The Supreme Court’s recent decision in West Virginia v. EPA, 142 S. Ct. 2587 (2022), announced the arrival of the major questions doctrine, a substantive canon of construction that bars agencies from resolving questions of “vast economic and political significance” without clear statutory authorization. While the contours of the doctrine are still murky, early predictions suggest it will function to substantially curtail the scope of the administrative state. Despite these significant implications, the Court has not been clear about the doctrine’s origins or purpose. Some defenses of the doctrine have sought to justify it as an intuition about how Congress writes statutes, a kind of linguistic canon; others, including Justice Gorsuch, attempt to root the doctrine in the Constitution, grounding it in the nondelegation doctrine.

The distinction matters because constitutionally inspired doctrines have more bite than linguistic canons. If the major questions doctrine is truly just another linguistic canon, it may fit within the Court’s ordinary process of statutory interpretation and yield to other canons in any case; as a constitutional doctrine, by contrast, it allows the Court to deviate from the text and adopt narrower readings of otherwise unambiguous statutes. This Note considers and tests the major questions doctrine’s link to the nondelegation doctrine, arguing that the major questions doctrine does not consistently serve to advance nondelegation.

The argument proceeds in three steps. First, this Note contends that the major questions doctrine must apply to the President, addressing a recent circuit split on that issue. Second, this Note explains why the major questions doctrine may function to bar the elimination of national monuments, taking as a case study President Trump’s elimination of the Bears Ears National Monument in Utah. Notably, given the history of the statute and the textual authorization to create monuments, the major questions doctrine is far more likely to bar the elimination of a national monument than the creation of one. Finally, this Note turns to nondelegation, which is more likely to be used to challenge the creation of monuments. The nondelegation doctrine does not examine “majorness” or demand clear statutory authorization; as a result, its application bears little resemblance to the major questions inquiry, likely functioning to bar the creation as opposed to the elimination of monuments.
This case study shows that the major questions doctrine and nondelegation doctrine may, as applied to the same statute, produce opposing outcomes. If the major questions doctrine functions to advance the nondelegation doctrine, this disparity should give its defenders pause. Whatever the doctrine’s merits as a linguistic canon, a doctrine so untethered from the constitutional values that ostensibly grant it its legitimacy has little merit as a substantive canon.