The Major Questions Doctrine in Texas

This article is the second in a State Court Report series on the major questions doctrine in the states. The first can be found here.

The Texas Supreme Court has gestured toward the adoption of a major questions doctrine based on the federal model — but a close look at the state’s law and institutions reveals that the doctrine may not be a good fit for Texas.

In West Virginia v. Environmental Protection Agency, the U.S. Supreme Court adopted the major questions doctrine, which directs courts to require “clear congressional authorization” before permitting agencies to exercise authority over matters of great economic and political significance. When it applies, agencies are presumed not to have power to regulate unless Congress has clearly stated its intention to vest agencies with the authority they claim.

Although the Court’s adoption of the major questions doctrine was based on features of federal law and institutions, a few state courts have been quick to adopt the doctrine under state law. The migration of the major questions doctrine from the federal courts to state courts is arguably even more momentous than its adoption at the federal level. In the absence of federal authority, states normally retain the power to regulate for themselves. But if the major questions doctrine is adopted at the state level, it could be used to disable state regulation as well, creating dangerous regulatory gaps.

Texas’s courts were among the first to reference the major questions doctrine after West Virginia. In Abbott v. Harris County, the Texas Supreme Court invoked the doctrine to suggest a narrow interpretation of statutory authority. There, the court interpreted a state statute that empowers the governor to “control . . . the movement of persons” within a disaster area. Noting the potential breadth of the statutory language, the court revealed the influence of the major questions doctrine when it stressed that “the enormity of the power at stake may have implications for how we would interpret the statute.” And invoking West Virginia explicitly, the court asserted that “extraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices.”

But the Texas Supreme Court did not reflect on some salient differences between federal institutions and Texas institutions that counsel against the state’s adoption of the major questions doctrine. In a previous State Court Report article, I argued that a state court contemplating the adoption of the major questions doctrine should consider several features of state law, including the way its institutions share power among different branches and levels of government and its courts’ interpretive practices. I describe this framework in more detail in “The Major Questions Doctrine in the States,” recently published in the Washington University Law Review.

As described below, application of this framework to Texas shows that the major questions doctrine is likely not well-suited for the state.

The distribution of Texas’s policymaking power

An analysis of the Texas legislature’s policymaking role suggests that the major questions doctrine does not make sense in Texas, although there are features of Texas law that also point in the opposite direction. Like many states, Texas’s constitution purports to create a strict separation of powers, prohibiting any state institution other than the legislature from exercising legislative power. This feature is sympathetic to an underlying premise of the major questions doctrine — that the legislature wants to and ought to make policy decisions. The Texas legislature also retains control over policymaking in another important way: Unlike the majority of states, Texas does not permit its voters to amend state law either by initiative or referendum. The formal power to make law in Texas, therefore, is reserved to the legislature.

But, despite features suggesting that policymaking power is cabined in the legislature, the actual distribution of powers in Texas demands a more nuanced view. For instance, the Texas constitution removes a host of policy decisions from the legislature’s purview, diverting policymaking power to the courts.

Moreover, Texas has a moderately professionalized legislature. The major questions doctrine makes the most sense for a legislature — like Congress — that is highly professionalized, giving it the institutional capacity to contribute robustly to the policymaking process. Taking into consideration factors like low annual legislator salary and the infrequency of legislative sessions, Texas is somewhere in the middle of the pack of states in terms of professionalization, and considerably less professionalized than Congress, according to one well-accepted measure.

Also significant is Texas’s moderately strong nondelegation doctrine, which holds that the legislature may not vest too much, or the wrong kind, of authority in agencies. The major questions doctrine is often viewed, at the federal level, as a substitute for a dormant nondelegation doctrine. The fact that Texas already has a relatively robust nondelegation doctrine suggests that the major questions doctrine is not necessary in Texas.

Finally, Texas Republicans have a “trifecta” — that is, Republicans control both chambers of the legislature and the governor’s mansion. The presence of trifecta conditions means that the Texas legislature can overturn an agency’s assertion of authority if it so chooses. Accordingly, trifecta conditions allow the political branches to police administrative overreach without the need for extraordinary judicial oversight. Because the political branches can easily correct administrative overreach when they wish, there is little justification for Texas courts to rely on a doctrine designed to allow the courts to protect legislative prerogatives from overreaching administrative agencies.

Texas courts’ commitment to the statutory text

The commitment to a relatively strict version of textualism also suggests that the major questions doctrine is not a good fit with Texas law. Indeed, although Texas courts are permitted by statute to consider legislative history and other indicia of legislative intent, the Texas Supreme Court has rejected these sources of meaning. Indeed, in a mind-bending commitment to textualism, the Texas Supreme Court claims to have “resolutely refused” to follow the statute’s “entreaties to disregard plain language.” Rather, the Texas courts confine their use of legislative intent and statutory purpose to situations in which statutory language is ambiguous. This commitment to textualism is a poor fit with the major question doctrine’s willingness to discount plain statutory text in favor of assumptions about legislative intent.

Perhaps more importantly, Texas courts review agency interpretations of statutes de novo. Because de novo review precludes courts from putting a thumb on the interpretive scale when determining statutory meaning, it is inconsistent with the major questions doctrine, which directs courts to place a thumb on the interpretive scale on the side of heightened scrutiny.

The state-local relationship

The major questions doctrine is sometimes defended because of its ability to devolve power to lower levels of government. However, because Texas tightly restricts local power, the application of the doctrine at the state level would not devolve power to local governments. Although the Texas Constitution does permit certain cities to adopt charters, allowing them to enact local laws, the Texas legislature has been keen to restrict the power of local governments, preventing them from adopting laws related to wages, firearms, taxes, and e-cigarettes, among other areas. Indeed, the Texas legislature has even attempted an across-the-board ban on innovative local legislation, preventing municipalities from adopting local laws that merely go beyond what state law specifically requires, even if there is no inconsistency with the state law. Although this state statute has been invalidated by lower Texas courts, the message is clear: the Texas legislature will not hesitate to deny local governments power to control local affairs when it is empowered to do so.

In sum, Texas courts should not reflexively adopt the major questions doctrine on the model of West Virginia. Rather, if Texas courts examine their own institutions and compare them to their federal analogs, there is strong chance that they will find that the Texas Supreme Court was premature in gesturing toward the adoption of the major questions doctrine in Abbott v. Harris.

Evan C. Zoldan is a professor of law specializing in legislation, administrative law, and civil procedure. He is also a coauthor of a casebook on state and local government law.