The Major Questions Doctrine Could Save Democracy

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Government is a messy business. As we learned in George Orwell’s Animal Farm, even in societies where all are supposedly equal, some are more equal than others. The people who wrote the Constitution struggled mightily to craft a system that would prevent the new government from being ruled by one group or another. They created what is popularly known as a system of checks and balances, which was carefully designed to prevent any one group in society from dominating the others in order to establish and preserve a government based on democracy rather than a monarchy or a theocracy.

But in every chess match, there are moves and countermoves. As Jimmy Buffett told us, “Power is a dangerous drug; it can maim, it can kill.” Since the day the Constitution was ratified, various groups have devised schemes to warp the system of checks and balances to make the system favor them over others. Over the past 30 years, the US Supreme Court, led by Chief Justice John Roberts, has said publicly that it favors sticking strictly to what the Framers of the Constitution allegedly meant. Under the doctrine of originalism, which has been heavily promoted by conservative groups (many of them funded by Charles Koch, such as the Federalist Society), many a Supreme Court clerk has labored long and hard to determine what was in the minds of those men who gathered in Philadelphia in the summer of 1787.

Earl Warren & Judicial Activism

The stone that sticks in the craw of conservatives is personified by Earl Warren, a former governor of California who was appointed by President Eisenhower to be the Chief Justice of the Supreme Court in 1953. Later, Eisenhower would claim appointing Warren was the worst mistake of his presidency. In 1954, the Supreme Court decided the Brown Vs. Board of Education case that called for integration in American schools.

That decision presaged a number of court rulings that infuriated many Americans. It led directly to confrontations with various governors such as Orville Faubus, Lester Maddox, and George Wallace, all of whom were rabid, foaming at the mouth segregationists. It breathed life into the civil rights movement, promoted the rise of the Black Panthers, and brought us Woodstock, the legalization of birth control, and Roe Vs. Wade. Bear in mind that all six members of the current conservative wing of the Supreme Court are graduates of the Federalist Society, which searches the nation’s law schools for like minded students, helps pay for their education, then gets them appointed as clerks to conservative judges so they can further develop their anti-equality biases.

The language of the Constitution is silent about gay rights, abortion, and funding of elections, so any laws passed by Congress that touch on those topics are immediately suspected of violating the “original” intent of the Framers. Judges who embrace such notions are accused of being “activist judges,” an epithet used to heap scorn on them by conservatives. The current conservatives on the court all loudly proclaim their fealty to the originalist doctrine and their utter disdain for “activist judges.”

Yet, as a group, they have been the most activist court in a century, enshrining corporations with personhood even though the Constitution does not mention them. The Roberts court simply “found” the doctrine of corporate personhood in much the same way a prior court “found” the right of privacy that became the basis for Roe Vs. Wade. Once corporations became “persons,” it was an easy leap to imbue them with the free speech attributes that formed the basis of the disastrous Citizens United decision that turned America into a kleptocracy where those who spend the most money dominate the political process. There is no basis for that in the Constitution, but that doesn’t trouble John Roberts or his fellow conservative judges in the slightest. The law is what we say it is, they reason, which is the very definition of judicial activism.

Democracy And The Administrative State

In the depths of the Depression, FDR and Congress created the administrative agency. The thinking was that presidents and members of Congress are not as technically savvy as experts are, so why not create a cadre of experts and let them apply their specialized knowledge to the challenges of society? Over the past 9 decades, that idea has grown into an enormous federal bureaucracy that touches upon almost every aspect of daily life in America. There is little question that the administrative state has, in effect, become a fourth branch of government, one that has no foundation in the Constitution.

Administrative agencies are both a blessing and a curse. Congress, over time, has stopped worrying about whether it is delegating too much of its authority to administrative agencies and pretty much said, “Here’s an idea. Run with it.” Politicians are different than people in other professions. They generate no income, have no supply chains, and produce nothing of value. The only imperative for a senator or representative is to get elected and then stay elected. The way to stay elected is to avoid making unpopular decisions.

It didn’t take Congress long to figure out that if it transferred its authority to administrative agencies, it could avoid annoying voters who might vote for someone else next time around. Presidents likewise figured out that they, too, could avoid taking responsibility for their actions by letting administrative agencies take the heat for them. The upshot of all this is that the agencies became the focus of popular anger when in fact it was Congress and presidents who were mostly to blame for unpopular policies because they shirked their responsibilities in the first place.

Recently, the activist Supreme Court created yet another new area of law with no constitutional basis whatsoever when it unveiled what it called its “major questions” doctrine. In effect, that doctrine is designed to halt the blanket transfer of Congressional authority to administrative agencies. It says that when “major questions” are involved, Congress must make its intentions clearly known and not rely on agencies to flesh out broad policy initiatives on their own. There is actually some sense to that, even though it flies in the face of the “originalist” thinking that is the touchstone of conservative judicial principles.

But having enunciated the doctrine, Aaron Tang, a law professor at the University of California–Davis and a former law clerk to Justice Sonia Sotomayor, says it may constrain the unbridled attempts by the current administration to dismantle the US government as we know it and replace it with an authoritarian regime. Writing in the New York Times, Tang says, “In the hands of the conservative justices, the so-called major questions doctrine was used to strike down the Biden administration’s student loan forgiveness program and to limit the Environmental Protection Agency’s ability to regulate greenhouse gas emissions. The doctrine, a particularly potent brand of judge-made law that coalesced in Supreme Court rulings in recent years, requires the government to point to a ‘clear congressional authorization’ when it makes decisions of great ‘economic and political significance.’”

Tang points out that most of the current administration’s efforts in its first three months in office pertain to tariffs, freezing federal funding, revoking birthright citizenship, interfering with how states run their elections, and slashing the size of the government using the so-called Department of Government Efficiency. These are “all issues of major national significance that Congress has not clearly authorized the president to decide,” Tang writes.

Oddly enough, the courts are now flooded with lawsuits brought by conservative organizations like the New Civil Liberties Alliance who argue the so-called president has vastly exceeded his authority when it comes to his chaotic tariff policies. A suit filed by 14 states makes the case that Elon Musk and DOGE have no clear congressional authority to take “major economic, political and social” actions to dismantle the federal government.

Tang goes on to say, “There is a deep irony here. The Supreme Court deployed the major questions doctrine to block broad invocations of presidential power by President Joe Biden. The conservative justices did so to surmount a big obstacle: Each of those actions was permissible under existing legal doctrine that gave government agencies broad discretion in how they would carry out congressional mandates. Liberals castigated the court for inventing the major questions doctrine, which appears nowhere in the Constitution or any federal statute, yet still operated as a ‘heavyweight thumb,’ as Justice Elena Kagan put it, against the Biden administration.

“Now the tables have been turned. Mr. Trump, like Mr. Biden before him, seeks to take decisive action on major questions while Congress sits on the sidelines. So the doctrine should be equally applicable … there is a chance the major questions doctrine, even if dubious at the outset, could be used for noble ends. That is because it has the potential to forge a surprising consensus among the court’s liberal and conservative justices.

“The conservative justices may well be sympathetic to the merits of Mr. Trump’s aggressive efforts to cut down government, redefine citizenship and limit voting rights. The thrust of the major questions doctrine, though, is that even if the president were right on the substance, these are all major issues that Congress ought to decide given its role as our nation’s constitutionally ordained lawmaking institution.

“The conservative justices could accordingly rule against Mr. Trump not because they disagree with his policy choices, but rather because they believe the Republican-controlled Congress ought to be the one making them. Rulings like that are laudable because they leave options available to the losing side — in this case, to pursue the administration’s goals through the usual legislative process.

“In the end, it is rarely a good bet to hope for salvation from wonky, judge-made rules of questionable legal origins. But at a time when our constitutional order faces immense pressure and uncertainty, we should take what we can get. And presidential restraint in the name of the major questions doctrine would be better than no restraint at all.” In other words, be careful what you wish for, conservative judicial activists. You just might get it!

In her Contrarian blog on Substack, Jennifer Rubin sums things up after the Supreme Court on Saturday ruled against the administration’s plans to hustle another batch of immigrants out of the US under the cover of darkness. “We can only hope that at least five justices’ patience has been exhausted. Perhaps now, the court will do its job, one that it has shirked and even self-sabotaged (by granting extensive criminal immunity to the president who instigated an insurrection).

“It is the job of the judicial branch to require the other two branches to operate under the laws and Constitution of the United States. If it cannot and will not do that, it writes itself out of existence and consigns the country to despotism. It seems it is now or never for the Supreme Court to decide if we are a nation of laws, or a nation run by a lawless bully.”