Minor Courts, Major Questions

68 Pages Posted: 27 Apr 2017

See all articles by Michael Coenen

Michael Coenen

Seton Hall University Law School

Seth Davis

University of California, Berkeley School of Law

Date Written: April 26, 2017


In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court deferred to an agency’s controversial interpretation of a key provision of a regulatory statute. Lower courts now apply “Chevron deference” as a matter of course, upholding agencies’ reasonable interpretations of ambiguous provisions within the statutes they administer. Recently, however, the Court refused in King v. Burwell to defer to an agency’s answer to a statutory question, citing the “deep economic and political significance” of the question itself. The Court in King offered barebones guidance regarding the scope of and rationales for embracing this so-called “major questions exception” to Chevron deference, and the decision has thus created uncertainty regarding Chevron’s application in the courts below. Surveying the post-King landscape, we advance in this Article a simple and straightforward proposal designed to ameliorate the confusion that King has wrought. Our proposal is that only the Supreme Court should apply the major questions exception: absent further instruction from the Court, neither the federal district courts nor the U.S. courts of appeals should withhold Chevron deference on grounds of majorness alone. Our argument stems from a comparative institutional analysis of the Court and its subordinates, coupled with an unpacking of the various policies and purposes that the major questions exception might serve. These investigations yield the surprising conclusion that only the Court has the institutional capacity to realize the exception’s benefits, whereas all the federal courts would realize its costs. That being so, we believe the most sensible means of implementing the major questions exception would be to treat it as the exclusive province of the Supreme Court.

Suggested Citation

Coenen, Michael and Davis, Seth, Minor Courts, Major Questions (April 26, 2017). Vanderbilt Law Review, Vol. 70, No. 3, April 2017, UC Irvine School of Law Research Paper No. 2017-20, Available at SSRN: https://ssrn.com/abstract=2959036

Michael Coenen

Seton Hall University Law School ( email )

1109 Raymond Blvd.
Newark, NJ 07102
United States

Seth Davis (Contact Author)

University of California, Berkeley School of Law ( email )

215 Law Building
Berkeley, CA 94720-7200
United States

HOME PAGE: http://https://www.law.berkeley.edu/our-faculty/faculty-profiles/seth-davis/

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