La Buena Fe

punt

Like Mead, the major questions doctrine is a departure from Chevron’s simple presumption of delegation. In particular, that doctrine supports a pre- sumption of nondelegation in the face of statutory ambiguity over major policy questions or questions of major political or economic significance on the theo- ry, as Justice Scalia has memorably described it, that Congress “does not . . . hide elephants in mouseholes.”385 Scholars have long debated the legitimacy and wisdom of the major questions doctrine,386 and many have assumed that Congress wishes to punt difficult question to courts and agencies when possi- ble.387

Our findings offer some confirmation for the major questions doctrine— the idea that drafters intend for Congress, not agencies, to resolve these types of questions. More than 60% of our respondents corroborated this assumption. Only 28% of our respondents indicated that drafters intend for agencies to fill ambiguities or gaps relating to major policy questions; only 38% indicated that drafters intend for agencies to fill ambiguities or gaps relating to questions of major economic significance; and only 33% indicated that drafters intend for agencies to fill ambiguities or gaps relating to questions of major political sig- nificance (answering questions that tracked the Court’s three formulations of the major questions doctrine).388 We also note that we did not find differences across respondents based on whether they worked for members in the majority

382. Id. 383. Id. 384. Id.

385. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (Scalia, J.).

386. For a sampling of articles discussing and debating the major questions doctrine, see Lisa Schultz Bressman, Deference and Democracy, 75 GEO.WASH.L.REV. 761, 776-79 (2007); Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Exper- tise, 2007 SUP. CT.REV. 51, 76-78; John F. Manning, The Nondelegation Doctrine as a Canon of Avoidance, 2000 SUP.CT.REV. 223; and Sunstein, supra note 332, at 2605-10.

387. See, e.g., Nourse & Schacter, supra note 10, at 576-77. 388. See Q55b-d.

or the minority of Congress,389 which suggests that, at least for our respond- ents, the answer did not depend on whether the respondent was a member of the same party as the President.

By contrast, almost all of our respondents indicated that drafters intend for agencies to fill ambiguities or gaps relating to more “everyday” questions, such as the details of implementation (99%)390 and ambiguities or gaps relating to the agency’s area of expertise (93%).391 These comments were typical: “[Major questions], never! They [i.e., elected officials] keep all those to themselves”;392 “We try not to leave major policy questions to an agency . . . . [They] should be resolved here”;393 and “We are more likely to defer when an agency has tech- nical expertise.”394 To be sure, resolving major questions is not always possible for drafters,395 and distinguishing major questions from everyday ones may be difficult for courts. But our drafters did convey a surprising sense of obligation to decide certain questions themselves.

We also saw this theme emerge, although to a lesser extent, in the context of our questions about administrative preemption. Scholars have vigorously disagreed about whether preemption questions should be left to agencies when statutes are ambiguous,396 and the Court continues to defer ultimate resolution of that question.397 Our respondents’ answers reflected this divide. But of note, 55% of our respondents equated preemption questions with major policy ques- tions, in the sense that they viewed those as not for agencies to resolve.398 As one respondent remarked: “Major policy questions, major economic questions, major political questions, preemption questions are all the same . . . . Drafters don’t intend to leave them unresolved.”399 The following Figure summarizes these findings: 389. Q55b-d. 390. Q55a. 391. Q55h. 392. Q55c. 393. Q55d. 394. Q55.

395. See, e.g., id. (“Sometimes because of controversy, we can’t say what to include— either complexity or controversy.”); id. (“But sometimes you have to punt.”); id. (stating that drafters might leave ambiguous language “[w]hen we can’t reach agreement”).

396. For excellent discussions of the various views and illustrations of the competing positions, see Nina A. Mendelson, Chevron and Preemption, 102 MICH.L.REV. 737, 740-42 (2004); Catherine M. Sharkey, Essay, What Riegel Portends for FDA Preemption of State Law Products Liability Claims, 103 NW.U.L.REV. 437, 444 (2009) (arguing that courts should consider agency input on the preemption question); and Ernest A. Young, Executive Preemption, 102 NW.U.L.REV. 869, 870-71 (2008).

397. See Catherine M. Sharkey, Products Liability Preemption: An Institutional Ap- proach, 76 GEO.WASH.L.REV. 449, 455 (2008) (noting that the Court “has been less than forthcoming about its reliance upon the views of the agency” in preemption cases).

398. Q55e. 399. Id.

0.0 0.2 0.4 0.6 0.8 Fraction of Respondents 0.1 0.3 0.5 0.7 0.9 Implementation Details 1 Agency’s Area of Expertise Omissions in Statutes Division of Labor Between State and Federal Agencies Major Economic Questions

Preemption

Major Political Questions Major Policy Questions Other n x e e FIGURE 11

Empirical Survey of 137 Congressional Staffers 2011-2012: Types of Statutory Ambiguities or Gaps That

Legislative Drafters Intend Agencies to Fill

Source: Q55a-i.

These findings may also shed light on a related doctrinal question that is subject to debate among scholars and that the Court is poised to address, but about which we did not inquire: whether Congress intends for agencies to re- solve questions concerning the scope of their own jurisdiction.400 Jurisdictional questions often overlap with or are indistinguishable from “major questions.” For example, the question of whether an agency has authority to regulate a par- ticular subject or activity may be both a major question and a jurisdictional question, as were the questions in FDA v. Brown & Williamson Tobacco Corp. (challenging an FDA interpretation extending the Food, Drug, and Cosmetic Act to authorize the regulation of tobacco products)401 and Gonzales v. Oregon (challenging an interpretation by the Attorney General extending the federal

400. See City of Arlington, Tex. v. FCC, 668 F.3d 229, 248 (5th Cir.), cert. granted, 133 S. Ct. 524 (2012) (No. 11-1545) (presenting the question whether Chevron deference applies to an agency’s determination of its own jurisdiction).

drug laws to include the regulation of physician-assisted suicide).402 Based on our findings, we suspect that our respondents would emphasize the obligation of Congress, not agencies, to resolve such questions.