Who Determines Majorness?

• Author: Squitieri, Chad

INTRODUCTION I. DOCTRINAL OVERVIEW A. The Nondelegation Doctrine B. The Major Questions Doctrine C. Strengthening the Major Questions Doctrine II. THE TEXTUALIST CRITIQUE A. Textualism Defined B. Congressional Determinations of Majorness 1. Past or Present 2. Ordinarily Futile 3. Statutorily Suspect C. Judicial Determinations of Majorness 1. Descriptive Account 2. Political Veto 3. Supreme Nature III. PRE-DECISIONAL CONSIDERATIONS OF IMPORTANCE A. Clarifying Points B. Discretionary Docket C. En Banc Review CONCLUSION INTRODUCTION

Do federal courts have the constitutional authority to definitively determine questions of politics? The answer would appear obvious: No. Separation-of-powers principles mandate that the judiciary play no direct role in the political process. Instead, federal courts are limited to faithfully applying the outcome of the political process (i.e., law) to particular sets of facts. (1) Peculiar then is the major questions doctrine, which calls on courts to determine policy questions' "economic and political significance." (2)

The major questions doctrine is said to do one thing but in practice does another. What is more, at least two sitting Supreme Court Justices have proposed strengthening the major questions doctrine so that it does something else entirely. (3) Both of those Justices are committed textualists. (4) The present moment thus calls for a thorough explanation as to why textualists should reject the major questions doctrine--including what the doctrine is said to be, what the doctrine actually does in practice, and what the doctrine might soon become.

The major questions doctrine is said to assist courts in identifying whether Congress has delegated authority. As the Supreme Court put it, "We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'" (5) Baked into that understanding of the major questions doctrine is an implicit presumption that has gone unexamined in present scholarship--namely, that it is Congress who decides what is major. How else could Congress fairly be "expect[ed]" to more clearly delegate major authority than non-major authority if Congress does not itself determine what is major?

If the major questions doctrine truly implies a need for courts to elucidate and respect congressional determinations of majorness, textualists should reject the doctrine. That is because textualists understand the 535-member Congress as having no single conception as to what is politically major. Different legislators (and the President exercising the veto power) have different understandings as to which policy questions are major. Thus, from the textualist's perspective, tasking courts with elucidating a single majorness determination shared by all of Congress is to task courts with conducting an ordinarily futile task.

Even if elucidating a congressional determination of majorness were in some instances theoretically possible, textualists should be suspect of the current doctrine's reliance on the judge-made "presumption" that Congress "intends to make major policy decisions itself, not leave those decisions to agencies." (6) That judge-made presumption is in tension with the enacted text of the Congressional Review Act (CRA). (7) That Act presumes that federal agencies will answer major questions through major rules, and that those rules are to be given legal effect unless Congress expressly says otherwise. (8)

Textualism is also incompatible with what the major questions doctrine does in practice. As an analysis of the relevant major questions doctrine cases will reveal, courts are entirely unconcerned with elucidating congressional determinations of majorness. Courts are instead interested in determining majorness themselves. So although the major questions doctrine is said to speak to whether Congress has delegated authority, in practice, the major questions doctrine is invoked to tell Congress how it may delegate authority.

The difference between those two perceptions of the current major questions doctrine is subtle because the end result is the same: Congress makes its major delegations explicit. But there is a nontrivial distinction between a judicial attempt to elucidate and respect a congressional determination of majorness (a task textualists should reject as ordinarily futile and statutorily suspect), and a judicial mandate to use particularly clear legislative language when discussing those policy questions that a court declares to be major. The latter amounts to courts improperly inserting themselves into the Article I, Section 7 lawmaking process. Because Article I, Section 7 establishes the exclusive lawmaking procedures within which courts are to play no role, textualists should reject the major questions doctrine for what it allows in practice. (9)

Textualists should also reject what the major questions doctrine might soon become. In its current form, the major questions doctrine is already a product of the Supreme Court's historical reluctance to enforce the nondelegation doctrine, which itself prohibits Congress from delegating its legislative powers. (10) But although the current major questions doctrine might be motivated by underenforced nondelegation principles, the current major questions doctrine stops short of prohibiting Congress from delegating any authority. Instead, as long as Congress clearly delegates the authority to decide major questions, the current major questions doctrine is satisfied. In two recent opinions, however, Justice Gorsuch (writing for three) (11) and Justice Kavanaugh (writing alone) (12) have proposed strengthening the major questions doctrine so that it could be used to prohibit Congress from delegating major authority. To wit, a strengthened major questions doctrine would prohibit Congress from delegating the "authority to decide major policy questions," while leaving Congress free to delegate "the authority to decide less-major or fill-up-the-details decisions." (13)

For those eager to breathe new life into the nondelegation doctrine, strengthening the major questions doctrine may seem like a step in the right direction. After all, preventing "major" delegations may seem better than not preventing any delegations. On the other side of the same coin, those who fear that a fully reinvigorated nondelegation doctrine would spell disaster for the modern administrative state may see an extended major questions doctrine as a more palatable half-measure. But despite the doctrine's potential to serve as a modus vivendi, textualists should reject a strengthened major questions doctrine. This means that, for textualist jurists interested in reviving the nondelegation doctrine, strengthening the major questions doctrine is the wrong way forward. Failing to acknowledge as much risks tying a revived nondelegation doctrine to a majorness inquiry that, at bottom, asks courts to exercise the same type of political discretion that has doomed the current nondelegation doctrine to decades of underutilization. (14)

After providing a brief overview of the relevant doctrines in Part I, Part II explains why textualists should reject the major questions doctrine--both in its present and strengthened forms. Explaining as much requires answering a threshold question that courts and scholars have yet to address: Who determines majorness? As noted above, there are two possible answers, either Congress or the courts. Neither answer is acceptable from the textualist's perspective.

After explaining why textualists should reject the major questions doctrine, Part III highlights two pre-decisional contexts in which courts may consider policy questions' "importance" in an effort to advance nondelegation principles. First, in considering petitions for writs of certiorari, the Supreme Court may consider whether a case presents an "important" federal question. (15) Second, federal courts of appeals may consider a case's "importance" when considering whether the case warrants en banc review. (16) From the textualist's perspective, these two "importance" inquiries are less objectionable than the major questions doctrine because Congress has granted federal courts the statutory authority to consider "importance" in pre-decisional contexts, but not "majorness" when deciding cases on the merits. (17) Thus, those textualist jurists who wish to limit a revived nondelegation doctrine to major questions may prefer to do so in part by applying the revived doctrine to those cases identified as presenting important nondelegation questions.

1. DOCTRINAL OVERVIEW

   The nondelegation doctrine considers what authority Congress can delegate. Currently, the major questions doctrine is said to speak to whether Congress has delegated authority--although in practice the doctrine is used to tell Congress how it can delegate authority. Part I provides a brief overview of the current state of both the nondelegation and major questions doctrines, as well as the recent proposal to strengthen the latter doctrine into a revived form of the first.

   1. The Nondelegation Doctrine

      Derived from the Constitution's vesting of "all legislative Powers" in Congress, the nondelegation doctrine prohibits Congress from delegating its legislative powers to other entities, such as administrative agencies. (18) Today the doctrine permits Congress to delegate decision-making discretion to agencies so long as the agency's discretion is cabined by an "intelligible principle" set by Congress. (19) The "intelligible principle" test is not difficult to satisfy, making the modern nondelegation doctrine something of a dead letter. As Professor Cass Sunstein put it, the nondelegation doctrine "has had one good year," and over two hundred "bad ones." (20)

      In the good year, 1935, the Supreme Court considered a provision in the National Industrial Recovery Act (NIRA) that purported to prohibit the transportation of oil produced in...