Mangling the Major Questions Doctrine

74 Administrative Law Review 217 (2022)

NYU School of Law, Public Law Research Paper No. 21-45

46 Pages Posted: 24 Sep 2021 Last revised: 27 Jul 2022

See all articles by Natasha Brunstein

Natasha Brunstein

Institute for Policy Integrity

Richard L. Revesz

New York University School of Law

Date Written: September 24, 2021

Abstract

The Supreme Court has made clear, in the five cases in which it has dealt with this issue, that the major questions doctrine applies only in exceptional cases. In contrast, during its four years in office, the Trump Administration invoked the doctrine routinely in support of its deregulatory assault on the administrative state. In doing so, the Trump Administration construed the major questions doctrine enormously expansively and inconsistently, in ways untethered to the Court’s jurisprudence, turning it into little more than an invitation for courts to strike down regulations the Administration did not favor for policy-based reasons. This pattern is especially problematic considering that unlike individual private litigants, the Justice Department normally strives to develop a consistent approach to important legal doctrines.

The Trump Administration’s most sustained weaponization of the major questions doctrine was against the Clean Power Plan, which regulated the greenhouse gas emissions of existing power plants. And, under the similarly wrongheaded and even broader arguments made by its allies, all greenhouse gas regulations could be suspect on major question grounds.

The Trump Administration’s arguments with respect to the major questions doctrine are not merely of historical interest. They have already found support in lower court decisions and are still being pressed by state attorneys general and other influential litigants; bringing to light their enormously problematic application is important to foreclose their successful revival in future administrations.

Keywords: Administrative Law, Regulatory Policy, Major Questions Doctrine, Environment Regulation

JEL Classification: K23, K32

Suggested Citation

Brunstein, Natasha and Revesz, Richard L., Mangling the Major Questions Doctrine (September 24, 2021). 74 Administrative Law Review 217 (2022), NYU School of Law, Public Law Research Paper No. 21-45, Available at SSRN: https://ssrn.com/abstract=3927233 or http://dx.doi.org/10.2139/ssrn.3927233

Natasha Brunstein

Institute for Policy Integrity ( email )

Wilf Hall
139 MacDougal Street
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Richard L. Revesz (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6185 (Phone)
212-995-4590 (Fax)

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