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Short-Circuiting the New Major Questions Doctrine

17 Pages Posted: 26 Apr 2017 Last revised: 17 May 2017

Kent H. Barnett

University of Georgia Law School

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: April 26, 2017

Abstract

In Minor Courts, Major Questions, Michael Coenen and Seth Davis advance perhaps the most provocative proposal to date to address the new major questions doctrine articulated in King v. Burwell. They argue that the Supreme Court alone should identify “major questions” that deprive agencies of interpretive primacy, prohibiting the doctrine’s use in the lower courts. Although we agree that the Court provided little guidance about the doctrine’s scope in King v. Burwell, we are unpersuaded that the solution to this lack of guidance is to limit its doctrinal development to one court that hears fewer than eighty cases per year. On the contrary, our recent empirical study of every published circuit court decision that implicates Chevron deference over an eleven-year period suggests that the circuit courts have much value to add to the doctrine’s development and that they are unlikely to engage in the sort of widespread mischief that seems to motivate the Coenen and Davis proposal. Especially for a doctrine in its infancy that goes to the heart of Chevron’s theoretical foundations, short-circuiting the development of the new major questions doctrine in the lower courts only exacerbates its problems.

Keywords: Chevron, step zero, Mead, major questions, deference, administrative law, agency, agencies, statutory interpretation

Suggested Citation

Barnett, Kent H. and Walker, Christopher J., Short-Circuiting the New Major Questions Doctrine (April 26, 2017). Vanderbilt Law Review En Banc, Vol. 70, pp. 147-163, 2017; Ohio State Public Law Working Paper No. 394; University of Georgia School of Law Legal Studies Research Paper No. 2017-18. Available at SSRN: https://ssrn.com/abstract=2958866

Kent Harris Barnett (Contact Author)

University of Georgia Law School ( email )

225 Herty Drive
Athens, GA 30602
United States

Christopher Jay Walker

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-292-2631 (Phone)

HOME PAGE: http://moritzlaw.osu.edu/faculty/professor/christopher-j-walker/

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