Extending the Logic of The Major Question Doctrine

When the major question exception to Chevron applies, courts do not defer to agency interpretations of their organic statutes. In such cases, the Supreme Court has held, “clear congressional authorization” is required to find a delegation of authority to an agency.

The major questions exception might be seen as a manifestation, in the legal context, of an aphorism popularized by scientist Carl Sagan, “Extraordinary claims require extraordinary evidence.” Sagan had reworded Laplace’s principle, that “the weight of evidence for an extraordinary claim must be proportioned to its strangeness.” Further, “This statement is at the heart of the scientific method, and a model for critical thinking, rational thought and skepticism everywhere.” The aphorism also has this logical implication—that “ordinary claims require only ordinary evidence.” Or as David Hume expressed the general case: “A wise man . . . proportions his belief to the evidence.”

An observer might therefore ask, what are the implications of these logical principles for interpretive questions that are important but not major? Should not assertions of agency power in such cases require an intermediate amount of deference? Of supporting interpretive evidence?

The trouble is that Chevron does not permit gradations or “amounts” of deference. Chevron deference is binary: At Step One, either the statute is ambiguous or it is not; at Step Two, either the agency’s interpretation is reasonable (in which case the agency wins) or it is not (in which case it loses). There are no in-betweens. Or as the Supreme Court recently stated in the West Virginia case, “[i]n the ordinary case,” “whether Congress in fact meant to confer the power the agency has asserted,” “has no great effect on the appropriate analysis.” By contrast, the doctrine of weight in Skidmore, which applies when Chevron does not apply, does permit gradation; the stronger the interpretation, the more “weight” it is given.

And there lies a problem at Chevron’s core: An internally consistent theory of interpretation should be supple enough to reflect elementary truths about interpretation—that the degree of statutory ambiguity, its importance to the society, and the strength of evidence for it, can all vary. And when they vary so should the force they are given. An internally consistent theory of interpretation should not treat interpretations that are reasonable but weak the same as interpretations that are reasonable but strong, or interpretations that are of minor importance the same as interpretations that are important (but not “major”). There is no logical reason for there to exist a chasm in interpretive principles—between no deference in major question cases and, in all other cases, agency victory if an agency’s interpretation is merely reasonable. Logic and experience demand gradation. And gradation demands that Chevron be abandoned.