An MQD Receipt Justice Gorsuch Overlooked

Justice Gorsuch’s concurrence in Learning Resources v. Trump is something of a Godfather-esque settling of family business. He challenges and critiques all of his colleagues (save for the Chief) and brings receipts. As one would expect, his opinion draws tart responses from other justices (which could explain why it took so long for the Court to release the opinion).

Whatever one concludes about Justice Gorsuch’s exchange with Justice Kagan, and whether the progressive justices implicitly adopted arguments embracing the major questions doctrine in this case, he is correct that Justices Kagan and Sotomayor have signed on to MQD-reasoning in the past, he just forgot to include one of the most salient receipts.

In 2015, both Justices Kagan and Sotomayor signed on to Chief Justice Roberts’ opinion for the Court in King v. Burwell. Of note, that opinion relied upon MQD reasoning in concluding that Congress had not delegated authority to the Internal Revenue Service to determine whether tax credits would be available in federal exchanges. Here’s the relevant passage:

When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron, 467 U. S. 837 . Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. Id., at 842–843. This approach “is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000) . “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Ibid.

This is one of those cases. The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. Utility Air Regulatory Group v. EPA, 573 U. S. ___, ___ (2014) (slip op., at 19) (quoting Brown & Williamson, 529 U. S., at 160). It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. See Gonzales v. Oregon, 546 U. S. 243 –267 (2006). This is not a case for the IRS.

Chief Justice Roberts cites King in his opinion. For some reason, Gorsuch overlooked it (and it’s not as if he cut anything to save time or space).

Wait, some readers may wish to interject, is it fair to cite King if the issue was whether to defer to the agency under Chevron? Most definitely. The question of whether to defer to an agency’s interpretation under Chevron was a delegation question (Did Congress delegate the authority to resolve this question to the agency?). Indeed, in many cases the Chevron question would implicate a broader and more expansive assertion of authority than the would the existence of the underlying power. As the Chief noted in King, granting the IRS the obligation to issue tax credits was a lesser delegation of authority than granting to the IRS the authority to decide whether or not to issue tax credits. (This is a point I make at greater length in my HJLPP article, “The Delegation Doctrine.”)

So, whether or not the Court’s conclusion that IEEPA does not grant the power to impose tariffs required resort to the MQD–and whether or not one thinks the progressive justices implicitly accepted the MQD by joining the opinion for the Court–it is unquestionable that at least two of those justices have signed on to an opinion that relied upon MQD reasoning in the past.

While we are on the subject I enjoyed Justice Kagan’s opinion concurring-in-part and concurring-in-the-judgment, and found much of it compelling. I particularly liked the bit about IEEPA’s 99 delegations (which brings back memories of this classic).

That said, I find Kagan’s insistence that she simply follows the statutory text when determining whether Congress delegated authority to an agency in any given case to be hard to swallow given some of the decisions she has joined in the past, most notably Utility Air Regulatory Group v. EPA.

For those who do not recall the details of UARG, Justice Kagan signed on to Justice Breyer’s dissent which maintained that the EPA had the authority to rewrite numerical emission thresholds that Congress had written into the Clean Air Act, despite the lack of any language anywhere in the statute that could be interpreted as granting such authority. Moreover, for this delegation to be effective, it had to be supplemented by an unstated dispensing power, because the EPA’s revision of the emission thresholds could only be effective if it precluded citizen suits to enforce the statutory limits. If a justice is willing to countenance this sort of claim , it is hard to understand why construing “regulate . . . imports” to include the power to impose tariffs is much of a reach. But if Justice Kagan is now an adherent of “straight-up statutory construction” to determine whether a given power has been delegated, and is willing to invalidate future assertions of authority that lack statutory warrant without fear or favor, I welcome her to the fold.