Major Questions and the Ecosystems of Regulatory Jurisprudence
Glen Staszewski*
In a recent essay[1] and longer companion piece,[2] Professor Jim Chen traces the origins and development of the Supreme Court’s recently coined “major questions doctrine.”[3] He trenchantly criticizes the doctrine on numerous grounds,[4] including that federal courts have seized authority to make policy decisions that are better resolved by administrative agencies with greater technical and subject matter expertise.[5] Chen also draws on lessons from the biological sciences to argue that the major questions doctrine modifies the ecosystem of regulatory jurisprudence in ways that could lead to both Chevron’s and textualism’s extinction.[6]
I fully agree with the bulk of Chen’s critique, and I would add that the major questions doctrine undermines pluralistic democracy by shifting authority from more deliberative and contestatory legislative bodies and agencies to less deliberative and contestatory courts.[7] Agencies, in particular, are the primary institutional site in our contemporary federal government for promoting what Anya Bernstein and I have recently called “agonistic republicanism.”[8] In this vision, democracy provides multiple ways for different people to press their views in deliberation and negotiation with one another in an effort to reach reasonably justifiable decisions that are themselves provisional, subject to further debate and revision as time goes on.[9] Yet instead of allowing Congress to capitalize on agencies’ pluralistic democratic potential—EPA’s Clean Power Plan, for example, involved several years of careful study, public engagement, and highly collaborative development, and the agency was legally obligated to consider and respond in a reasoned fashion to the 4.3 million comments it received during a six-month public notice and comment period[10]—the major questions doctrine mobilizes and works together with a judicially created norm against legislative delegations of significant policy questions to establish a pincer that effectively prevents Congress from giving agencies important work to do.[11]
While I am far from an expert on biology, the remainder of this brief commentary focuses on the likely impact of the major questions doctrine on the ecosystem of regulatory jurisprudence. I view this as both the most distinctive aspect of Chen’s scholarly contribution and perhaps the most pernicious aspect of the Court’s recent doctrinal innovation.[12] And while I agree that the Court has harmed both Chevron and textualism,[13] such assessments are complicated by the highly complex and diverse nature of regulatory jurisprudence’s ecosystem(s).
Chen explains that “[c]onservation biology suggests that habitat destruction is most devastating to dominant species, often imposing a biological ‘debt’ that must be repaid through extinction.”[14] Drawing upon this biological metaphor, Chen concludes that “’[m]ajor questions’ having displaced agency deference, Chevron is doomed.”[15] Chen likewise contends that by deviating from the core principles of Justice Scalia’s interpretive philosophy, the major questions doctrine may render textualism extinct.[16] This analysis suggests that our regulatory jurisprudential habitat contains two previously dominant species that are endangered by the major questions doctrine: Chevron and textualism. But I would suggest that it is fruitful to recognize that textualism comes in many flavors,[17] and there are at least two relevant sub-species to consider: conservative and progressive textualism.
“Progressive textualism” also comes in at least two flavors, one focused primarily on outcomes, and another focused primarily on methods.[18] The former approach is my primary focus for purposes of this commentary, and it characteristically privileges the best understanding of statutory text in its present context over the statute’s originally expected applications.[19] In my view, any normatively acceptable brand of “progressive textualism” should also be attentive to the purposes of a statute and the consequences of different interpretations and include an expectation that decision-makers will justify their decisions on the merits, and it should avoid pretending that interpretive problems have single, objectively correct answers. A full elaboration and assessment of this approach and whether it is even properly called “textualism” are projects for another day,[20] but the crucial point for present purposes is that a broadly related species of textualism could be used to reach either conservative or progressive results.[21]
Besides recognizing that our regulatory jurisprudential ecosystem contains several relevant species, I would also suggest that it is useful to recognize that our regulatory jurisprudence contains at least three distinct (though related) ecosystems. The Supreme Court inhabits its own unique jurisprudential habitat.[22] The lower federal courts also have a regulatory jurisprudential habitat of their own. Finally, administrative agencies have their own interpretive habitats that are influenced by, but distinct from, the regulatory jurisprudence of the federal courts.[23]
Recognizing a wider variety of dominant species and the associated complexities of the different ecosystems of regulatory jurisprudence provides opportunities for a more nuanced assessment of the likely impact of the major questions doctrine. Chevron was already extinct as a practical matter in the Supreme Court before last Term’s decisions formally adopted and dramatically strengthened the major questions doctrine.[24] The Court has not cited Chevron since 2020,[25] and it has not upheld an agency’s interpretation of its authorizing act under step two of this framework since 2016.[26] While the Court has not formally overruled Chevron, it has been shunned to death by the justices.
But the Court’s failure to formally overrule Chevron means that the doctrine could still have life in the lower federal courts.[27] Federal circuit and district courts are surely aware of the current Court’s ambivalence and many of those judges likely share the conservative justices’ hostility toward Chevron, but the Court has explicitly prohibited the “anticipatory overruling” of its otherwise binding precedents.[28] While some lower federal court judges will undoubtedly ignore Chevron and treat it with benign neglect,[29] they should technically be required to follow the framework in appropriate cases based on ordinary rules of vertical and horizontal stare decisis.[30] And, of course, some lower federal court judges are still fans of Chevron. Accordingly, the lower federal courts undoubtedly can, and arguably must, continue to follow the Chevron framework in appropriate cases unless and until it is overruled by the Court.[31]
As Chen recognizes, however, the major questions doctrine turns Chevron on its head by holding that “a merely plausible textual basis for the agency action” is insufficient, and “[t]he agency must instead point to ‘clear congressional authorization’ for the power it claims.”[32] Moreover, the criteria for assessing what constitutes a major question are sufficiently uncertain, vague, and malleable—and the likelihood that Congress provided clear authorization for the specific power asserted by the agency sufficiently remote—that both the Court and lower federal courts now have discretionary authority to invalidate virtually any important administrative policy decision that is contrary to the judiciary’s preferences.[33] As explained below, this is likely to have a major chilling effect on agencies’ ability to achieve their statutory mandates by adopting innovative solutions to persistent problems or taking bold and ambitious action to resolve newly emergent challenges or crises. Chevron was already nearly dead, and now it’s rolling over in its grave.
Yet I would not be so quick to plan a funeral for conservative textualism. Outside of selected areas like immigration, where conservatives tend to favor an active and robust role for government,[34] the conservative legal movement generally favors a limited federal government and “deregulation.” Conservative textualism can still be used by federal judges in many cases to invalidate agency action that promotes the public’s health, safety, or welfare as contrary to law—with or without Chevron and without invoking the major questions doctrine. Agency inaction in the face of public-regarding statutory mandates of this nature face special barriers to judicial review,[35] and federal courts could draw upon conservative textualism to uphold the validity of an agency’s failure to act on the merits. And when textualism is used by agencies to reach conservative outcomes that limit the scope of their regulatory authority,[36] the agencies charged with promoting the public’s health, safety, or welfare will almost by definition have refrained from taking bold or ambitious action that would implicate the major questions doctrine. As Chen and others have recognized, the major questions doctrine is a one-way ratchet in favor of deregulation.[37] Accordingly, the major questions doctrine will likely have no impact on the viability of conservative textualism—in the Court, lower federal courts, or agencies.
One cannot say the same for progressive textualism. Textualism is sufficiently amorphous, variable, and discretionary in application that the Court and lower federal courts could admittedly use this methodology to reach progressive outcomes when it suits them.[38] The biggest impact of the major questions doctrine is to limit the use of progressive textualism—or other functionally compatible interpretive methodologies[39]—by agencies. When Congress delegates broad authority to an agency to promote a general set of goals, and the agency takes action to promote its statutory mission based on evolving information and policy views, the agency will typically justify that decision based in part on its consistency with the text of the statute. This is how the modern regulatory state works to achieve Congress’s objectives in a democratically legitimate and legally permissible manner. The major questions doctrine, however, permits any federal court to invalidate the agency’s decision whenever it concludes that the agency’s policy choice has sufficient political or economic significance and the statute does not provide “clear congressional authorization” for the agency’s asserted power, even when there is admittedly a “plausible textual basis for the agency action.”[40] The doctrine thus functions as an escape hatch from progressive textualism by agencies for the federal judiciary.
And, of course, this lesson cannot be lost on federal agencies. They know the federal judiciary can use the major questions doctrine to invalidate any relatively ambitious efforts to implement their delegated statutory authority to address important problems, especially when those problems have recently emerged or when agencies have relied upon new information or evolving perspectives to develop innovative solutions to persistent problems. The major questions doctrine therefore effectively prevents Congress from giving agencies important work to do and limits the ability of agencies to do their important jobs effectively.
The Court’s recent doctrinal innovations also discourage agencies from pursuing major policy initiatives because they know such efforts are legally vulnerable, and thus potentially a waste of time.[41] Federal courts have sent a strong signal that agencies can no longer count on Chevron deference, and that ambitious regulatory programs are susceptible to invalidation under the major questions doctrine, even if their interpretations are supported by a plausible reading of the text of their delegated statutory authority. The doctrine thus creates a strong incentive for agencies to avoid undertaking important work—especially when they would be addressing new problems that could not have been anticipated by the enacting Congress, promulgating regulations that would have a major impact on the economy, or resolving politically controversial policy questions that likely could not have overcome the hurdles of bicameralism and presentment in Congress.
So how should one assess the health of our ecosystems of regulatory jurisprudence? Chevron is on life support, conservative textualism continues to thrive, and the latest iteration of the major questions doctrine allows courts to prevent agencies from engaging in progressive textualism. Indeed, the major questions doctrine’s primary function may be to provide conservative textualists with an escape hatch from progressive textualism. As Justice Kagan recognized in her dissenting opinion in West Virginia v. EPA, when textualism would frustrate the current Court’s broader goals, “special canons like ‘the major questions doctrine’ magically appear as get-out-of-text-free-cards.”[42] The overriding goal of today’s anti-administrative Court is to “[p]revent agencies from doing important work, even though that is what Congress directed.”[43] If Chen’s biological metaphor is apt, and I believe that it is, progressive textualism—arguably the lifeblood of the administrative state—is doomed. And this does not bode well for the health, safety, or welfare of the American people.
* Professor of Law & The A.J. Thomas Faculty Scholar, Michigan State University. Thanks to Jim Chen for initiating this dialogue and providing valuable comments on prior drafts of this commentary.
[1] James Ming Chen, Scalia’s Major Mousetrap: The Modest Origins of the Major Questions Doctrine, Mich. St. L. Rev.: MSLR Forum (Apr. 7, 2023), https://www.michiganstatelawreview.org/vol-20222023/2023/4/7/scalias-major-mousetrap-the-modest-origins-of-the-major-questions-doctrine.
[2] James Ming Chen, Doctrinal Destruction and Chevron’s Extinction Debt, 51 Fla. St. U. L. Rev. (forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4392722.
[3] West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587, 2609 (2022).
[4] Chen’s critique is nuanced, insightful, and multifaceted, and therefore eminently worthy of a careful read.
[5] See, e.g., Chen, supra note 2 (manuscript at 31) (“Elevating the quasi-constitutional firepower by invoking the major questions doctrine plunges judges into policymaking spheres best reserved for Congress and the expert agencies charged with applying scientific insight to public policy.”).
[6] See infra notes 14–16 and accompanying text. Chevron famously held that federal courts should defer to reasonable interpretations of ambiguous statutory provisions by administrative agencies. See Chevon U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 US. 837, 843-45 (1984).
[7] See Anya Bernstein & Glen Staszewski, Populist Constitutionalism, 101 N.C. L. Rev. (forthcoming 2023) (manuscript at 28–33), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4189747.
[8] Id. (manuscript at 4–9, 12–16).
[9] Id. (manuscript at 5).
[10] See The Clean Power Plan Fact Sheet, U.S. EPA 2, https://19january2017snapshot.epa.gov/sites/production/files/2015-08/documents/fs-cpp-overview.pdf (last visited May 19, 2023) (“The final rule is the result of unprecedented outreach to states, tribes, utilities, stakeholders and the public, including more than 4.3 million comments EPA received on the proposed rule.”). For the agency’s relevant legal obligations, see 5 U.S.C. §§ 553, 706; Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
[11] Bernstein & Staszewski, supra note 7 (manuscript at 29–33); see Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor, 142 S. Ct. 661, 668–70 (Gorsuch, J., concurring) (invoking the major questions doctrine to reject OSHA’s assertion of authority to require employers to mandate the vaccination or testing of employees to prevent the spread of COVID as part of its statutory mandate to promote “safe and healthful working conditions,” and claiming that “if the [statute] really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority”).
[12] Scholarly analysis of the major questions doctrine is already prodigious and continuously growing. I have not attempted to canvass this entire body of literature for purposes of this brief commentary. For a collection of the research to date, see Beau J. Baumann, The Major Questions Doctrine Reading List, JREG Notice & Comment (Mar. 18, 2023), https://www.yalejreg.com/nc/the-major-questions-doctrine-reading-list-by-beau-j-baumann/.
[13] Cf. Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687 (1995) (upholding a regulation that defined “harm” to an endangered species as “significant habitat modification that actually kills or injures wildlife,” even though this question had major political and economic significance and the statute was ambiguous).
[14] Chen, supra note 2, abstract.
[15] Id.
[16] Chen, supra note 1, at 7 (“Skeptics of Justice Scalia’s jurisprudence may relish the spectacle by which textualism, which had long lived by ipse dixit, now dies by ipse dixit.”).
[17] See, e.g., William N. Eskridge, Jr., et al., Textualism’s Defining Moment, 123 Colum. L. Rev. (forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4305017 (identifying twelve highly consequential and discretionary choices available to textualists); Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265 (2020) (recognizing variations in textualist methodology).
[18] See Kevin Tobia et al., Progressive Textualism, 110 Geo. L.J. 1437 (2022) (drawing this distinction and developing an approach focused on progressive methods). For leading examples of interpretive theories focused on progressive textualist outcomes, see Katie R. Eyer, Statutory Originalism and LGBT Rights, 54 Wake Forest L. Rev. 63 (2019); James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 Va. L. Rev. 1523 (2011).
[19] See Kathryn E. Kovacs, Progressive Textualism in Administrative Law, 118 Mich. L. Rev. Online 134, 135–37 (2019) (describing this form of progressive textualism).
[20] For other approaches that would often be functionally compatible, and may be normatively superior, cf. William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994); Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990); Glen Staszewski, Statutory Interpretation As Contestatory Democracy, 55 Wm. & Mary L. Rev. 221 (2013).
[21] See generally Margaret H. Lemos, The Politics of Statutory Interpretation, 89 Notre Dame L. Rev. 849 (2013) (claiming that textualism does not inherently lead to conservative or progressive outcomes, but that conservatives have seized on this approach as a mechanism to achieve their policy goals through ostensibly neutral methods).
[22] See, e.g., Lumen N. Mulligan & Glen Staszewski, The Supreme Court’s Regulation of Civil Procedure: Lessons from Administrative Law, 59 UCLA L. Rev. 1188 (2012) (claiming the Court acts as an agency in the administration of civil procedure).
[23] See, e.g., Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin. L. Rev. 501 (2005); Glen Staszewski, Introduction to Symposium on Administrative Statutory Interpretation, 2009 Mich. St. L. Rev. 1 (2009).
[24] See generally Mila Sohoni, Comment, The Major Questions Quartet, 136 Harv. L. Rev. 262, 263–64 (2022).
[25] See Isaiah McKinney, The Chevron Ball Ended at Midnight, but the Circuits are Still Two-Stepping by Themselves, JREG Notice & Comment (Dec. 18, 2022), https://www.yalejreg.com/nc/chevron-ended/.
[26] See Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261 (2016); McKinney, supra note 25.
[27] See generally McKinney, supra note 25. The Court has recently granted certiorari to consider the possibility of overruling Chevron. See Loper Bright Enterprises v. Raimondo, 2023 WL 3158352 (May 1, 2023).
[28] See Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989).
[29] Cf. Glen Staszewski, A Deliberative Democratic Theory of Precedent, 94 U. Colo. L. Rev. 1, 14-21 (2023) (arguing that stare decisis cannot reliably promote a formal conception of the rule of law).
[30] While it is possible to view Chevron as an interpretive canon rather than a legally binding precedent, the adoption of this perspective would mean that Chevron technically cannot be overruled. Cf. Connor N. Raso & William N. Eskridge, Jr., Chevron as a Canon, Not a Precedent, An Empirical Study of What Motivates Justices in Agency Deference Cases, 110 Colum. L. Rev. 1727, 1811 (2010) (arguing that Chevron is better understood as a canon than a binding precedent, but claiming that its core principle of deference should be respected by the judiciary); Evan J. Criddle & Glen Staszewski, Against Methodological Stare Decisis, 102 Geo. L.J. 1573, 1595 (2014) (arguing against methodological stare decisis in general but suggesting that its use may be worthwhile “to protect the reliance interests that are generated by the core aspects of third-order legal rules such as Chevron and Mead–rules which allocate interpretive authority between courts and agencies”). Accordingly, judges with a favorable view of Chevron could continue to apply its framework in appropriate cases even if it were disfavored by most of the federal judiciary.
[31] For very recent examples of lower federal courts deferring to agencies under Chevron step two, see Shanxi Hairui Trade Co., Ltd. v. United States, 39 F.4th 1357 (Fed. Cir. 2022); Loper Bright Enters., Inc. v. Raimondo, 45 F.4th 359 (D.C. Cir. 2022). For an argument that Chevron’s impact on judicial review of agency action by the lower federal courts is one of its greatest virtues, see Peter L. Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court’s Limited Resources for Judicial Review of Agency Action, 87 Colum. L. Rev. 1093 (1987).
[32] West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022); Chen, supra note 2 (manuscript at 26) (“The major questions doctrine resembles a deliberate perversion of Chevron.”).
[33] See, e.g., Chen, supra note 2 (manuscript at 30) (“Uncertainty clouds the circumstances under which the Court will find the next ‘major question’ lying beyond the judicially constrained competence of an administrative agency.”); Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine, 109 Va. L. Rev. (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4165724 (last visited Apr. 19, 2023) (noting that the major questions doctrine has been described as “radically indeterminate”); Sohoni, supra note 24, at 287–89 (recognizing “the susceptibility of this new clear statement rule to selective application and judicial discretion”).
[34] See Bernstein & Staszewski, supra note 7 (manuscript at 39–40) (suggesting that the conservative legal movement’s efforts to limit governmental constraints on corporations, while often “labeled ‘deregulation,’ . . . may be more productively conceived as seeking particular distributions, rather than a simple diminution, of government restraints”).
[35] See Glen Staszewski, The Federal Inaction Commission, 59 Emory L.J. 369, 375–82 (2009).
[36] See William W. Buzbee, Agency Statutory Abnegation in the Deregulatory Playbook, 68 Duke L.J. 1509, 1538–39 (2019) (analyzing this technique and noting its prevalence during the Trump administration).
[37] See Chen, supra note 2 (manuscript at 36); Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1938 (2017).
[38] See supra note 17 and accompanying text. Bostock v. Clayton County, 140 S. Ct. 1731 (2020), is the exemplar for both propositions, since Justice Gorsuch used textualism to reach a progressive outcome for the majority, while Justice Alito’s and Justice Kavanaugh’s dissents used textualism to reach the opposite conclusion. The irony, of course, is that all three opinions purported to identify the single, objectively correct understanding of the statute. See Anya Bernstein & Glen Staszewski, Judicial Populism, 106 Minn. L. Rev. 283, 315–17 (2021) (analyzing Bostock’s competing textualist opinions).
[39] See supra note 20 and accompanying text.
[40] West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022).
[41] For example, a commissioner of the Federal Trade Commission recently dissented from the issuance of a proposed rule to prohibit noncompete clauses in employment on the grounds that the rule would likely be invalidated by federal courts based in part on the major questions doctrine. See Dissenting Statement of Commissioner Christine S. Wilson Regarding the Notice of Proposed Rulemaking for the Non-Compete Clause Rule 1-2, 9-13 (Jan. 5, 2023), https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/dissenting-statement-commissioner-christine-s-wilson-concerning-notice-proposed-rulemaking-non.
[42] West Virginia v. EPA, 142 S. Ct. at 2641 (Kagan, J., dissenting).
[43] Id.
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