Anita S. Krishnakumar (Georgetown University Law Center) has posted What the Major Questions Doctrine is Not (George Washington Law Review, Vol. 92, 2024) on SSRN. Here is the abstract:
The major questions doctrine has undergone a sea change in prominence within the span of two years. In the ten months between August 2021 and June 2022, the Court invoked the canon three times, using it aggressively to invalidate some of the signature policies implemented by the Biden Administration—including the CDC’s eviction moratorium, OSHA’s attempt to impose a vaccine-or-test mandate on employees, and EPA’s efforts to regulate greenhouse gas emissions. And this past term, it added a fourth case to this burgeoning list, striking down the Biden Administration’s student debt relief program. All eyes are now on the major questions doctrine. Several scholars have criticized the latest iteration of the doctrine, and some—including former law professor, now-Justice Amy Coney Barrett—have sought to defend it as consistent with textualism, as a linguistic canon, as part of the ordinary “common sense” context a reasonable reader would consider, or as a canon designed to protect the Constitution’s nondelegation principle.
This essay seeks to cut through the confusing labels and justifications that have been offered for this relatively new, somewhat reinvented, and incredibly powerful doctrine. It argues first that the major questions doctrine is not many of the things that commentators, including the Justices, have suggested it is: It is not a proxy for the nondelegation doctrine; it is not part of the “common sense” context that the “reasonable reader” brings to identifying a statute’s ordinary meaning; it is not a linguistic canon; and it is not even purposivism or intentionalism—or at least not good purposivism or intentionalism. The essay concludes by arguing that in the end, the major questions doctrine may best be thought of as either a new multi-factor test or standard of judicial review for “major” agency decisions or as a form of naked pragmatism that uses clear statement rule rhetoric in an effort to sound more textualist than it is.
And from the article:
Recall that Barrett herself advocates that courts should “consider[] context that would be important to a reasonable observer” and defends the major questions doctrine on the grounds that “a reasonable speaker would not understand Congress to confer an unusual form of authority” on an agency without saying so explicitly.60 But unless the “reasonable speaker” Barrett refers to is a lawyer—and there is substantial reason to believe that s/he is not—it seems fanciful to suggest that the context that reader would be familiar with would include the agency’s past practices, the relative novelty of the regulation at issue, the regulation’s economic or political impact, the limits of the agency’s expertise, or what falls within (or without) the agency’s “wheelhouse.” In short, the Court has framed what constitutes an “unusual” delegation in terms and tests that presume a sophisticated understanding of the regulatory landscape that only a reader with specialized knowledge—not the average “reasonable reader” or citizen on the street—can be expected to possess.
I am skeptical of the textualist argument for the Major Questions Doctrine, but I am not sure that Krishnakumar's criticism of Barrett is on the mark either. The best version of the argument would be based on the idea of pragmatic enrichment. Linguistic communication in general and statutes in particular convey communicative content that is implicit via a variety of mechanisms, including contextual disambiguation, implicature, impliciture, presupposition, and modulation. The content of such implicit content depends on the shared context of statutory communication--the context of both the drafters and primary intended readers of the statute have knowledge. For that reason, it is important to identify the audience of a statute. Some statutes are written for a general audience, ordinary folk. But typically, regulatory statutes are written for a narrower audience that would include the regulated industry and the officials charged with implementing the statute. Here is how I put this point in Disaggregating Chevron, 82 Ohio St. L.J. 249, 283 (2021):
What group constitutes the primary intended audience of a statute? The answer to that question is, “it depends on what kind of statute we are discussing.” Some criminal statutes may be addressed to the public at large. The plain meaning of such a statute would be its “ordinary meaning”--the meaning that a competent member of the public would grasp. Word and phrases would be understood in their ordinary senses--and not an obtuse or technical sense. But not all statutes are addressed to the public, regulatory statutes are likely to be addressed to regulatory agencies and regulated industries. And this will have implications for what constitutes the plain meaning of a regulatory statute.
For this reason, I think Krishnakumar's criticism of Barrett does not go through for the best version of Barrett's argument. When Barrett says that “[t]he usual textualist enterprise involves hearing the [statute’s] words as they would sound in the mind of a skilled, objectively reasonable user of words,” she does not explicitly identify the primary intended audience of the statute, but her formulation is consistent with a more specialized audience--and it does not entail Krishnakumar's assumption that the primary intended audience consists of ordinary folk. I want to be clear that I have not studied Barrett's opinion with care (this is a blog post), but my quick review suggests that it does not rely on "ordinary meaning" or an equivalent notion.
Highly recommended!
