Importance and Interpretive Questions

*Associate Professor of Law, University of Minnesota, and author, Administrative Law Theory and Fundamentals: An Integrated Approach (Foundation Press 2021). Thanks to Will Baude, Louis Capozzi, Ryan Doerfler, Tara Grove, Kristin Hickman, David Lewis, Anne Joseph O’Connell, Joseph Postell, Michael Rappaport, Richard Re, Brian Slocum, Mark Shawhan, Mark Storslee, and Daniel Walters. Thanks also to Owen Alfonso for excellent research assistance. I presented a version of this paper in an intratextualist debate on the major question doctrines during the AALS conference in January 2023 with Chad Squitieri and Christopher Walker. Their arguments in the debate greatly improved my own.Show More

In its October 2021 Term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach anti-administrativist results. One can explain at least some of the cases, however, in a way that constructs a coherent doctrine in which importance has a significant but narrow role in resolving interpretive questions involving ambiguity or uncertainty.

Thus understood, such a doctrine could be defensible, if not as a substantive canon, then as a kind of linguistic canon. Unlike other linguistic canons, such a canon would be about how people and lawmakers use language to accomplish results in a circumscribed range of contexts—namely, the delegation of important authorities, whether to other private actors, to government actors in the Constitution, or to government actors in the executive department. But unlike substantive canons, it would not relate to a substantive value encoded in the Constitution or in longstanding tradition. Existing empirical work about how legislators legislate, and insights from the philosophy of language, suggest that such a doctrine may be consistent with textualism, and historical research further reveals that a canon of this type may be a longstanding feature of constitutional and statutory interpretation in related contexts and in agency law. More provocatively, these same intuitions about importance may explain some substantive canons that are otherwise difficult for textualists to justify.

Introduction

In the Supreme Court’s 2021–2022 Term, the Court formalized what it has labeled the major questions doctrine. The doctrine, according to Chief Justice Roberts in West Virginia v. EPA, “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.”¹ 1.142 S. Ct. 2587, 2609 (2022).Show More Courts should have “skepticism” when statutes appear to delegate to agencies questions of major political and economic significance, which skepticism the government can only overcome “under the major questions doctrine” by “point[ing] to ‘clear congressional authorization’ to regulate in that manner.”² 2.Id. at 2614 (quoting Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)).Show More According to Justices Gorsuch and Alito’s slightly different account, “courts have developed certain ‘clear-statement’ rules,” which “assume that, absent a clear statement otherwise, Congress means for its laws to operate in congruence with the Constitution rather than test its bounds.”³ 3.Id. at 2616 (Gorsuch, J., concurring).Show More “Article I’s Vesting Clause has its own” clear statement rule, namely, “the major questions doctrine.”⁴ 4.Id. at 2619.Show More Thus, taken at face value, the Court’s major questions doctrine insists at least on unambiguous statutory authority, and perhaps even unambiguous and specific authority.

The Court’s doctrine has been assailed by scholars and commentators both right and left. Many argue that the doctrine is inconsistent with textualism. Professor Michael Rappaport has said that the doctrine—at least on the face of the Court’s current language and justification—“neither enforces the Constitution nor applies ordinary methods of statutory interpretation” and “seems like a made up interpretive method for achieving a change in the law that the majority desires.”⁵ 5.Mike Rappaport, Against the Major Questions Doctrine, Originalism Blog (Aug. 15, 2022, 8:00 AM), https://originalismblog.typepad.com/the-originalism-blog/2022/08/against-the-ma‌jor-questions-doctrinemike-rappaport.html [https://perma.cc/U92U-YQ7E].Show More Professor Tom Merrill has written that the doctrine allows courts to “rewrite the scope of [agencies’] authority,” and that it “will invite judges to overturn agency initiatives based on reasons other than the court’s best judgment about what Congress has actually authorized the agency to do.”⁶ 6.Tom Merrill, West Virginia v. EPA: Questions About “Major Questions,” Volokh Conspiracy (July 28, 2022, 7:10 AM), https://reason.com/volokh/2022/07/28/west-virginia-v-epa-questions-about-major-questions/ [https://perma.cc/W65E-APE7].Show More Professor Chad Squitieri: “The major questions doctrine is a product of legal pragmatism—a theory of statutory interpretation advanced by Justice Breyer which often elevates statutory purpose and consequences over text. The doctrine is inconsistent with textualism . . . .”⁷ 7.Chad Squitieri, Major Problems with Major Questions, Law & Liberty (Sept. 6, 2022), https://lawliberty.org/major-problems-with-major-questions/ [https://perma.cc/F73C-WW‌KG]. However, Squitieri is publishing a defense of a modified major questions doctrine. Chad Squitieri, “Recommend . . . Measures”: A Textualist Reformulation of the Major Questions Doctrine, 75 Baylor L. Rev. 706, 710 (2023) [hereinafter Squitieri, A Textualist Reformulation].Show More And Professor Jonathan Adler: the doctrine allows the Court to deploy “cursory” and “hardly . . . compelling” arguments about statutory interpretation.⁸ 8.Jonathan H. Adler, West Virginia v. EPA: Some Answers About Major Questions, 21 Cato Sup. Ct. Rev. 37, 55 (2022).Show More

Others have been even more critical. Professors Daniel Deacon and Leah Litman argue that the doctrine “directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation,” and that “otherwise unambiguous statutes may not be good enough when it comes to policies the Court deems ‘major.’”⁹ 9.Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine, 109 Va. L. Rev. 1009, 1012 (2023).Show More It “supplies an additional means for minority rule in a constitutional system that already skews toward minority rule,”¹⁰ 10.Id. at 1015Show More “provides an additional mechanism for courts to exercise . . . political oversight,”¹¹ 11.Id.Show More and “could exacerbate institutional and political pathologies.”¹² 12.Id. at 1049.Show More Professor Mila Sohoni writes that the major questions doctrine has “altered the doctrine of judicial review of agency action in its method and content, in ways that will have momentous consequences”¹³ 13.Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262, 263 (2022).Show More and that create a “disjunction” between its current cases and prior precedents.¹⁴ 14.Id. at 264.Show More It “creates deep conceptual uncertainty about what” the Court is doing.¹⁵ 15.Id. at 266.Show More Professor Daniel Walters emphasizes “just how far the new major questions doctrine innovates with the conventional form of a substantive canon,” as the doctrine “in effect allows systemic departure from plausible readings of statutes on the basis of judicial values and preferences that are at best weakly tethered to higher sources of law.”¹⁶ 16.Daniel E. Walters, The Major Questions Doctrine at the Boundaries of Interpretive Law, 109 Iowa L. Rev. 465, 471–72 (2024).Show More

These criticisms are, to some if not a large extent, warranted. There are at least four versions of the doctrine that the Supreme Court has articulated, none of which appears as of yet fully defensible. The Court deploys one version at Chevron’s first step and another at Chevron’s preliminary “step zero.” To the uninitiated (if such there are), the famous Chevron doctrine requires a court to decide at “step one” whether an agency’s organic statute is ambiguous on the particular question at hand and, if so, at “step two” to defer to the agency’s reasonable interpretation even if not the “best” interpretation.¹⁷ 17.Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43, 843 n.11 (1984); Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005) (“Chevron teaches that a court’s opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative . . . .”).Show More “Step zero” cases then raise the question of whether to deploy the Chevron two-step framework at all.¹⁸ 18.See Christensen v. Harris County, 529 U.S. 576, 586–88 (2000); United States v. Mead Corp., 533 U.S. 218, 229–31 (2001).Show More In this context, the doctrine is probably indefensible. At step one, the Court uses the doctrine to conclude that the statute is clear and unambiguous when in reality the statute is ambiguous and courts should have deferred to the agency under the framework. At step zero, the Court uses the doctrine to conclude that the framework should not apply at all and awkwardly appears to resolve the major question for itself.

A third version of the doctrine is somewhat like what Justices Gorsuch and Alito describe in West Virginia v. EPA. Perhaps the major questions doctrine is simply the nondelegation doctrine deployed as a canon of constitutional avoidance, or a blend of avoidance and a clear-statement requirement. Under the modern formulation, constitutional avoidance allows courts to adopt narrowing constructions of statutes when they have “serious doubt[s]” as to the statute’s constitutionality.¹⁹ 19.See Ilan Wurman, Administrative Law Theory and Fundamentals: An Integrated Approach 20–21 (2021) (discussing cases); see also, e.g., Nielsen v. Preap, 139 S. Ct. 954, 971 (2019) (“[W]hen a serious doubt is raised about the constitutionality of an act of Congress, . . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (internal quotation marks omitted) (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018))).Show More This version of the doctrine would be hard to defend for two reasons. First, constitutional avoidance is generally indefensible: it allows courts to rewrite statutes without having to decide that the statute Congress wrote violates the Constitution.²⁰ 20.See Wurman, supra note 19, at 20–21.Show More Second, even if the canon were otherwise legitimate, we would need to know what the serious constitutional doubt is, and thus far the Court has not explained what majorness has to do with nondelegation. That’s not to say there is no connection, but that the Court has not explicated it precisely because under constitutional avoidance it does not have to do so.

The fourth and most recent version, at least as most academics understand it, is that the doctrine is one among many clear statement rules, such as the demand for a clear statement to abrogate sovereign immunity,²¹ 21.Sossamon v. Texas, 563 U.S. 277, 290–91 (2011).Show More to apply the Administrative Procedure Act to the President,²² 22.Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992).Show More or to make regulatory requirements applicable to ships sailing under foreign flags.²³ 23.Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 125 (2005).Show More Major questions, at least as currently theorized, also seems a poor fit for this category. Ordinarily, clear statement rules exist to advance some constitutional value—like federalism or state sovereignty—and apply even against otherwise unambiguous statutes.²⁴ 24.See infra Subsection I.D.1.Show More But Congress can take the relevant action so long as it speaks clearly and specifically.²⁵ 25.True, the degrees of clarity and specificity that are required also vary from rule to rule; in my view, it remains to be seen just how much is required in this context. SeeWilliam N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597 (1992).Show More That is, neither the best reading of a statute, nor an unambiguous statute, is enough; specificity is also required. In the major questions cases there is a constitutional value (nondelegation) that may be motivating the Court, but it is not fully clear how the canon relates to or advances the doctrine, and, if it does, whether Congress’s delegations would be constitutional even if it did speak clearly. The clear statement version also appears to allow courts to ignore a statute’s plain meaning.

There is a way to explain, if not all, then certainly some of the cases, however, that constructs a more coherent and defensible version of the doctrine. In each, the statute was plausibly ambiguous. And, in each, the Court can be understood to have resolved the ambiguity by adopting the narrower reading of the statute on the ground that, as a matter of legislative intent, it was more plausible to think that Congress intended the narrower reading. Thus, the Court arrived at what it deemed the best reading of the statute, and not necessarily a clear or unambiguous reading. It is also possible that the Court is demanding unambiguous, though not necessarily specific, statutory language; usually, the best reading of an otherwise ambiguous statute is that it does not do major, controversial things without being clearer about it. That is just another way of saying that “Congress . . . does not . . . hide elephants in mouseholes.”²⁶ 26.Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).Show More But sometimes a hole is elephant-sized, and the best reading of the statute suggests that it contains an elephant whether or not Congress was clear about it.²⁷ 27.A good example might be King v. Burwell, 576 U.S. 473 (2015), discussed in Section I.B. If this is an accurate account of the Court’s cases, that also raises the question of why the Court has not clearly articulated this more defensible version of the major questions doctrine, if this is in fact what the Court has been doing. Part of the answer, I suspect, is Chevron itself: a major questions doctrine that hinges on the existence of statutory ambiguity does not work within that framework because ambiguities are for agencies, not courts, to resolve. Hence, for a long time, the Supreme Court has deployed “major questions” the only two ways it could do so: either by falsely claiming the statute is unambiguous and clear at “step one,” or by using it prior to any interpretation at all at “step zero.” See infra Sections I.A–B. Saddled with the Chevron framework—and perhaps especially to litigants’ adherence to that framework—the Court has had to deploy “major questions” arguments before it could even get to statutory interpretation. The Court, to the extent it took this approach in recent Terms, was simply following the path of the law and the lawyers’ arguments before it. The other part of the answer, though, is that if we take the Court’s recent statements seriously, then the Court—or at least a plurality of it—has been defending the doctrine on grounds similar to those described here.Show More

In other words, when the Court asks for a clear statement, it does not have to be understood as deploying the same concept as other clear statement rules—what some have called “super strong clear statement rules”—where both clarity and specificity are required.²⁸ 28.See Eskridge & Frickey, supra note 25, at 597.Show More When certain constitutional values are at stake, as noted, the Court has held that the best or plain reading of a statute is not enough; the Court wants to make sure that Congress thought very clearly and explicitly about that particular issue.²⁹ 29.See infra Subsection I.D.1.Show More In the major questions context, in contrast, the Court may simply be concluding that the best reading of an otherwise ambiguous statute is one thing because it would have expected Congress to speak clearly if Congress had intended the other.³⁰ 30.In this regard, it is closer in kind to what then-Professor Barrett described as most clear statement rules: But in the normal course, clear statement rules function no differently from other canons that permit a court to forsake a more natural interpretation in favor of a less natural one that protects a particular value. Indeed, canons like avoidance and Charming Betsy can be rephrased as clear statement rules: absent a clear statement, a court will not interpret a statute to raise a serious constitutional question, and absent a clear statement, a court will not interpret a statute to abrogate customary international law. The choice to denominate a canon as a “clear statement” rule is of little consequence; what matters is the effect of the canon on the statutory text. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 167 (2010).Show More Many substantive canons do operate this way—think the rule of lenity, which ambiguity triggers but which does not demand a clear and specific statement to override—but, as I shall argue, if major questions operates in this manner then it is possible to defend it as something other than a substantive canon.

True enough, there is language in the Court’s cases that militates against this account as a descriptive matter.³¹ 31.See infra Part I (describing four accounts of major questions that are difficult to defend).Show More The present objective is to suggest that it is at least possible to conceptualize a similar doctrine that centers on resolving ambiguity,³² 32.There is an important literature on different kinds of ambiguities and what constitutes ambiguity. See, e.g., Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1498–99 (2019); Brian G. Slocum, Replacing the Flawed Chevron Standard, 60 Wm. & Mary L. Rev. 195, 218 (2018); Brian G. Slocum, The Importance of Being Ambiguous: Substantive Canons, Stare Decisis, and the Central Role of Ambiguity Determinations in the Administrative State, 69 Md. L. Rev. 791, 799–802 (2010) (describing numerous academic approaches to defining “ambiguity”). There is no need to engage with that literature here, however, because I do not question the merits of the Court’s conclusions that the relevant statutes were ambiguous. I simply accept the premise.Show More would be more meritorious and consistent with textualism than other possible accounts, and might already exist in areas of constitutional and statutory interpretation and in agency law. It may also be driving the Court in its current cases, even if the Court has not been altogether clear about what it has been doing. On this conceptualization, the importance of a purported grant of authority would operate as a kind of linguistic canon: ordinarily, lawmakers and private parties tend to speak clearly, and interpreters tend to expect clarity, when those lawmakers or parties authorize others to make important decisions on their behalf.

Although “linguistic” in the sense that it is about how speakers use and interpret language, such an “importance canon” is unlike other linguistic canons; it is about how people and lawmakers use language in a circumscribed range of substantive contexts, namely, the delegation of important authorities to other parties. But it is unlike substantive canons; it does not flow from any substantive policy encoded in the Constitution or in longstanding tradition. One might call it a “quasi” linguistic canon, although the label does not much matter. Scholars have shown that the dividing line between linguistic and substantive canons is often thinner than traditionally believed,³³ 33.Kevin Tobia and Brian G. Slocum, The Linguistic and Substantive Canons, 137 Harv. L. Rev. F. 70, 96 (2023).Show More and there may be ambiguity-resolving canons that defy either the linguistic or substantive label, such as the longstanding and contemporaneous interpretation canon.³⁴ 34.See Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 933–37 (2017).Show More

However labeled, such a canon may be consistent with textualism, and specifically with empirical evidence regarding how Congress operates, with insights from the philosophy of language regarding how ordinary persons interpret instructions in high-stakes contexts, with background principles of interpretation, and with historical materials from agency law and constitutional and statutory interpretation from the Founding to today. More provocatively, these arguments point to a more general conclusion about the role of importance in resolving interpretive questions. They suggest that certain substantive canons, such as the rule of lenity and the presumptions against preemption, retroactivity, and violations of international law, which are otherwise difficult for textualists to defend, could potentially be defended on the ground that the legal culture at the time of enactment considered certain matters “important” and therefore ordinary speakers would have expected more clarity before assuming related important actions had been authorized. At a minimum, the concept of “importance” has played a significant role in our legal system in resolving certain kinds of interpretive questions. That role ought to be better understood.

This Article proceeds as follows. Part I taxonomizes and criticizes four possible accounts of the major questions doctrine. The taxonomy supplied here, it is believed, provides more conceptual clarity than other taxonomies that have already been developed.³⁵ 35.Cass Sunstein, for example, has identified only two versions of the doctrine—one as an exception to Chevron, the other as a clear statement rule. Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 477 (2021). Blake Emerson combined all the cases into a single doctrine in which the Court decides for itself the best interpretation of the statute. Blake Emerson, Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 Minn. L. Rev. 2019, 2022–24 (2018).Show More It suggests throughout that it is at least possible to conceive of some of the cases as deploying a kind of linguistic “importance canon” to resolve statutory ambiguities.³⁶ 36. One need not agree with the characterization of the cases in Part I to agree with the analysis in Part II. A reader already steeped in these cases could easily skip to Part II.Show MorePart II then attempts to justify such a canon, regardless of what the Court has in fact been deploying. It argues that such a canon is consistent with empirical evidence on how legislators legislate, with insights from the philosophy of language about how interpreters understand language in related contexts, and possibly with the mischief rule; such a canon may also already be a longstanding feature of agency law and of constitutional and statutory interpretation in related contexts. Even if the Court has not been deploying such a canon, it would be more defensible than its existing approach. Part II concludes with some limitations of this approach—and some important differences between it and the similar approach that Justice Barrett has recently articulated—as well as the observation that the role of importance in resolving interpretive questions might provide some support for substantive canons that are otherwise difficult for textualists to justify.

1.  142 S. Ct. 2587, 2609 (2022). ↑
2.  Id. at 2614 (quoting Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)). ↑
3.  Id. at 2616 (Gorsuch, J., concurring). ↑
4.  Id. at 2619. ↑
5.  Mike Rappaport, Against the Major Questions Doctrine, Originalism Blog (Aug. 15, 2022, 8:00 AM), https://originalismblog.typepad.com/the-originalism-blog/2022/08/against-the-ma‌jor-questions-doctrinemike-rappaport.html [https://perma.cc/U92U-YQ7E]. ↑
6.  Tom Merrill, West Virginia v. EPA: Questions About “Major Questions,” Volokh Conspiracy (July 28, 2022, 7:10 AM), https://reason.com/volokh/2022/07/28/west-virginia-v-epa-questions-about-major-questions/ [https://perma.cc/W65E-APE7]. ↑
7.  Chad Squitieri, Major Problems with Major Questions, Law & Liberty (Sept. 6, 2022), https://lawliberty.org/major-problems-with-major-questions/ [https://perma.cc/F73C-WW‌KG]. However, Squitieri is publishing a defense of a modified major questions doctrine. Chad Squitieri, “Recommend . . . Measures”: A Textualist Reformulation of the Major Questions Doctrine, 75 Baylor L. Rev. 706, 710 (2023) [hereinafter Squitieri, A Textualist Reformulation]. ↑
8.  Jonathan H. Adler, West Virginia v. EPA: Some Answers About Major Questions, 21 Cato Sup. Ct. Rev. 37, 55 (2022). ↑
9.  Daniel T. Deacon & Leah M. Litman, The New Major Questions Doctrine, 109 Va. L. Rev. 1009, 1012 (2023). ↑
10.  Id. at 1015. ↑
11.  Id. ↑
12.  Id. at 1049. ↑
13.  Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262, 263 (2022). ↑
14.  Id. at 264. ↑
15.  Id. at 266. ↑
16.  Daniel E. Walters, The Major Questions Doctrine at the Boundaries of Interpretive Law, 109 Iowa L. Rev. 465, 471–72 (2024). ↑
17.  Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43, 843 n.11 (1984); Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005) (“Chevron teaches that a court’s opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative . . . .”). ↑
18.  See Christensen v. Harris County, 529 U.S. 576, 586–88 (2000); United States v. Mead Corp., 533 U.S. 218, 229–31 (2001). ↑
19.  See Ilan Wurman, Administrative Law Theory and Fundamentals: An Integrated Approach 20–21 (2021) (discussing cases); see also, e.g., Nielsen v. Preap, 139 S. Ct. 954, 971 (2019) (“[W]hen a serious doubt is raised about the constitutionality of an act of Congress, . . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (internal quotation marks omitted) (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018))). ↑
20.  See Wurman, supra note 19, at 20–21. ↑
21.  Sossamon v. Texas, 563 U.S. 277, 290–91 (2011). ↑
22.  Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992). ↑
23.  Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 125 (2005). ↑
24.  See infra Subsection I.D.1. ↑
25.  True, the degrees of clarity and specificity that are required also vary from rule to rule; in my view, it remains to be seen just how much is required in this context. See William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 597 (1992). ↑
26.  Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). ↑
27.  A good example might be King v. Burwell, 576 U.S. 473 (2015), discussed in Section I.B. If this is an accurate account of the Court’s cases, that also raises the question of why the Court has not clearly articulated this more defensible version of the major questions doctrine, if this is in fact what the Court has been doing. Part of the answer, I suspect, is Chevron itself: a major questions doctrine that hinges on the existence of statutory ambiguity does not work within that framework because ambiguities are for agencies, not courts, to resolve. Hence, for a long time, the Supreme Court has deployed “major questions” the only two ways it could do so: either by falsely claiming the statute is unambiguous and clear at “step one,” or by using it prior to any interpretation at all at “step zero.” See infra Sections I.A–B. Saddled with the Chevron framework—and perhaps especially to litigants’ adherence to that framework—the Court has had to deploy “major questions” arguments before it could even get to statutory interpretation. The Court, to the extent it took this approach in recent Terms, was simply following the path of the law and the lawyers’ arguments before it. The other part of the answer, though, is that if we take the Court’s recent statements seriously, then the Court—or at least a plurality of it—has been defending the doctrine on grounds similar to those described here. ↑
28.  See Eskridge & Frickey, supra note 25, at 597. ↑
29.  See infra Subsection I.D.1. ↑
30.  In this regard, it is closer in kind to what then-Professor Barrett described as most clear statement rules:

    But in the normal course, clear statement rules function no differently from other canons that permit a court to forsake a more natural interpretation in favor of a less natural one that protects a particular value. Indeed, canons like avoidance and Charming Betsy can be rephrased as clear statement rules: absent a clear statement, a court will not interpret a statute to raise a serious constitutional question, and absent a clear statement, a court will not interpret a statute to abrogate customary international law. The choice to denominate a canon as a “clear statement” rule is of little consequence; what matters is the effect of the canon on the statutory text.

    Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 167 (2010). ↑

31.  See infra Part I (describing four accounts of major questions that are difficult to defend). ↑
32.  There is an important literature on different kinds of ambiguities and what constitutes ambiguity. See, e.g., Richard M. Re, Clarity Doctrines, 86 U. Chi. L. Rev. 1497, 1498–99 (2019); Brian G. Slocum, Replacing the Flawed Chevron Standard, 60 Wm. & Mary L. Rev. 195, 218 (2018); Brian G. Slocum, The Importance of Being Ambiguous: Substantive Canons, Stare Decisis, and the Central Role of Ambiguity Determinations in the Administrative State, 69 Md. L. Rev. 791, 799–802 (2010) (describing numerous academic approaches to defining “ambiguity”). There is no need to engage with that literature here, however, because I do not question the merits of the Court’s conclusions that the relevant statutes were ambiguous. I simply accept the premise. ↑
33.  Kevin Tobia and Brian G. Slocum, The Linguistic and Substantive Canons, 137 Harv. L. Rev. F. 70, 96 (2023). ↑
34.  See Aditya Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908, 933–37 (2017). ↑
35.  Cass Sunstein, for example, has identified only two versions of the doctrine—one as an exception to Chevron, the other as a clear statement rule. Cass R. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 477 (2021). Blake Emerson combined all the cases into a single doctrine in which the Court decides for itself the best interpretation of the statute. Blake Emerson, Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, 102 Minn. L. Rev. 2019, 2022–24 (2018). ↑

36.  One need not agree with the characterization of the cases in Part I to agree with the analysis in Part II. A reader already steeped in these cases could easily skip to Part II. ↑