Article 1, Section 1 — Major Questions Doctrine And Canons Of Statutory Construction

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Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Some legal scholars have suggested that delegations to governmental entities are interpreted through other “canons” of statutory construction and principles of statutory interpretation.[1](https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction#fn1art1 " See

(per curium) (Gorsuch, J. concurring) ( “Both [the nondelegation and major question doctrines] are designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands.” ). See also Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 22 (2010) (explaining that “Ever since the [1980] Benzene case, the Court has sometimes construed statutes narrowly to avoid nondelegation concerns.” ); Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952, 990–91(2007) (describing as an alternative to enforcing the “intelligible principle” standard the doctrines of statutory interpretation and judicial canons); Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 316, 330 (2000) (explaining that “nondelegation canons” can “forbid administrative agencies from making decisions on their own” and “impose important constraints on administrative authority, for agencies are not permitted to understand ambiguous provisions to give them authority to venture in certain directions; a clear congressional statement is necessary” ); Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L.J. 1399, 1408 (2000) ( “[The Supreme Court] has continued to identify and address delegation concerns through means other than the nondelegation doctrine.” ). ")

Nat’l Fed’n of Indep.Bus. v. Dep’t. of Labor, Occupational Safety & Health Admin., Nos. 21A244 and 21A247, slip op. at 4 (2022)

(per curium) (Gorsuch, J. concurring) ( “Both [the nondelegation and major question doctrines] are designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands.” ). See also Jacob Loshin & Aaron Nielson, Hiding Nondelegation in Mouseholes, 62 Admin. L. Rev. 19, 22 (2010) (explaining that “Ever since the [1980] Benzene case, the Court has sometimes construed statutes narrowly to avoid nondelegation concerns.” ); Kevin M. Stack, The Constitutional Foundations of Chenery, 116 Yale L.J. 952, 990–91(2007) (describing as an alternative to enforcing the “intelligible principle” standard the doctrines of statutory interpretation and judicial canons); Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 316, 330 (2000) (explaining that “nondelegation canons” can “forbid administrative agencies from making decisions on their own” and “impose important constraints on administrative authority, for agencies are not permitted to understand ambiguous provisions to give them authority to venture in certain directions; a clear congressional statement is necessary” ); Lisa Schultz Bressman, Schechter Poultry at the Millennium: A Delegation Doctrine for the Administrative State, 109 Yale L.J. 1399, 1408 (2000) ( “[The Supreme Court] has continued to identify and address delegation concerns through means other than the nondelegation doctrine.” ). These canons and principles have helped the Court to define the constitutionally acceptable degree of discretion, deference, or direction given by Congress to a delegee.

These complementary canons and principles have restricted the powers delegated by Congress, indirectly enforcing the separation-of-power principles of the nondelegation doctrine. For example, the Supreme Court has sometimes limited the scope of an agency’s delegated authority (and, historically, its Chevron deference[2](https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction#fn2art1 " See, e.g., Massachusetts v. EPA, 549 U.S. 497, 531 (2007) (invoking major questions doctrine in not affording deference to the agency’s construction of the statute);

(same). See generally . ")

Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 , 323–24 (2014)

(same). See generally .) under the so-called “major questions” doctrine.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction#fn3art1 " See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (overruling administrative regulations on the ground that “Congress could not have intended to delegate a decision of such economic and political significance to an agency” without a clear statement of its intention); see also

(citing Hon. Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ( “A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.” )). ") Under this doctrine, the Court has vacated administrative regulations on the ground that “Congress could not have intended to delegate a decision of such economic and political significance to an agency” without a clear statement of its intention.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction#fn4art1 "

Brown & Williamson Tobacco Corp.,

529 U.S. at 160

; see also King v. Burwell, 576 U.S. 473, 485–87, 498 (2015) (holding that the Court had “reason to hesitate before concluding that Congress” implicitly delegated to the IRS the authority to “‘fill in the statutory gaps’” in determining whether states participating in a federal health care exchange were eligible for tax credits under the Patient Protection and Affordable Care Act) (quoting

Brown & Williamson Tobacco Corp.,

529 U.S. at 159

);

Util. Air Regulatory Grp.,

573 U.S. at 323–24

(holding that the Environmental Protection Agency’s (EPA’s) regulations represented an unreasonable reading of the authority delegated in the statute because the agency’s interpretation would have constituted “an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization” ). ")

For matters that “affect the entire national economy” or go beyond the “traditional authority” of the delegee, Congress, in the Court’s opinion, must provide “substantial guidance.” [5](https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction#fn5art1 " See

Util. Air Regulatory Grp.,

573 U.S. at 324

( “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” ) (quoting

Brown & Williamson Tobacco Corp.,

529 U.S. at 160

); Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001) ( “[Congress] must provide substantial guidance on setting air standards that affect the entire national economy.” ). See also Loving v. United States, 517 U.S. 748, 772 (1996) ( “Had the delegations here called for the exercise of judgment or discretion that lies beyond the traditional authority of the President, Loving’s last argument that Congress failed to provide guiding principles to the President might have more weight.” ). ")

Util. Air Regulatory Grp.,

573 U.S. at 324

( “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” ) (quoting

Brown & Williamson Tobacco Corp.,

529 U.S. at 160

); Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001) ( “[Congress] must provide substantial guidance on setting air standards that affect the entire national economy.” ). See also Loving v. United States, 517 U.S. 748, 772 (1996) ( “Had the delegations here called for the exercise of judgment or discretion that lies beyond the traditional authority of the President, Loving’s last argument that Congress failed to provide guiding principles to the President might have more weight.” ). This additional level of guidance appears to be a more stringent version of the “intelligible principle” standard that has been used by the Court for delegation challenges. For example, in King v. Burwell,[6](https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction#fn6art1 " 576 U.S. 473 (2015). ") the Court considered whether states participating in a federal health care exchange were eligible for tax credits under the Patient Protection and Affordable Care Act.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction#fn7art1 " 42 U.S.C. § 18031; 26 U.S.C. §§ 36B(b)–(c). ") The Court declined to apply the Chevron deference to the statutory interpretation of the Internal Revenue Service (IRS), holding that this was an “‘extraordinary case’” in which the Court had “‘reason to hesitate before concluding that Congress’” implicitly delegated to the IRS the authority to “‘fill in the statutory gaps.’” [8](https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction#fn8art1 "

King,

576 U.S. at 485–86

(quoting Brown & Williamson, 529 U.S. 120, 159 (2000)). As discussed in the previous essay, the Court overruled Chevron in 2024.

Loper Bright Enters. v. Raimondo,

No. 22-451 (U.S. June 28, 2024)

. For more discussion, see . ")

The Supreme Court has also enforced nondelegation principles through the canon of constitutional avoidance, taking a narrow view of a statutory delegation in order to avoid potential constitutional conflicts with the nondelegation doctrine.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction#fn9art1 " See

Mistretta v. United States,

488 U.S. 361, 373 n.7 (1989)

( “[O]ur application of the nondelegation doctrine principally has been limited to the interpretation of statutory texts, and, more particularly, to giving narrow constructions to statutory delegations that might otherwise be thought to be unconstitutional.” ). See also

Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607, 646 (1980)

(acknowledging that the “sweeping delegation of legislative power [to the Secretary of Labor to set worker exposure standards] . . . might be unconstitutional” under the nondelegation doctrine and imposing a “construction of the [Occu