Page:Biden v. Nebraska.pdf/35

4 Some have characterized the major questions doctrine as a strong-form substantive canon designed to enforce Article I’s Vesting Clause. See, e.g., C. Sunstein, There Are Two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, 483–484 (2021) (asserting that recent cases apply the major questions doctrine as “a nondelegation canon”); L. Heinzerling, The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1946–1948 (2017) (describing the major questions doctrine as a “normative” canon that “is both a presumption against certain kinds of agency interpretations and an instruction to Congress”). On this view, the Court overprotects the nondelegation principle by increasing the cost of delegating authority to agencies—namely, by requiring Congress to speak unequivocally in order to grant them significant rulemaking power. See Barrett 172–176; see also (, dissenting) (describing the major questions doctrine as a “heightened-specificity requirement”); Georgia v. President of the United States, 46 F. 4th 1283, 1314 (CA11 2022) (Anderson, J., concurring in part and dissenting in part) (“[T]he major questions doctrine is essentially a clear-statement rule”). This “clarity tax” might prevent Congress from getting too close to the nondelegation line, especially since the “intelligible principle” test largely leaves Congress to self-police. (So the doctrine would function like constitutional avoidance.) In addition or instead, the doctrine might reflect the judgment that it is so important for Congress to exercise “[a]ll legislative Powers,” Art. I, §1, that it should be forced to think twice before delegating substantial discretion to agencies—even if the delegation is well within Congress’s power to make. (So the doctrine would function like the rule that Congress must speak clearly to abrogate state sovereign immunity.) No matter which rationale justifies it, this “clear statement” version of the major questions doctrine “loads the dice” so that a plausible