Scalia’s Major Mousetrap: The Modest Origins of the Major Questions Doctrine
James Ming Chen*
Abstract: The rhetoric if not the reasoning of the Supreme Court’s newly recognized “major questions doctrine” originates in the jurisprudence of Justice Antonin Scalia. The major questions doctrine rests on little more than Justice Scalia’s exercises in Latin etymology and his felicitous announcement that Congress “does not . . . hide elephants in mouseholes.” This doctrine threatens to eclipse textualist statutory interpretation. Textualism, which had long lived by the ipse dixit, now dies by the ipse dixit. But one must mourn for the Constitution. Justice Scalia’s major mousetrap comes not as a mouse, but as a wolf.
Keywords: Antonin Scalia, MCI v. AT&T, Whitman v. American Trucking Associations, major questions doctrine
For the first time in the history of the Supreme Court, the 2022 case of West Virginia v. EPA has given the explicit name of the “major questions doctrine” to interpretive principles that have been agitating the Justices for nearly three decades.[1] Although individual Justices have spoken of that doctrine, West Virginia v. EPA represented the first time that a majority opinion had identified the “major questions doctrine” by name.[2]
The major questions doctrine purports to address the “particular and recurring problem” of “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”[3] The agency’s failure in West Virginia lay in the purported discovery of a “newfound power” in the latent, untapped potential of an incidental “gap filler” and the assertion of “a regulatory program that Congress had conspicuously and repeatedly declined to enact” on its own.[4]
I shall leave the full elaboration of the major questions doctrine for another time.[5] This essay undertakes a less ambitious but entertaining task. This essay traces the origins of this monumental shift in administrative law to a rhetorical sleight of tongue by the late Antonin Scalia.
In the 1991 case of Chisom v. Roemer, Justice Scalia proclaimed a “regular method” for statutory interpretation.[6] First, “find the ordinary meaning of [statutory] language in its textual context.”[7] Second, use “established canons of construction” to determine “whether there is any clear indication” to apply “some permissible meaning other than the ordinary one.”[8]
Justice Scalia added a distinctive pair of “whole code” canons to his two-step Chisom formula. First, identical words in diverse statutes should be held to the same meaning.[9] Second, differences in statutory wording dictate divergent interpretations.[10] The whole code rules generalize traditional canons such as noscitur a sociis[11] and expressio unius est exclusio alterius[12] to the United States Code writ large. They effectively treat the entirety of federal statutory language as a linguistic corpus.[13] Together with Justice Scalia’s quirky hostility toward legislative history,[14] the Chisom two-step and the whole code rules of consistent usage and meaningful variation express much of his commitment to inferring “the meaning of a statute . . . from its text and from its relationship with other laws.”[15]
Justice Scalia also loved etymology. Justice Scalia torched Confrontation Clause jurisprudence because the Latin root of confront literally means “forehead.”[16] Justice Scalia again used Latin etymology in the 1994 case of MCI v. AT&T.[17] He reasoned that modify permits only incremental change because that verb’s Latin root forecloses a broader definition synonymous with change.[18] MCI became a notorious instance of Justice Scalia’s adventures in dictionary shopping.[19] Curiously, Justice Scalia later failed to endorse comparable etymological analysis of carry, which led Justice Breyer to conclude that the phrase “uses or carries a firearm” covers the transportation of a gun inside a car or truck.[20]
One year after MCI, the Supreme Court entertained a clash rightly styled “Nino’s Nightmare.”[21] The United States Fish and Wildlife Service had issued a regulation that included “significant habitat modification or degradation” within the definition of “harm” under the Endangered Species Act.[22] By extension and in effect, the Fish and Wildlife Service expanded within that statute’s prohibition against the “tak[ing]” of endangered species.[23] Babbitt v. Sweet Home Chapter of Communities for a Great Oregon upheld Fish and Wildlife’s habitat modification regulation.[24]
Justice Scalia dissented vigorously.[25] He lamented the conscription of freehold farmland for “national zoological use.”[26] Remarkably, Justice Scalia’s Sweet Home dissent neglected to deploy the elaborate etymological analysis of modify that he had conducted just the year before in MCI. Although the Fish and Wildlife rule targeted “significant habitat modification and degradation,” Justice Scalia neither cited MCI nor applied his analysis of modify from that case.[27] If he had consulted MCI, he surely would have condemned “significant habitat modification” as an incoherent oxymoron. How can “modification” in the sense of incremental change be credibly paired with the adjective significant? The mere suggestion that modification, an etymologically constrained subset of change, could “harm” wildlife dramatically expanded the reach of the Fish and Wildlife rule.
Sweet Home was a huge missed opportunity. In addition to losing a critical case in environmental law, Justice Scalia crippled his mission of binding the Supreme Court to textualist rigor. If the word substantially unifies the meaning of the Equal Access to Justice Act with that of the Administrative Procedure Act and the Federal Rules of Civil Procedure, then surely the word modify applies with equal force to the conservation of endangered species and the regulation of telephone companies.[28] It “says something about [Justice Scalia’s] approach” to Sweet Home “that the possibility of applying” MCI’s reading of modify “never crossed [his] mind.”[29]
All of which leads to Justice Scalia’s opinion in Whitman v. American Trucking Associations, Inc.[30] Whitman rejected the ancient constitutional doctrine against unlawfully excessive delegations of Congress’s legislative authority.[31] The Clean Air Act (CAA) prescribes national ambient air quality standards “requisite to protect the public health” by “an adequate margin of safety.”[32] That statutory formula readily provides an “intelligible principle.”[33] Whitman accordingly concluded that the EPA’s air quality rules fell “well within the outer limits” of the nondelegation doctrine[34] — a tiny, obscure body of jurisprudence that had thitherto enjoyed exactly “one good year.”[35]
Whitman also rejected the Environmental Protection Agency’s interpretation and implementation of the CAA. In nearly any other case, finding the CAA “to some extent ambiguous” would lead the Court to defer to the EPA’s interpretation. But Whitman reasoned that “the agency [went] beyond the limits of what is ambiguous and contradict[ed] what [was] quite clear.”[36] In support of this reasoning, Justice Scalia announced that Congress “does not . . . hide elephants in mouseholes.”[37]
Justice Scalia’s “elephants in mouseholes” reasoning should be more formally elaborated as the observation that “Congress . . . does not alter the fundamental details of a regulator scheme in vague terms or ancillary provisions.”[38] This reasoning relied squarely on MCI v. AT&T. MCI had warned against using marginal statutory language, with a verb as etymologically constrained as modify, to enable an agency to make a “radical or fundamental change” in statutory implementation.[39]
Justice Scalia’s “elephants in mouseholes” statement quickly overtook the judicial apparatus for reviewing agency interpretations of law. In cases contesting congressional delegations over the possible regulation of tobacco,[40] drugs used in assisted suicide,[41] greenhouse gas emissions from stationary sources,[42] and health insurance tax credits,[43] the Court has invalidated agency rules whenever the controversy involved a matter of “vast ‘economic and political significance’” and the Justices failed to find clear congressional authorization supporting the agency’s assertion of regulatory authority.[44] In two politically prominent COVID-19-related disputes, the Justices relied on similar reasoning in their summary rejections of the CDC’s nationwide eviction moratorium[45] and OSHA’s vaccination mandate.[46]
The newly announced major questions doctrine relies squarely on Justice Scalia’s contributions. The Chief Justice’s opinion for the Court in West Virginia v. EPA quotes MCI.[47] Justice Gorsuch’s radically bolder concurrence invokes both Whitman’s “elephants in mouseholes” dictum and MCI’s reliance on the limits inherent in the verb modify.[48] The major questions doctrine truly is the mouse that roared.[49] In honor of Antonin Scalia, we could call it Scalia’s major mousehole.
A better name, though, would be Scalia’s major mousetrap. The major questions doctrine rests upon an incoherent, false, and dangerous expansion of MCI and Whitman into a clear statement rule that is at once novel and needless. Justice Scalia’s own rules of consistent usage and meaningful variation would confine MCI to instances where legal language recites a limiting verb such as modify.
That famously modest verb, after all, limited the discretion of the FCC to implement the Communications Act’s ancient and woefully obsolete common carrier provisions. Delegations of regulatory power not constrained by such a modest verb should be construed according to the default rules governing judicial review of administrative interpretations of law. If a statute uses less constrained language to authorize discretionary change in policy by the agency, MCI should yield to the default regime of Chevron U.S.A v. Natural Resources Defense Council.[50] If ordinary tools of statutory interpretation leave doubt as to the meaning of the law, courts should defer to administrative agencies’ reasonable legal interpretations.[51] This approach generalizes the expressio unius canon to a comparison of statutes.[52] To specifically demand modesty at the margins of one regulatory scheme is to permit flexibility and strength through broader delegations elsewhere in the administrative state.
Through Latin etymology and one colorful metaphor, Justice Scalia enabled the Supreme Court to hide an elephant of a constitutional revolution behind a mousehole. More by repetition than by reason, the Court has leveraged MCI v. AT&T and Whitman v. ATA into an “established canon[] of construction.”[53] Mindlessly repeated citations have conferred the patina of jurisprudential longevity and the veneer of legitimacy.
Constitutional law and its supporting complex of rules do evolve. Interpretive canons “rest on sources that are inherently evolutive, such as the common law or the Constitution.”[54] But the major questions doctrine was carelessly stitched together, and mostly in defense of a constitutional doctrine whose strongest authority is still a political science dissertation masquerading as a judicial dissent.[55] The shakiness of the major questions doctrine suggests that the strength, arbitrariness, and virulence of a clear statement rule varies directly with the weakness of the constitutional defect it addresses.
The major questions doctrine has transmogrified Antonin Scalia’s idiosyncratic views on statutory interpretation into a destructive form of stealth constitutional law.[56] Its immediate effect is to undermine textualism, the project to which Justice Scalia assuredly dedicated his career but arguably never finished.[57] Whenever textualism threatens “broader goals” within this Court’s political agenda, “special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”[58] Skeptics of Justice Scalia’s jurisprudence may relish the spectacle by which textualism, which had long lived by ipse dixit, now dies by the ipse dixit.[59] “But one must grieve for the Constitution.”[60] For this mouse comes not as an elephant in rodent’s clothing. This mouse comes as a wolf.[61]
* James Ming Chen, Professor of Law and Justin Smith Morrill Chair, Michigan State University, chenjame@law.msu.edu.
[1] 142 S. Ct. 2587, 2609 (2022).
[2] See Alli Orr Larsen, Becoming a Doctrine, 79 Fla. L. Rev. (forthcoming 2024) (available at https://ssrn.com/abstract=4374736).
[3] West Virginia, 142 S. Ct. at 2609.
[4] Id. at 2610.
[5] See James Ming Chen, Doctrinal Destruction and Chevron’s Extinction Debt (2023) (available at https://ssrn.com/abstract=4392722).
[6] 501 U.S. 380, 404 (1991) (Scalia, J., dissenting).
[7] Id.
[8] Id.
[9] See Pierce v. Underwood, 487 U.S. 552, 564–65 (1988).
[10] See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 88 (1991).
[11] See, e.g., Lagos v. United States, 138 S. Ct. 1684, 1688–89 (2018) (defining noscitur a sociis as the “Latin phrase that tells us that statutory words are often known by the company they keep”).
[12] Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 168 (1993).
[13] See generally In re Adoption of Baby E.Z., 266 P.3d 702 (Utah 2011); Michael A. Livermore, Law as Data: Computation, Text & The Future Of Legal Analysis (Daniel N. Rockmore ed., 2019); Stephen C. Mouritsen, The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev. 1915.
[14] See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring in the judgment).
[15] Antonin Scalia, Judicial Deference to Administrative Interpretation of Law, 1989 Duke L.J. 511, 521.
[16]See Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (“[T]he word ‘confront’ ultimately derives from the prefix ‘con-’ (from ‘contra’ meaning ‘against’ or ‘opposed’) and the noun ‘frons’ (forehead).”).
[17] MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218 (1994).
[18] See id. at 225.
[19] See, e.g., Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275 (1998); James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483 (2013); Jeffrey L. Kirchmeier & Samuel A. Thumma, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77 (2010); Miranda McGowan, Do As I Do, Not As I Say: An Empirical Investigation of Justice Scalia's Ordinary Meaning Method of Statutory Interpretation, 78 Miss. L.J. 129 (2008).
[20] See Muscarello v. United States, 524 U.S. 125, 128 (1998). Justice Scalia joined Justice Ginsburg’s dissent. See id. at 139.
[21] See William N. Eskridge, Jr., Nino’s Nightmare: Legal Process Theory as a Jurisprudence of Toggling Between Facts and Norms, 57 St. Louis U. L.J. 865 (2012).
[22] 50 C.F.R. § 17.3(c)(3).
[23] Compare 16 U.S.C. § 1538(a)(1) (declaring it illegal for any person to “take” an endangered species) with id. § 1532(19) (defining “take”).
[24] 515 U.S. 687 (1995).
[25] See id. at 714–36 (Scalia, J., dissenting).
[26] Id. at 714.
[27] 50 C.F.R. § 17.3 (emphasis added).
[28] Cf. Pierce v. Underwood, 487 U.S. 552, 564-65 (1988).
[29] Chisom v. Roemer, 501 U.S. 380, 412 (1991) (Scalia, J., dissenting).
[30] 531 U.S. 457 (2001). See generally William K. Kelley, Justice Scalia, the Nondelegation Doctrine, and Constitutional Argument, 92 Notre Dame L. Rev. 2107 (2017).
[31] See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935); cf. Indus. Union Dept., AFL–CIO v. Am. Petrol. Inst., 448 U.S. 607, 685–88 (1980) (Rehnquist, J., concurring in the judgment) (articulating arguments for invalidating the Occupational Safety and Health Act under the nondelegation doctrine); Yakus v. United States, 321 U.S. 414 (1944) (rejecting a nondelegation challenge to the setting of wartime prices); Fed. Power Comm’n v. Hope Nat. Gas Co., 320 U.S. 591 (1944) (rejecting a nondelegation challenge to “just and reasonable” rates).
[32] 42 U.S.C. § 7409(b)(1).
[33] J.W. Hampton, Jr., Co. v. United States, 276 U.S. 394, 409 (1928); accord Mistretta v. United States, 488 U.S1 361, 372 (1989).
[34] Whitman, 531 U.S. at 474.
[35] Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 322 (2000).
[36] Whitman, 531 U.S. at 481 (citing AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 392 (1999)).
[37] Id. at 468.
[38] Id. at 468 (citing MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994)).
[39] MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 229 (1994).
[40] FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000); accord Whitman, 531 U.S. at 468.
[41] See Gonzales v. Oregon, 546 U.S. 243 (2006).
[42] See Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014).
[43] See King v. Burwell, 576 U.S. 473 (2015).
[44] Util. Air Regul. Grp., 573 U.S. at 324.
[45] See Alabama Ass’n of Realtors v. Department of Health & Human Servs., 141 S. Ct. 2485 (2021) (per curiam).
[46] See Nat’l Fed. of Indep. Bus. v. OSHA, 142 S. Ct. 661 (2022) (per curiam).
[47] West Virginia v. EPA, 142 S. Ct. 2587, 2609, 2612 (2022).
[48] See id. at 2622 (Gorsuch, J., concurring).
[49] See Leonard Wibberley, The Mouse That Roared (Little, Brown & Co. 1955).
[50] 467 U.S. 837 (1984).
[51] See id. at 842–43.
[52] Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 168 (1993).
[53] Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting).
[54] Philip P. Frickey, Interpretive-Regime Change, 38 Loy. L.A. L. Rev. 1971, 1991 (2005).
[55] See Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting).
[56] See generally William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992); Anita Krishnakumar, Passive Avoidance, 71 Stan. L. Rev. 513 (2019).
[57] See generally Abbe R. Gluck, Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up, 92 Notre Dame L. Rev. 2053 (2017).
[58] West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting).
[59] Morrison v. Olson, 487 U.S. 654, 726 (1988) (Scalia, J., dissenting).
[60] Id.
[61] Cf. id. at 699 (“But this wolf comes as a wolf.”).
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