By Eitan M. Ezra
It is getting harder for executive branch agencies to win in court. One prominent reason for the harsh climate that agencies face is the Major Questions Doctrine, which has grown more important in statutory interpretation since the Supreme Court decided West Virginia v. EPA. If the Supreme Court applies it to an assertion of power by the executive branch, the odds are that the executive action will be enjoined. Some scholars thus fear that the Major Questions Doctrine will dangerously constrain the president’s conduct of foreign affairs. This Note argues that those predictions are misguided. It identifies a body of law in which the Supreme Court applies a “Reverse Major Questions Doctrine” to give presidents broad discretion when they interpret statutes touching on foreign affairs or national security.
Typically, the Major Questions Doctrine leads the Court to interpret a statute in a way that confers narrower authority to the agency at issue. When the president exercises some statutory delegation of power that implicates foreign affairs or national security, however, the Supreme Court selects the broader of two possible interpretations. One reading of the Major Questions Doctrine is that it operates—intentionally or not—to avoid a constitutional nondelegation problem. But the Reverse Major Questions Doctrine does the opposite. By broadening the scope of delegated authority, the Reverse Major Questions Doctrine forces the Court to confront whether the statute violated the nondelegation doctrine, often alongside other constitutional issues like due process or the First Amendment. The Reverse Major Questions doctrine allows the Court to avoid a different constitutional problem: defining whether the President has independent power under Article II of the U.S. Constitution over the asserted action.
Part I of this Note describes the Major Questions Doctrine in more detail and explains why some commentators believe it may or may not apply to foreign affairs delegations. Part II describes the Reverse Major Questions Doctrine by focusing on the constitutional pressures that created it and, through a series of case studies, argues that it may already be implicit in landmark Supreme Court decisions. Part III explores the normative implications for the Reverse Major Questions Doctrine and argues ultimately that its explicit recognition would be helpful for both lawyers and courts.