Article

A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary

This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The jurisprudential theory is “personal positivism,” which holds that each judge’s publicly known rules of decision are the law for that jurist and, therefore, part of the overall law of the legal system. This theory offers a richer and more useful account of law in the United States today, including its dependence on the views of individual judges. Personal positivism also recognizes that the law is increasingly constituted by the views of competing groups of judges—one liberal, one conservative, and each with its own set of personal rules. At the same time, personal positivism maintains that there is an abundance of genuine law—not just politics—even in contested cases. The problem facing the U.S. legal system, then, isn’t that law is being replaced with politics, but rather that the law is too fragmentary. And the solution is not to ignore or suppress judicial individuality, but to harness it.

Introduction

What is the law of the United States? Consider the following examples, all from the Supreme Court’s last Term:

  • After receiving a skeptical oral argument question from Justice Thomas, advocate Paul Clement agreed that “I wouldn’t be making this argument in this case to you” and pivoted to a different rationale “under your”—that is, Justice Thomas’s—“jurisprudence.” Clement then discussed Justice Thomas’s personal views in detail, concluding: “[T]his is a case where your own jurisprudence would give you the same answer, I think, as a majority of the court . . . .”1 1.Transcript of Oral Argument at 32, Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) (No. 20-1573); see also Transcript of Oral Argument at 7, SEC v. Jarkesy, 144 S. Ct. 2117 (2024) (No. 22-859) (Justice Sotomayor inviting a lawyer to address Justice Thomas’s distinctive jurisprudence).Show More
  • In another oral argument, Chief Justice Roberts noted that the U.S. Solicitor General’s position defied the practice of “those of us who were on the D.C. Circuit.” Justice Kavanaugh agreed, responding to the idea that the U.S. Court of Appeals for the D.C. Circuit was “not paying attention to the text” by asserting: “Yeah, we did.” And, when Justice Jackson expressed similar skepticism, Justice Kagan noted: “Seems to be a kind of D.C. Circuit cartel,” to which Justice Jackson responded: “It is. It is.”2 2.Transcript of Oral Argument at 35, 55, 66, United States v. Texas, 143 S. Ct. 1964 (2023) (No. 22-58).Show More
  • Just a few years after affirmative action’s critics became “greater now in number on the Court,” six Justices held that race-conscious university admissions practices violate the Equal Protection Clause. These events, Justice Sotomayor argued in dissent, fostered “suspicions that ‘bedrock principles are founded . . . in the proclivities of individuals’ on this Court, not in the law.”3 3.Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2245 (2023) (Sotomayor, J., dissenting) (alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)); see also infra note 171 (collecting sources).Show More

These examples may seem like aberrations, embarrassments, or worse. But they are best understood as clues. They help us to see what is normally invisible: to be a judge, particularly a Supreme Court Justice,4 4.Justices are distinctively situated in part because their personal rules are mostly unchecked by the rules of other jurists. See infra text accompanying note 106.Show More is to be a law unto oneself.5 5.Being “a law unto oneself” captures both freedom from shared principles and personal adherence to genuine rules. For the phrase’s biblical origin, see Romans 2:14.Show More

To bear out that claim, this Article develops a new way of understanding the nature of law.6 6.See Richard M. Re, Essay, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 860 & n.224 (2023) (outlining “personal positivism”).Show More In brief, each judge’s publicly known rules of decision can be viewed as the law for that jurist and, therefore, part of the overall law of the legal system.7 7.Regarding my focus on judges, see infra note 37 and infra Section II.B.Show More This “personal positivism” differs from the canonical positivism of H.L.A. Hart because it grounds the content of the law in the potentially distinctive views of each official, rather than in a consensus practice among officials.8 8.See H.L.A. Hart, The Concept of Law 108, 116 (2d ed. 1994). For other positivist rejections of Hart’s focus on consensus, see Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325, 1348–50 (2018); infra notes 95, 104.Show More Figuratively put, the conventional view is of the law as a monolith, whereas I want to describe the law as a mosaic.

The importance of identifying the law goes far beyond jurisprudential debates. After the recent spates of judicial appointments by Presidents Trump and Biden, the U.S. legal system is newly riven by methodological and ideological disagreement.9 9.See, e.g., Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1408 (2021) (discussing increases in partisan en banc activity).Show More There are now two distinct groups of U.S. judges, each with its own commitments, heroes, and fissures.10 10.Changes at the Supreme Court have more to do with “party sorting” than “polarization,” in that party affiliation perfectly tracks ideology even if the gap between left and right hasn’t grown. See Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 125–26 (2021); see also Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary 257–61 (2021) (providing evidence of federal judicial polarization).Show More In the face of that fractured reality, efforts to cast the law as shared and unitary are inapt. Yet judges and scholars persist in doing so, following a jurisprudential path that allows for grand claims but little progress.

Take any number of major decisions in recent years. When considering whether to overrule Roe v. Wade,11 11.410 U.S. 113 (1973).Show More transform administrative law,12 12.West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022).Show More strengthen Second Amendment rights,13 13.N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).Show More or whatever else, how do judges, advocates, and lay observers ascertain the law? Again, Hartian positivism begins by asking about consensus practices among officials.14 14.See Hart, supra note 8, at 108.Show More But consensus practices cannot answer a host of contested questions. The upshot is that there can be almost no determinate law in contested cases. The Justices must instead be left with vast and unchanging discretion—year in and year out.15 15.See infra text accompanying notes 62, 132 (collecting sources).Show More

But that, too, would be wrong. The Justices regularly abide by publicly known rules and so do not act like policymaking legislators. Sophisticated observers are intimately familiar with the individual records of each justice, and advocates pitch their cases accordingly.16 16.See Re, supra note 6, at 845.Show More Moreover, anyone familiar with the U.S. legal system understood that replacing Ruth Bader Ginsburg with Amy Coney Barrett instantly affected legal practice as well as the authority of various legal sources. In short, people unencumbered by jurisprudence routinely act as though there is a lot of determinate law, even in cases at the Supreme Court. It’s just that that law is substantially personalized.

None of this is to insist that there is just one right way to understand the law or its nature.17 17.Relatedly, I sometimes offer alternative theories or backup positions. See, e.g., infra note 55 (outlining a relatively moderate “personalized positivism”).Show More Jurisprudential thinkers frequently purport to identify a “general” theory of law that assertedly applies to most or all legal systems. I adopt a more complex meta-jurisprudential stance. At the outset, I defend personal positivism as a plausible general theory of the law. And I further argue that personal positivism has significant advantages over other approaches to general jurisprudence, including Hartian positivism. At the same time, I recognize that rival theories of law capture different truths. The answer to the question “What is law?” should accordingly turn on the question’s context and purpose.18 18.See infra Section I.A (adopting a pragmatic stance toward meta-jurisprudence); cf. Hart, supra note 8, at 241 (Hart describing his own and Dworkin’s differing “conceptions of legal theory” as distinct “enterprises” that may not conflict).Show More In a legal system characterized by judicial uniformity, or when trying to get the gist of how a legal system operates, it could make sense to follow Hart in starting with consensus practices.19 19.See infra text accompanying note 130. A loose analogy: Newtonian physics is fundamentally incorrect, and yet, for most people, far more useful than relativistic physics—a superior theory that is itself still incomplete.Show More Today, however, the realities of the U.S. legal system make personal positivism indispensable.20 20.Personal positivism could be recast as a local jurisprudential theory, that is, as a contingent account of the law as it exists within a specific kind of society. Yet local and general jurisprudential claims are related: if the United States is a central instance of a legal system and Hart’s account is inapt in that specific context, then so much the worse for its general jurisprudential appeal.Show More

To see the distinctive, even urgent importance of viewing the U.S. legal system through the lens of personal positivism, consider three interrelated challenges. First is the prospect of cynicism: especially after recent decisions like Dobbs v. Jackson Women’s Health Organization,21 21.142 S. Ct. 2228 (2022).Show More many observers have suggested that constitutional law largely amounts to politics.22 22.See, e.g., Cary C. Franklin, Religious Liberty for Some, Jotwell (Jan. 30, 2023), https://co‌nlaw.jotwell.com/politics-all-the-way-down/ [https://perma.cc/YRL5-7HJT] (discussing religious liberty case law in terms of “the fact that it’s politics all the way down” and that “the Court is engaged in a political project”); Joseph Fishkin & William E. Forbath, Make Progressive Politics Constitutional Again, Bos. Rev. (June 23, 2022), https://www.bostonrevi‌ew.net/forum/make-progressive-politics-constitutional-again/ [https://perma.cc/2B99-AX‌HF] (discussing “the right’s decisive politicization of the courts”); James F. McHugh & Lauren Stiller Rikleen, The Politicization of SCOTUS Threatens Its Legitimacy, Bloomberg L. (June 30, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/the-politicization‌-of-scotus-threatens-its-legitimacy [https://perma.cc/A5KP-M9WX] (describing “the court’s transformation from the nation’s most significant legal institution into a court driven by political beliefs and pre-conceived agendas”). Similar ideas of course have a deep intellectual history. See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 5–6, 32 (1984).Show More Second is the question of reform: if constitutional law is just policymaking, then the Court as we know it should probably be scrapped—as commentators have also suggested.23 23.See infra note 204.Show More Third is the asserted hegemony of originalism, which now guides most Justices24 24.See Henry Gass, Originalism Moves from Theory to High Court. What That Means for US., Christian Sci. Monitor (Dec. 21, 2021), https://www.csmonitor.com/USA/Justice/2021/1‌221/Originalism-moves-from-theory-to-high-court.-What-that-means-for-US [https://perma.‌cc/6C6X-YHWQ]; Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (Justice Alito calls himself a “practical originalist”).Show More: is originalism “our law,” and, if so, what are its demands on conscientious legal actors?25 25.Cf. William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2352 (2015).Show More Personal positivism casts each of these challenges in a new and more favorable light.

Start with the prospect of cynicism.26 26.See, e.g., supra note 22.Show More While there may be precious little consensus law in contested cases, there is a vast amount of individual and group-based law. In fact, there may be too much law in contested cases. The judiciary is composed of individuals who adhere to personal rules, and groups of those individuals tend to endorse convergent rule sets. The result is group-based disagreement, with relatively formalist and conservative judges ascendant.27 27.Roughly speaking, one might say that personal rules associated with the Federalist Society now form a larger and more important part of the law than the personal rules associated with the American Constitution Society. See Emma Green, How the Federalist Society Won, New Yorker (July 24, 2022), https://www.newyorker.com/news/annals-of-education/how-the‌-federalist-society-won [https://perma.cc/72XK-D4L9]; see also Arthur D. Hellman, The Supreme Court’s Two Constitutions: A First Look at the “Reverse Polarity” Cases, 82 U. Pitt. L. Rev. 273, 274 (2020) (“It is almost as though each group of Justices has found its own copy of the Constitution . . . .”).Show More Jurists today are about as rulebound as their predecessors were, if not more so. But when placed in the same judicial system, these judges’ conflicting legal commitments can generate unpredictability, or worse. So the claim that there is no constitutional law, or that constitutional law is just politics, misses the real problem.

That more nuanced picture of the legal system leads naturally to the topic of reform. If the courts often aren’t acting as courts at all, then it makes sense to staff the judiciary as though it were a legislature, or else disempower it.28 28.See Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges 167–68 (2012); Ryan D. Doerfler & Samuel Moyn, The Constitution Is Broken and Should Not Be Reclaimed, N.Y. Times (Aug. 19, 2022), https://www.nytimes.co‌m/2022/08/19/opinion/liberals-constitution.html [https://perma.cc/59MC-2FHH]; Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, The Atlantic (June 8, 2022), https://www.theatlantic.com/ideas/archive/2022/06/supreme-co‌u‌rt-power-overrule-congress/661212/ [https://perma.cc/PM3Z-7QN6].Show More But once we see that personal law exists between policy and consensus law, we can envision subtler reforms, such as creating permissions that recognize and grapple with the genuinely legal diversity among jurists. Rather than insist that the law exists apart from individuals and their personal commitments, the law can be crafted with those different individuals in mind. The point is to foster stability, compromise, and moderation, while avoiding turbulence, obstinacy, or alienation—and to do so in a more nuanced way than simply continuing to insist that one’s own preferred views are correct.29 29.Cf. Stephen E. Sachs, Presidential Comm’n on the Sup. Ct. of the U.S., Closing Reflections on the Supreme Court and Constitutional Governance 2 (July 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Sachs-Testimony.pdf [https://per‌ma.cc/CAE8-7962] (discussing problems with the judiciary that “can only be solved by the slow work of persuading others”).Show More

Part of that effort must grapple with the varied theories of constitutional law put forward by judges and scholars. Take originalism. Professors Will Baude and Steve Sachs have argued—based on Hartian positivism—that originalism is in fact the law of the United States.30 30.See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457, 1463 (2019); infra Section IV.C.Show More But the positivist case for originalism starts off on the wrong foot by following Hart in seeking an abstract principle of consensus.31 31.See Baude & Sachs, supra note 30, at 1463 (noting that whether “the Hartian account is generally wrong and . . . some contrary positivist theory . . . is generally right” is “bigger game”).Show More By contrast, personal positivism looks to individual jurists and so reveals not just originalism in the U.S. legal system, but also a lot of non-originalist methodology, as well as many relatively specific commitments (or “fixed points”) even among originalists. Thus, originalism and other constitutional theories form only parts of our law, even if very important parts.32 32.Cf. Baude, supra note 25, at 2403–07 (discussing, as a fallback position, the possibility that originalism is “at least part of the law” and, moreover, that “a judge is legally entitled to be an originalist”).Show More

  1.  Transcript of Oral Argument at 32, Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) (No. 20-1573); see also Transcript of Oral Argument at 7, SEC v. Jarkesy, 144 S. Ct. 2117 (2024) (No. 22-859) (Justice Sotomayor inviting a lawyer to address Justice Thomas’s distinctive jurisprudence). ↑
  2.  Transcript of Oral Argument at 35, 55, 66, United States v. Texas, 143 S. Ct. 1964 (2023) (No. 22-58). ↑
  3.  Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2245 (2023) (Sotomayor, J., dissenting) (alteration in original) (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)); see also infra note 171 (collecting sources). ↑
  4.  Justices are distinctively situated in part because their personal rules are mostly unchecked by the rules of other jurists. See infra text accompanying note 106. ↑
  5.  Being “a law unto oneself” captures both freedom from shared principles and personal adherence to genuine rules. For the phrase’s biblical origin, see Romans 2:14. ↑
  6.  See Richard M. Re, Essay, Personal Precedent at the Supreme Court, 136 Harv. L. Rev. 824, 860 & n.224 (2023) (outlining “personal positivism”). ↑
  7.  Regarding my focus on judges, see infra note 37 and infra Section II.B. ↑
  8.  See H.L.A. Hart, The Concept of Law 108, 116 (2d ed. 1994). For other positivist rejections of Hart’s focus on consensus, see Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325, 1348–50 (2018); infra notes 95, 104. ↑
  9.  See, e.g., Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1408 (2021) (discussing increases in partisan en banc activity). ↑
  10.  Changes at the Supreme Court have more to do with “party sorting” than “polarization,” in that party affiliation perfectly tracks ideology even if the gap between left and right hasn’t grown. See Daniel Hemel, Can Structural Changes Fix the Supreme Court?, 35 J. Econ. Persps. 119, 125–26 (2021); see also Adam Bonica & Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary 257–61 (2021) (providing evidence of federal judicial polarization). ↑
  11.  410 U.S. 113 (1973). ↑
  12.  West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022). ↑
  13.  N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). ↑
  14.  See Hart, supra note 8, at 108. ↑
  15.  See infra text accompanying notes 62, 132 (collecting sources). ↑
  16.  See Re, supra note 6, at 845. ↑
  17.  Relatedly, I sometimes offer alternative theories or backup positions. See, e.g., infra note 55 (outlining a relatively moderate “personalized positivism”). ↑
  18.  See infra Section I.A (adopting a pragmatic stance toward meta-jurisprudence); cf. Hart, supra note 8, at 241 (Hart describing his own and Dworkin’s differing “conceptions of legal theory” as distinct “enterprises” that may not conflict). ↑
  19.  See infra text accompanying note 130. A loose analogy: Newtonian physics is fundamentally incorrect, and yet, for most people, far more useful than relativistic physics—a superior theory that is itself still incomplete. ↑
  20.  Personal positivism could be recast as a local jurisprudential theory, that is, as a contingent account of the law as it exists within a specific kind of society. Yet local and general jurisprudential claims are related: if the United States is a central instance of a legal system and Hart’s account is inapt in that specific context, then so much the worse for its general jurisprudential appeal. ↑
  21.  142 S. Ct. 2228 (2022). ↑
  22.  See, e.g., Cary C. Franklin, Religious Liberty for Some, Jotwell (Jan. 30, 2023), https://co‌nlaw.jotwell.com/politics-all-the-way-down/ [https://perma.cc/YRL5-7HJT] (discussing religious liberty case law in terms of “the fact that it’s politics all the way down” and that “the Court is engaged in a political project”); Joseph Fishkin & William E. Forbath, Make Progressive Politics Constitutional Again, Bos. Rev. (June 23, 2022), https://www.bostonrevi‌ew.net/forum/make-progressive-politics-constitutional-again/ [https://perma.cc/2B99-AX‌HF] (discussing “the right’s decisive politicization of the courts”); James F. McHugh & Lauren Stiller Rikleen, The Politicization of SCOTUS Threatens Its Legitimacy, Bloomberg L. (June 30, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/the-politicization‌-of-scotus-threatens-its-legitimacy [https://perma.cc/A5KP-M9WX] (describing “the court’s transformation from the nation’s most significant legal institution into a court driven by political beliefs and pre-conceived agendas”). Similar ideas of course have a deep intellectual history. See Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94 Yale L.J. 1, 5–6, 32 (1984). ↑
  23.  See infra note 204. ↑
  24.  See Henry Gass, Originalism Moves from Theory to High Court. What That Means for US., Christian Sci. Monitor (Dec. 21, 2021), https://www.csmonitor.com/USA/Justice/2021/1‌221/Originalism-moves-from-theory-to-high-court.-What-that-means-for-US [https://perma.‌cc/6C6X-YHWQ]; Neil S. Siegel, The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent, 126 Yale L.J.F. 164, 166 (2016) (Justice Alito calls himself a “practical originalist”). ↑
  25.  Cf. William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2352 (2015). ↑
  26.  See, e.g., supra note 22. ↑
  27.  Roughly speaking, one might say that personal rules associated with the Federalist Society now form a larger and more important part of the law than the personal rules associated with the American Constitution Society. See Emma Green, How the Federalist Society Won, New Yorker (July 24, 2022), https://www.newyorker.com/news/annals-of-education/how-the‌-federalist-society-won [https://perma.cc/72XK-D4L9]; see also Arthur D. Hellman, The Supreme Court’s Two Constitutions: A First Look at the “Reverse Polarity” Cases, 82 U. Pitt. L. Rev. 273, 274 (2020) (“It is almost as though each group of Justices has found its own copy of the Constitution . . . .”). ↑
  28.  See Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges 167–68 (2012); Ryan D. Doerfler & Samuel Moyn, The Constitution Is Broken and Should Not Be Reclaimed, N.Y. Times (Aug. 19, 2022), https://www.nytimes.co‌m/2022/08/19/opinion/liberals-constitution.html [https://perma.cc/59MC-2FHH]; Nikolas Bowie & Daphna Renan, The Supreme Court Is Not Supposed to Have This Much Power, The Atlantic (June 8, 2022), https://www.theatlantic.com/ideas/archive/2022/06/supreme-co‌u‌rt-power-overrule-congress/661212/ [https://perma.cc/PM3Z-7QN6]. ↑
  29.  Cf. Stephen E. Sachs, Presidential Comm’n on the Sup. Ct. of the U.S., Closing Reflections on the Supreme Court and Constitutional Governance 2 (July 20, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/07/Sachs-Testimony.pdf [https://per‌ma.cc/CAE8-7962] (discussing problems with the judiciary that “can only be solved by the slow work of persuading others”). ↑
  30.  See William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. U. L. Rev. 1455, 1457, 1463 (2019); infra Section IV.C. ↑
  31.  See Baude & Sachs, supra note 30, at 1463 (noting that whether “the Hartian account is generally wrong and . . . some contrary positivist theory . . . is generally right” is “bigger game”). ↑

  32.  Cf. Baude, supra note 25, at 2403–07 (discussing, as a fallback position, the possibility that originalism is “at least part of the law” and, moreover, that “a judge is legally entitled to be an originalist”). ↑

The Founders’ Purse

This Article addresses a grave originalist misstep in the new and impending war over the constitutionality of broad delegations of spending power to the executive branch. In an opening salvo, the U.S. Court of Appeals for the Fifth Circuit held that Congress unconstitutionally delegated its power of the purse to the Consumer Financial Protection Bureau. It supported this conclusion with an ambitious but highly selective originalist interpretation of Article I, Section 9’s Appropriations Clause. Once the U.S. Supreme Court had the benefit of a more complete historical record, it rejected the Fifth Circuit’s interpretation of the Appropriations Clause’s original public meaning by a 7-2 vote. This Article grounds the Supreme Court’s analysis in a broader historical background on the delegation of spending power. It also illustrates how judges’ selective analysis of history can distort the Founding generation’s understanding of separation of powers and the respective roles of the legislative and executive branches.

Originalist claims to constitutional limits on the duration, generality, and source of spending in laws passed by Congress have missed a critical body of contrary historical evidence introduced by this Article. First, records of the Constitutional Convention show that the delegates approved new and durable congressional revenue and spending powers to support the U.S. government and its credit while declining proposals for temporal limitations on Congress’s revenue and spending powers. Second, early Congresses repeatedly put these new and durable spending powers to use in laws that bypassed all three proffered limitations on duration, generality, and source of funding. To support U.S. credit while paying down the debt, the First Congress delegated to an agency known as the Sinking Fund Commission indefinite power to self-direct purchases of debt with a generous award that, in current terms, exceeds $400 billion. Within two years, the debt instruments purchased by the Commission generated a significant interest-based surplus, which Congress awarded to the Commission in a dedicated fund drawn outside of annual appropriations. To establish an affordable new federal government, early Congresses also funded a majority of federal officers, including core law enforcement officials and even a new agency, through independently directed fees that were paid by private parties and operated without temporal limits. This history shows that Article I, Section 9 means what it says and requires only that Congress authorize spending through “[a]ppropriations made by [l]aw.” Claims to a contrary understanding depend on a selective analysis that ignores key lessons of both text and history.

Introduction

It’s all the rage for courts to question the constitutionality of statutes that delegate broad discretion to the executive branch. In May 2024, the Supreme Court ruled on the nondelegation doctrine’s latest twist and rejected the U.S. Court of Appeals for the Fifth Circuit’s holding that Congress unconstitutionally ceded its power of the purse to the Consumer Financial Protection Bureau (“Bureau”). Congress met the letter of the Appropriations Clause when it “ascertained” the “purpose,” the “limit,” and the source of the “fund” supporting the Bureau’s budget “by . . . law.”1 1.As explained by Alexander Hamilton, laws containing these minimal parameters meet Article I, Section 9’s requirement of “appropriations made by law.” Alexander Hamilton, Explanation (Nov. 11, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/‌documents/Hamilton/01-19-02-0077 [https://perma.cc/FF4D-TR3E] (quoting U.S. Const. art. I, § 9).Show More The Fifth Circuit held that this law did not count as an “appropriation,” however, because (1) it allowed the Bureau broad discretion to self-direct the amount of its budget for an unlimited period of time, and (2) the Bureau drew its funds from an independent source (interest-based earnings of the Federal Reserve System) rather than annual appropriations from the Treasury.2 2.See Cmty. Fin. Servs. Ass’n of Am. v. CFPB, 51 F.4th 616, 638–39 (5th Cir. 2022), rev’d, 144 S. Ct. 1474 (2024); see also id. at 623 (Congress’s decision “to cede its power of the purse to the Bureau[] violates the Constitution’s structural separation of powers.”).Show More This Article introduces previously overlooked evidence to challenge the originalist underpinnings of the Fifth Circuit’s opinion. It establishes that the Founding generation never understood the Appropriations Clause to impose heightened requirements as to the duration, specificity, and source of spending in laws passed by Congress.

Once the Supreme Court had the benefit of a more complete historical record, seven Justices rejected the Fifth Circuit’s originalist analysis.3 3.CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474, 1481 (2024) (rejecting the Fifth Circuit’s argument “that appropriations must also ‘meet the Framers’ salutary aims of separating and checking powers’” (quoting Cmty. Fin. Servs. Ass’n, 51 F.4th at 640)).Show More Justice Thomas’s majority opinion emphasized parts of the historical record that the Fifth Circuit missed and concluded that the Fifth Circuit misconstrued the original public meaning of the Appropriations Clause.4 4.Id. (finding that “the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification” supported a more limited understanding of the Appropriations Clause).Show More While the majority left open the possibility of “other constitutional checks on Congress’s authority to create and fund an administrative agency,”5 5.Id. at 1489.Show More it gave little indication of how courts should avoid repeating the Fifth Circuit’s originalist missteps in future cases. This Article grounds the Supreme Court’s analysis in a broader historical record and illustrates how judges’ selective use of historical evidence can distort the Founding generation’s understanding of separation of powers.

The constitutional objections raised by critics of the Bureau’s funding structure boil down to a nondelegation concern: Congress unconstitutionally delegated its legislative power over spending when it granted broad budgetary discretion to the Bureau.6 6.Adam White, The CFPB’s Blank Check—or, Delegating Congress’s Power of the Purse, Yale J. on Regul.: Notice & Comment (Nov. 27, 2022), https://www.yalejreg.com/nc/the-cfpb‌s-blank-check-or-delegating-congresss-power-of-the-purse/ [https://perma.cc/GR8S-JDVS] (“The point could be put even more bluntly than the Fifth Circuit did: Congress delegated away its power of the purse.”). The Fifth Circuit held that Community Financial Services waived the nondelegation argument because they “did not raise their appropriations-based nondelegation argument in the district court.” Cmty. Fin. Servs. Ass’n, 51 F.4th at 633 n.6. Community Financial Services nevertheless asserted that “nondelegation principles are directly responsive” to arguments in this case, Brief in Opposition at 33, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448), and raised nondelegation arguments in its merits briefs. See infra notes 7–8.Show More These critics have disagreed over whether the purported constitutional limitations on the delegation of spending power stem from the Appropriations Clause or Article I, Section 1 of the Constitution.7 7.Brief for Respondents at 16, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448) (arguing that the Bureau’s funding “structure nullifies the [Appropriations] Clause”); id. at 27–29 (arguing that the Bureau’s funding scheme amounts to an unconstitutional “delegation of legislative power[s]” (quoting Mistretta v. United States, 488 U.S. 361, 420 (1989) (Scalia, J., dissenting))); cf. Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 Tul. L. Rev. 265, 318 (2001) (arguing that the “the question of whether the nondelegation doctrine applies to appropriation laws turns on two different constitutional clauses”: the Appropriations Clause and, under the assumption that discretion over spending is an executive and not a legislative power, the Executive Power Vesting Clause); Chad Squitieri, The Appropriate Appropriations Inquiry, 74 Fla. L. Rev. F. 1, 17–18 (2023) (arguing that courts should focus on whether spending powers amount to a “necessary and proper” means of carrying some other constitutionally vested power “into execution” (quoting U.S. Const. art. I, § 8)). The Founding generation conceived of purported limits on delegation of spending power under either the generally applicable Appropriations Clause or the two-year Army Appropriations Clause, rather than under a necessary and proper framework. See infra notes 312–13 and accompanying text (citing Madison’s understanding from a debate in the First Congress). The necessary and proper line of analysis is therefore beyond the scope of this Article.Show More The different sources of constitutional limitations also implicate somewhat different lines of analysis. Some arguments assert limits on the duration, generality, and source of funding under the Appropriations Clause, whereas others look to a general nondelegation framework based on the “intelligible principle” test.8 8.Cmty. Fin. Servs. Ass’n, 51 F.4th at 623 (holding that the Bureau’s funding law was not a constitutional “appropriation[]” because it omitted these limits); Brief for Respondents, supra note 7, at 15–16 (arguing that the Bureau’s spending structure violates the Appropriations Clause because it grants self-determined, “perpetual” funding to an agency with law enforcement power); id. at 29 (arguing that the funding law also “falls short” under the “intelligible principle test” (internal quotation marks omitted) (quoting Mistretta, 488 U.S. at 372)).Show More But in the end, all of these arguments point to constraints on Congress’s discretion to delegate decisions about funding to the executive branch. These purported limits have raised further questions about the constitutionality of similarly funded financial regulators such as the Federal Reserve. In addition, they have formed the basis of broader challenges to major spending initiatives ranging from the Biden Administration’s forgiveness of student loans to the Federal Communications Commission’s funding of universal service.9 9.Brief of Michael W. McConnell et al. as Amici Curiae in Support of Respondents at 7, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (No. 22-506) (arguing that the loan forgiveness program violates the Appropriations Clause’s requirement that “the President may not spend without specific statutory authorization”); id. at 6 (“Forgiving a loan . . . come[s] under Congress’s exclusive spending power.”). In Biden v. Nebraska, the Court suggested that the major questions doctrine’s related clear-statement requirement extended to laws authorizing executive spending. 143 S. Ct. at 2375 (“It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.”); cf. Consumers’ Rsch., Cause Based Com., Inc. v. FCC, 88 F.4th 917, 923–24 (11th Cir. 2023) (rejecting nondelegation argument that “there is no limit on how much the FCC can raise” to fund universal service and identifying intelligible principles that limit the agency’s funding authority), cert. denied, No. 23-743, 2024 WL 2883755 (U.S. June 10, 2024); Christina Parajon Skinner, The Monetary Executive, 91 Geo. Wash. L. Rev. 164, 192–216 (2023) (examining how a shift in “monetary and fiscal powers” from Congress and “to the President” will “likely” degrade “the quality of our modern monetary policymaking . . . and fiscal discipline”).Show More In light of these developments, it seems that the originalist case for a more rigorous nondelegation doctrine has been extended to limits on Congress’s power to delegate broad discretion over spending to the executive branch.

This Article introduces crucial historical context that originalist proponents of limits on Congress’s power to structure funding laws have missed: understandings of strong and durable revenue and spending powers that prevailed before, during, and after ratification of the U.S. Constitution. Arguments raised by nondelegation advocates rest on general historical understandings of Congress’s power of the purse and assumptions that the U.S. Constitution incorporated earlier English practices of passing specific and temporally limited spending laws.10 10.See CFPB v. All Am. Check Cashing, Inc., 33 F.4th 218, 225–32 (5th Cir. 2022).Show More This Article shows that the Constitution’s revenue and spending provisions instead emerged from a period in which America broke with English practice: Congress’s revenue and spending powers were forged on the heels of a war opposing taxation without representation and in subsequent response to the Confederation Congress’s lack of direct revenue power.11 11.Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 20 (1997) (arguing that the “imperial controversy” that “ended with the Declaration of Independence” revealed “striking differences” between “political practices and attitudes” in England and America).Show More The general debate over new revenue and spending powers in the Constitution balanced the need for durable congressional powers to sustain the United States government and credit against concerns about federalism and the dangers of combining the powers of the sword and the purse.12 12.See infra Section II.A.Show More

My broader examination of historical context reveals two main areas in which the Framers rejected the limitations asserted by critics of the Bureau’s funding structure. First, with respect to temporal limits on spending, delegates at the Constitutional Convention considered and declined to add an amendment that would have banned perpetual revenue laws. The concerns underlying perpetual revenue implicated broader issues of unchecked military spending and combining the powers of the “sword and the purse” in either the executive or legislative branch.13 13.Id.Show More Instead of including general limits on the duration of revenue laws, the Framers imposed limits on appropriations and applied these limits only to money appropriated in support of an army.14 14.Id.Show More The initial opposition to perpetual revenue laws never amounted to a key objection during ratification debates, even though Antifederalists vigorously opposed other aspects of Congress’s revenue power, such as its ability to levy direct taxes.15 15.Id.Show More During debates over revenue and spending powers in the First Congress, James Madison confirmed the lack of any general temporal limit for the Appropriations Clause when he dismissed a colleague’s patently erroneous suggestion that the Appropriations Clause imposed a general two-year limitation on spending.16 16.Id.Show More The Constitution’s revenue and spending provisions ultimately allowed Congress to create a new government with staying power: it could enact durable mechanisms for the United States to collect revenue, pay the debt, support U.S. credit, and enforce its laws.

Second, early Congresses repeatedly used the Constitution’s new and durable spending powers to bypass the asserted constitutional limits on duration, generality, and source of spending. Early legislation granted an agency known as the Sinking Fund Commission a self-directed and ultimately dedicated fund.17 17.See infra Section II.B.Show More The initial 1790 law authorized a generous fund that supported executive purchases of debt instruments for many years into the future18 18.See infra Section II.B.Show More and in today’s terms would exceed $400 billion.19 19.See infra note 329.Show More Within two years, debt instruments purchased with the initial sinking fund award generated surplus interest which Congress allocated to a dedicated fund for the executive branch to apply to repayment of debt.20 20.Id.Show More Like funds allocated to the Bureau and Federal Reserve, funds drawn from a stream of interest on government-controlled debt instruments funded the executive through captive revenue generated outside of annual appropriations.21 21.Id.Show More This fund allowed the Commission to support U.S. credit by self-directing discretionary open market purchases of U.S. securities and eventually redeeming outstanding debt instruments. The commitment of funds to the Commission was a key feature of the Sinking Fund legislation and was recognized by Secretary Hamilton as “a permanent sinking fund.”22 22.Alexander Hamilton, Report on a Plan for the Further Support of Public Credit (Jan. 16, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/documents/Hamilton/‌01-18-02-0052-0002 [https://perma.cc/5FXG-YC4K].Show More

Originalist critics of the Bureau’s funding have also missed how Congress used durable new revenue and spending powers to fund a majority of federal officers and sometimes even new agencies outside of annual appropriations. Early Congresses routinely funded government officials through independently directed fees that operated without temporal limits. Well-known examples of fee-based funding for customs officials23 23.Brief of Professors of History and Constitutional Law as Amici Curiae in Support of Petitioners at 22–27, CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474 (2024) (No. 22-448) [hereinafter Amici Brief] (describing initial laws that created fee-based funding for the customs service and independently determined funding for revenue and postal officials); Brief for Petitioners at 22, Cmty. Fin. Servs.Ass’n, 144 S. Ct. 1474 (No. 22-448) (noting early laws providing non-appropriations-based funding for the Post Office and Mint).Show More reflect pervasive funding practices in the Founding Era. These early fee-based compensation schemes applied to scores of field officers who comprised “[b]y far the larger number of federal officials” funded by Congress.24 24.Leonard D. White, The Federalists: A Study in Administrative History 298 (1948).Show More These officials included U.S. District Attorneys and U.S. marshals charged with significant federal law enforcement duties, and Congress even used fee-based compensation to fund an entirely new agency in the first Patent Board.25 25.Leading surveys of fee-based compensation include id.; Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780–1940, at 262–77 (2013); Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1302, 1313–15 (2006).Show More These early statutes departed from purported nondelegation requirements that funding statutes be limited in duration, specificity, and source. Instead, they authorized standing, fee-based funding, often relied on fees collected from private parties rather than appropriations drawn from the Treasury, and allowed federal officers such as customs collectors and U.S. District Attorneys to self-determine their funding levels by pursuing varying levels of fee-producing enforcement activities.26 26.See infra Section II.C.Show More In other cases, the total amount of fees was determined not by Congress but instead by private parties’ usage of customs and patent services over which the United States held a regulatory monopoly.

While earlier works have noted how proposals for bans on perpetual revenue laws failed at the Constitutional Convention27 27.Paul F. Figley & Jay Tidmarsh, The Appropriations Power and Sovereign Immunity, 107 Mich. L. Rev. 1207, 1254 n.381 (2009) (explaining that George Mason’s proposal for a “clause . . . restraining perpetual revenue” “never made it into the Constitution” (quoting 2 The Records of the Federal Convention of 1787, at 327 (Max Farrand ed., 1911) [hereinafter 2 Farrand’s Records] (James Madison’s Notes, Aug. 18, 1787)); Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 148 (2016) (noting that the Framers failed to incorporate George Mason’s objection to “perpetual revenue” laws).Show More as well as the Sinking Fund Commission’s role in supporting U.S. credit,28 28.Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1, 1 (2020) [hereinafter Chabot, Is the Federal Reserve Constitutional?] (introducing the Commission and its independent structure); Christine Kexel Chabot, The Lost History of Delegation at the Founding, 56 Ga. L. Rev. 81, 128–36 (2021) [hereinafter Chabot, Lost History] (explaining that Congress granted the Commission broad discretion over open market purchases).Show More this Article is the first to analyze how these early understandings of spending power contradict recent arguments for heightened nondelegation requirements under the Appropriations Clause. This Article also builds on earlier discussions of fee-based compensation for customs officials29 29.See supra note 23.Show More to show that early Congresses awarded indefinite and independently determined fee-based funding regularly and for core law enforcement officials.

Arguments for an appropriations-based nondelegation doctrine also fall outside of the general literature on Congress’s power of the purse and nondelegation for three reasons. First, the arguments for a nondelegation doctrine under the Appropriations Clause ignore scholarly consensus that Congress has broad power to delegate public matters including spending authority.30 30.See infra notes 106–07 and accompanying text (proponents and opponents of a more rigorous nondelegation doctrine agree that this doctrine does not apply to public matters such as spending). Works noting the generality of early spending laws include Lucius Wilmerding, Jr., The Spending Power: A History of the Efforts of Congress to Control Expenditures 20–21 (1943); Gerhard Casper, Appropriations of Power, 13 U. Ark. Little Rock L.J. 1, 10–13 (1990); Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 58 (2017).Show More Second, nondelegation arguments depart from literature showing that violations of the Appropriations Clause have generally arisen when presidents attempt to exert unilateral spending authority without approval from Congress.31 31.See, e.g., Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1078 (2021) (noting Obama’s and Trump’s “creative use of appropriations” to “push . . . policy priorities”); Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 360 (2018) (noting how the “executive branch, in both Republican and Democratic administrations,” has “routinely disregard[ed] funding limits”); Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1344 (1988); (claiming “[t]he covert program of support for the Contras evaded the Constitution’s most significant check on Executive power”—appropriations); J. Gregory Sidak, The President’s Power of the Purse, 1989 Duke L.J. 1162, 1168 (challenging the interpretation of the Appropriations Clause adopted in the Iran-Contra Report).Show More Third, attempts to establish a new Appropriations Clause violation depend on misapplications of originalist analysis rather than objectively verifiable constitutional limits grounded in text and history. Critics of the Bureau’s funding structure have erred by omitting weighty historical counterevidence and placing undue emphasis on the absence of a precise historical analogue.

This Article addresses originalist claims to limits on the duration, generality, and source of spending laws as follows. In Part I, it contrasts the Bureau’s statutory funding mechanisms and the Fifth Circuit’s analysis with general literature on nondelegation and Appropriations Clause violations. It explains how misapplications of originalist methodology led the Fifth Circuit and even some Supreme Court Justices to exclude significant counterevidence weighing in favor of the Bureau’s constitutionality. Part II grounds the Supreme Court’s opinion in key historical context that critics of the Bureau’s funding structure have missed. Both records of the Constitutional Convention and a large body of early spending laws cut against arguments that the Appropriations Clause imposed nondelegation requirements. This Article concludes that the Founding generation never understood the Appropriations Clause to impose rigorous nondelegation requirements as to the duration, specificity, and source of spending in laws passed by Congress. Critics of the Bureau’s funding structure have relied on a flawed analysis that distorts the Founding generation’s understandings of separation of powers and fails to realize the constraints central to originalism.

  1.  As explained by Alexander Hamilton, laws containing these minimal parameters meet Article I, Section 9’s requirement of “appropriations made by law.” Alexander Hamilton, Explanation (Nov. 11, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/‌documents/Hamilton/01-19-02-0077 [https://perma.cc/FF4D-TR3E] (quoting U.S. Const. art. I, § 9). ↑
  2.  See Cmty. Fin. Servs. Ass’n of Am. v. CFPB, 51 F.4th 616, 638–39 (5th Cir. 2022), rev’d, 144 S. Ct. 1474 (2024); see also id. at 623 (Congress’s decision “to cede its power of the purse to the Bureau[] violates the Constitution’s structural separation of powers.”). ↑
  3.  CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474, 1481 (2024) (rejecting the Fifth Circuit’s argument “that appropriations must also ‘meet the Framers’ salutary aims of separating and checking powers’” (quoting Cmty. Fin. Servs. Ass’n, 51 F.4th at 640)). ↑
  4.  Id. (finding that “the Constitution’s text, the history against which that text was enacted, and congressional practice immediately following ratification” supported a more limited understanding of the Appropriations Clause). ↑
  5.  Id. at 1489. ↑
  6.  Adam White, The CFPB’s Blank Check—or, Delegating Congress’s Power of the Purse, Yale J. on Regul.: Notice & Comment (Nov. 27, 2022), https://www.yalejreg.com/nc/the-cfpb‌s-blank-check-or-delegating-congresss-power-of-the-purse/ [https://perma.cc/GR8S-JDVS] (“The point could be put even more bluntly than the Fifth Circuit did: Congress delegated away its power of the purse.”). The Fifth Circuit held that Community Financial Services waived the nondelegation argument because they “did not raise their appropriations-based nondelegation argument in the district court.” Cmty. Fin. Servs. Ass’n, 51 F.4th at 633 n.6. Community Financial Services nevertheless asserted that “nondelegation principles are directly responsive” to arguments in this case, Brief in Opposition at 33, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448), and raised nondelegation arguments in its merits briefs. See infra notes 7–8. ↑
  7.  Brief for Respondents at 16, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448) (arguing that the Bureau’s funding “structure nullifies the [Appropriations] Clause”); id. at 27–29 (arguing that the Bureau’s funding scheme amounts to an unconstitutional “delegation of legislative power[s]” (quoting Mistretta v. United States, 488 U.S. 361, 420 (1989) (Scalia, J., dissenting))); cf. Michael B. Rappaport, The Selective Nondelegation Doctrine and the Line Item Veto: A New Approach to the Nondelegation Doctrine and Its Implications for Clinton v. City of New York, 76 Tul. L. Rev. 265, 318 (2001) (arguing that the “the question of whether the nondelegation doctrine applies to appropriation laws turns on two different constitutional clauses”: the Appropriations Clause and, under the assumption that discretion over spending is an executive and not a legislative power, the Executive Power Vesting Clause); Chad Squitieri, The Appropriate Appropriations Inquiry, 74 Fla. L. Rev. F. 1, 17–18 (2023) (arguing that courts should focus on whether spending powers amount to a “necessary and proper” means of carrying some other constitutionally vested power “into execution” (quoting U.S. Const. art. I, § 8)). The Founding generation conceived of purported limits on delegation of spending power under either the generally applicable Appropriations Clause or the two-year Army Appropriations Clause, rather than under a necessary and proper framework. See infra notes 312–13 and accompanying text (citing Madison’s understanding from a debate in the First Congress). The necessary and proper line of analysis is therefore beyond the scope of this Article. ↑
  8.  Cmty. Fin. Servs. Ass’n, 51 F.4th at 623 (holding that the Bureau’s funding law was not a constitutional “appropriation[]” because it omitted these limits); Brief for Respondents, supra note 7, at 15–16 (arguing that the Bureau’s spending structure violates the Appropriations Clause because it grants self-determined, “perpetual” funding to an agency with law enforcement power); id. at 29 (arguing that the funding law also “falls short” under the “intelligible principle test” (internal quotation marks omitted) (quoting Mistretta, 488 U.S. at 372)). ↑
  9.  Brief of Michael W. McConnell et al. as Amici Curiae in Support of Respondents at 7, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (No. 22-506) (arguing that the loan forgiveness program violates the Appropriations Clause’s requirement that “the President may not spend without specific statutory authorization”); id. at 6 (“Forgiving a loan . . . come[s] under Congress’s exclusive spending power.”). In Biden v. Nebraska, the Court suggested that the major questions doctrine’s related clear-statement requirement extended to laws authorizing executive spending. 143 S. Ct. at 2375 (“It would be odd to think that separation of powers concerns evaporate simply because the Government is providing monetary benefits rather than imposing obligations.”); cf. Consumers’ Rsch., Cause Based Com., Inc. v. FCC, 88 F.4th 917, 923–24 (11th Cir. 2023) (rejecting nondelegation argument that “there is no limit on how much the FCC can raise” to fund universal service and identifying intelligible principles that limit the agency’s funding authority), cert. denied, No. 23-743, 2024 WL 2883755 (U.S. June 10, 2024); Christina Parajon Skinner, The Monetary Executive, 91 Geo. Wash. L. Rev. 164, 192–216 (2023) (examining how a shift in “monetary and fiscal powers” from Congress and “to the President” will “likely” degrade “the quality of our modern monetary policymaking . . . and fiscal discipline”). ↑
  10.  See CFPB v. All Am. Check Cashing, Inc., 33 F.4th 218, 225–32 (5th Cir. 2022). ↑
  11.  Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 20 (1997) (arguing that the “imperial controversy” that “ended with the Declaration of Independence” revealed “striking differences” between “political practices and attitudes” in England and America). ↑
  12.  See infra Section II.A. ↑
  13.  Id. ↑
  14.  Id. ↑
  15.  Id. ↑
  16.  Id. ↑
  17.  See infra Section II.B. ↑
  18.  See infra Section II.B. ↑
  19.  See infra note 329. ↑
  20.  Id. ↑
  21.  Id. ↑
  22.  Alexander Hamilton, Report on a Plan for the Further Support of Public Credit (Jan. 16, 1795), Founders Online, Nat’l Archives, https://founders.archives.gov/documents/Hamilton/‌01-18-02-0052-0002 [https://perma.cc/5FXG-YC4K]. ↑
  23.  Brief of Professors of History and Constitutional Law as Amici Curiae in Support of Petitioners at 22–27, CFPB v. Cmty. Fin. Servs. Ass’n of Am., 144 S. Ct. 1474 (2024) (No. 22-448) [hereinafter Amici Brief] (describing initial laws that created fee-based funding for the customs service and independently determined funding for revenue and postal officials); Brief for Petitioners at 22, Cmty. Fin. Servs. Ass’n, 144 S. Ct. 1474 (No. 22-448) (noting early laws providing non-appropriations-based funding for the Post Office and Mint). ↑
  24.  Leonard D. White, The Federalists: A Study in Administrative History 298 (1948). ↑
  25.  Leading surveys of fee-based compensation include id.; Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780–1940, at 262–77 (2013); Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787–1801, 115 Yale L.J. 1256, 1302, 1313–15 (2006). ↑
  26.  See infra Section II.C. ↑
  27.  Paul F. Figley & Jay Tidmarsh, The Appropriations Power and Sovereign Immunity, 107 Mich. L. Rev. 1207, 1254 n.381 (2009) (explaining that George Mason’s proposal for a “clause . . . restraining perpetual revenue” “never made it into the Constitution” (quoting 2 The Records of the Federal Convention of 1787, at 327 (Max Farrand ed., 1911) [hereinafter 2 Farrand’s Records] (James Madison’s Notes, Aug. 18, 1787)); Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 148 (2016) (noting that the Framers failed to incorporate George Mason’s objection to “perpetual revenue” laws). ↑
  28.  Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1, 1 (2020) [hereinafter Chabot, Is the Federal Reserve Constitutional?] (introducing the Commission and its independent structure); Christine Kexel Chabot, The Lost History of Delegation at the Founding, 56 Ga. L. Rev. 81, 128–36 (2021) [hereinafter Chabot, Lost History] (explaining that Congress granted the Commission broad discretion over open market purchases). ↑
  29.  See supra note 23. ↑
  30.  See infra notes 106–07 and accompanying text (proponents and opponents of a more rigorous nondelegation doctrine agree that this doctrine does not apply to public matters such as spending). Works noting the generality of early spending laws include Lucius Wilmerding, Jr., The Spending Power: A History of the Efforts of Congress to Control Expenditures 20–21 (1943); Gerhard Casper, Appropriations of Power,
    13

    U. Ark. Little Rock L.J.

    1, 10–13 (1990

    ); Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers

    58 (2017).

    ↑

  31.  See, e.g., Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1078 (2021) (noting Obama’s and Trump’s “creative use of appropriations” to “push . . . policy priorities”); Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357, 360 (2018) (noting how the “executive branch, in both Republican and Democratic administrations,” has “routinely disregard[ed] funding limits”); Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1344 (1988); (claiming “[t]he covert program of support for the Contras evaded the Constitution’s most significant check on Executive power”—appropriations); J. Gregory Sidak, The President’s Power of the Purse, 1989 Duke

    L.J.

    1162, 1168 (challenging the interpretation of the Appropriations Clause adopted in the Iran-Contra Report). ↑

Importance and Interpretive Questions

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. ↑

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