The Curious Rise of a Supreme Court Doctrine That Threatens Biden’s Agenda

WASHINGTON — It has been only eight months since the Supreme Court first invoked the “major questions doctrine” by name in a majority opinion, using it to limit the Environmental Protection Agency’s power to address climate change. Last week, the court seemed poised to use it again, to kill the Biden administration’s plan to cancel more than $400 billion in student loans.

In dissent in the climate case, Justice Elena Kagan wrote that the majority had engaged in a sleight of hand. When ordinary legal principles fail to thwart disfavored programs, she wrote, “special canons like the ‘major questions doctrine’ magically appear.”

The idea behind the major questions doctrine is that Congress must speak particularly clearly when it authorizes the executive branch to take on matters of political or economic significance. But what makes that idea a doctrine?

A timely new study traces the rapid and curious rise of the major questions doctrine, spurred by conservative scholars and commentators and driven by hostility to administrative agencies.

“The phrase was used just once by any federal judge before 2017, and in only five federal decisions — at any level of court — before 2020,” Allison Orr Larsen, a law professor at William & Mary, wrote in the new study, “Becoming a Doctrine.”

But she added that there had been a lot of other activity aimed at elevating a theory into something concrete and unassailable: a doctrine.

“The word ‘doctrine’ to describe the major questions concept was first used by law professors and then bandied about on blogs, quickly picked up by advocacy groups on Twitter and used as a rallying cry in opinion pieces and programming by those seeking to challenge the administrative state,” she wrote.

“In 2016 — long before it was anointed a ‘doctrine’ by the Supreme Court — the ‘major questions doctrine’ was featured by name in the annual Federalist Society conference,” she wrote, referring to the conservative legal group.

The turning point came in 2017, when Justice Brett M. Kavanaugh, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, used the term in a dissent. “That moment,” Professor Larsen wrote, “seems to have changed the game.”

At Justice Kavanaugh’s Supreme Court confirmation hearings the next year, Senator Amy Klobuchar, Democrat of Minnesota, asked him about the doctrine, calling it “something else that you came up with.”

He responded that the “major questions doctrine is rooted in Supreme Court precedent.” Still, in his 2017 dissent, Justice Kavanaugh conceded that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.”

In his majority opinion in the climate case, Chief Justice John G. Roberts Jr. wrote that the court’s use of the term was unexceptional. “It took hold,” he wrote, “because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

It is true that earlier decisions, notably one from 2000 about whether the Food and Drug Administration could regulate tobacco, employed that framework. Similarly, in 2015, in his second rescue of the Affordable Care Act, Chief Justice Roberts, quoting the tobacco case, wrote that Congress would not have given the Internal Revenue Service implicit power to decide “a question of deep ‘economic and political significance.’”

Elevating an idea into a doctrine is particularly attractive to conservative judges, Professor Larsen said in an interview, as they “don’t want to be accused of activism or of making it up.”

The supporters of another contested concept, that of giving state legislatures all but unfettered power to conduct federal elections, like to call it the “independent state legislature doctrine.” But that effort to create a new doctrine has met with substantial resistance.

Scholars have raised objections to the major questions approach, saying it had changed the rules in the middle of the game and had, in any event, placed unrealistic burdens on Congress.

“When Congress drafted the many statutes that delegate authority to administrative agencies, it did so without thinking that it had to specify every possible major form of regulation that an agency might undertake,” Daniel T. Deacon and Leah M. Litman, law professors at the University of Michigan, wrote in “The New Major Questions Doctrine,” to be published in the Virginia Law Review.

Even if lawmakers had anticipated the new doctrine, the two scholars added, “it is unrealistic and unlikely that Congress could, at the time of drafting, both foresee and spell out every possible form of regulation that would be perceived as major at some point in the future.”

The theory’s requirement that Congress speak clearly when the issue is of major political significance, they added, allows after-the-fact gamesmanship. “In politically polarized times,” they wrote, “this aspect of the major questions doctrine allows political parties and movements to make an issue ‘major’ through generating controversy.”

Calling something a doctrine has consequences, Professor Larsen said in an interview. “You study it for the bar exam,” she said. “It gets its own section on the syllabus.”

But, she added, the mechanical application of a “doctrine” can be a substitute for reasoned judgment. “The nature of the shorthand,” she said, “eliminates nuance.”