As Justice Barrett explained in Biden v. Nebraska, she views the major questions doctrine (“MQD”) a bit differently than her colleagues.  While other justices consider the MQD to be a substantive canon (i.e., a canon of statutory interpretation that promotes a policy norm existing external to a statute), Justice Barrett indicated that she understands the MQD to be a linguistic canon (i.e., a canon of interpretation that applies grammatical rules or speech patterns to discern a statute’s meaning).  To defend her unique conception of the MQD, Justice Barrett analogized to a hypothetical involving a babysitter.  In particular, she contended that, like how a parent should not be understood as giving a babysitter “major” authority in the ordinary course, Congress should not be understood as giving an agency “major” authority absent some clear indication to the contrary.  

Having given Justice Barrett’s defense of the MQD some thought, this post will offer two arguments.  First, and as I explain in a new symposium essay, Justice Barrett’s babysitting hypothetical actually serves to demonstrate a problem with the MQD.  The problem stems from the Constitution’s vesting of federal lawmaking authority in both the President and Congress, rather than Congress alone.  In short: Presidents are parents too.  And so, similar to how a babysitting parent can be expected to secure “major” babysitting authority (as Justice Barrett concedes in Nebraska), the President can be expected to secure “major” statutory authority for the administrative agents who exercise executive power on the President’s behalf. 

The second argument offered by this post, which I outline in more detail in a forthcoming law review article, is that the MQD can be reformulated into a substantive canon that can assist courts in policing the constitutional lines separating the President’s and Congress’s lawmaking roles.^[1]

Missing Legal Context

In Nebraska, Justice Barrett defended her understanding of the MQD by analogizing to a hypothetical parent.  In particular, she analogizes to a hypothetical parent “who hires a babysitter to watch her young children over the weekend” and who instructs that babysitter to “[m]ake sure the kids have fun.”  A reasonable interpretation of that instruction, Justice Barrett posited, would authorize the babysitter to take the kids “to the local ice cream parlor or movie theater,” but not to take the kids on a more major “multiday excursion to an out-of-town amusement park.”  The idea is that, absent additional context—like the parent complementing their instructions by leaving “tickets to the amusement park on the counter,” or by showing “the babysitter where the suitcases are”—the babysitter is not vested with “major” babysitting authority.  For Justice Barrett, the upshot for the MQD is that, similar to how context informs babysitting authority, “our constitutional structure, which is itself part of the legal context framing any delegation,” should lead a “reasonable interpreter” to expect for Congress (i.e., the parent) “to make the big-time policy calls itself, rather than pawning [big-time policy calls] off to another branch” (i.e., the babysitter).

I take no issue with Justice Barrett’s statement in Nebraska that “the balance of power between those in a relationship inevitably frames our understanding of their communications.”  And she might even be correct to conclude that the “balance of power between” a parent and a babysitter is such that the former does not ordinarily give major authority to the latter.  Nonetheless, I contend that the analogy is not a particularly helpful means of defending the MQD.  That is because the hypothetical babysitting situation is quite different than the situation presented by federal statutes’ vesting of authority in administrative agencies.  

Start with a fundamental point that often gets overlooked: the Constitution does not vest “legislative power” in Congress alone.  Instead, Congress is vested with an enumerated subset of “legislative powers,” while other components of federal lawmaking authority are vested in the President.  In particular, two constitutional provisions speak to the President’s legitimate influence over the federal legislative process.

First is the Recommendation Clause of Article II, Section 3, which provides that the President “shall . . . recommend to [Congress’s] Consideration such Measures as [the President] shall judge necessary and expedient.”  As I argue elsewhere, the Recommendation Clause both empowers and requires the President to “recommend” certain legislative “measures” for Congress’s “consideration.”  Given as much, the Recommendation Clause gives the President something of a first-mover advantage.  Consider how, after the President introduces legislative proposals at the State of the Union address, legislative debate often centers around the perceived wisdom or shortcomings of the President’s recommendations.  The President can be expected to use such opportunities to recommend legislation that vests the President’s administrative agents with “major” authority. 

Second, the President can shape legislative text by flexing the veto authority vested by Article, Section 7.  That deposit of potential energy need not become kinetic to shape legislative text.  Congress, after all, can be expected to make legislative drafting decisions (including decisions concerning whether legislative language vests the President’s agents with “major” authority) with an eye toward what the President might ultimately approve or veto.  And even if Congress plans to override a presidential veto, Congress knows they must draft legislation in a way that can secure the super-majority support necessary to accomplish as much. 

Given the President’s constitutional authority to shape legislation, federal jurists should expect for the President (and/or the President’s congressional allies) to sometimes secure “major” statutory authority for the administrative agents that exercise executive authority on the President’s behalf.  To be sure,  the various intra- and inter-branch political negotiations that make up the federal lawmaking process will work to ensure that Congress might sometimes refuse to vest the President’s administrative agents with “major” statutory authority.  But it is precisely because the federal lawmaking process will sometimes favor the President and sometimes favor Congress that textualists jurists (who are faithful agents of the People, rather than Congress alone) should avoid adopting an interpretive canon that stacks the deck in favor of either political branch.  

With the President’s lawmaking authorities more fully in mind, it becomes clear that the legal context presented by the Constitution’s lawmaking procedures is quite distinguishable from Justice Barrett’s babysitting example.  Indeed, the Constitution’s procedures present legal context that is more similar to an alternative hypothetical that Justice Barrett refers to elsewhere in her Nebraska concurrence: where “one parent left the children with the other parent for the weekend,” in which case a reasonable interpreter “would view the same [amusement park] trip differently because the parents share authority over the children.” 

Similar to how parents share authority over the children, the President (who supervises executive branch officials and who helps shape the federal legislation empowering those officials) shares authority with Congress over administrative agencies.  And so, like how a babysitting parent can be expected to secure major babysitting authority, the President can be expected to secure major statutory authority for the President’s administrative agents in the ordinary course.  

A Substantive Canon Textualists Can Embrace

To say that the linguistic MQD is in tension with the Constitution’s structure is not to say that jurists cannot embrace something similar to the existing MQD.  To the contrary, and as I propose in a forthcoming law review article,  the MQD can be reformulated so as to better police the lines separating the President and Congress’s roles in the federal lawmaking process.  

The reformulated MQD would focus on presidential efforts to squeeze new powers out of old statues, and it would use the President’s Recommendation Clause obligation as a sort of constitutional tripwire to do so.  When the President’s agents issue a new regulatory measure, a plaintiff injured by that measure could invoke the reformulated MQD to argue that, if the President thinks the measure “necessary and expedient” enough to permit the President’s agents to impose regulatory burdens (to use the words of the Recommendation Clause), then the measure is likely the type of “necessary and expedient” measure that the President needs to “recommend” for Congress’s “consideration.”

Of course, the President could defeat a reformulated MQD challenge by demonstrating either of two things.  First, that the measure was not “necessary and expedient” in the constitutional sense.  Or second, that the President already had “clear statutory authority” to promulgate the regulatory measure, and thus had no constitutional duty to recommend that Congress re-grant statutory authority that the President already had.  But by requiring courts to pause and look more closely at the President’s purported ability to find “unheralded powers” in “long-extant statutes” (to borrow language from the existing MQD), the reformulated MQD would work to ensure that more national policy is set through the interlocking lawmaking procedures laid down by the Constitution—rather than the President’s unilateral actions.

Chad Squitieri is an Assistant Professor of Law at the Catholic University of America, where he also serves as a Fellow for the Project on Constitutional Originalism and the Catholic Intellectual Tradition

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^[1] Portions of this post are taken from Chad Squitieri, “Recommend Measures”: A Textualist Reformulation of the Major Questions Doctrine, __ Baylor L. Rev. __ (forthcoming) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4598003)and Chad Squitieri, Placing Legal Context in Context (draft symposium essay) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4610078).