MQD is the tail; textualism is the dog

The recent Tariffs case has again put the major questions doctrine front and center in the current administrative law ecosystem. MQD sits alongside Loper Bright one of two big bruiser doctrines in a turbulent world in contemporary admin law. What do these doctrines mean for courts determining whether and to what extent Congress has delegated meaningful regulatory power to administrative agencies?

Opinions from the justices defending and describing MQD suggest that one of the central elements of the favored analysis is the use of this doctrine as a canon of interpretation. For Justice Gorsuch, this canon emerges from the essential structure of Congressional power, the fulcrum of which is the Vesting Clause of Article I. Viewed more globally, as not only Gorsuch, but also Chief Justice Roberts and Justice Kavanaugh have articulated it in different places, the canon is part and parcel of our Constitution’s separation of powers scheme. It is not simply useful as an aid to interpretation, but is constitutionally required. Justice Barrett has made clear in two intriguing concurring opinions that MQD is better understood as no more or less than a rather ordinary canon of interpretation, something borne of “common sense” and embedded in our longstanding commitment to textualism in statutory interpretation.

Whatever can be said on behalf or against Barrett’s effort at refining (and maybe thereby disciplining?) MQD, what her opinions make apparent is that the main event in all this is textualism, and MQD’s allure and also its controversy turns on how deeply committed are the justices and, with their boots on the ground, appellate judges to textualism as the one true method for discerning legislative will. This is true no less for Gorsuch’s grand theory of MQD. Take on face value his casting of the doctrine as “pro-Congress,” as Gorsuch puts it in his concurring opinion in Learning Resources, and see that what is likewise pro-Congress is fidelity to statutory text. Bottom line: If the text alone cannot bear the weight of an interpretation that authorizes agencies or the President to undertake regulatory decisions, then that’s the end of the matter. The requirement of a clear statement means clarity measured solely and inextricably by the text.

Pushing Barrett’s point further than perhaps she would allow, what is common sense about MQD is not so much the way in which the canon is used as a tie-breaker of sorts, but the core case for reading the statute as would a textualist. The statute can given only a meaning that the words will bear. Textualism 101. QED. You don’t really need a muscular canon to figure out what will be that meaning; you just need ordinary interpretation. Indeed, before MQD became all the rage, then-judge Brett Kavanaugh explained in an important Harvard Law Review essay, entitled “Fixing Statutory Interpretation,” that the critical error in modern approaches to delegation issues (focusing in particular on the Chevron doctrine) was the eagerness by judges to find statutes ambiguous when ordinary textualist interpretation would ably shape the statute’s interpretation and give it meaning.

Returning to Gorsuch on MQD, one can believe with him (I don’t, but this is not the post in which to fight this battle) that MQD is sourced in Article I and the separation of powers, but also see that what is undergirding all this is not the argument that the clear statement rule emerges from the Constitution, but the foundational claim that textualism writ large is required by the Constitution. That, of course, is the sine qua non of Justice Scalia’s theory, articulated most fully in his book on this subject and his most important statutory interpretation opinions.

Viewed through this lens, MQD is principally an aid to interpreting statutes where there is ambiguity. And we are reminded by the Chief Justice in Loper Bright that the determination of whether and to what extent the statute is ambiguous will be decided by courts not agencies, and, returning to the point, through textualist methodology.

To be sure, there is a there there in all this MQD debate. After all, the MQD doctrine in its modern version requires this clear statement only in matters of “economic and political significance.” Minor questions don’t require appeal to this doctrine. However, let’s remember that Team MQD still requires textualist interpretation in even those minor questions. We don’t draw the conclusion (Loper Bright teaches us) from the absence of language or legislative history indicating that agencies get to decide what the statute means that courts must then defer to agency interpretations. Rather, courts are obliged to interpret the statute, because that is what courts do and that is what is required by the APA and Marbury v. Madison.

And so the big event is textualism. That is true both before and after Loper Bright; and it is true whatever the courts are to make of MQD. Textualism helps courts to discern what Congress has done or not done with regard to delegating administrative power. And this is true of major and minor questions alike.¹

1. Justice Kagan comes at all this from another direction entirely. In Part IV of her dissent in West Virginia v. EPA, she accuses the Court of jettisoning textualism in order to fulfill larger objectives. As she puts it: “ The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the “major questions doctrine” magically appear as get out-of-text-free cards.” I am fully in accord with Kagan’s critique of MQD on other grounds, finding her dissents in the key cases and her concurrence in Learning Resources. However, I think that Team MQD, taking what they say about the particular statutes in question on face value, see no real daylight between a scrupulous commitment to textualist methodology and use of MQD as a compelling clear statement rule (Gorsuch) or a common sense rule (Barrett).