The National Security Consequences of the Major Questions Doctrine

Abstract

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the 21st century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national security-related conflicts—wars of territorial conquest, terrorism, nuclear proliferation—increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, “foreign affairs exceptionalism,” in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is “foreign” and “domestic” cannot be easily distinguished and attempts to do so will have perverse consequences.

The most likely consequence is that if applied to economic delegations that touch foreign commerce, the MQD will turn judges—and particularly lower court judges—into some of the key policymakers in shaping the future of American foreign policy and national security. This prospect should be troubling, as judges are ill-suited to be foreign policymakers.

Keywords: major questions doctrine, administrative law, national security, international trade, foreign relations law, international economic law

JEL Classification: K10, K33