Beware the Jabberwock, my son!
The jaws that bite, the claws that catch!
Beware the Jubjub bird, and shun
The frumious Bandersnatch!
— Lewis Carroll, Jabberwocky1×1. Lewis Carroll, Through the Looking-Glass and What Alice Found There, in Alice’s Adventures in Wonderland and Through the Looking-Glass 196 (Richard Kelly ed., 2015).
Begin with what is uncontroversial: nobody likes to see “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”2×2. West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (emphasis added). The challenge is how to determine when that is occurring, not how to feel about it when it does. That challenge has existed for as long as agencies have, and so it’s one that our law has developed many tools to address. But in four important cases decided during the summer of 2021 and last Term, the Court crafted a new approach to tackling that problem by adopting a different and more potent variant of one of these older tools: the “major questions” exception to Chevron3×3. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). deference.
This Comment describes and evaluates the major questions quartet: the CDC eviction moratorium case,4×4. Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485 (2021) (per curiam). the OSHA vaccine mandate case,5×5. Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142 S. Ct. 661 (2022) (per curiam). the CMS vaccine mandate case,6×6. Biden v. Missouri, 142 S. Ct. 647 (2022) (per curiam). and the EPA Clean Power Plan case.7×7. West Virginia v. EPA, 142 S. Ct. 2587. Because none of these cases reached a constitutional holding, they are overshadowed by the Term’s blockbuster decisions involving fundamental rights.8×8. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). But no one should mistake these cases for anything but what they are: separation of powers cases in the guise of disputes over statutory interpretation.
The quartet can be easily summarized.9×9. Easily summarized, that is, for the purposes of serving as fodder for the arguments made in this Comment. Many extremely important questions raised by the major questions quartet lie outside the scope of this Comment. To list a few, I do not discuss questions of justiciability, federalism, environmental or public health policy, or administrative procedure. See, e.g., West Virginia v. EPA, 142 S. Ct. at 2606–07 (assessing justiciability); id. at 2621 (Gorsuch, J., concurring) (raising issue of federalism); id. at 2610–12 (majority opinion) (discussing environmental policy); Ala. Ass’n of Realtors, 141 S. Ct. at 2491–94 (Breyer, J., dissenting) (highlighting public health policy implications of decision); Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 665–66 (analyzing administrative procedure). I briefly touch on questions of remedial scope at infra notes 376–377 and accompanying text. In the CDC case, the Court held that the Centers for Disease Control and Prevention lacked authority to impose a nationwide moratorium on evictions in order to combat the spread of COVID-19.10×10. See Ala. Ass’n of Realtors, 141 S. Ct. at 2486. Justice Breyer, joined by Justices Sotomayor and Kagan, dissented. Id. at 2490 (Breyer, J., dissenting). In the OSHA case, the Court held that the Occupational Safety and Health Administration lacked authority to compel large private employers — those with a hundred or more employees — to require that their employees be vaccinated against COVID-19 or else take weekly tests and wear masks.11×11. See Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 663–65. Justice Gorsuch wrote a concurrence, joined by Justices Thomas and Alito. Id. at 667 (Gorsuch, J., concurring). Justices Breyer, Sotomayor, and Kagan issued a joint dissent. Id. at 670 (Breyer, Sotomayor & Kagan, JJ., dissenting). In the CMS case, decided the same day, the Court held that the Centers for Medicare & Medicaid Services had authority to mandate that facilities receiving Medicare or Medicaid funding require their staff to be vaccinated against COVID-19.12×12. See Biden v. Missouri, 142 S. Ct. at 650, 652 (per curiam). The CMS vaccine mandate required that facilities allow workers to claim religious and medical exemptions, and it did not cover staff who teleworked full time. Id. at 651. Justice Thomas, joined by Justices Alito, Gorsuch, and Barrett, dissented, arguing that CMS lacked statutory authority to adopt a vaccine requirement. Id. at 655 (Thomas, J., dissenting). Justice Alito penned a separate dissent, which was joined by Justices Thomas, Gorsuch, and Barrett, arguing that even if CMS had statutory authority, the vaccine requirement was improper because the agency did not follow the requisite notice-and-comment procedure before issuing its rule. Id. at 659 (Alito, J., dissenting). In the EPA case, the Court held that the Environmental Protection Agency lacked authority to adopt the Clean Power Plan, which imposed caps on greenhouse gas emissions at a level that would force power plants to transition away from the use of coal to generate electricity.13×13. See West Virginia v. EPA, 142 S. Ct. at 2616. Justice Gorsuch, joined by Justice Alito, filed a concurring opinion. Id. at 2616 (Gorsuch, J., concurring). Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. Id. at 2626 (Kagan, J., dissenting).
The first crucial thing to understand about the major questions quartet is what it did to administrative law. While ostensibly applying existing major questions case law, the quartet in actuality altered the doctrine of judicial review of agency action in its method and content, in ways that will have momentous consequences. To begin with, the quartet unhitched the major questions exception from Chevron, which has been silently ousted from its position as the starting point for evaluating whether an agency can exert regulatory authority. Instead, the CDC case initiated, and the OSHA and EPA cases completed, a transition to a new order of operations for evaluating the legality of major regulatory action. Under the test that the quartet has now designated as the “major questions doctrine,”14×14. The EPA case marked the first occasion that the Court stated that it was applying what it referred to as the “major questions doctrine.” See id. at 2609 (majority opinion); cf. infra note 90 (describing earlier concurring and dissenting opinions referencing the concept). As will be explained below, see infra Part I, pp. 267–90, what the Court labeled as the “major questions doctrine” is a clear statement rule that materially differs from the doctrine that the Court applied to major questions in the past. Notably, in 2017, then-Judge Kavanaugh used the term “[t]he major rules doctrine” to refer to this clear statement rule. See U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 417 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from the denial of rehearing en banc) (“The major rules doctrine helps preserve the separation of powers and operates as a vital check on expansive and aggressive assertions of executive authority.”); id. at 421 (“If an agency wants to exercise expansive regulatory authority over some major social or economic activity . . . an ambiguous grant of statutory authority is not enough. Congress must clearly authorize an agency to take such a major regulatory action.”). the Court will not sustain a major regulatory action unless the statute contains a clear statement that the action is authorized. The import of this shift can be measured by the yardstick of earlier cases. If the method enunciated by the quartet is the law, King v. Burwell15×15. 576 U.S. 473 (2015). and Babbitt v. Sweet Home Chapter of Communities for a Great Oregon16×16. 515 U.S. 687 (1995). (among others) cannot possibly have been right, and Massachusetts v. EPA17×17. 549 U.S. 497 (2007). is standing on quicksand.18×18. See infra section I.B.1, pp. 276–82. Yet no Justice acknowledged, let alone defended, the disjunction between such precedents and the method charted in the quartet.
There’s no small irony in the fact that the major questions quartet made this shift in the methodology of deference — a matter of “vast economic and political significance”19×19. Ala. Ass’n of Realtors, 141 S. Ct. at 2489 (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). if ever there was one — without clearly stating it was doing so.20×20. Cf. Mila Sohoni, A Fuller Picture of Internal Morality, Yale J. on Regul.: Notice & Comment (Apr. 14, 2021), https://www.yalejreg.com/nc/law-leviathan-redeeming-the-administrative-state-part-03 [https://perma.cc/4CJX-YBYH] (faulting aspects of the Court’s administrative law doctrine for its deficits of clarity and transparency). To knowledgeable observers, however — frankly, to anyone who was paying any attention whatsoever to recent developments in administrative law — the Court’s fortification of the old major questions exception into this new clear statement rule would not have come as a surprise. It was a predictable development, and indeed it was more or less predicted.21×21. See, e.g., Lisa Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1942–43 (2017); Nathan Richardson, Essay, Antideference: COVID, Climate, and the Rise of the Major Questions Canon, 108 Va. L. Rev. Online 174, 178 (2022); Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 476–77 (2021); Justin Walker, The Kavanaugh Court and the Schechter-to-Chevron Spectrum: How the New Supreme Court Will Make the Administrative State More Democratically Accountable, 95 Ind. L.J. 923, 925 (2020). Surprise or not, last Term should be flagged as the moment in which prediction and prophecy became reality and rule — both in administrative law and outside of it, too.22×22. Compare Dan Mangan, Trump: I’ll Appoint Supreme Court Justices to Overturn Roe v. Wade Abortion Case, CNBC (Oct. 19, 2016, 10:00 PM), https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html [https://perma.cc/5XYB-3NU7] (noting that President Trump promised his new Justices would “automatically” overturn Roe), with Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overturning Roe).
There is one prediction, though, that the Court notably did not fulfill last Term. The world of administrative law has recently been on tenterhooks, awaiting with bated breath the Court’s revival of the nondelegation doctrine.23×23. See Gundy v. United States, 139 S. Ct. 2116, 2131–43 (2019) (Gorsuch, J., dissenting); id. at 2130–31 (Alito, J., concurring in the judgment) (stating that he would “support” an “effort” to “reconsider” case law that has allowed “agencies to adopt important rules pursuant to extraordinarily capacious standards”); Paul v. United States, 140 S. Ct. 342, 342 (2019) (Kavanaugh, J., respecting the denial of certiorari) (referring to “important points” in Justice Gorsuch’s Gundy dissent and noting that its treatment of the nondelegation doctrine “may warrant further consideration in future cases”); Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288, 1294 (2021) (“But now, for the first time in nearly a century, the Supreme Court is poised to reformulate the nondelegation doctrine, opening the possibility of a revolution in separation of powers and administrative law.”). Yet, strikingly, this did not occur, despite the obvious opening for a nondelegation renaissance that these cases supplied.24×24. In all four cases, challengers to the agencies’ actions raised nondelegation arguments. See infra notes 239–245 and accompanying text. As to the nondelegation doctrine, it is still “[j]am yesterday (yesterday being 1935), and jam tomorrow, but never jam today.”25×25. Adrian Vermeule, Never Jam Today, Yale J. on Regul.: Notice & Comment (June 20, 2019), https://www.yalejreg.com/nc/never-jam-today-by-adrian-vermeule [https://perma.cc/HPH2-JVP8]; cf. Carroll, supra note 1, at 231 (“‘You couldn’t have [jam] if you did want it,’ the Queen said. ‘The rule is, jam to-morrow and jam yesterday — but never jam to-day.’”). Rather than saying anything of substance about what the law (of nondelegation) is, the Court instead told us that it is emphatically the province of the judicial branch to say what the law must say clearly. Congress and the executive branch must “beware the jabberwock” of nondelegation — but what exactly that creature looks like remains as much left to our imagination as was Carroll’s own invention.26×26. See Carroll, supra note 1, at 196–98.
The Court’s evasion of nondelegation in these decisions may presage how the Court will — or, more precisely, will not — develop constitutional doctrine in the future. As three of these cases exemplify,27×27. Ala. Ass’n of Realtors, 141 S. Ct. 2485; Nat’l Fed’n of Indep. Bus., 142 S. Ct. 661; West Virginia v. EPA, 142 S. Ct. 2587. a sufficiently robust major questions doctrine greatly reduces the need to formally revive the nondelegation doctrine. The most important work that the nondelegation doctrine would perform can be accomplished on an ad hoc, agency-by-agency, rule-by-rule basis through the mechanism of the quartet’s new clear statement rule — a subconstitutional device that congenially skirts the need for the Court to specify what, if anything, the nondelegation doctrine actually prohibits. Equally congenially, as the fourth of these cases exemplifies,28×28. Biden v. Missouri, 142 S. Ct. 647. the new major questions doctrine allows the Court ample leeway to preserve major rules when the muse so moves it — even when those rules rest on statutory authority as contestable to the naked eye as the authority that underwrites rules that fail to pass muster. In both respects, the major questions quartet annexes enormous interpretive power to the federal judiciary by enunciating a standard for substantive legitimacy that is so malleable that, at present, it can be said only to mean “just what [the Court] choose[s] it to mean — neither more nor less.”29×29. Carroll, supra note 1, at 244–45 (“‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”).
Hopeful citations to cases in the major questions quartet have already begun to pop from thin air, like so many Cheshire cats’ grins, in complaints and briefs involving matters as diverse as immigration30×30. Letter from Judd E. Stone II, Solicitor General of Texas, to Lyle W. Cayce, Clerk of Court, United States Court of Appeals for the Fifth Circuit, Texas v. United States, No. 21-40680 (5th Cir. July 5, 2022). and nuclear waste.31×31. Letter from Michael R. Abrams, Assistant Solicitor General of Texas, to Lyle W. Cayce, Clerk of Court, United States Court of Appeals for the Fifth Circuit, Texas v. Nuclear Regul. Comm’n, No. 21-60743 (5th Cir. July 6, 2022). Major questions challenges will load the Court’s docket for years to come. And the impact of this doctrine will extend well beyond what is observable from federal court filings. The quartet, with its inchoate theory of nondelegation in tow, will cause not just an actual but an in terrorem curtailment of regulation on an ongoing basis, while placing the onus on today’s gridlocked Congress to revisit complex regulatory schemes enacted years or decades ago.
To inflict a consequence of this scale on the political branches demands a justification from the Court, not a rain check. Yet a rain check is all we got. In none of the three cases in which it ruled against the government did the Court say that a nondelegation doubt (let alone obstacle) would exist if Congress had delegated to the agency the authority that the agency claimed. In none of the three cases in which the government lost did the Court adequately ground its momentous and new clear statement rule with a meaningful constitutional justification.
This is not a mere drafting issue, nor is it the judicial minimalism that it may at first blush appear to be. Rather, the Court’s reticence creates deep conceptual uncertainty about what exactly it was doing in the quartet — a conceptual uncertainty that will matter for future cases. It is not clear what theory of nondelegation, if any, underlies and justifies the major questions quartet.32×32. See infra pp. 290–92 (explaining that the relationship between nondelegation and the new major questions quartet remains unclear). And without knowing what that underlying theory is, it becomes much harder to sensibly apply a rule that ostensibly exists “in service of” that underlying doctrine.33×33. Gundy v. United States, 139 S. Ct. 2116, 2142 (2019) (Gorsuch, J., dissenting) (“[W]e apply the major questions doctrine in service of the constitutional rule that Congress may not divest itself of its legislative power by transferring that power to an executive agency.”). The major questions quartet may seem to be a pragmatic type of light-touch nondelegation that pumps the brakes on the occasional instance of regulatory overreach while carefully eschewing hard constitutional limits on Congress’s power to delegate. But whenever the Court — especially a supposedly textualist Court — imposes a requirement on Congress that it legislate with special clarity, the Court should articulate a concrete and specific constitutional value that justifies that rule. The Court chose not to do that in the quartet and — as argued below — serious reasons exist to doubt whether it could.
This Comment proceeds as follows. Part I describes the evolution of the major questions exception into a new clear statement rule that operates as a presumption against reading statutes to authorize major regulatory action. It then explores how the quartet broke ties with one landmark case (Chevron) and silently ignored the methodology of many others, and it closes with an examination of the hard questions posed by the quartet concerning the Court’s commitment to textualism. Part II turns to the dog that didn’t bark in these cases — nondelegation — and the relationship of the major questions quartet to nondelegation. It explains that the collective upshot of these cases may be to reduce significantly the set of cases in which it will be necessary to reach a full-dress constitutional nondelegation holding while still allowing nondelegation doctrine to be effectively resurrected, though less visibly, on a retail level. It then evaluates whether the quartet’s clear statement rule can be justified by the principle of constitutional avoidance or as a device to protect constitutional values. In the brief conclusion that follows, the quartet is situated in a broader historical arc as the latest installment of a longer pattern in which the Court has used interpretive methods to promote, and now to curtail, administrative governance.
* Herzog Research Professor of Law and Associate Dean of Faculty, University of San Diego School of Law. For helpful conversations and comments, thanks to Jonathan Adler, Zachary Clopton, Christopher Egleson, Blake Emerson, Richard Fallon, Tara Leigh Grove, Kristin Hickman, Anita Krishnakumar, Leah Litman, Spencer Livingstone, Aaron Nielson, Anne Joseph O’Connell, Nicholas Parrillo, Michael Ramsey, Michael Rappaport, Robert Schapiro, Jed Stiglitz, Ilan Wurman, and Adam Zimmerman. I am deeply indebted to the editors of the Harvard Law Review for their painstaking work on this Comment.