Deference for Realists: How the Resurgent Major Questions Doctrine is a Safety Valve for Chevron
69 Pages Posted: 26 Sep 2015 Last revised: 1 Mar 2016
Date Written: September 7, 2015
This article examines the “major questions” doctrine, which operates to deny Chevron deference to agency interpretations of law in certain “extraordinary cases”. Others have suggested that the doctrine is dead or moribund, but evidence from the most recent Supreme Court terms confirms that it is very much alive. First, I examine the new and old major questions cases and connect to them a related line of cases based on the interpretive aphorism that Congress “does not hide elephants in mouseholes”. The major questions doctrine’s precise boundaries remain unclear, though this article identifies four factors that appear indicative. Likely litigation over EPA’s Clean Power Plan bears all of the hallmarks of a major questions case, illustrating the future legal and policy significance of the doctrine.
The article then considers whether the major questions doctrine is a good thing. Critics have claimed it is arbitrary or impossible to administer, or that it merely serves judges’ policy preferences. While many of these critiques are persuasive, I argue that the doctrine is nevertheless worth keeping because it functions as a crucial safety valve for Chevron deference. In truly major cases, judicial interpretation of statutes may be necessary or unavoidable for structural, traditional, constitutional, psychological, or other reasons. Without it, judges would be tempted, or other actors might demand, that courts (not agencies) decide major interpretive questions. As a result, Chevron could be overruled or substantially curtailed. The virtues of Chevron in much more common interstitial cases, I argue, are not worth risking.
Keywords: Major questions, Chevron, deference, marbury, clean power plan
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