The administrative law community is coming to terms with the real possibility that the nondelegation doctrine will be disinterred. For “anti-administrativists” and “administrative-skeptics,” revival of this doctrine is something of a nuclear option that could lay waste to entire government agencies, programs, and statutes. For those convinced that granting policymaking discretion to the executive branch is unconstitutional, perhaps no other remedy suffices. But there is a somewhat less strident and dramatic doctrine that could be deployed to accomplish similar ends: the major questions doctrine (MQD). This doctrine was discussed by Justice Gorsuch in his dissent in Gundy v. U.S., in which he heralded nondelegation’s imminent return, and again by Justice Kavanaugh in his statement respecting denial of cert in Paul v. U.S. The major questions doctrine presumes that Congress does not intend agencies to make decisions of “vast economic and political significance” unless the statute explicitly says so. Rather than strike down a statute as impermissibly delegating legislative power, MQD instructs courts to read delegations of authority narrowly so as to curtail agencies’ policymaking power.

             I critiqued the MQD when Chief Justice Roberts invoked it in King v. Burwell. Now that the two newest members of the bench seem also to support the doctrine, the moment is ripe to reassess its bases and validity. The major questions and nondelegation doctrines share common constitutional foundations. First, both purport to protect popular sovereignty, based on the widely shared assumption that the legislature is the primary branch through which the people express their will. Nondelegation and MQD also both claim to protect the separation of powers by ensuring that the executive does not exercise powers belonging properly and exclusively to the legislature. Contemporary apologists for nondelegation take an approach similar to the MQD in determining what legislative powers cannot be delegated: the legislature alone must make the “important” decisions.

            Nondelegation and MQD share some common flaws. Most prominently, it remains unclear how courts are to develop meaningful standards (intelligible principles?) to draw the line between “important” and “interstitial” questions. As then-Judge Kavanaugh admitted in U.S. Telecom v. FCC in articulating his approach to MQD, the definition of “major” “has a bit of a ‘know it when you see it’ quality.” He lists several relevant factors, including the amount of money involved, the number of people affected, and “the degree of congressional and public attention to the issue.” This test reads like the Second Restatement of Torts’ definition of negligence. It offers no bright line rules, and instead identifies several highly fact-dependent considerations. The formalist concern to preserve the separation of powers thus gives way to a functional analysis that involves courts in making difficult and arguably subjective policy determinations about how much executive discretion is simply too much.

            Which raises a second difficulty for nondelegation and MQD with respect to democratic values. While both tests purport to reinforce the people’s sovereign power, they in fact shift power away from elected representatives and toward the independent judiciary. Based on an open-ended determination of whether an issue seems too important to be left to an administrative agency, the court either holds the statutory scheme unconstitutional (nondelegation) or reads it so as to prevent the agency from taking a “major” action under that authority (MQD). In both cases, the judiciary countermands an exercise of power by a branch of government that has a more immediate connection to the people than the courts do.

            Both nondelegation and MQD thus seem to worsen the malady they attempt to cure. The constitutional problem they identify is that the legislature sometimes fails to make important policy choices. Instead it grants such authority to the executive, which is only supposed to carry out the decisions the legislature makes. But in trying to solve that problem, both doctrines reallocate legislative power from the executive to the courts. If the executive improperly exercises legislative power when it makes “important” decisions, then it would seem that the courts also improperly exercise legislative power when they decide those same “important” questions themselves. When a court decides that the statutory scheme impermissibly delegates legislative power, it overrides Congress’ choice to act on a given issue and to assign implementation authority to the executive. MQD, in parallel, vetoes an exercise of delegated lawmaking power by the executive. In both cases, the worry that the legislature has assigned too much power to the executive is answered by amplifying the power of the courts to determine whether and which otherwise valid rules will govern society. Why should we be more comfortable with courts exercising such legislative power than with the executive branch and its agencies doing so? After all, the judiciary is less democratically accountable than the executive, and it is no less subject to separation-of-powers constraints.

            Perhaps the answer is that these doctrines allow the courts merely to constrict rather than expand governmental power. As a consequence, the judiciary’s exercise of legislative power in these cases will protect rather than undermine private liberty. But liberty is a complicated matter, and MQD may arguably impair its exercise. For example, in FDA v. Brown & Williamson, one of the most important major questions cases, the Court barred the Food and Drug Administration from prohibiting the sale and advertisement of cigarettes to persons under the age of 18. If a fourteen-year-old develops a smoking addiction because of the Court’s decision, that person’s future ability to make autonomous choices is likely to be more constrained than if FDA’s regulation had been put into effect. Similarly, if the court prevents the Environmental Protection Agency from taking steps to address climate change, will individuals have more or less liberty in a world of rising seas, increasingly voracious wildfires, and intense storms? The stakes are high in answering these major questions, and they don’t get lower because the courts answer them.

            This is not to deny that nondelegation and MQD target a real problem: the risk that delegation of authority to executive agencies may undermine democracy. If Congress does not settle important policy questions, then the people may lose their ability to shape the rules that bind them. But our administrative state has democratic potential that could be better leveraged to address that concern. If properly structured and deployed, the administrative process can amplify rather than diminish public input in and control over policymaking. Thus I have proposed that the MQD should be modified as follows: courts should only defer to an agency’s resolution of a major question if the agency has answered that question in a deliberative-democratic manner. When taking significant regulatory actions, agencies should generally engage in notice and comment, ensure that the rulemaking record discloses the important questions involved, and rationally respond to input on those questions. If agencies take those steps, the courts should defer to their reasonable constructions of statutes’ ambiguities. This approach is analogous to Kenneth Culp Davis’ proposal that nondelegation should focus on the quality of agency procedure in assessing whether the agency has properly exercised lawmaking power. The Court, of course, rejected that approach in Whitman v. American Trucking. I am not optimistic it will embrace my approach to major questions, either. But if the Court is to go on deploying the substantive approach to nondelegation and MQD, it has a responsibility to develop a justiciable standard with which to determine what questions are “major” or “important” and which ones an agency may answer. Otherwise, it will be hard to distinguish such decisions from improper judicial exercises of legislative power.

Blake Emerson is assistant professor of law at the UCLA School of Law. He is the author of The Public’s Law: Origins and Architecture of Progressive Democracy. His scholarship has appeared in the Yale Law Journal and Minnesota Law Review, among other publications.