A Major New Defense of the Major Questions Doctrine

The once-obscure major questions doctrine  (MQD) has become a major focus of controversy, since the Supreme Court used it in three—yes,  major –  rulings over the last two years. The three cases are the eviction moratorium decision, the OSHA large-employer vaccine mandate case, and West Virginia v. EPA. MQD may also end up playing a decisive role in the loan forgiveness cases currently before the Court.

The doctrine requires Congress to “speak clearly when authorizing an [executive branch] agency to exercise powers of vast ‘economic and political significance.'” Critics had advanced a variety of charges against the major questions doctrine and the Court’s use of it, including that it is politically motivated, that the line between “major” and relatively minor questions is arbitrary and unclear, and that the doctrine is incompatible with textualism.

In a forthcoming Virginia Law Review article, prominent constitutional law scholar Ilan Wurman offers an important and in some ways compelling new defense of  MQD. Here is the abstract:

In its past term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach anti-administrativist results. One can explain at least some of the cases, however, in a way that constructs a coherent doctrine in which importance has a significant but narrow role in resolving interpretive questions involving ambiguity or uncertainty. Thus understood, such a doctrine could be defensible, if not as a substantive canon, then as a kind of linguistic canon. Unlike other linguistic canons, such a canon would be about how people and lawmakers use language to accomplish results in a circumscribed range of contexts—namely, the delegation of important authorities, whether to other private actors, to government actors in Constitution, or to government actors in the executive department. But unlike substantive canons, it would not relate to a substantive value encoded in the Constitution or in longstanding tradition. Existing empirical work about how legislators legislate, and insights from the philosophy of language, suggest that such a doctrine may be consistent with textualism, and historical research further reveals that a canon of this type may be a longstanding feature of constitutional, contract, and statutory interpretation in related contexts. More provocatively, these same intuitions about importance may explain some substantive canons that are diffic