A Textualist Defense of the Major Questions Doctrine
Over the last few years, the once-relatively obscure “major questions doctrine” (MQD) has become increasingly controversial, as the Supreme Court has relied on it in several major cases, such as the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. If yesterday’s oral argument is any indication, the Court may also use it to strike down the Biden Administration’s massive loan forgiveness plan.
The doctrine requires Congress to “speak clearly when authorizing an [executive branch] agency to exercise powers of vast ‘economic and political significance.'” If such a broad delegation of power isn’t clear, courts must rule against the executive’s claims that it has the authority in question. Critics often argue that this rule is at odds with textualism in statutory interpretation—a theory to which many conservative judges are committed. For example, in her forceful dissent in West Virginia v. EPA, Justice Elena Kagan complains that MQD has become “a get-out-of-text free card.” If the otherwise-best interpretation of a given text is that it grants the executive sweeping powers, why should MQD overturn it?
But, contrary to popular belief, there is in fact a textualist justification for MQD. Most textualists hold that statutory language should be interpreted in accordance with its “ordinary meaning.” And they also recognize that ordinary meaning varies based on context. The same words and phrases might have different meanings depending on the situation. For example, prominent textualist legal scholar and judge Frank Easterbrook rejects “[a]