I was initially skeptical of the major questions doctrine (MQD), as deployed by the Supreme Court in West Virginia v. EPA – basically for the reasons expressed by Chad SquitieriTom Merrill and Jonathan Adler.  But with everyone ganging up on the MQD, my contrarian instinct pushes me the other way.  So here is a tentative defense.

First, I assume that the Constitution’s original meaning contains some reasonably strong version of the nondelegation doctrine, that is, that Congress cannot delegate important legislative matters to the President (or administrative agencies) as a result of Article I, Section 1’s vesting of “all legislative Powers” in Congress.  (For a quick overview of the argument, see here from Devin Watkins).  I’m not sure that’s right, but it needs to be right for the argument to work.

Second, I assume that the line between permissible and impermissible delegations is so difficult to define and apply that, except in extreme cases, the nondelegation rule is basically nonjusticiable, as held by the Supreme Court (per Justice Scalia) in the Whitman case.  Again, I’m not sure that’s right, but I’m assuming it for purposes of the argument.

Third, I assume that Congress will often enact broad statutes in which the extent of the intended delegation is uncertain.  (I’m pretty confident that’s true).

Now for the argument:

The Court has a common and longstanding practice of developing clear statement rules (whether actually called by that name or not), by which the Court avoids an expansive reading of a statute unless Congress is clear in directing the expansive reading.  For example, a clear statement is needed before a statute is read to interfere with a state’s internal governance (Gregory v. Ashcroft), to apply to purely local activity (Bond v. US), to apply extraterritorially (Morrison v. National Australia Bank), or to impose criminal penalties (the rule of lenity).

Probably the earliest version in US federal law is the “Charming Betsy” rule, requiring a clear statement before a statute is read to violate international law.  (The rule takes its name from Chief Justice Marshall’s decision in Murray v. The Charming Betsy (1804), but Marshall applied a version of it even earlier, in Talbott v. Seeman in 1801).  Specifically Marshall wrote in Charming Betsy: “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”

I’m not sure that’s good enough for a strict textualist, but as an originalist matter that’s a pretty strong practice.  (Also, for what it’s worth, Justice Scalia endorsed most or all of the modern clear statement rules).

In my view, these rules aren’t really about finding the true meaning of the statutory text.  I doubt, for example, we can assume that, absent a clear statement, Congress doesn’t want to violate international law, interfere with states’ internal governance or create criminal penalties.  Rather, these are rules of judicial restraint, avoiding a broad reading of a statute where the meaning is uncertain and there are severe costs to the court erroneously reading the statute broadly.  So the basis of the Charming Betsy rule is best understood as the negative effects for U.S. foreign relations of international law violations; better for the Court to err on the side of not reading a statute to violate international law (an error Congress can correct) than to err on the side of wrongly endorsing a violation of international law.

Thus, the fact that the MQD applies a clear statement rule instead of applying close textual analysis isn’t novel or contrary to originalism.  To be consistent with historical practice, though, this particular clear statement rule needs to protect against some substantial negative effect of overreading a statute.  For the MQD, I think that argument can be made, if one accepts the assumptions posited at the outset of this post.  Nondelegation is an important constitutional value, assuring that the people’s representatives in Congress make legislative decisions through a deliberative and accountable process.

But since the Court can’t enforce nondelegation directly and delegating statutes are often ambiguous as to their scope, there’s a substantial risk courts will err in reading statutes too broadly, allowing too much delegation to the President or the agencies.  (By “too much delegation” I mean more than is appropriate in a system that values deliberative decisions by the people’s representatives as to important legislative matters.)  As a result, there’s good reason to have a clear statement rule to protect against judicial error, the same way Marshall protected against erroneous interpretations that violate international law in the Charming Betsy case.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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