“I’m not a skeptic of regulation at all. I am a skeptic of unauthorized regulation, of illegal regulation, or regulation that’s outside the bounds of what the laws passed by Congress have said. And that is what is at the root of our administrative law jurisprudence.”

-Judge Brett Kavanaugh before the Senate Judiciary Committee, Sept. 5, 2018

Note: This blog entry is adapted from the author’s article The Major Rules Doctrine, to be published in the Volume 12, Issue 1 of the NYU Journal of Law & Liberty.

The Constitution’s nondelegation doctrine restricts diffusion of legislative power from Congress.^[1] But since the New Deal, it has been crimped to allow for the growth of modern administrative governance. This pervasive grant of legislative power is one of today’s most pressing deviations from the Constitution’s original meaning. A particularly lamentable consequence of this deviation occurs when an agency promulgates legislative rules of major economic and political significance, as such rules are justified solely upon an ambiguous delegation of authority from Congress.

Courts can address this deviation by adopting the “major rules doctrine,” a clear statement principle advocated by Supreme Court nominee Judge Brett Kavanaugh which would invalidate agency rules for issues of major economic and political importance.

Consider Net Neutrality. In highly publicized rulemakings, the FCC, over a span of only a couple years, reversed its original determination that it had no authorization to regulate internet service providers (and the provision of internet services), and then reversed itself again in rescinding those regulations.^[2] Thus, the FCC, relying upon authorization found in an ambiguous statutory provision, was able to take both sides of an issue of major economic and political significance, while an engaged and frustrated public was left without the ability to have direct democratic control of the outcome of the agency’s rulemaking. Under this paradigm, issues of major significance—across all different sectors—swing back and forth and are removed from accountability by the public, by Congress, and by the judiciary. This has resulted from a combination of an inactive Congress, a flagging nondelegation doctrine, and a highly-deferential Chevron doctrine.^[3]

The nondelegation doctrine reserves legislative power to Congress. This includes major policy decisions of heightened political salience. To recapture the Constitution’s original design, the judiciary needs to formulate a response that (1) prevents agencies from usurping these decisions from Congress and, critically, (2) also prevents the judiciary from stepping in. The major rules doctrine requires that agencies have clear Congressional authorization on issues of such magnitude in order to promote democratic accountability, preserve the constitutional structure, and avoid entangling the judiciary in political questions.

These major issues, under current precedent, are at least entitled to a Mead-like exemption from Chevron’s grant of deference to agencies.^[4] Deference here is not justified by the traditional three Chevron pillars. First, there is no indication that Congress meant to delegate these issues, considering their significance and political valence.^[5] Second, in these instances, Chevron deference cannot be justified by technical expertise. Issues of major economic and political significance turn on value judgments and policy decisions, not technical specifications. “Even among experts, technical data does not resolve difficult policy questions.”^[6] Only the third rationale for Chevron—preference for politically accountable actors to interpret ambiguities—supports granting deference on these questions to agencies.

The Supreme Court has developed the major questions doctrine, which refuses Chevron deference to agency interpretations implicating questions of major political and economic significance.^[7] Ironically, however, when the political implications of the issues become too important for the agency to decide, the major questions doctrine flips the script and grants unelected courts unimpeded authority to decide them, rather than the (relatively) more politically accountable agencies. Under this doctrine, a judge reviews the statute de novo—determining the best reading of the statute without deference to the agency’s interpretation.

King v. Burwell is a prime example of the proper identification of a major rule with an improper judicial response. In that case, Chief Justice Roberts rejected the idea that an issue so critical to the Affordable Care Act that it could create a death spiral for the government’s health insurance exchanges was intended by Congress to be determined by the IRS.^[8] Rather, Chief Justice Roberts created a direct role for the judiciary to interpret the statute instead of the agency.^[9] Thus, the major questions doctrine may be improperly used to transfer the resolution of major issues from agencies to the courts and fails to address the ultimate concern of nondelegation: ensuring decisions of major import are exclusively resolved by Congress.^[10]

In contrast, the major rules doctrine, as put forward by Judge Kavanaugh in his dissent from rehearing en banc in United States Telecom Ass’n v. FCC,^[11] would deny even de novo review. By declaring a rule of major economic and political significance flatly unlawful unless Congress provided a clear statement authorizing the agency to promulgate such a regulation the major rules doctrine would ensure that Congress’s legislative power is usurped by neither the executive agencies nor the judiciary. A rule which merely transfers resolution of major issues from agencies to courts fails the nondelegation doctrine’s ultimate purpose of ensuring legislative power is exercised by Congress. A clear statement principle embodied in the major rules doctrine addresses the nondelegation concerns of those wary of the growth and power of the administrative state while not granting excessive discretion to the judiciary branch in its stead.

And it is gaining some momentum. In the short time since Judge Kavanaugh discussed the major rules doctrine in USTA, circuit judges have already begun to cite Judge Kavanaugh’s major rules dissent and have implemented it through this clear statement rule formulation. For instance, in International Refugee Assistance Project v. Trump, Chief Judge Gregory, in concurrence, would have applied the major rules doctrine as a nondelegation canon to hold that the President was not delegated the authority to enact a nationality-based quota system based on a statutory ambiguity, even though he was expressly delegated significant generalized authority.^[12] He argued that

[t]he clear-statement rule guards against unnecessary erosion of separation of powers and political accountability by insisting that the legislature directly confront the benefits and implications of these decisions. . . . [T]he President does not, within the confines of the Constitution, decide major questions that are within the legislative function.^[13]

The ultimate function of the major rules doctrine is to ensure that “important choices of social policy are made by Congress.”^[14] If the Court wishes to remain true to the nondelegation doctrine, then it should resolve to “reshoulder the burden of ensuring that Congress itself make the critical policy decisions” and not insert itself into such decisions.^[15]

[1] U.S. Const. art. I, § 1 (“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” (emphasis added)).

[2] Restoring Internet Freedom, 33 F.C.C. Rcd. 311 (2018).

[3] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (granting deference to administrative agencies’ interpretations of their authority where the intent of Congress was ambiguous and where the agencies’ interpretation was reasonable or permissible).

[4] U.S. v. Mead Corp., 533 U.S. 218, 226–27 (2001) (holding that the Court will refuse Chevron deference if there is an indication rebutting the Chevron presumption that Congress intended to delegate a certain authority to an agency).

[5] See Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014) (“We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”); Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 291 (4th Cir.), as amended (Feb. 28, 2018) (Gregory, C.J., concurring) (“Courts require a clear statement of congressional intent before finding that Congress has ceded decisions of great economic and political significance.”).

[6] Philip Hamburger, Is Administrative Law Unlawful? 314 (2014).

[7] Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777 (2017).

[8] King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (“Whether those credits are available on Federal Exchanges is thus a question of deep ‘economic and political significance’ that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. [Util. Air Regulatory Grp., 134 S. Ct. at 2444 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000))]. It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. See Gonzales v. Oregon, [546 U.S. 243, 266–267 (2006)]. This is not a case for the IRS.”).

[9] Id. (“It is instead our task to determine the correct reading of Section 36B.”).

[10] This could be thought of as a corollary to political question jurisprudence, which states that the judiciary is restrained from inserting itself into resolving major policy debates. In the lodestone political question case Baker v. Carr, Justice Brennan concluded that political questions are “essentially a function of the separation of powers” in much the same manner as nondelegation concerns are. 369 U.S. 186, 217 (1962). One of Brennan’s indicating factors for political questions is “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.” Id.

[11] United States Telecom Ass’n v. FCC, 855 F.3d 381, 422 (D.C. Cir. 2017) (en banc) (Kavanaugh, J., dissenting from the denial of rehearing en banc).

[12] Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 274 (4th Cir.), as amended (Feb. 28, 2018) (Gregory, C.J., concurring).

[13] Id. at 291–92 (emphasis added).

[14] Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980) (Rehnquist, J., concurring in the judgment).

[15] Id. at 687.