The Major Questions Quartet
58 Pages Posted: 15 Nov 2022 Last revised: 28 Nov 2022
Date Written: November 10, 2022
This Case Comment, prepared at the invitation of the Harvard Law Review for its annual Supreme Court issue, describes and evaluates the “major questions quartet”: the CDC eviction moratorium case, the OSHA vaccine mandate case, the CMS vaccine mandate case, and the EPA Clean Power Plan case. Because none of these cases reached a constitutional holding, they are overshadowed by the Term’s blockbuster decisions involving fundamental rights. 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.
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,” 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. Burwell and Babbitt v. Sweet Home (among others) cannot possibly have been right, and Massachusetts v. EPA is standing on quicksand. Yet no Justice acknowledged, let alone defended, the disjoint between such precedents and the method charted in the quartet.
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. Yet, strikingly, this did not occur, despite the obvious opening for a nondelegation renaissance that these cases supplied. 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. The Court’s reticence on nondelegation 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. 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. 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 this Comment argues — serious reasons exist to doubt whether it could.
The 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 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 significantly reduce 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.
Keywords: major questions, nondelegation, clear statement, textualism, administrative law, chevron, vaccine, eviction
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