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David M. Driesen, Does the Separation of Powers Justify the Major Questions Doctrine? (2022), available at SSRN.

The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency  to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.

The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an institution, and that any ruling it issues about the powers of other institutions must take account its own exercise of power as well. This is, to some extent, your father’s jurisprudence, a basic insight of the Legal Process School that dominated public law scholarship in the decades following World War II. It often serves as a background consideration upon which flashier modern arguments can be built, but there is a crucial difference between assimilating an important insight and forgetting about it. The Court would be well advised to note Professor Driesen’s reminder.

His article begins by locating the major questions doctrine in the landscape of statutory interpretation. The doctrine is often viewed as an exception to Chevron deference. Chevron holds that the courts, when reviewing an agency’s implementation of a statute with ambiguous language, should not interpret the statute de novo, but rather defer to reasonable agency interpretations. There is at least some justification for denying such deference when a major question of public policy is at stake. As Professor Driesen points out, however, current use of the major questions doctrine involves statutes that unambiguously place an issue within the agency’s jurisdiction. Rather than a return to de novo interpretation, what the Court does in West Virginia is to ignore the plain meaning of the statute, along the lines advanced in Church of the Holy Trinity  v. United States. That 1892 decision rejected the literal language of the statute on the basis of its title, its coordinate provisions, its structure, its legislative history and general policy considerations that seem out of date today (“this is a religious people”) but were not a bad way, at the time, to discern legislative purpose. The current Court bases its rejection of plain meaning, however, on its own dislike of regulation and the increased power of administrative agencies.

Congress enacts various statutes that rename federal buildings, establish historic sites or adjust the tariff on an exotic product, but its significant impact, and the focus of its legislative efforts, is, in fact, on major questions – in recent years, health care, protection from pandemics, the stability of the financial system, and climate change. These questions are also the focus of Congress’ ongoing interaction with the administrative agencies that implement the legislation, consisting of oversight hearings, annual appropriations, and continuous staff level contacts. Moreover, major questions involve matters that are necessarily complex; they require administrative expertise and members of Congress know this when the draft the statute. They are also matters that change and evolve over time as a result of changing circumstances. Professor Driesen points out that these are precisely the matters where the Supreme Court should hesitate to interject its own interpretation of the statute into the complex, evolving relationship between our two policy-based branches. Intervention of this sort does not enforce the separation of powers.  Rather, it effaces the separation that should be maintained between these policy making bodies and the federal judiciary. That is particularly true when the Court is not interpreting the language of the relevant statute, but rather imposing its own idiosyncratic views.

Another overly familiar and thus readily forgotten insight of the Legal Process School is that judicial invalidation of a statute enacted by elected representatives is counter-majoritarian. This principle has aroused some skepticism when invoked to deny relief in human rights cases, but it should be understood as resting upon Carolene Products Footnote Four. That is, the Court can validly intervene, and is not being counter-majoritarian, when the political process itself is not majoritarian, either because all coalitions exclude a disparaged minority or because of defects in electoral procedures. In recent years, however, these are precisely the areas where the Court has refused to intervene, denying protection to criminal defendants, eviscerating the Voting Rights Act, and declaring partisan gerrymandering non-justiciable. As Professor Driesen argues, the Court’s most aggressive interventions have been taken against decisions that can be described as hyper-majoritarian. We can question whether technical or minor legislation (in the 117th Congress, for example, the Planning for Animal Wellness Act or the Artificial Intelligence Training for the Acquisition Workforce Act) ever attracts enough attention from anyone but special interest groups. Such statutes can only be characterized as majoritarian on an institutional basis; they were enacted by a representative legislature.  But climate change, like health care costs, pandemic disease and financial stability, are the basic content of political debate in our nation. If any issues determine people’s votes, it is these. The specific issue at stake in West Virginia is an oncoming environmental catastrophe that may require abandonment of our coastal cities or the construction of trillion dollar sea walls, devastate American agriculture, kill millions of people in escalating heat waves or apocalyptic storms and endanger the stability of our political system in the process. Professor Driesen’s article properly admonishes the Court for constructing a clear statement rule, unsupported by any real constitutional concern, that takes decisions about this subject away from the people’s representatives and places it in the hands of a few judges with an instinctive but unjustified hostility to the governmental mechanism that gives us our best chance to avert the disaster.

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Cite as: Edward Rubin, A Major Answer To The Major Questions Doctrine, JOTWELL (January 25, 2023) (reviewing David M. Driesen, Does the Separation of Powers Justify the Major Questions Doctrine? (2022), available at SSRN), https://juris.jotwell.com/a-major-answer-to-the-major-questions-doctrine/.