Guest Post: McConnell, "Comment on the Major Questions Doctrine Debate in Learning Resources"

[Editor’s note: This post is by Michael W. McConnell, the Richard and Frances Mallery Professor and Faculty Director of the Constitutional Law Center at Stanford Law School.]

A great many pages of Justice Neil Gorsuch’s concurring opinion in Learning Resources v. Trump, the tariff case issued today, are devoted to sparring with Justice Amy Barrett over the proper understanding of the “Major Questions Doctrine” (“MQD”). She regards the MQD as a “commonsense principl[e] of communication,” while he insists that it is a “substantive canon” designed to backstop the separation of powers principle that law must be made by the legislative branch.

Gorsuch scores a number of points in this joust, but I am inclined to think he is aiming at the wrong target. He shows that cases and hypotheticals where Barrett describes the outcome (namely, that power has not been delegated) as “commonsense,” would not be commonsensical without a “lurking” background norm with a source external to the text of the statute. That seems right – but in my opinion what he succeeds in showing is nothing more than that these commonsense interpretations are not strictly textual. They are in fact contextual. But Barrett does not deny that.

What truly differentiates the Gorsuch and Barrett understandings of the MQD, I think, is not whether it is commonsensical, but whether MQD does anything more than ferret out the true intent of Congress. In Barrett’s view, Congress is unlikely to delegate power over major questions to the executive without a clear indication it is doing so; vague language, even if broad enough to encompass the power as a purely textual matter, is not enough. Gorsuch thinks the MQD is doing something more: It is constraining Congress, making it more difficult for Congress to engage in broadscale delegation of legislative authority to the executive. Congress must fess up to what it is doing. It cannot proceed via strategic ambiguity, a wink and a nod. If it want to delegate lots of power, it has to do so in broad daylight.

There may be cases where it is to the political advantage of Congress to delegate power without making clear the extent of what it is doing. That way it can take credit for the statute’s beneficent purposes but duck responsibility for the costs. Courts have no way of knowing when this is, or is not, the case. I wonder: would Justice Barrett apply the MQD if she had secret knowledge that Congress actually did intend to delegate broad power, but wanted to hide the fact? Gorsuch certainly would. Indeed, this is precisely the point of his version of MQD. Because of the value of separation of powers, coupled with the inability of the judiciary as a practical matter to enforce the limits of the nondelegation doctrine, MQD is a “nudge” to Congress (hat tip to Cass Sunstein) not to give away the store. MQD is like the detective show where a person holding sensitive information is reluctant to hand it over because that would be a breach of confidence, but leaves it conveniently on the top of the desk where the detective can view it without permission.

If this is an accurate account, Gorsuch and Barrett are both correct in terms of the debate taking place in Learning Resources. Yes, MQD is common sense only when there is a substantive norm undergirding the common sense, which Congress might be expected to value and to follow. But that does not mean the debate is over nothing. The real divide is between those, like Barrett, who regard MQD as an interpretive tool to discern the intention of Congress and those, like Gorsuch, who think it constrains Congress at the same time it is constraining the executive.

Disclosure: McConnell, with the law firm Wilson Sonsini, was counsel of record for the small business plaintiffs in the tariff case.