Notice & Comment

Volume IV of The Major Questions Doctrine Reading List, by Beau J. Baumann

This is Volume IV of the major questions doctrine (“MQD”) reading list. This version reckons with the sheer volume of the literature through restructuring and a slight change in format. Whereas previous iterations of the MQD listed everything under each topic, this version provides a narrower list of relevant items. The bottom of the page—the bibliography section—still lists everything in a loosely chronological order. This version of the reading list also sports a new categorization scheme that reflects my own editorial judgment about the MQD.

In editing a new version of this reading list, I tried to write for a few different audiences. First, I hope this reading list can help scholars keep track of the literature to fill out footnotes and even provide some structure. Second, I am increasingly coming across students who rely on the reading list for an introduction to the doctrine. These are obviously two very different audiences, but the reading list reflects my own balancing act. 

I. The all-purpose MQD articles

As the MQD becomes more complicated, the literature is becoming more specialized. This leads to complaints—sometimes directed towards me(!)—that one could not possibly master the MQD literature or even get a grip on the doctrine. This section of the reading list points readers towards a few canonical pieces. If you read one of these articles, you are probably in the top quartile of MQD knowledge. This is where you want to focus if you have limited time. (see also the blog posts listed at the very bottom of the bibliography section). 

As an aside, folks keep asking me what MQD cases to assign their students. I’ll just say I think the Nebraska decision from this last term is probably the best read. Many of the other contemporary MQD opinions are poorly written. I’m not sure the doctrine has improved on the merits, but Nebraska is a bit more comprehensible. I’d probably offer excerpts from all of the different opinions in that case to offer the students a comprehensive view of where things sit today.

  • Recommended. Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262 (2022). Pound-for-pound, this is one of the best articles—maybe the best article—that, if read, can give you an overview of the MQD status quo. Sohoni offers a great summary of the MQD’s transformation from an anti-Chevron exception to a free-floating canon of statutory interpretation. See id. at 269–276. Her evaluation of the MQD’s constitutional bona fides is among the best in show. See id. at 290–315.
  • Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 Va. L. Rev. __ (forthcoming 2023). This one comes loaded with a ton of important citations for scholars: the MQD is intertwined with an anti-novelty trend, id. at 4; the MQD is a “strong” clear statement rule, id. at 24–25. The paper also sports one of the best discussions of the MQD quartet. See id. at 13–23. The writing is super approachable, so it’s a pretty good piece for students.  
  • The Short Read. Cass R. Sunstein, Two Justifications for the Major Questions Doctrine (unpublished manuscript). This paper is much narrower—Sunstein is really unpacking some of the conservative SCOTUS bloc’s internal debates about the MQD in Biden v. Nebraska. But if you treat your reading time as an investment, this one has a solid ROI on a length-to-content ratio.

II. The MQD’s triggers

By “trigger,” I am referring to the legal elements that must be met before an agency has to point to “clear” statutory authorization. This is where a lot of MQD criticism is focused for devolving too much discretion onto judges. 

  • Recommended. Natasha Brunstein & Donald L. R. Goodson, Unheralded and Transformative: The Test for Major Questions After West Virginia, 47 Wm. & Mary Envt’l L. & Pol’y Rev. 47 (2022). This duo gives us a solid overview of the MQD’s triggers that is increasingly being picked up by advocates and academics. In their telling, the MQD is triggered in “extraordinary” cases where an agency action is (1) “unheralded” and (2) “transformative.” Id. at 49. 
  • Watered down Brunstein & Goodson. One of the moves in the Brunstein-Goodson piece is downplaying economic and political significance as a factor for the MQD’s application. See id. at 50. Many, I think, still believe that “significance” factor is an important one despite its open-endedness. An alternative approach is to frame the MQD as a two-step framework involving requiring (1) economic or political significance and (2) an extraordinary assertion of agency power. Then you just go full Brunstein/Goodson and discuss “unheralded” and “transformative” under the second prong. That is what Todd and I did in our most recent paper. See Todd Phillips & Beau J. Baumann, The Major Questions Doctrine’s Domain at 18–21 (unpublished manuscript).
  • Trigger work for folks at agencies. Richard L. Revesz & Max Sarinsky, Regulatory Antecedents and the Major Questions Doctrine (Dec. 12, 2022). If you work at a federal agency, please, please, please read this paper . . . 
  • The MQD’s triggers are unmanageable or involve too much discretion. See, e.g., Jack Michael Beermann, Major Questions, Delegation, Chevron and the Anti-Innovation Supreme Court at 8 (March 9, 2023) (“This article also illustrates how the Court is doing a poor job providing clear instructions to lower courts and other government entities on how and in some cases even whether to apply its doctrines. It has provided virtually no guidance on what it means for a matter to present a “major question,” it has provided little guidance on what it means for a matter to present a “major question,” it has provided little guidance on the degree of statutory specificity necessary to provide agency authority over a major question . . . .”); Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 Va.. L. Rev. __ at 5 (forthcoming 2023) (critiquing the MQD as “radically indeterminate”); Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 320 (2022) (arguing that the MQD has become more unmanageable because of the Trump Administration’s approach to the doctrine); Josh Chafetz, Gridlock?, 130 Harv. L. Rev. Forum 51, 55 (2016) (“Begin with what ought to be obvious: whether or not a particular question is ‘major’ is a political judgment, not a fact about the world.”).

III. The MQD’s structural element

By “structural element,” I mean what happens once the MQD’s triggers are pulled. There is an in-the-weeds split over whether the MQD is a “strong” or a “weak” clear statement rule. If the MQD is a weak clear statement rule, then it only wins the day if the relevant statutory language is underdetermined (ambiguous, vague, etc.). If the MQD is a strong clear statement rule, then the government loses unless it can point to extra clear statutory language vindicating its position. The majority in the scholarship see the MQD as a strong clear statement rule. In Nebraska, Amy Coney Barrett wrote separately to condemn the stronger version of the MQD. We might infer from this (and from the failure of her colleagues to sign onto her opinion), that the rest of the conservative justices are fine with the stronger take on the MQD. 

If you’re having trouble understanding the difference, Josh Chafetz has the best articulation of the “strong” version of the MQD: “If a majority of justices determine that eating an ice cream cone is a major question, then it is not enough that Congress has empowered the agency to ‘eat any dessert it chooses.’ It must legislate that the agency can ‘eat any dessert it chooses, including ice cream cones.’”

  • Majority—the MQD is a “strong” clear statement rule. See, e.g., Josh Chafetz, The New Judicial Power Grab, 67 St. Louis U. L. J. 635, 649 (2023) (“But the revised major questions doctrine has both shifted to an earlier stage in the analysis an purports to specify the appropriate mode of statutory drafting: if Congress wants to allow agencies to reach certain results, it must say so explicitly. This is no longer about figuring out the most sensible reading of statutory language; it is instead about dictating how Congress does its work.”); Beau J. Baumann, Americana Administrative Law, 111 Geo. L.J. 465, 467 (2023) (arguing that the MQD transformed from a tool of “construction” to a tool of “interpretation”); Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 Va. L. Rev. __ at 3–4, 16–18 (forthcoming 2023) (describing the MQD as a clear statement rule requiring courts “not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies”); id. at 6 (noting that the MQD “flips the normal Chevron analysis on its head”).
  • Minority—the MQD as a “weak” clear statement rule. See Ilan Wurman, Importance and Interpretive Questions, Va. L. Rev. __ at 6 (forthcoming 2024) (arguing that the MQD only requires “unambiguous, though not necessarily specific, statutory language); Natasha Brunstein & Donald L. R. Goodson, Unheralded and Transformative: The Test for Major Questions After West Virginia, 47 Wm. & Mary Envt’l L. & Pol’y Rev. 47, 50 (2022). In Brunstein and Goodson’s parlance, they suggest that the MQD is not a clear statement rule at all. What they mean by that—at least the impression I have gotten from talking to them—is that the MQD is a “weak” clear statement rule that only can operate against underdetermined statutory text. 

IV. The MQD’s ontologies

“Ontology” is a fancy word for the nature of a thing. Whatever other controversies exist on this list are dwarfed by basic disagreements between and among pro-MQD folks, anti-MQD folks, Supreme Court justices, and basically anyone with a passing awareness of the MQD on the MQD’s ontology. See, e.g., Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262, 308–09 (2022) (“[W]hichever theory of nondelegation, assuming there is any, is driving the application of the new major questions doctrine, it would have helped if the Court told us what it was. Instead, as matters stand, agencies and Congress are meant to understand that they must beware of jabberwock of nondelegation that the Court left unidentified and undefined.”). Here is a breakdown of the best ontology-based literature. 

A. The MQD as a substantive canon

The Supreme Court hinted in 2022 that the MQD serves a mysterious separation-of-powers objective—that it is some kind of constitutional or substantive canon. Because the legislation field has its own rich literature on evaluating substantive canons, scholars are using the existing literature to evaluate the MQD as a substantive canon. 

B. The MQD’s descriptive case

This is different from the contextual MQD below. Here, the idea is that congresses (plural) really do not “speak” on major questions through underdetermined language as a descriptive matter. Here, the focus is on how Congress “speaks” in statutes, not really on the reasonable interpreter of Congress’s work product (Contra“The contextual MQD” below). 

  • Ilan Wurman, Importance and Interpretive Questions, Va. L. Rev. __ (forthcoming 2024). The thing that is important for understanding Ilan’s piece is that he is flipping back and forth between two takes on the MQD: the descriptive case and the contextual MQD. See id. at 8 (“However labeled, such a canon may be consistent with textualism, and specifically with empirical evidence regarding how Congress operates, with insights from the philosophy of language regarding how ordinary persons interpret instruction in high-stakes contexts.”) (emphasis added). 
  • Beau J. Baumann, What we mean when we say that the major questions doctrine is “made up”, Adminwannabe.com (Jul. 1, 2022) (“Although proponents of [the] MQD have offered up various justifications for the doctrine, only one has been able to consistently garner votes from SCOTUS. That’s the justification focusing on how Congress ‘speaks’ in statutes.”); id. (“No serious congressional scholar believes that Congress speaks clearly when addressing major questions as a descriptive matter.”).
  • Chad Squitieri, Who Determine Majorness?, 44 Harvard J. of Law & Pub. Pol’y 463, 491–95 (2021) (criticizing the descriptive case by pointing to the Congressional Review Act).
  • Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 75 Stan. L. Rev. 901, 1003 (2013) (arguing that the MQD fiction matches the expectations of congressional drafters).

C. The contextual MQD

One of the bigger developments in MQD land is Amy Coney Barrett’s concurring opinion in Biden v. Nebraska, which was a rip off of Ilan Wurman’s law review listed below. (Still trying to figure out why Ilan wasn’t cited in that opinion . . .) Barrett agreed with a legion of the MQD’s critics that a strong substantive canon version of the MQD is probably indefensible. (slip at 1–5) Instead, Barrett argues for a weaker canon rooted in “context.” (slip at 5) She says this contextual MQD is more compatible with textualism and equates the MQD’s insights with “common sense.” (slip at 6) Although, this is a big boost for the contextual MQD, she has zero co-signers and folks are poking holes in this new articulation as we speak. Watch as you have empirical folks (e.g., Tobia, Walters, and Slocum) contesting the linguistic insight at the root of the contextual MQD while others (e.g., Vermeule and myself) pointing out that this is just disguised policymaking. 

  • Recommended and new. Kevin Tobia, Daniel Walters, and Brian G. Slocum, Major Questions, Common Sense? (unpublished manuscript). The authors provide empirical evidence suggesting that the main insight backing the contextual MQD is dubious. They even use a baby-sitter hypo used by Barrett in her concurrence. 
  • The short read. Adrian Vermeule, Text and “Context”, Yale Notice & Comment (Jul. 13, 2023) (“So the principles that Barrett puts into one category straightforwardly fall into the other as well. It is not just that we have here a case of the ordinary difficulty of drawing lines between categories; it is that Barrett’s two categories do not describe different things. Both the presumption against retroactivity and the presumption of equitable tolling are, equally and simultaneously, both firmly rooted in historical and government context as background legal conventions, and also fully substantive and value-laden.”).
  • Beau J. Baumann, Let’s talk about that Barrett concurrence (on the “contextual major questions doctrine”), Yale Notice & Comment (Jun. 30, 2023) (“Here’s the problem, if the linguistic insight at the center of this conversation between Barrett, Ilan, and Ryan’s works applies against courts and agencies, the choice between the MQD and Thayerian deference is just a policy decision. We’re right back to where we started and none of this should comfort textualists.”).
  • Ilan Wurman, Importance and Interpretive Questions, Va. L. Rev. __ (forthcoming 2024).
  • The urtext. Ryan D. Doerfler, High-Stakes Interpretation, 116 Mich. L. Rev. 523 (2018) (“The argument is, in effect, to say that the meaning of a statute is ‘clear’ or ‘plain’ is, in effect, to say that one knows what the statute means. As numerous philosophers have observed, however, ordinary speaks contribute ‘knowledge’—and, in turn, ‘clarity’—more freely or less freely depending upon the practical stakes. . . . [I]f the practical stakes are high, speakers require greater justification before allowing that someone ‘knows’ that same thing[.]”).

D. The field-of-dreams theory for the MQD

Over the last few decades, supporters of the nondelegation doctrine have argued that the doctrine would kick Congress in the right direction. Congress—so the thinking goes—might delegate less, decide more things itself, and draft better laws. You can spot the legacy of that literature in Neil Gorsuch’s writings. Because this pitch for strong judicial doctrine works just as well for the MQD, it is slowly migrated over to the MQD literature. See, e.g., Jennifer L. Mascott & Eli Nachmany, The Supreme Court reminds the executive branch: Congress makes the laws, The Washington Post (Jul. 1, 2022) (“The result may be a much-needed reinvigoration of Congress’s will to reclaim its legislative prerogative.”). Naturally then, a literature has just started churning out evidence undercutting this way of thinking. These pieces either argue or show that what Dan Walters calls the “field of dreams theory” for congressional reinvigoration is, at best, wishful thinking.

V. Is the major questions doctrine consistent with textualism?

Scholars have been questioning the compatibility of the MQD with textualism for a long while. While some may not think MQD scholarship doesn’t matter, these textualist critiques of the MQD found a home in Amy Coney Barrett’s Nebraska concurrence. Watch as attention increasingly homes in on her separate contextual version of the MQD. Increasingly, a textualist defense of the MQD seems difficult to fathom.

  • The Short Read. Adrian Vermeule, Text and “Context”, Yale Notice & Comment (Jul. 13, 2023). This is a pretty great post-Nebraska take (much better than my own). AV takes apart Barrett’s pitch for a context-based MQD that is more compatible with textualism than substantive canons. 
  • Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262, 282–290 (2022) (questioning the MQD compatibility with the conservative Justices professed textualism).
  • Chad Squitieri, Major Problems with Major Questions, Law & Liberty (Sept. 6, 2022) (arguing that the MQD is “a product of legal pragmatism” and incompatible with textualism).

VI. Is the major questions doctrine consistent purposivism?

This question has gotten much less attention than the MQD’s compatibility with textualism. It has basically just been me disagreeing with Jed Shugerman on a loop for the last year. This is an area that might demonstrate from more attention and new voices. 

VII. The MQD’s domain

This is one of the areas where I am expecting some growth over the next few years. A “domain” literature focuses on a doctrine’s reach by extrapolating from the doctrine’s triggers, ontology, and past applications. See, e.g., Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J. 833 (2001). Just as Merrill/Hickman asked about Chevron’s domain over two decades ago, scholars today can try and do the same work for the MQD today.

VIII. The MQD as “Judicial Self-Aggrandizement”

“Judicial aggrandizement” refers to the “successful deployment of ideas and norms that reinforce the judiciary’s role as the final arbiter of political disputes at the expense of other governing institutions.” Judicial self-aggrandizement refers to when jurists, rather than other actors, deploy the same rhetoric. Because the study of judicial aggrandizement has taken off around the same time as the newest version of the MQD, scholars have been quick to study the MQD as an obvious case study in judicial aggrandizement. 

  • Jody Freeman & Matthew Stephenson, The Anti-Democratic Major Questions Doctrine, Sup. Ct. Rev. 1, 13–19 (2023) (critiquing the MQD as judicial aggrandizement because it devolves discretion onto judges).
  • Recommended. Josh Chafetz, The New Judicial Power Grab, 67 St. Louis U. L. J. 635 (2023).
  • Recommended. Blake Emerson, The Binary Executive, Yale L.J. Forum (forthcoming 2022) (arguing that the MQD is a form of judicial aggrandizement that is impermissible because it results in judges wielding executive power).
  • Allen Sumrall, Nondelegation and Judicial Aggrandizement, 15 Elon L. Rev. __ (forthcoming 2023) (applying an APD perspective and arguing that the nondelegation doctrine is an attempt at “judicial self-aggrandizement”). This one is mostly about the nondelegation doctrine but the footnotes connect the author’s analysis to the MQD. See, e.g., id. at 3–4 n.10.
  • Beau J. Baumann, Americana Administrative Law, 111 Geo. L.J. 465 (2023) (showing that backers of the nondelegation doctrine and the MQD have justified a project of judicial self-empowerment by suggesting that Congress is declining or that delegations have corrupted its incentives).

IX. The political morality of the MQD

  • Recommended and New. Jed H. Shugerman & Jodi L. Short, Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law (unpublished draft). The authors discuss a tension at the root of the MQD’s political morality. In some contexts, the Roberts Court has adopted the rhetoric of presidential representation. In the context of the MQD, the conservative justices have penalized programs that embody presidential leadership. To hide this tension, the Court often blames faceless bureaucrats for the policies at issue in MQD cases. The authors end with a call for the Court to resolve this apparent tension.

Bibliography

Articles and Essays:

Blog Posts:

Beau J. Baumann is a Ph.D. candidate at Yale Law School. He welcomes all comments via email.

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