Last week the Supreme Court ruled in West Virginia v. EPA that the Environmental Protection Agency did not have the legal authority to enact a sweeping regulation of greenhouse-gas emissions known as the Clean Power Plan. In doing so, the Court’s conservative majority invoked the “major questions doctrine.” That freshly minted doctrine holds that an administrative agency may only regulate matters of “vast economic and political significance” when the agency is empowered to do so via statutory language that puts matters regulated within the agency’s authority in an especially clear way. In her dissenting opinion, Justice Kagan explained how the major questions doctrine is inconsistent with textualism — the theory of statutory interpretation associated with the late Justice Scalia, pursuant to which judges focus on statutory text, structure, and history. Justice Kagan is correct.
I am a committed textualist and a law professor who researches administrative law topics such as those at issue in West Virginia. Although I strongly agree with the majority opinion and Justice Gorsuch’s concurrence in West Virginia that the Court must enforce constitutional limits on Congress’s ability to delegate lawmaking authority to administrative agencies, the major questions doctrine is not the right way for textualists to do it, as I’ve argued at length elsewhere. That is so for two reasons.
First, the major questions doctrine purports to empower a judge to change how he interprets a statute based on whether he thinks a case presents a question of “major” political and economic significance. But a statute says what it says irrespective of whether it implicates a major political controversy. In any event, judges are not politicians. Judicial decisions premised on political calculations are therefore a risky endeavor, as a judge might be mistaken as to which questions are of true political significance. Indeed, because federal judges are constitutionally insulated from politics, they are particularly ill-suited to identify which questions are of enhanced political importance. Such decisions are better left to our elected representatives, whose political calculations can be assessed at the ballot box.
Second, the major questions doctrine is statutorily suspect. The doctrine flows from the judge-made presumption that Congress intends to decide major political questions itself rather than empower administrative agencies to decide such questions. But the Congressional Review Act exhibits that Congress presumes the precise opposite. Specifically, the Congressional Review Act acknowledges that administrative agencies — not Congress — will answer major questions through “major rules.” The Act’s definition of “major rule” similarly considers economic and political significance, and the Act requires that each major rule be given legal effect unless Congress affirmatively enacts new legislation stating that a particular major rule should be rejected. The major questions doctrine — which essentially refuses to give legal effect to major rules unless Congress clearly granted the agency authority to issue the rule — turns Congress’s chosen regulatory procedure on its head. In short, the Congressional Review Act demonstrates that judges are wrong to presume that Congress intends to decide major questions itself.
Congress has shown itself more than eager to empower administrative agencies to decide major questions, which presents a problem for our republican form of government. The justices who voted against the agency in West Virginia were therefore correct to demand that Congress, and not unelected bureaucrats, shape national policy. But those justices — whose commitment to textualism I do not doubt — risk undermining textualism in the process when they invoke the major questions doctrine.
Courts should limit Congress’s ability to punt tough decisions to administrative agencies across the board, not just when a judge thinks a particular question important. Textualists, including the textualist justices on the Supreme Court, would therefore do best by tossing the major questions doctrine aside and returning to a dogged focus on statutory text, structure, and history.