Administrative Answers to 'Major Questions': On the Democratic Legitimacy of Agency Statutory Interpretation
81 Pages Posted: 6 Aug 2016 Last revised: 12 Jul 2018
Date Written: January 9, 2017
This Article critiques the legal and theoretical premises of the “major questions doctrine,” and proposes a revision of the doctrine that better comports with the institutional structure and ideological origins of our administrative state. The major questions doctrine holds that courts generally should not defer to agency statutory interpretations that concern questions of “vast economic or political significance.” This doctrine, most recently invoked by the Supreme Court in King v. Burwell, purports to enforce the constitutional norms of non-delegation and popular sovereignty. But it relies on two auxiliary political-theoretic assumptions about the proper roles of courts and agencies. First, it imports the assumption of the Legal Process School that courts are always the primary interpreters of the important value questions implicated by statutory law. Second, it imports Max Weber’s assumption that administrative officials are morally-neutral technocrats, who should only implement value choices specified by statute. These assumptions do not capture important aspects of the institutional structure of and ideological justification for our American administrative state. I show how the Progressive thinkers who first advocated administrative governance in the United States believed that administrators should resolve important value questions in consultation with the affected public. Our current institutions reflect this vision to a significant degree, with broad-textured statutes that leave significant norm-setting authority to agencies, while requiring that such decisions be made through participatory procedures. I therefore propose that the major questions doctrine should be reformulated: an agency’s resolution of a “major question” should receive deference if it is promulgated through a deliberative process, such as notice-and-comment rulemaking, and that process has adequately addressed the relevant political and economic questions.
Keywords: administrative law, legislation, statutory interpretation, non-delegation
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