At the Supreme Court, the legal doctrines of textualism and originalism have featured prominently in several recent majority opinions. Many opinions have structurally weakened the capital-p Progressive administrative state. These legal doctrines say, respectively, that judges ought to rule consistently with statutory language and with legislators’ original intent.
However, critics of today’s Republican-appointed Supreme Court majority allege that its six justices employ these doctrines as mere pretexts to advance their personally preferred policy outcomes. Among those saying this is liberal Justice Elena Kagan, dissenting from the majority in West Virginia v. EPA (2022). She posited that “The current Court is textualist only when being so suits it.” She added, “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”
Legal observers — and the American public — should weigh this charge seriously. While jurists will inevitably disagree in good faith on various matters of law and interpretation, any court that departs deliberately from legislative text and intent exceeds its legitimate constitutional authority and rules arbitrarily as well as illegally. However, Kagan’s criticisms fail to grasp that the major questions doctrine (when properly applied) in fact directs judges toward the best, most plausible statutory interpretations — not toward their ideological priors, as Kagan charges.
When applying the major questions doctrine, judges expect Congress to speak clearly if it wishes to invest executive agencies with powers of vast political or economic significance. Concurring in Biden v. Nebraska (2023), in which the majority struck down President Joe Biden’s student-forgiveness gambit, Justice Amy Coney Barrett explained this doctrine’s nexus with faithful textualism. “The major questions doctrine situates text in context, which is how textualists, like all interpreters, approach the task at hand,” Barrett writes. To this she adds, “To strip a word from its context is to strip that word of its meaning.”
Language is plastic. A clever enough mind can manipulate isolated words and phrases almost infinitely, but context anchors language to its meaning. And language generally — let alone legalese — has little use but to convey meaning.
The major questions doctrine buffers American democracy not against congressional delegation per se, the way the nondelegation doctrine does. Rather, it guards against ambitious bureaucrats who wish to arrogate to themselves Congress’ constitutionally vested authority.
Under the Constitution’s separation of powers, Congress presumptively retains legislative prerogatives. This reality “is itself part of the legal context framing any delegation,” Barret argues. Therefore, judges ought to look skeptically on any federal agency’s claim to vast delegations of legislative powers.
“In some cases, the court’s initial skepticism might be overcome by text directly authorizing the agency action or context demonstrating that the agency’s interpretation is convincing,” Barrett notes. In others, she writes, the agency’s interpretation, while perhaps plausible, will pale before a better one. In short, judges should neither dismiss outright bureaucrats’ claims to delegated powers nor accept those claims credulously.
Barrett identifies warning signs that an agency’s assertions may stem more from its policy aspirations than from legitimate statutory authority. For example, judicial alarm bells should peal when an agency discovers a new, sweeping power in an old statute — particularly when the agency long believed itself barred from exercising that power. Likewise, judges should look closer if the claimed authority resides outside the agency’s mission — like the Centers for Disease Control and Prevention’s attempt to enact a nationwide eviction moratorium. Vast delegations seldom emanate from narrow statutes or minor, obscure provisions. Congress does not “hide elephants in mouseholes,” as the late Justice Antonin Scalia wrote. (READ MORE: Like Churchill, Fight Evil but Preserve Democracy)
Progressives’ recent frustrations with the Supreme Court lie less with the major questions doctrine than with Congress’s failure to write laws that empower agencies to effect various progressive policy priorities. The judiciary, however, has no authority as a second-string legislature. The fact that Congress failed to enact some policy does not justify judicial overreach.
The Constitution, naturally, entrusts “all legislative powers” to the legislature. The framers crafted this system to slow policymakers’ eager pursuit of furious change. Their handiwork deliberately fosters friction between factions, branches of government, and sectional interests. It seeks to “establish justice” and “insure domestic tranquility” by promoting deliberation, negotiation, compromise, and moderately paced policy reform.
With the help of the major questions doctrine, the Supreme Court seeks to preserve all this — or, in plainer English, to enforce the law of the land as it is written.
David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.