A More Modest Major Questions Doctrine Rooted in the Appointments Clause

Authors

Yonatan Gelblum

Document Type

Symposium

Abstract

(Excerpt)

In this Essay, I explore how this constitutional mandate might guide courts adjudicating disputes that arise when agencies interpret ambiguous statutes in a manner granting them powers beyond those expressly vested by Congress. In Part I, I explain when such agency assertions of authority may implicate Appointments Clause limits on office creation. I also demonstrate how the test of Shoemaker v. United States, which assesses whether expanding an officer’s authority creates a new office for Appointments Clause purposes by adding duties not “germane” to existing duties, provides a standard for judicial review of such claims. Agency claims to authority not expressly referenced in a statute should be upheld if such authority is clearly “germane” to duties expressly vested by statute in the agency’s officers, and rejected when it is not. This test is directly anchored in constitutional text and involves a quintessentially judicial task of enforcing express constitutional limitations on the political branches. It also focuses on statutory text rather than on prior agency action or inaction, and considers what Congress can authorize rather than speculating about what Congress intended to authorize. Therefore, it may be less susceptible to the criticisms leveled at West Virginia’s reliance on nebulous references to the separation of powers and speculation about congressional intent to justify judicial claims to authority to make atextual, politically-loaded determinations of what policy issues are “major."

In Part II, I identify the relevant criteria under a germaneness approach to assessing agency claims to authority, based on the applicable statutory framework in Shoemaker and the Supreme Court’s subsequent application of the Shoemaker test in Weiss v. United States. I demonstrate that both decisions focused on the type of duties added to an office and how they related to the general subject matter over which the office had previously been assigned responsibility by statute. In contrast to West Virginia, these decisions did not assess the “importance,” “significance,” or “magnitude” of these duties. Weiss further indicates that the test only considers applicable statutory provisions, without giving any weight to prior executive branch action or inaction.

In Part III, I describe how a major questions doctrine tied to the Appointments Clause and its germaneness standard would operate. Such an approach would resemble the analysis urged by the West Virginia dissent, which argued on nonconstitutional grounds that the relevant issue is how an agency’s claimed authority compares to its “usual portfolio.” Thus, a major questions doctrine rooted in the Appointments Clause would consider whether an agency is asserting authority over subject matter not closely related to matters that Congress expressly authorized it to regulate. It would more closely focus on statutory text and give no weight to political or economic importance or to any failure by the agency to previously assert similar authority. I demonstrate that this approach might have supported the Court’s invalidation of an eviction moratorium in Alabama Association of Realtors v. HHS31 but on more limited grounds, and would have likely resulted in upholding the EPA regulation that West Virginia invalidated. Thus, a major questions doctrine tied to the Appointments Clause would, on average, have a more modest impact than the doctrine endorsed by West Virginia, which treats claims to authority over subject matter outside an agency’s “expertise” as just one of several potential triggers for the doctrine.