Amicus Curiae Brief — West Virginia, et al., Petitioners v. Environmental Protection Agency, et al.

Nos. 20-1530, 20-1531, 20-1778, and 20-1780

IN THE

Supreme Court of the United States

d

No. 20-1530

WEST VIRGINIA , et al.,

Petitioners,

—v.—

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

(Caption continued on inside cover)

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF SCHOLARS OF CONGRESSIONAL

ACCOUNTABILITY AS AMICI CURIAE

IN SUPPORT OF NEITHER PARTY

RUTH GREENWOOD

Counsel of Record

THERESA J. LEE

ELECTION LAW CLINIC

HARVARD LAW SCHOOL

6 Everett Street, Suite 5112

Cambridge, Massachusetts 02138

(617) 998-1010

rgreenwood@law.harvard.edu

Counsel for Amici Curiae

No. 20-1531

THE NORTH AMERICAN COAL CORPORATION,

Petitioner,

—v.—

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

No. 20-1778

WESTMORELAND MINING HOLDINGS LLC,

Petitioner,

—v.—

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

No. 20-1780

NORTH DAKOTA,

Petitioner,

—v.—

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

i

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . ii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

THE MAJOR QUESTION AND

NONDELEGATION DOCTRINES ARE BASED ON

ACCOUNTABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II.

ACCOUNTABILITY REQUIRES THE

SATISFACTION OF A SERIES OF CONDITIONS . . . 9

III. REQUIRING CONGRESS TO DECIDE MORE

ISSUES WOULD NOT RESULT IN

SIGNIFICANTLY GREATER

ACCOUNTABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Political Knowledge . . . . . . . . . . . . . . . . . . . 14

B. Attribution of Responsibility . . . . . . . . . . . 16

C. Independent Evaluation . . . . . . . . . . . . . . . 18

D. Retrospective Voting . . . . . . . . . . . . . . . . . . 20

E. Congressional Activity . . . . . . . . . . . . . . . . 25

IV. POTENTIAL (AS OPPOSED TO ACTUAL)

CONGRESSIONAL ACCOUNTABILITY EXISTS

ALREADY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ii

TABLE OF AUTHORITIES

PAGE(S)

Cases

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Costello v. INS,

376 U.S. 120 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Gundy v. United States,

139 S. Ct. 2116 (2019) . . . . . . . . . . . . . . . . . . . . . . 8, 26

Hyde v. United States,

225 U.S. 347 (1912) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Indus. Union Dep’t v. Am. Petrol. Inst.,

448 U.S. 607 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Int’l Refugee Assistance Project v. Trump,

883 F.3d 233 (4th Cir. 2018), vacated,

138 S. Ct. 2710 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Loving v. United States,

517 U.S. 748 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . 26

U.S. Telecom Ass’n v. FCC,

855 F.3d 381 (D.C. Cir. 2017) . . . . . . . . . . . . . . . . . . 7

United States v. Eurodif S.A.,

555 U.S. 305 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

iii

Rules

Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Adam Bonica & Gary W. Cox, Ideological

Extremists in the U.S. Congress: Out of Step

but Still in Office, 13 Q.J. Pol. Sci. 207

(2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Austin Bussing et al., The Electoral Consequences

of Roll Call Voting: Health Care and the 2018

Election, 43 Pol. Behav. (forthcoming 2022) . . . . 24

Benjamin Eidelson, Reasoned Explanation and

Political Accountability in the Roberts Court,

130 Yale L.J. 1748 (2021) . . . . . . . . . . . . . . . . . . . . . . 7

Benjamin Highton, Issue Accountability in U.S.

House Elections, 41 Pol. Behav. 349

(2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24

Blake Emerson, Administrative Answers to Major

Questions: On the Democratic Legitimacy of

Agency Statutory Interpretation, 102 Minn. L.

Rev. 2019 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Br. for Pet’rs,

West Virginia v. EPA, No. 20-1530 (U.S. Dec.

13, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Br. of Pet’r Westmoreland Mining Holdings LLC,

West Virginia v. EPA,

No. 20-1530 (U.S. Dec. 13, 2021) . . . . . . . . . . . . . . 9

Br. of Resp’t Nat’l Mining Ass’n in Supp. of Pet’rs,

West Virginia v. EPA,

No. 20-1530 (U.S. Dec. 13, 2021) . . . . . . . . . . . . . . 9

iv

Brandice Canes-Wrone et al., Issue Accountability

and the Mass Public, 36 Legis. Stud. Q. 5

(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24, 25

Brandice Canes-Wrone et al., Out of Step, Out of

Office: Electoral Accountability and House

Members’ Voting, 96 Am. Pol. Sci. Rev. 127

(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Brendan Nyhan et al., One Vote Out of Step? The

Effects of Salient Roll Call Votes in the 2010

Election, 40 Am. Pol. Rsch. 844 (2012) . . . . . . . . . 24

Chris Tausanovitch & Christopher Warshaw,

Does the Spatial Proximity Between

Legislators and Voters Affect Voting Decisions

in U.S. House Elections? (Feb. 2015)

(unpublished manuscript),

https://perma.cc/J2BT-SMFZ . . . . . . . . 17, 21, 22, 25

Christopher H. Achen & Larry M. Bartels,

Democracy for Realists: Why Elections Do Not

Produce Responsive Government (2016) . . . . . . . 20

Christopher J. Anderson, The End of Economic

Voting? Contingency Dilemmas and the Limits

of Democratic Accountability, 10 Ann. Rev. Pol.

Sci. 271 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Daniel E. Walters, Decoding Delegation After

Gundy: What the Experience in State Courts

Tells Us About What to Expect When We’re

Expecting, 71 Emory L.J. (forthcoming 2022) . . . 27

David Samuels, Presidentialism and

Accountability for the Economy in Comparative

Perspective, 98 Am. Pol. Sci. Rev. 425 (2004) . . . 10

v

David Schleicher, Federalism and State

Democracy, 95 Tex. L. Rev. 763 (2017) . . . . . . . . . 23

David Schoenbrod, Consent of the Governed: A

Constitutional Norm That the Court Should

Substantially Enforce, 43 Harv. J.L. & Pub.

Pol’y 213 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

David Schoenbrod, Power Without Responsibility:

How Congress Abuses the People Through

Discretion (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Donald R. Songer, Government Closest to the

People: Constituent Knowledge in State and

National Politics, 17 Polity 387 (1984) . . . . . . . . . 15

Edward H. Stiglitz, The Limits of Judicial Control

and the Nondelegation Doctrine, 34 J.L. Econ.

& Org. 27 (2019) . . . . . . . . . . . . . . . . . . . . . . . 1, 26, 27

Elizabeth Garrett, Accountability and Restraint:

The Federal Budget Process and the Line Item

Veto Act, 20 Cardozo L. Rev. 871 (1999) . . . . . . . . 11

Eric A. Posner & Adrian Vermeule, Interring the

Nondelegation Doctrine, 69 U. Chi. L. Rev.

1721 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Gary C. Jacobson & Jamie L. Carson, The Politics

of Congressional Elections 146 (9th ed. 2016) . . 22

Gary C. Jacobson, The Republican Resurgence in

2010, 126 Pol. Sci. Q. 27 (2011) . . . . . . . . . . . . . . . . 24

Gary Lawson, Delegation and Original Meaning,

88 Va. L. Rev. 327 (2002) . . . . . . . . . . . . . . . . . . . . . . 6

Glen Staszewski, Reason-Giving and

Accountability, 93 Minn. L. Rev. 1253 (2009) . . . 11

vi

Gregory L. Bovitz & Jamie L. Carson, PositionTaking and Electoral Accountability in the U.S.

House of Representatives, 59 Pol. Rsch. Q. 297

(2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

James D. Fearon, Electoral Accountability and the

Control of Politicians: Selecting Good Types

Versus Sanctioning Poor Performance, in

Democracy, Accountability, and

Representation 55 (Adam Przeworski et al.

eds., 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

James N. Druckman et al., How Elite Partisan

Polarization Affects Public Opinion Formation,

107 Am. Pol. Sci. Rev. 57 (2013) . . . . . . . . . . . . . . . 18

Jamie L. Carson et al., The Electoral Costs of

Party Loyalty in Congress, 54 Am. J. Pol. Sci.

598 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Jeffery J. Mondak et al., Does Familiarity Breed

Contempt? The Impact of Information on Mass

Attitudes Toward Congress, 51 Am. J. Pol. Sci.

34 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Jerry L. Mashaw, Accountability and Institutional

Design: Some Thoughts on the Grammar of

Governance, in Public Accountability: Designs,

Dilemmas and Experiences 115 (Michael W.

Dowdle ed., 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Jerry L. Mashaw, Prodelegation: Why

Administrators Should Make Political

Decisions, 1 J.L. Econ. & Org. 81 (1985). . . . . . . . 29

John R. Zaller, The Nature and Origins of Mass

Opinion 76 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii

Karlheinz Reif & Hermann Schmitt, Nine SecondOrder National Elections—A Conceptual

Framework for the Analysis of European

Election Results, 8 Eur. J. Pol. Rsch. 3 (1980) . . 23

Martin H. Redish, Pragmatic Formalism,

Separation of Powers, and the Need to Revisit

the Nondelegation Doctrine, 51 Loy. U. Chi.

L.J. 363 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 30

Matthew S. Levendusky, Clearer Cues, More

Consistent Voters: A Benefit of Elite

Polarization, 32 Pol. Behav. 111 (2010) . . . . . . . . 19

Michael X. Delli Carpini & Scott Keeter, What

Americans Know About Politics and Why It

Matters (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Neomi Rao, Administrative Collusion: How

Delegation Diminishes the Collective Congress,

90 N.Y.U. L. Rev. 1463 (2015) . . . . . . . . . . . . . . . . . . 9

Nicholas O. Stephanopoulos, Accountability

Claims in Constitutional Law, 112 Nw. U. L.

Rev. 989 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

R. Douglas Arnold, Congress, the Press, and

Political Accountability 117 (2004) . . . . . . . . . . . . 15

Seth J. Hill & Gregory A. Huber, On the Meaning

of Survey Reports of Roll-Call “Votes”, 63 Am.

J. Pol. Sci. 611 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . 19

Stephen Ansolabehere & Philip Edward Jones,

Constituents’ Responses to Congressional RollCall Voting, 54 Am. J. Pol. Sci. 583

(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 24

viii

Stephen Ansolabehere & Shiro Kuriwaki,

Congressional Representation: Accountability

from the Constituent’s Perspective, 65 Am.

J. Pol. Sci. (forthcoming 2021) . . . . . . . . . . . . . 16, 24

Stephen Breyer, Judicial Review of Questions of

Law and Policy, 38 Admin. L. Rev. 363 (1986) . . . 6

Thomas J. Rudolph, The Meaning and

Measurement of Responsibility Attributions,

44 Am. Pol. Rsch. 106 (2016) . . . . . . . . . . . . . . . . . . 12

Toby Bolsen et al., The Influence of Partisan

Motivated Reasoning on Public Opinion,

36 Pol. Behav. 235 (2014) . . . . . . . . . . . . . . . . . . . . . 18

1

INTEREST OF AMICI CURIAE 1

Amici curiae are law professors and political

scientists who research and write about congressional

accountability.

Amicus curiae Nicholas O. Stephanopoulos is

Kirkland & Ellis Professor of Law at Harvard Law

School. His published works on congressional

accountability include Accountability Claims in

Constitutional Law, 112 Nw. U. L. Rev. 989 (2018).

Amicus curiae Edward H. Stiglitz is Professor

of Law at Cornell Law School. His published works on

congressional accountability include The Limits of

Judicial Control and the Nondelegation Doctrine, 34

J.L. Econ. & Org. 27, 38 (2019).

Amicus curiae Christopher S. Warshaw is

Associate Professor of Political Science at the George

Washington University. His published works on

congressional accountability include Does the

Ideological Proximity Between Candidates and Voters

Affect Voting in U.S. House Elections?, 40 Pol. Behav.

223 (2018).

SUMMARY OF THE ARGUMENT

Fictions—inaccurate accounts of how the world

works—sometimes pop up in the law. Legal fictions

1 In accordance with Supreme Court Rule 37.6, amici curiae

state that neither the parties, nor their counsel, had any role in

authoring, nor made any monetary contribution to fund the

preparation or submission of, this brief. All parties were timely

notified and consented to the filing of this brief.

2

can be comforting. They can express how we wish the

world worked, even though it doesn’t. Today’s legal

fictions can also reflect yesterday’s truths. It’s

possible the world used to work a certain way, but

now no longer does. Whatever their origin, this Court

has made clear that, once their falsity has been

established, legal fictions must be abandoned. The

law must be built on a foundation of fact. See, e.g.,

United States v. Eurodif S.A., 555 U.S. 305, 318

(2009) (“public law is not constrained by private

fiction”); Costello v. INS, 376 U.S. 120, 131 (1964) (“we

do well to eschew . . . fictions and to deal instead with

realities”); Hyde v. United States, 225 U.S. 347, 390

(1912) (“The Constitution is not to be satisfied with a

fiction.”).

In this case, two of the doctrines Petitioners

invoke are based, in part, on a fiction. These doctrines

are the major question doctrine (the canon that no

judicial deference is due to agency statutory

interpretations involving particularly important

issues) and the nondelegation doctrine (the rule that

Congress is barred from delegating to agencies in

overly broad terms). The fiction is that, if these

doctrines were enforced more vigorously, significant

gains in congressional accountability would follow.

With respect to the matters returned to Congress,

voters would frequently reward (or punish) legislators

for policy stances of which voters approved (or

disapproved).

This brief aims to expose this claim for the

fiction that it is. In reality—according to volumes of

empirical evidence—voters’ choices at the polls

usually wouldn’t be influenced much by the additional

3

positions that members of Congress would take if the

major question and nondelegation doctrines were

applied more stringently. These doctrines’ use

therefore wouldn’t yield a substantially more

accountable Congress. To be sure, concerns beyond

accountability justify the major question and

nondelegation doctrines. This brief doesn’t address

those other rationales. Nor does the brief comment on

how the Clean Air Act should be construed. Rather,

the brief’s intervention is limited to the accountability

argument that underpins the major question and

nondelegation

doctrines.

That

argument

is

incorrect—it’s a fiction—so if the Court relies on these

doctrines, it shouldn’t do so because of their supposed

effects on accountability.

To see why members of Congress wouldn’t be

much more accountable if they tackled issues

currently delegated to agencies, it’s necessary to

define and unpack accountability. In brief,

accountability means that a principal rewards or

punishes an agent based on the agent’s past

performance. In the case of electoral accountability—

the kind said to be promoted by the major question

and nondelegation doctrines—voters are the

principal, an elected official is the agent, and the

ballot is the mechanism of reward or punishment. An

officeholder is electorally accountable to the extent

that voters vote for (or against) her when they support

(or object to) her prior activities.

More specifically, electoral accountability for a

member of Congress for a vote on a bill requires four

conditions to be satisfied. First, the member’s

constituents must know about the bill. Second, the

4

constituents must know how the member voted on the

bill. Third, the constituents must make evaluations,

positive or negative, of the member’s vote. And fourth,

at the next election, the constituents must cast their

ballots at least partly based on these evaluations.

Importantly, these conditions are both necessary and

sufficient for electoral accountability to arise. If any

of them isn’t met, a member of Congress can’t be held

accountable for a vote on a bill.

The reason why greater enforcement of the

major question and nondelegation doctrines wouldn’t

produce significant accountability gains, then, is that

each accountability condition would frequently be

unfulfilled. First, many voters are unaware of the

bills (even the important ones) that Congress

considers. In fact, most voters can’t identify a single

bill on which their House member voted over the last

two years. Second, many voters can’t say (or say

incorrectly) how legislators voted on key bills. With

respect to Congress’s highest-profile bills over the last

generation, more than forty percent of respondents,

on average, weren’t sure how their House member

voted. Another twenty percent were sure but were

wrong in their beliefs.

Third, many voters don’t independently

evaluate legislators’ votes. Instead, they follow the

party line, backing policies their party favors and

opposing ones it doesn’t. In a series of experiments,

simply telling subjects how the major parties in

Congress divided on a bill hugely swayed subjects’

assessments of the bill, bringing their views in line

with their party’s. And fourth, many voters don’t cast

ballots based on legislators’ past votes. Congress

5

members’ votes on key bills seldom have discernible

electoral implications, the exceptions being

prominent bills like the Affordable Care Act.

Retrospective voting based on Congress members’

past votes is overshadowed by other forms of voting,

like voting based on party, ideology, the state of the

economy, or approval of the President.

Perhaps

the

accountability

argument

undergirding the major question and nondelegation

doctrines could be made nonempirical, thus avoiding

the weight of this empirical evidence. The argument

would then be that voters could hold members of

Congress accountable for the additional positions

they would take if these doctrines were applied more

forcefully. In practice, voters might not reward or

punish members of Congress for their extra stances.

But in theory, voters would be free to do so.

The trouble with this nonempirical claim is

that, under its logic, sufficient accountability already

exists and isn’t in need of improvement. Under the

status quo, voters could hold members of Congress

accountable for their very decisions to delegate

certain matters to agencies. Voters could also hold

members of Congress (as well as the President)

accountable for the choices that agencies make

pursuant to these delegations. In practice, voters

might not be likely to hold politicians to account in

these ways. But the predicate of the nonempirical

claim is that actual behavior is immaterial. What

matters is the theoretical capacity of voters to hold

politicians to account—and that capacity is already

present, even without greater enforcement of the

major question and nondelegation doctrines.

6

ARGUMENT

I.

THE MAJOR QUESTION AND

NONDELEGATION DOCTRINES ARE

BASED ON ACCOUNTABILITY.

Like most legal principles, the major question

and

nondelegation doctrines

have

multiple

justifications. These include a presumption about

congressional intent in the case of the major question

doctrine, see, e.g., Stephen Breyer, Judicial Review of

Questions of Law and Policy, 38 Admin. L. Rev. 363,

370 (1986), and views about the original meaning of

the Constitution in the case of the nondelegation

doctrine, see, e.g., Gary Lawson, Delegation and

Original Meaning, 88 Va. L. Rev. 327, 335-53 (2002).

Another rationale for these doctrines—the subject of

this brief—is that they promote congressional

accountability. If statutory ambiguities are construed

to keep important issues in Congress’s hands, or if

Congress can delegate to agencies only in narrow

terms, then members of Congress will be

substantially more accountable for their policy

choices.

In the major question context, this

accountability argument was aired most thoroughly

in FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120 (2000). The majority held that the regulation

of tobacco was “a decision of such economic and

political significance” that judicial deference to the

FDA’s

interpretation

of

the

statute

was

inappropriate. Id. at 160. Justice Breyer agreed with

the majority that the regulation of tobacco was an

“important, conspicuous, and controversial” issue. Id.

7

at 190 (Breyer, J., dissenting). He further noted that,

because of the matter’s “importance” and “attendant

publicity,” “the public is likely to be aware of it.” Id.

He diverged from the majority only in his belief that,

if the FDA rather than Congress regulated tobacco,

accountability would still ensue because the

President’s “administration, and those politically

elected officials who support it, must (and will) take

responsibility.” Id. Accountability would thus “take

place whether it is the Congress or the Executive

Branch that makes the relevant decision.” Id. at 191.

Since Brown & Williamson, lower courts have

echoed this Court’s view that the major question

doctrine “guards against unnecessary erosion of . . .

political accountability by insisting that the

legislature directly confronts the benefits and

implications of these decisions.” Int’l Refugee

Assistance Project v. Trump, 883 F.3d 233, 291 (4th

Cir. 2018) (Gregory, C.J., concurring), vacated, 138 S.

Ct. 2710 (2018); see also, e.g., U.S. Telecom Ass’n v.

FCC, 855 F.3d 381, 422 (D.C. Cir. 2017) (Kavanaugh,

J., dissenting) (“a major policy change should be made

by the most democratically accountable process”

(internal quotation marks omitted)). Scholars have

also argued that the major question doctrine “aims to

protect and to strengthen” accountability by ensuring

that “a popular and deliberative process settles major

questions of policy.” Blake Emerson, Administrative

Answers to Major Questions: On the Democratic

Legitimacy of Agency Statutory Interpretation, 102

Minn. L. Rev. 2019, 2048 (2018); see also, e.g.,

Benjamin Eidelson, Reasoned Explanation and

Political Accountability in the Roberts Court, 130 Yale

L.J. 1748, 1812 (2021) (“Cases involving ‘major’

8

questions are . . . the cases in which political

accountability is a meaningful possibility.”).

Turning to the nondelegation doctrine, Justice

Gorsuch recently contended that its more vigorous

application

would

enhance

congressional

accountability. At present, “[l]egislators might seek to

take credit for addressing a pressing social problem

by sending it to the executive for resolution, while at

the same time blaming the executive for the problems

that attend whatever measures he chooses to pursue.”

Gundy v. United States, 139 S. Ct. 2116, 2135 (2019)

(Gorsuch, J., dissenting). “These opportunities for

finger-pointing might prove temptingly advantageous

for the politicians involved,” but they also “disguise

responsibility for the decisions,” thus causing

“[a]ccountability [to] suffer.” Id. (cleaned up). In

contrast, if expansive delegation ceased, then “the

lines of accountability would be clear.” Id. at 2134.

“The sovereign people would know, without

ambiguity, whom to hold accountable for the laws

they would have to follow.” Id.

This accountability claim built on several past

statements by the Court. See, e.g., Loving v. United

States, 517 U.S. 748, 758 (1996) (the nondelegation

doctrine “allows the citizen to know who may be called

to answer for making, or not making, those delicate

and necessary decisions essential to governance”);

Indus. Union Dep’t v. Am. Petrol. Inst., 448 U.S. 607,

687 (1980) (Rehnquist, J., concurring in the

judgment) (the nondelegation doctrine ensures that

“the buck stops with Congress” for “fundamental

policy decisions”). Scholars have also asserted that

greater enforcement of the nondelegation doctrine

9

would “force[] legislators to take political

responsibility for imposing regulatory costs and

benefits.” David Schoenbrod, Power Without

Responsibility: How Congress Abuses the People

Through Discretion 17 (1993); see also, e.g., Neomi

Rao, Administrative Collusion: How Delegation

Diminishes the Collective Congress, 90 N.Y.U. L. Rev.

1463, 1512 (2015) (“delegations erode the

accountability of members of Congress”).

In short, one basis for the major question and

nondelegation doctrines is that they significantly

boost the accountability of members of Congress. This

isn’t the sole justification for the doctrines, but it’s a

common one as well as the only rationale that

involves the doctrines’ putative effects. 2

II.

ACCOUNTABILITY REQUIRES THE

SATISFACTION OF A SERIES OF

CONDITIONS.

To assess the accountability rationale for the

major question and nondelegation doctrines, a

necessary first step is defining accountability and

identifying its preconditions. Accountability is a

familiar concept in political theory. As numerous

scholars have explained, it requires two parties, one

2 Unsurprisingly, several litigants in this case try to justify

the major question and nondelegation doctrines on

accountability grounds. See Br. for Pet’rs at 26, 30, West Virginia

v. EPA, No. 20-1530 (U.S. Dec. 13, 2021); Br. of Pet’r

Westmoreland Mining Holdings LLC at 2, West Virginia v. EPA,

No. 20-1530 (U.S. Dec. 13, 2021); Br. of Resp’t Nat’l Mining Ass’n

in Supp. of Pet’rs at 18-19, 21, West Virginia v. EPA, No. 20-1530

(U.S. Dec. 13, 2021).

10

of whom (the agent) acts on behalf of the other (the

principal). Accountability also requires the principal

to reward the agent for good performance and to

punish it for bad performance. In this way, the agent

is held accountable for its actions by the principal. As

one theorist has put it, “[w]e say that one person, A,

is accountable to another, B,” if “A is obliged to act in

some way behalf of B,” and if B “sanction[s] or

reward[s] A for her activities or performance in this

capacity.” James D. Fearon, Electoral Accountability

and the Control of Politicians: Selecting Good Types

Versus Sanctioning Poor Performance, in Democracy,

Accountability, and Representation 55, 55 (Adam

Przeworski et al. eds., 1999); see also, e.g., Jerry L.

Mashaw, Accountability and Institutional Design:

Some Thoughts on the Grammar of Governance, in

Public Accountability: Designs, Dilemmas and

Experiences 115, 118 (Michael W. Dowdle ed., 2006)

(offering a similar definition).

With this general notion in mind, it’s easy to

specify the distinctive aspects of electoral

accountability. Voters are the ones on whose behalf

actions are taken—the principal. An elected official is

the one who takes these actions—the agent. And the

ballot is the tool that voters use to hold the

officeholder accountable. Voters vote for an

incumbent whose record they approve of, or against

an incumbent whose record they disfavor. See, e.g.,

David Samuels, Presidentialism and Accountability

for the Economy in Comparative Perspective, 98 Am.

Pol. Sci. Rev. 425, 426 (2004) (“[E]lectoral

accountability occurs because voters retrospectively

judge whether [elected officials] have acted in their

11

best interests and then reward or sanction them

appropriately.”).

Importantly, electoral accountability is far

from inevitable in a democracy. Rather, it occurs only

if four conditions are satisfied. These conditions are

both necessary and sufficient, meaning that their

fulfillment guarantees the presence of accountability.

If any condition is unmet, on the other hand, an

officeholder can’t be held accountable by the voters

who are unable to comply with the requirement. See,

e.g.,

Glen

Staszewski,

Reason-Giving

and

Accountability, 93 Minn. L. Rev. 1253, 1266 (2009)

(for “political accountability to work,” “it would be

necessary for . . . . this set of conditions [to be]

satisfied”).

The first prerequisite is voters’ political

knowledge. Voters must know about an incumbent’s

record. If the incumbent is a member of Congress and

the relevant aspect of her record is a vote on a bill—

the scenario contemplated by proponents of the

accountability rationale for the major question and

nondelegation doctrines—voters must know about the

bill. Without this knowledge, voters can’t possibly

reward or punish the member for her stance on the

bill. See, e.g., Elizabeth Garrett, Accountability and

Restraint: The Federal Budget Process and the Line

Item Veto Act, 20 Cardozo L. Rev. 871, 924 (1999)

(“Before the public can hold elected representatives

responsible for decisions, they must know the

substance of the policy adopted.”).

The second condition is voters’ correct

attribution of responsibility. Voters must hold an

12

elected official responsible for developments over

which she had control—but not for events beyond her

reach. This is a demanding requirement for issues

like the state of the economy, over which many

officeholders exert partial influence. But it’s more

straightforward for a member of Congress and a vote

on a bill. Voters must simply be aware of how the

member voted. They must not think that a yea vote

was a nay, or vice versa. See generally Thomas J.

Rudolph, The Meaning and Measurement of

Responsibility Attributions, 44 Am. Pol. Rsch. 106

(2016).

The third prerequisite is voters’ independent

evaluation. Knowing an incumbent’s record, and

correctly attributing responsibility for it, voters must

further form an independent judgment about it. If the

pertinent record is a member of Congress’s vote on a

bill, voters must decide, in their independent opinion,

whether that vote was good or bad. “Independent”

here means that voters’ assessments must be based

on the merits of the matter. If voters’ assessments are

driven by other factors, like their fondness for their

representative or their attachment to their party,

then the content of the bill itself becomes immaterial.

Whatever the bill says, the same consequences will

follow.

The fourth condition is voters’ retrospective

voting. Voters must actually cast their ballots based

on their evaluations, good or bad, of an elected

official’s record. If voters vote on other grounds, then

they don’t use their ballots as a mechanism of

accountability. For a member of Congress and a vote

on a bill, the upshot is that the member’s stance must

13

have electoral implications. Voters must take the

stance into account when they cast their ballots.

Voters must not vote entirely for other reasons such

as party, ideology, the state of the economy, or

approval of the President. See, e.g., Christopher J.

Anderson, The End of Economic Voting? Contingency

Dilemmas

and

the

Limits

of

Democratic

Accountability, 10 Ann. Rev. Pol. Sci. 271, 279 (2006)

(the last “step in the chain of necessary events is that

these evaluations translate into a vote for or against

the [officeholder]”).

Finally, these four conditions are necessary

and sufficient for electoral accountability to ensue,

but on their own, they still don’t ensure that members

of Congress would be more accountable if the major

question and nondelegation doctrines were applied

more stringently. For that gain in accountability to

materialize, Congress would also have to change its

legislating practices. That is, it would have to answer

major questions itself (instead of handing them off to

agencies) and draft laws with more specificity

(leaving fewer issues to agencies’ discretion). If

Congress didn’t change its legislative practices, then

there would be no additional or different votes on bills

for which members could be held accountable.

III.

REQUIRING CONGRESS TO DECIDE

MORE ISSUES WOULD NOT RESULT IN

SIGNIFICANTLY GREATER

ACCOUNTABILITY.

There are several predicates that must be

satisfied, then, for more vigorous enforcement of the

major question and nondelegation doctrines to yield

14

significantly greater congressional accountability.

Are these predicates satisfied? As the following

survey of the empirical evidence demonstrates, they

frequently aren’t. The doctrines’ more energetic use

therefore wouldn’t make Congress much more

accountable than it already is. 3

A.

Political Knowledge

Beginning with voters’ political knowledge,

many voters are unaware of the bills (even the

important ones) that Congress considers. This was

the case historically and it remains true today. In the

1960s, according to the authors of the preeminent

study of Americans’ political knowledge, majorities of

the public didn’t know about the enactment of major

education, immigration, and urban affairs laws. See

Michael X. Delli Carpini & Scott Keeter, What

Americans Know About Politics and Why It Matters

80-81 (1996). In the 1990s, public familiarity with key

bills that Congress debated but didn’t pass was even

lower. Surveys showed “virtually no awareness of

important [bills]” addressing issues such as “abortion,

To be clear, this brief exclusively addresses the

accountability of members of Congress for votes on particular

bills. The brief doesn’t examine legislators’ accountability for

their overall ideological profiles. Very briefly, more moderate

members of Congress receive higher vote shares than more

extreme legislators, see, e.g., Brandice Canes-Wrone et al., Out

of Step, Out of Office: Electoral Accountability and House

Members’ Voting, 96 Am. Pol. Sci. Rev. 127, 132-37 (2002), but

this advantage was always modest, see, e.g., id. at 133, and has

declined further in recent years, see, e.g., Adam Bonica & Gary

W. Cox, Ideological Extremists in the U.S. Congress: Out of Step

but Still in Office, 13 Q.J. Pol. Sci. 207, 221-32 (2018).

3

15

campaign finance, bank bailouts, defense spending,”

and several others. R. Douglas Arnold, Congress, the

Press, and Political Accountability 117, 123 (2004).

The most startling finding about voters’

political knowledge also comes from this period. A poll

asked respondents, “Is there any legislative bill that

has come up in the House of Representatives, on

which you remember how your congressman has

voted in the last couple years?” John R. Zaller, The

Nature and Origins of Mass Opinion 76 (1992)

(emphasis added). “Only 12 percent could think of

anything.” Id. In other words, a supermajority of

respondents couldn’t name a single bill on which their

representative had recently taken a position. See also

Donald R. Songer, Government Closest to the People:

Constituent Knowledge in State and National Politics,

17 Polity 387, 388 (1984) (describing a similar result).

And more recently, a survey probed respondents’

ability to state correctly whether Congress legislated

in certain areas in the 2000s. Only slim majorities

gave the right answers with respect to congressional

activity on handgun sales and campaign finance. See

Jeffery J. Mondak et al., Does Familiarity Breed

Contempt? The Impact of Information on Mass

Attitudes Toward Congress, 51 Am. J. Pol. Sci. 34, 38

tbl.1 (2007).

The implication of this work is that, if the

major question and nondelegation doctrines required

members of Congress to vote on more bills, many

voters wouldn’t know about those additional matters.

Many voters don’t know about the bills their

representatives already address. There’s no reason to

think these voters would become better informed if

16

more items were placed on Congress’s agenda. These

voters would therefore lack the necessary political

knowledge to hold their representatives accountable

for the extra issues on Congress’s plate.

B.

Attribution of Responsibility

Turning to voters’ attribution of responsibility,

the most comprehensive study of voters’ perceptions

of their U.S. House members’ votes was recently

released. See Stephen Ansolabehere & Shiro

Kuriwaki,

Congressional

Representation:

Accountability from the Constituent’s Perspective, 65

Am. J. Pol. Sci. (forthcoming 2021). The authors

examined thirty-six of the highest-profile bills

debated by the House between 2006 and 2018. See id.

app. tbl.B1. Over this set of bills, an average of 41

percent of respondents weren’t sure how their House

member voted. See id. Another 19 percent of

respondents, on average, thought they knew their

representative’s stance but turned out to be wrong.

See id. Across the thirty-six bills, a majority of

respondents got their House member’s vote right in

just eleven cases—fewer than one out of three. See id.;

see also Stephen Ansolabehere & Philip Edward

Jones, Constituents’ Responses to Congressional RollCall Voting, 54 Am. J. Pol. Sci. 583, 587 (2010)

(reporting similar results).

Moreover, voters’ misperceptions of their

representatives’ votes are far from random. One

common error is voters thinking House members take

more moderate positions than they actually do.

Democratic representatives are thought to cast

conservative votes 31 percent of the time while, in

17

fact, they do so at a rate of 21 percent. See

Ansolabehere & Jones, supra, at 587. Similarly,

voters believe Republican representatives cast liberal

votes 11 percentage points more frequently than they

do in reality. See id. Another bias in voters’

attribution of responsibility involves the small but

crucial group of House members who vote against

their party on key bills. Voters are much more likely

to misstate these representatives’ stances—that is, to

think incorrectly that they toe the party line. Voters’

odds of accurately identifying the votes of House

members who defy their party plummet by 40

percentage points compared to representatives in the

party mainstream. See id. at 588.

This work suggests that voters can effectively

distinguish between House members from different

parties but not between representatives from the

same party. Another study confirms that hypothesis.

Across all House members (Democrats and

Republicans),

the

correlation

between

the

representatives’ perceived votes and their actual

votes is a reasonable 0.66. See Chris Tausanovitch &

Christopher Warshaw, Does the Spatial Proximity

Between Legislators and Voters Affect Voting

Decisions in U.S. House Elections? 23 (Feb. 2015)

(unpublished manuscript), https://perma.cc/J2BTSMFZ. But considering only representatives from the

same party, the correlation between perception and

reality drops to just 0.28. See id. This weak

relationship indicates that “voters only have a dim

awareness of ideological differences between

legislators within each party.” Id.

18

Consequently, if the major question and

nondelegation doctrines forced members of Congress

to vote on more bills, many voters would be unable to

attribute responsibility correctly for those additional

votes. Some voters would make random mistakes

about their representatives’ positions. More

disturbingly, other voters would systematically

misperceive ideologically extreme legislators as

moderates and party rebels as party stalwarts. Some

extremists would thus evade negative consequences

for fringe stances that voters fail to ascribe to them.

And some legislators willing to break with their party

wouldn’t benefit from boldness that voters fail to

recognize.

C.

Independent Evaluation

Next, the third condition for accountability is

that voters independently evaluate the votes cast by

members of Congress. However, an array of studies

establish that many voters don’t form these

independent judgments. Instead, their assessments of

legislators’ votes are heavily driven by their partisan

attachments. All these studies proceed in roughly the

same fashion. Subjects are provided with a

description of a particular congressional bill: the

Energy Independence Act, the DREAM Act, and so on.

Subjects in the control group are then asked to what

extent they approve or disapprove of the bill. In

contrast, subjects in the treatment group are first told

about the parties’ respective positions on the bill and

only later prompted for their own opinions. See Toby

Bolsen et al., The Influence of Partisan Motivated

Reasoning on Public Opinion, 36 Pol. Behav. 235, 244

(2014); James N. Druckman et al., How Elite Partisan

19

Polarization Affects Public Opinion Formation, 107

Am. Pol. Sci. Rev. 57, 61 (2013); Seth J. Hill & Gregory

A. Huber, On the Meaning of Survey Reports of RollCall “Votes”, 63 Am. J. Pol. Sci. 611, 615-16 (2019);

Matthew S. Levendusky, Clearer Cues, More

Consistent Voters: A Benefit of Elite Polarization, 32

Pol. Behav. 111, 119 (2010).

In almost all cases, subjects in the treatment

group give quite different evaluations from subjects in

the control group. Specifically, the treated subjects

offer assessments that are significantly more aligned

with their parties’ views. In the most exhaustive of

these studies, including three experiments spanning

thirty-one recent bills, Democratic and Republican

subjects disagreed by an average of about 25

percentage points when they weren’t informed how

Democratic and Republican members of Congress

voted on those bills. See Hill & Huber, supra, at 61617. But when Democratic and Republican subjects

learned about the party split in Congress, their

disagreement ballooned to an average of roughly 40

percentage points. See id.; see also Bolsen et al.,

supra, at 248 fig.1 (Democrats’ and Republicans’

opinions about the Energy Independence Act diverged

by 10-15 percentage points more after exposure to the

parties’ stances); Druckman et al., supra, at 69 fig.3b

(increase in partisan divergence of 15-25 percentage

points with respect to the DREAM Act); Levendusky

et al, supra, at 121 (increase in partisan divergence of

8-10 percentage points with respect to a set of

policies).

These findings mean that even if voters knew

about the extra bills necessitated by a resurgence of

20

the major question and nondelegation doctrines, and

even if voters knew how their representatives voted

on those bills, many voters still wouldn’t be able to

hold their representatives accountable—at least not

genuinely. Consider a Democratic voter who approves

(or disapproves) of bills supported (or opposed) by her

party. True, this voter’s evaluations vary from bill to

bill. But they don’t vary based on the merits of each

proposal. Instead, the driver of the voter’s

assessments is the Democratic Party’s position,

whatever it happens to be. These partisan judgments

can result in partisan accountability: rewarding or

punishing the voter’s representative for siding with or

against the Democratic Party. But they’re incapable

of yielding true accountability, grounded in the voter’s

independent evaluation of each bill on its own terms.

Cf. Christopher H. Achen & Larry M. Bartels,

Democracy for Realists: Why Elections Do Not

Produce Responsive Government 145 (2016)

(explaining how “the limitations of democratic

citizens” are responsible for “the limitations of

democratic accountability”).

D.

Retrospective Voting

The last link in the chain of accountability is

retrospective voting. Voters must cast their

congressional ballots based on their evaluations of

their representatives’ stances on particular bills.

Numerous studies investigate whether, and to what

extent, voters actually vote in this way. The key

independent variables in these analyses are the rollcall votes of members of Congress. The outcome

variable is the legislators’ subsequent electoral

performance. All the studies also try to control for

21

other factors that might influence voters’ choices at

the polls. See, e.g., Gregory L. Bovitz & Jamie L.

Carson, Position-Taking and Electoral Accountability

in the U.S. House of Representatives, 59 Pol. Rsch. Q.

297, 300 (2006); Brandice Canes-Wrone et al., Issue

Accountability and the Mass Public, 36 Legis. Stud.

Q. 5, 13-18 (2011); Benjamin Highton, Issue

Accountability in U.S. House Elections, 41 Pol. Behav.

349, 355-56 (2019); Tausanovitch & Warshaw, supra,

at 45-46.

The conclusion of this literature is that most

positions taken by members of Congress—even on

major bills—have minor electoral repercussions.

Retrospective voting based on these positions

therefore can’t be too common. In the most thorough

of these studies, the authors examine all “key votes”

according to Congressional Quarterly between 1973

and 2000. The vast majority of these votes—the most

important ones taken by members of Congress—have

insignificant electoral effects. See Bovitz & Carson,

supra, at 301 tbl.1. Similarly, another study

scrutinizes votes on environmental and criminal

justice bills from 1988 to 2004. Again, the bulk of

these votes don’t have significant impacts on

incumbents’ subsequent electoral results. See CanesWrone et al., supra, at 18 tbl.1, 24 tbl.3. More

recently, the same approach was applied to five of the

highest-profile bills of the Obama administration. In

four of these five cases, “[t]here is little apparent

relationship between voters’ and incumbents’

positions and vote choice, which suggests lack of issue

accountability.” Highton, supra, at 358; see also

Tausanovitch & Warshaw, supra, at 46 (“[T]here is no

22

evidence . . . that voters hold legislators more

accountable on important votes than on other votes.”).

These findings shouldn’t be overly surprising

given the earlier discussion in this section. If many

voters don’t know about congressional bills, don’t

know how their representatives voted on those bills,

or evaluate their representatives’ stances on partisan

rather than substantive grounds, it stands to reason

that many voters don’t (or can’t) engage in issuespecific retrospective voting. Another explanation for

the infrequency of this form of voting is the influence

of other factors on voters’ choices at the polls.

Crucially, the potency of these other factors is evident

empirically. That greater sway is why issue-specific

retrospective voting pales in comparison.

The scholarship on voting in congressional

elections is too rich to be easily summarized, but most

studies agree on the importance of four variables. The

first is voters’ partisanship. Voters are extremely (and

increasingly) likely to back candidates who affiliate

with the same party as them. See, e.g., Gary C.

Jacobson & Jamie L. Carson, The Politics of

Congressional Elections 146-47 (9th ed. 2016)

(“partisanship [i]s the single most important

influence on individuals’ voting decisions”). The

second variable is voters’ ideology. Liberal voters are

much more likely to support Democratic candidates,

just as conservative voters are much more apt to pull

the lever for Republicans. See, e.g., Tausanovitch &

Warshaw, supra, at 15 (“individual ideology has a

strong independent effect on vote choice”).

23

Candidates’ (as opposed to voters’) ideology is

the third relevant variable. As noted earlier,

ideologically moderate candidates receive somewhat

higher vote shares than ideologically extreme

candidates, though this advantage has faded in recent

years. See supra note 3. And the fourth driver is the

President’s approval rating. The more popular the

President is with the public, the better candidates

from the President’s party do, and vice versa. See, e.g.,

Jamie L. Carson et al., The Electoral Costs of Party

Loyalty in Congress, 54 Am. J. Pol. Sci. 598, 608 (2010)

(“higher levels of presidential approval help

legislators of the president’s party and hurt members

of the opposite party”).

The power of presidential approval is notable

because the President is a distinct political actor from

Congress. Congressional elections become what

political scientists call second-order when they’re

shaped by external presidential forces instead of

internal congressional ones. See Karlheinz Reif &

Hermann Schmitt, Nine Second-Order National

Elections—A Conceptual Framework for the Analysis

of European Election Results, 8 Eur. J. Pol. Rsch. 3, 89 (1980) (coining the term). Plainly, accountability is

impossible

in

pure

second-order

elections.

Incumbents are rewarded or punished based on

developments beyond their control—here, the

popularity of a politician who isn’t even a member of

Congress. See David Schleicher, Federalism and State

Democracy, 95 Tex. L. Rev. 763, 768 (2017) (“to the

extent that they are second order, . . . elections

provide voters with . . . little retrospective

accountability”).

24

Of course, congressional elections aren’t pure

second-order elections. Presidential approval is just

one, not the only, factor driving voters’ decisions. Nor

do voters’ partisanship and ideology, candidates’

ideology, and the President’s approval rating fully

account for voters’ behavior. In particular, there are

some highly salient bills on which the votes of

members of Congress indeed have electoral

consequences. The most prominent member of this

narrow set is the Affordable Care Act. Several studies

find that legislators who voted for the Act did worse

in the 2010 election. See, e.g., Gary C. Jacobson, The

Republican Resurgence in 2010, 126 Pol. Sci. Q. 27,

48-49 (2011); Brendan Nyhan et al., One Vote Out of

Step? The Effects of Salient Roll Call Votes in the 2010

Election, 40 Am. Pol. Rsch. 844, 856-58 (2012).

Analogously, legislators who voted for the Act’s repeal

did worse in the 2018 election. See Austin Bussing et

al., The Electoral Consequences of Roll Call Voting:

Health Care and the 2018 Election, 43 Pol. Behav.

(forthcoming 2022) (manuscript at 13-18). Votes on

the Dodd-Frank Act may also have affected

legislators’ subsequent electoral performances.

Compare Jacobson, supra, at 48-49 (yes), with

Highton, supra, at 357 fig.1 (no). And in an earlier

era,

Democratic

(though

not

Republican)

representatives whose votes showed them to be

“tough on crime” did better in downstream elections.

See Canes-Wrone et al., supra, at 18 tbl.1. 4

Additionally, voters’ perceptions of Congress members’

votes on bills sometimes affect voters’ approval of their

representatives and their likelihood of voting for them. See

Ansolabehere & Jones, supra, at 589-95; Ansolabehere &

4

25

It would be wrong to claim, then, that if the

major question and nondelegation doctrines caused

members of Congress to vote on more bills, the

legislators would never be held accountable for those

additional votes. In general, they wouldn’t be, just as

they’re not held accountable for most votes they

currently take. Environmental issues like the ones

raised in this case, for example, usually don’t have

electoral ramifications when they’re addressed by

Congress. See Canes-Wrone et al., supra, at 23-24. On

rare occasions, however, greater enforcement of the

major question and nondelegation doctrines might

compel representatives to take stands on landmark

bills akin to the Affordable Care Act. It’s plausible

that votes on these exceptional bills could result in

electoral gains or losses for legislators. Accordingly,

the most defensible conclusion is that placing more

items on Congress’s agenda would slightly enhance

congressional accountability. The impact certainly

wouldn’t be large, but it could be nonzero.

E.

Congressional Activity

Would fortifying the major question and

nondelegation doctrines, though, actually place more

items on Congress’s agenda? That’s the motivating

assumption of the doctrines’ proponents. If courts

enforced the doctrines more forcefully, Congress

Kuriwaki, supra, at 21-29. However, voters’ perceptions of

Congress members’ stances are subject to the biases discussed

above. See supra Part III.B. And the studies of voters’

perceptions are necessarily based on opinion surveys, not voters’

actual choices at the polls. See Tausanovitch & Warshaw, supra,

at 26-28.

26

would draft “statute[s] in a new and narrower way.”

Gundy, 139 S. Ct. at 2148 (Gorsuch, J., dissenting). It

would authorize agencies only to “fill[] up details and

find[] facts,” not to enact consequential policies on

their own. Id. This premise might seem intuitive—but

is it accurate?

Congressional history gives an initial reason to

be skeptical. This Court famously struck down two

congressional statutes on nondelegation grounds in

1935. See A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935); Panama Refining Co. v.

Ryan, 293 U.S. 388 (1935). These dramatic judicial

interventions, however, had no discernible effect on

Congress’s legislative activity. Laws in the late New

Deal delegated authority to agencies just as often as

laws in the early New Deal. Late New Deal legislation

was just as short as early New Deal legislation. And

late New Deal laws continued to use “precatory” (as

opposed to more restrictive) language at the same

rate. See Edward H. Stiglitz, The Limits of Judicial

Control and the Nondelegation Doctrine, 34 J.L. Econ.

& Org. 27, 38 (2019).

True, the 1930s are but one example.

Confounding factors like changes in the Court’s

composition might explain why congressional

behavior didn’t budge in response to the Court’s

nondelegation rulings. Fortunately, the States

provide many more cases for testing how judicial

limits on delegation influence subsequent legislative

activity. Courts in nineteen States adhere to a strong

nondelegation doctrine along the lines of Schechter

Poultry and Panama Refining. See id. at 32. Courts in

these States also deploy the doctrine with some

27

regularity. Over a recent twenty-year period, twentytwo statutes were invalidated for delegating to

agencies in overly broad terms. See id. at 43; see also

Daniel E. Walters, Decoding Delegation After Gundy:

What the Experience in State Courts Tells Us About

What to Expect When We’re Expecting, 71 Emory L.J.

(forthcoming 2022) (manuscript at 31) (showing

nondelegation invalidation rates by state).

Yet neither the presence of a strong

nondelegation doctrine, nor its judicial application,

makes any material difference for State legislative

activity. The doctrine’s formal availability isn’t a

significant predictor of fewer delegations to agencies,

longer legislation, or less use of precatory language.

Nor are these aspects of legislative behavior

significantly influenced by whether, or how often,

courts strike down State statutes as excessive

delegations. See Stiglitz, supra, at 40-47. In sum, “the

nondelegation doctrine does not appear to much

matter for legislative drafting practices.” Id. at 46-47.

Whether the doctrine is strong or weak, judicially

enforced or not, legislative activity stays about the

same.

While not dispositive, this evidence suggests

one more reason why more stringent application of

the major question and nondelegation doctrines

might not substantially improve congressional

accountability: Congress might not react to this shift

in the legal landscape. Without a congressional

reaction, of course, there’s no prospect of a more

accountable Congress. If Congress doesn’t consider

more or different bills, greater accountability can’t

ensue even if, improbably, voters are able to satisfy

28

all four accountability conditions. Those conditions

are relevant only if there’s new legislation for them to

attach to—but it’s precisely this new legislation that

might not be forthcoming.

IV.

POTENTIAL (AS OPPOSED TO ACTUAL)

CONGRESSIONAL ACCOUNTABILITY

EXISTS ALREADY.

A mountain of empirical analysis thus

indicates that Congress wouldn’t become much more

accountable if the major question and nondelegation

doctrines were enforced more energetically. The

doctrines’ advocates could try to evade this empirical

roadblock by transforming their accountability

argument into a nonempirical claim. They could

assert, that is, that voters could hold members of

Congress accountable if the legislators tackled major

issues themselves and drafted laws in more

determinate language. Maybe voters wouldn’t do so,

in fact, but that would be beside the point. Voters

would have the capacity to hold their representatives

accountable even if they didn’t actually exercise it.

See, e.g., Martin H. Redish, Pragmatic Formalism,

Separation of Powers, and the Need to Revisit the

Nondelegation Doctrine, 51 Loy. U. Chi. L.J. 363, 387

(2019) (“citizens frustrated with a representative’s

legislative choices could elect a new representative

the following term” (emphasis added)).

The problem with this nonempirical variant of

the accountability thesis is that it applies to the

status quo just as well as to the hypothetical world

where the major question and nondelegation

doctrines have sharper teeth. When contemporary

29

agencies promulgate regulations about important

issues, they do so pursuant to explicit or implicit

congressional authorization. Likewise, when agencies

are the delegatees of expansive policymaking power,

Congress is the delegator. Voters, then, could hold

their representatives accountable for their choices to

entrust major questions to agencies or for their openended delegations. Voters who approve of these moves

(and their effects) could vote to reelect members of

Congress, and disapproving voters could vote to oust

their representatives. See, e.g., Eric A. Posner &

Adrian Vermeule, Interring the Nondelegation

Doctrine, 69 U. Chi. L. Rev. 1721, 1748 (2002)

(“Congress is accountable when it delegates power—

it is accountable for its decision to delegate power to

the agency.”).

Furthermore, agencies are part of the executive

branch, which is headed by the democratically elected

President. Voters could therefore hold the President

accountable for agencies’ actions, casting their ballots

for (or against) the President when they support (or

oppose) the recent record of the administrative state.

In this way, accountability could arise in presidential

elections in addition to in congressional races. See,

e.g., Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

467 U.S. 837, 865 (1984) (“While agencies are not

directly accountable to the people, the Chief

Executive is . . . .”); Jerry L. Mashaw, Prodelegation:

Why Administrators Should Make Political Decisions,

1 J.L. Econ. & Org. 81, 95 (1985) (“All we need do is

not forget there are also presidential elections and

that . . . presidents are heads of administrations.”).

30

Proponents of the accountability thesis

sometimes respond to these points about what voters

could do by arguing that they don’t do them. In other

words, voters generally don’t reward or punish

members of Congress for delegating matters to

agencies. See, e.g., David Schoenbrod, Consent of the

Governed: A Constitutional Norm That the Court

Should Substantially Enforce, 43 Harv. J.L. & Pub.

Pol’y 213, 273 (2020) (rebutting the claim that

“Congress is accountable for agency-made rules” by

citing “the work of political scientists”). Nor do voters

often vote in presidential elections based on their

evaluations of agencies’ actions. See, e.g., Redish,

supra, at 386 (“while the president oversees

administrative agencies in theory, this presidential

oversight does not make the agencies publicly

accountable in practice”).

However, these rejoinders about what voters

don’t do are the very retorts that accountability

advocates forfeit by retreating from empirical to

nonempirical territory. After all, voters also don’t do

the things they would have to for more vigorous

application of the major question and nondelegation

doctrines to yield substantial accountability gains.

Accountability advocates sidestep these unwelcome

facts by lauding what voters could do in a

counterfactual legal order. Having relegated reality to

the sidelines, though, accountability advocates are in

no position to bring it back onto the pitch when their

critics make claims, too, about what voters could do

under the status quo. If empirics don’t matter,

potential accountability is the same whether courts do

or don’t robustly enforce the major question and

nondelegation doctrines. If empirics are relevant, on

31

the other hand, accountability is limited today and

would remain limited in the world imagined by

accountability advocates.

CONCLUSION

However it disposes of this case, this Court

should not treat improved accountability as a persuasive

rationale for the major question and nondelegation

doctrines. According to voluminous empirical evidence,

Congress’s actual accountability would not significantly

rise due to these doctrines’ increased use. Congress’s

potential accountability would also be largely unaffected

since voters may already hold their representatives

accountable for all their actions.

December 20, 2021

Respectfully submitted,

Ruth M. Greenwood

Counsel of Record

Theresa J. Lee

ELECTION LAW CLINIC

HARVARD LAW SCHOOL

6 Everett Street, Suite 5112

Cambridge, MA 02138

(617) 998-1010

rgreenwood@law.harvard.edu

Counsel for Amici Curiae