Our recent Essay in the Wisconsin Law Review Forward explores the question, what do multiple versions of the major questions doctrine mean for the future of legislation?

We observe that, after West Virginia v. EPA, 597 U.S. 697 (2022) and Biden v. Nebraska, 143 S.Ct. 2355 (2023), we now have three versions of the major questions doctrines: The “clear statement approach” from Justice Gorsuch grounds the doctrine in the constitutional proscriptions of separation of powers and nondelegation and would require a clear statement from Congress before an agency can promulgate regulations with respect to certain issues. The “contextual approach” articulated by Justice Barrett purports to reconcile the doctrine with textualism. In her view, even “major” cases should be decided based on the text, context, and commonsense principles of statutory interpretation. Finally, the “hybrid approach” applied by Chief Justice Roberts combines elements of the clear statement and contextual approaches; its contours are less defined. 

Each approach could mean something different for Congress’s ability to confer authority upon agencies. In the Essay, we apply each approach to two hypothetical statutes. We ask: What if Congress passed a statute saying, “We delegate to the Secretary of Education the authority to take all necessary action needed to help those adversely affected by a national emergency?” Or what about “The Secretary of Education may, in response to a national emergency, forgive student loan debts to the extent necessary to help those adversely affected by the national emergency?”

Given the varying justifications underlying each approach (which we explore in the Essay), we believe these two hypothetical statutes yield interesting results under each version of the doctrine. Under the clear statement approach, the Secretary’s attempt to forgive student loans under the first statute would likely be struck down (due to nondelegation concerns), while the Secretary’s efforts to cancel student loans under the second statute would likely be upheld (because it clearly states student loan cancellation as a policy).  Under the contextual approach, an attempt to cancel student loan debt under the first statute would likely be upheld (though it might still face nondelegation or separation of powers challenges). Canceling student loan debt under the second statute would also likely be upheld (because its text and context clearly authorize student loan cancellation). Under the hybrid approach, we cannot say for certain how the Secretary’s attempt to forgive student loans would fare under the first statute. Chief Justice Roberts’s previous writings for the Court give us reason to believe he would be skeptical of such an unabashed delegation but would likely uphold an attempt to forgive student loans under the second statute. 

Our analysis suggests that, under any version of the major questions doctrine, Congress should provide express context and speak clearly for its legislative authorizations, much like second statute. Under the scrutiny of a Court that is willing to wield the major questions doctrine in a muscular way, the safest course to authorize agency action is to speak clearly to the specific policy Congress wants executed. Anything less runs the risk of being struck down. The problem, however, is that Congress routinely passes statutes that look a lot like our first hypothetical for a variety of reasons—some understandable and others condemnable. But, as we demonstrate, that is a recipe for disaster. Specificity is the better course, regardless of which version of the major questions doctrine the Court ends up adopting. 

Austin Piatt is a law clerk on the United States Court of Appeals for the Sixth Circuit, and a former clerk for Judge J. Harvie Wilkinson III on the United States Court of Appeals for the Fourth Circuit. He received a J.D. from Northwestern University Pritzker School of Law.

Damonta D. Morgan is a law clerk on the United States Court of Appeals for the Seventh Circuit, and a former clerk for Judge Carlton W. Reeves on the United States District Court. He received his J.D. from Columbia Law School.