Justice Barrett’s Textualist Defense of the Major Questions Doctrine

Supreme Court Justice Amy Coney Barrett.


Today’s Supreme Court decision holding that the Biden Administration’s $400 billion student loan forgiveness plan is illegal, relied in part on the “major questions doctrine.” That’s the controversial rule that requires Congress to “speak clearly when authorizing an [executive branch] agency to exercise powers of vast ‘economic and political significance.'” If the statute isn’t clear, courts must rule against the executive’s claims that it has the authority in question.

Critics have long argued that MQD is contrary to textualism. In her concurring opinion today, Justice Amy Coney Barrett disagrees, and offers a textualist defense of the rule:

The major questions doctrine situates text in context,which is how textualists, like all interpreters, approach the task at hand…..

Context also includes common sense, which is another thing that “goes without saying.” Case reporters and casebooks brim with illustrations of why literalism—the antithesis of context-driven interpretation—falls short….

Why is any of this relevant to the major questions doctrine? Because context is also relevant to interpreting the scope of a delegation….

Think about agency law, which is all about delegations. When an agent acts on behalf of a principal, she “has actual authority to take action designated orimplied in the principal’s manifestations to the agent . . . as the agent reasonably understands [those] manifestations.” Restatement (Third) of Agency §2.02(1) (2005). Whether an agent’s understanding is reasonable depends on “[t]he context in which the principal and agent interact,” including their “[p]rior dealings,” industry “customs and usages,” and”the nature of the principal’s business or the principal’s personal situation.” Id., §2.02….

With that in mind, imagine that a grocer instructs a clerk to “go to the orchard and buy apples for the store.” Though this grant of apple-purchasing authority sounds unqualified, a reasonable clerk would know that there are limits. For example, if the grocer usually keeps 200 apples on hand, the clerk does not have actual authority to buy 1,000—the grocer would have spoken more directly if she meant to authorize such an out-of-the-ordinary purchase.A clerk who disregards context and stretches the words to their fullest will not have a job for long.

This is consistent with how we communicate conversationally. Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful. In the normal course, permission to spend money on fun authorizes a babysitter to take children to the local ice cream parlor or movie theater, not on a multiday excursion to an out-of-town amusement park….

In my view, the major questions doctrine grows out of these same commonsense principles of communication. Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway, we also “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.'” Utility Air, 573 U. S., at 324….

This expectation of clarity is rooted in the basic premise that Congress normally “intends to make major policy decisions itself, not leave those decisions to agencies.” United States Telecom Assn. v. FCC, 855 F. 3d 381, 419 (CADC 2017) (Kavanaugh, J., dissenting from denial of reh’g en banc). Or, as Justice Breyer once observed, “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters [for agencies] to answer themselves in the course of a statute’s daily administration.” S. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986).

The point Barrett is driving at with her grocer and babysitter examples is that we generally expect clearer and more precise statements of intent when we delegate broad power to an agent than when we delegate relatively narrow authority. And this is consistent with standard textualist interpretive principles emphasizing the need to interpret language in context, and in accordance with ordinary usage.

I advanced a similar textualist defense of MQD here:

[C]ontrary to popular belief, there is in fact a textualist justification for MQD. Most textualists hold that statutory language should be interpreted in accordance with its “ordinary meaning.” And they also recognize that ordinary meaning varies based on context. The same words and phrases might have different meanings depending on the situation…

Such contextual considerations can justify the major questions doctrine. In most situations, people expect greater clarity and precision when granting an agent broad power, than when authorizing something narrower. For example, my wife and I recently hired a contractor to repair the old and somewhat dilapidated deck attached to our house. Imagine we signed an agreement giving the contractor the authority to “modernize and improve” the deck, and he then proceeded to tear the whole thing down and replace it with a bigger and more modern structure.

As a semantic matter “divorced from context,” the contractor could argue that tearing down and replacing the deck counts as modernization and improvement. Indeed, it might result in greater modernization and improvement than a more limited repair job would have! But most ordinary readers of the agreement would readily understand that the contractor had exceeded his authority. Tearing down and replacing the entire deck is a big, expensive step that requires clearer and more specific authorization than a vague mandate to “modernize and improve….”

The same point applies to statutory language. If anything, most ordinary readers probably assume that vast grants of legal authority over millions of people require even more clarity and precision than do contractual agreements like the deck replacement. For example, in the loan forgiveness case, the Biden Administration relies on a vague provision of the HEROES Act that allows the executive branch to “waive or modify” regulations governing federal student loans to justify cancellation of over $400 billion in student loan debt. Even if semantics “divorced from context” suggests that mass cancellation qualifies as a type of waiver or modification, contextual ordinary meaning indicates that such an enormous delegation of power requires greater precision.

Justice Barrett’s argument seems very similar to mine. Her grocer and babysitter examples even have much in common with my contractor analogy. These are all everyday-life situations where agents clearly exceeded the scope of the authority granted to them, even though their actions might be justified under a more literal approach to textualism that ignores the significance of scale.

I am not suggesting Justice Barrett somehow “stole” this idea from me. I highly doubt she read or knew about the post where I introduced it. Rather, she probably just had the same kind of intuition about context and ordinary meaning (or, in her words, “commonsense principles of communication”), as I did.  The fact we arrived at the same idea independently provides some (very modest) additional support for the point that it is intuitive to expect greater precision in broad grants of authority.

As Barrett recognizes, textualism isn’t the only possible justification for MQD. It can also be defended on the grounds that it helps enforce constitutional constraints on delegation. In addition, the textualist rationale for MQD doesn’t necessarily prove the Supreme Court got any particular application of the doctrine right.

I myself think the Court applied it correctly in today’s decision and the the eviction moratorium and vaccine mandate rulings, but perhaps not in West Virginia v. EPA, where Justice Kagan’s dissent makes a strong argument that the statute did in fact clearly grant the authority the Biden Administration claims.


The post Justice Barrett’s Textualist Defense of the Major Questions Doctrine appeared first on Reason.com.

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