" one therefore need not be dispositive; if the statute is...