Major Question Doctrine: Bah Humbug

The Roberts Court’s major question doctrine, which seriously limits the ways Congress may delegate power to the Executive, is libertarian living constitutionalism at its worst. If you don’t believe me, please read this long quote from a 1984 Supreme Court decision, Bob Jones v. United States, ruling 8-1 that the IRS was well within its discretion to prohibit tax exempt status for private educational institutions which discriminate on the basis of race. 

Ever since the inception of the tax code, Congress has seen fit to vest in those administering the tax laws very broad authority to interpret those laws. In an area as complex as the tax system, the agency Congress vests with administrative responsibility must be able to exercise its authority to meet changing conditions and new problems. Indeed as early as 1918, Congress expressly authorized the Commissioner "to make all needful rules and regulations for the enforcement" of the tax laws. Revenue Act of 1918. The same provision, so essential to efficient and fair administration of the tax laws, has appeared in tax codes ever since, . . . and this Court has long recognized the primary authority of the IRS and its predecessors in construing the Internal Revenue Code.

Congress, the source of IRS authority, can modify IRS rulings it considers improper; and courts exercise review over IRS actions. In the first instance, however, the responsibility for construing the Code falls to the IRS. Since Congress cannot be expected to anticipate every conceivable problem that can arise or to carry out day-to-day oversight, it relies on the administrators and on the courts to implement the legislative will. Administrators, like judges, are under oath to do so.

This description of how delegated powers are supposed to work is spot on, consistent with originalism, and represents about the only way to run a country spanning 3000 miles and housing almost 350 million people.

The major question doctrine: Bah Humbug.