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
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 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 deference.
This Comment describes and evaluates the major questions quartet: the CDC eviction moratorium case,4 the OSHA vaccine mandate case,5 the CMS vaccine mandate case,6 and the EPA Clean Power Plan case.7 Because none of these cases reached a constitutional holding, they are overshadowed by the Term’s blockbuster decisions involving fundamental rights.8 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 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 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 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 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
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 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 and Babbitt v. Sweet Home Chapter of Communities for a Great Oregon16 (among others) cannot possibly have been right, and Massachusetts v. EPA17 is standing on quicksand.18 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 if ever there was one — without clearly stating it was doing so.20 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 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
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 Yet, strikingly, this did not occur, despite the obvious opening for a nondelegation renaissance that these cases supplied.24 As to the nondelegation doctrine, it is still “[j]am yesterday (yesterday being 1935), and jam tomorrow, but never jam today.”25 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
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 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 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
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 and nuclear waste.31 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 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 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.