The major questions doctrine has become, well, a major question of interest at the Supreme Court these days. Some critics, including Justice Kagan, have suggested that at least certain versions of this doctrine may be contrary to textualism. While I too am concerned about this doctrine, I think that its incompatibility with textualism has been overstated.
Let me illustrate this point by reproducing part of an exchange between Justice Kagan and the West Virginia Solicitor General during the recent argument in West Virginia v. EPA:
JUSTICE KAGAN: … [H]ow big does a question have to be or how do you know when it’s big enough [to trigger the doctrine]?
SEE: … [W]e can also look at the broader economic and social consequences.
JUSTICE KAGAN: And — and do you look at those now? I mean, I would think that if this is a rule of statutory construction, and – and I would think that whether or not it has any kind of constitutional links, that the question would be what the Congress at the time thought and what the circumstances at the time were.
It seems to me quite irrelevant to rules of statutory construction under the theories that this Court has most frequently used in recent years about, like, oh, if we look around the world today, we see that this particular rule has a big impact.
Kagan’s basic argument is straightforward. Because the major questions doctrine is supposedly a guide to the enacted text’s meaning, we should care about the perspective of a legislator or reader at the time of enactment. Looking instead to present-day consequences would be atextual and so runs afoul of “the theories that this Court has most frequently used in recent years.” (In raising this point, Kagan seemed to echo a similar argument set out by Professor Ben Eidelson in an insightful twitter thread.)
Kagan’s argument makes ample sense if we think of the major questions doctrine as an epistemic aid to understanding the meaning of a past enactment. In general, an expression’s context helps determine its meaning. And a statute’s context includes whether a particular text was thought to be “major” in terms of its consequences. If that is the right view of the major questions doctrine, then Kagan is probably correct about its implications.
But there is at least one other way of understanding the major questions doctrine and many similar interpretive principles. Instead of being an epistemic aid to ascertaining contextual meaning, the doctrine could be a separate interpretive principle in its own right. More specifically, the doctrine could tell courts: “When a statutory meaning is sufficiently indeterminate, opt for the reading that avoids regulation of major questions whenever those questions arise.”
So understood, the major questions doctrine would be perfectly compatible with textualism and other “theories” that the Court has “used in recent years.” Textualism can acknowledge that statutes are sometimes ambiguous, vague, or otherwise indeterminate at the time of enactment. The enacted text, then, would not change meanings over time. What would change is how a separate principle (the major questions doctrine) tells courts to resolve the indeterminacy.
In this respect, the major questions doctrine can be likened to Chevron. Long celebrated by textualists like Justice Scalia, Chevron directed courts to read “ambiguous” statutes based on post-enactment executive-branch interpretations. When a court updates to account for a new agency interpretation of a statute, it does not hold that a textual meaning has changed. Rather, the Chevron doctrine directs the court to resolve an old textual indeterminacy in a new way. So the major questions doctrine can be viewed as Chevron’s mirror image.
Notably, the evident tension between being a textualist and recognizing atextual interpretive principles helps explain why these doctrines are usually framed in terms of resolving ambiguity. In principle, an atextual interpretive principle could operate even when a statute is textually clear—somewhat like the way that the Dictionary Act overrides otherwise plain statutory terms. Yet it would acutely defy textualist intuitions for an atextual principle to overcome plain texts. By contrast, turning to an atextual principle may seem less objectionable if the statutory text in question is itself ambiguous.
But perhaps textualism poses a different kind of problem for both of these doctrines—namely, where do they come from? No authoritative text (apart from judicial decisions) seems to express either the major questions or Chevron doctrines. Now, that’s no problem if the Court can create new interpretive principles on its own authority, perhaps for prudential reasons. But that isn’t the sort of thing that one often hears from self-declared textualists.
Yet even interpreters who are generally textualist needn’t disclaim all non-textual legal principles. Scalia again offers an example, as he was prepared to infer substantive canons from constitutional texts that require implementing doctrine (among other things). So perhaps the major questions doctrine can find an appropriate basis in non-delegation principles or elsewhere. In this way, the effort to turn textualism against the major questions doctrine ends up transforming into, or ultimately depending upon, a seemingly different debate about constitutional interpretation and the separation of powers.
The comparison between Chevron and the major questions doctrine does point out a glaring doctrinal reversal. In essence, many textualists, including some justices, have abandoned Chevron in favor of the major questions doctrine. This shift invites cynical explanations, and commentators have obliged. But here, too, the objection isn’t really rooted in textualism. Rather, the issue has to do with why textualists have traded one ambiguity-resolving maxim for another. Because both doctrines seem comparably textualist and non-textualist, the Court’s overall commitment to textualism may have remained constant.
Re’s Judicata 