As the basis for three recent politically salient Supreme Court cases that restrained administrative agency authority, the Major Questions Doctrine (MQD) has become an important topic of legal discussion. While the doctrine has been promoted by the more conservative Supreme Court Justices, criticisms of the doctrine have come from both the left and the right, including from Chad Squitieri on this website. Here I argue that the MQD should be replaced with a set of originalist interpretive canons that would accomplish much the same goals.

The MQD holds that “there are extraordinary cases . . . in which the history and breadth of the authority” that the agency “has asserted and the economic and political significance of that assertion, provide a reason to hesitate before concluding that Congress meant to confer such authority” (internal quotations omitted). In these cases, “the agency . . . must point to clear congressional authorization for the power it claims.” In short, the doctrine requires a clear statement to find a delegation of vast or far-reaching authority in certain unusual cases.

The motivation of the Justices seems understandable enough. In the last generation, administrative agencies have not merely exercised tremendous power but exploited statutory authority that was designed for one set of problems to address other problems. Whether it is Covid regulations, greenhouse gases, restricting tobacco, or forgiving student loans, such legal manipulations seem to call out for a judicial response.

Still, the question is not whether the goal of checking aggressive agency action is desirable but whether the MQD is a legitimate method for doing so. While there are advantages to using the MQD, the doctrine’s overriding flaw is that it conflicts with originalist statutory interpretation. But the Supreme Court need not abandon originalism to constrain agency authority, as a host of originalist interpretive canons could do nearly as well as the MQD without violating originalist principles.

Advantages of the Major Questions Doctrine

Before criticizing the MQD, I should acknowledge that there is something to be said for the doctrine. The strongest legal argument for the MQD is that it is a means of enforcing the nondelegation doctrine. This doctrine, which limits delegations of legislative-type authority to agencies, has not been enforced since the New Deal. Enforcing it now against the numerous statutes that have been enacted in reliance on its nonenforcement would appear to require the Court to hold unconstitutional many regulatory statutes, which would be extremely disruptive.

The MQD allows the Court to avoid this disruption by enabling the Court to cut back on broad statutory delegations without striking so many down. First, the doctrine restrains only some delegations—the ones involving significant questions that are not clearly authorized. Second, the delegations that it does limit are the ones that Congress least clearly authorized and thus probably were least relied upon. Third, since the doctrine does not declare the delegations unconstitutional, it allows Congress to reenact them if it really wants to do so.

While the MQD does reduce the costs of applying the nondelegation doctrine, in other ways it does a poor job of enforcing the doctrine. If the MQD is enforcing the nondelegation doctrine, then the MQD should only restrain unconstitutional delegations. But the MQD is not necessarily restricted to such delegations. For example, under many originalist theories of the nondelegation doctrine, delegations in certain areas are not subject to the doctrine (such as laws that do not regulate private rights). But the MQD appears to apply to laws in these areas, as there is no exception for delegations that might not be subject to the nondelegation doctrine. Similarly, the MQD might restrain some delegations that are subject to the nondelegation doctrine but do not confer unconstitutional amounts of agency discretion. It is hard to know for sure since the Court has not articulated the specific content of the originalist version of the nondelegation doctrine.

The Principal Flaw in the Major Questions Doctrine

The apparent benefits of the MQD, then, are a mixed bag. But even those limited benefits must be compared to the very serious flaws of a doctrine that cannot be squared, in its present form at least, with originalism. In addition to conflicting with originalism, the MQD also opens the originalist Justices to charges of inconsistency and hypocrisy.

Statutory originalism is the view that statutes should be interpreted in accordance with their original meaning. But a clear statement rule that rejects a delegation of agency authority in significant cases is not a means of capturing the original meaning. Following such a rule is not how a lawyer or the ordinary public uses language. Nor is it a traditional interpretive principle that existed when the interpreted law was enacted.

It is true that one should not find significant delegations of authority with a weak textual basis. This interpretive principle, known as the “Congress does not hide elephants in mouseholes canon,” is certainly legitimate. This idea—that the bigger the power, the more likely that it would be enumerated—goes back at least to James Madison and does capture the normal use of language.

 But the elephants in mouseholes canon does not yield a clear statement rule for politically and economically significant agency authority. Suppose that a law does not have a clear statement of significant agency authority but does have some moderate textual support for that authority. Perhaps the agency’s authority is supported by general language, structural inferences, and the purpose of the statute. In this situation, the elephant is not in a mousehole and thus an inquiry into the actual meaning of the statute might lead an interpreter to conclude that the statute supports the significant authority, even though the statute does not provide a clear statement. The more general point is that the actual meaning of the statute will depend on various factors and the significance of the authority is merely one factor, albeit an important one.

A Genuine Statutory Originalism

While the MQD conflicts with originalism, happily the doctrine is not needed to constrain agencies from using aggressive interpretations to seize political powers that Congress did not confer. These aggressive interpretations generally rely on interpretive moves that are inconsistent with a genuine originalism. Thus, applying originalist interpretive moves—in addition to the elephants in a mouseholes canon—can do much to constrain these aggressive interpretations without sacrificing originalist principles. While it is possible that the originalist canons will not duplicate the results in all of the major questions cases, in those few cases where originalist canons diverge, the agency should prevail because the statute’s original meaning genuinely provided the authority.

In a short essay, it is not possible to show that a genuine originalism would cut back on agency authority in the bulk of the major questions cases. But the point can be illustrated with a discussion of Alabama Assoc. Realtors v. HHS, where the Center for Disease Control sought to impose an eviction moratorium during Covid that Congress would not pass. (For similar arguments by other scholars that ordinary statutory interpretation would have constrained the agency in various major questions cases, see here and here.) In the eviction moratorium case, the CDC relied upon statutory authority enacted in 1944 that authorized it to make

such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from . . . one State or possession into any other State or possession.

The provision immediately continued:

For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

Agreeing with the agency, Justice Breyer’s dissent argued that the eviction moratorium complied with the statute since it was, in the judgment of the CDC, “necessary to prevent” the “spread” of Covid from one state to another.

Chevron deference is inconsistent with the language of the APA and did not exist when the APA was enacted. Thus, originalism justifies eliminating Chevron and does not require the MQD workaround.

But this argument can be rejected without reference to the MQD. First, while the first sentence might seem to confer broad authority, this sentence must be read in conjunction with the second sentence. To avoid reading the second sentence to be superfluous, the two sentences together are best understood as authorizing the CDC to take the actions listed in the second sentence, including the last catch-all provision, authorizing “other measures, as in his judgment may be necessary.”

Second, that last catch-all provision authorizing “other measures” should be read to include only other measures similar in type to the listed measures. Traditionally, courts have so interpreted this sort of provision with the ejusdem generis canon. The list of powers are all designed to narrowly detect or eradicate diseases, with the exception of sanitation which is a narrow and traditional means of preventing the growth and transmission of disease agents.

By contrast, the eviction moratorium would impose an economic regulation on landlords designed to protect individuals even though they neither had Covid nor had been exposed to it—a regulation much broader than the narrow category of powers on the list. As the Court wrote, under the agency’s interpretation “it is hard to see what measure this interpretation would place outside the CDC’s reach,” including “requiring manufacturers to provide free computers to enable people to work from home.” So the MQD was not needed to strike down the CDC’s eviction moratorium.

Other Originalist Canons

Another important function of the MQD concerns Chevron deference. In simplified form, the Chevron doctrine requires courts to defer to agency interpretations of statutes. Chevron thus has allowed agencies to exercise significant power based on questionable interpretations. For that reason, a majority of the Court appears to have become dissatisfied with the Chevron doctrine, refusing to invoke it but not overruling it.

The MQD allows the courts to bypass Chevron in many cases. By requiring that a statute clearly authorize significant exercises of authority, the Court can conclude that an agency interpretation asserting such authority without a clear statement is an unreasonable interpretation. So, as with the nondelegation doctrine, the MQD allows the Court to reach a result—avoiding the Chevron doctrine—without having to overrule it.

But the proper originalist method for dealing with Chevron is to overrule it. In a recent article, I have argued that Chevron is inconsistent with the original meaning of the Administrative Procedure Act—the statute that generally governs administrative agencies. Chevron deference is inconsistent with the language of the APA and did not exist when the APA was enacted. Thus, originalism justifies eliminating Chevron and does not require the MQD workaround.

Another originalist canon that would promote the same concerns as the MQD is that of contemporaneous exposition, which holds that interpretations reached near the time of a statute’s enactment are entitled to greater weight than later interpretations. By weighting contemporaneous interpretations, this canon would constrain an agency from interpreting a statute one way in its early years, only to change the interpretation in later years when the agency seeks to use the statute’s language to accomplish goals never contemplated by the statute’s enactors. This canon is also consistent with originalism because an agency interpreting a statute near the time of the statute’s enactment is better able to understand its original meaning.

Finally, an interpretive rule that would impose a similar limitation on agencies is one that considers the mischief that the statute appeared intended to address. This rule can be illustrated with the case of Massachusetts v. EPA, where the Supreme Court interpreted the term “air pollutant” in the Clean Air Act to include not merely traditional pollution in the lower atmosphere but also global greenhouse gases in the upper atmosphere. But when the Clean Air Act was enacted, Congress was not concerned with greenhouse gases, only with traditional air pollution. Since the Act’s language defining air pollutant could be reasonably construed to cover emissions into either the lower atmosphere or both the lower and upper atmosphere, the mischief canon supports the narrower definition (as does the structure of the Act).

Overall, then, the Supreme Court does not need to employ a doctrine that conflicts with originalism in order to limit agency excesses. Instead, those excesses can be constrained through various originalist methods, such as the mouseholes canon, the elimination of Chevron deference, contemporaneous exposition, and the mischief canon. If the Court employed these canons, it would significantly constrain agency authority without compromising originalism.

Happily, there is reason to believe that the Court may be changing direction. In an opinion issued after this essay was written, the Supreme Court held that a statute did not authorize the executive to pass a broad program to cancel student loans. Instead of writing an opinion simply relying on the MQD, as he had in the past, Chief Justice Roberts held that the result was justified under ordinary statutory interpretation principles and only relied on the MQD as an alternative ground. And originalist justice, Amy Coney Barrett wrote a concurrence stating that the MQD should be understood as seeking the meaning of the statutory text in context based on ordinary statutory interpretive principles rather than as a substantive rule of interpretation. These actions suggest that the Supreme Court majority may be coming to recognize that the MQD should be reinterpreted to conform to originalist principles.