The Major Questions Doctrine: Judicial Activism That Undermines Democracy

Abstract

The Major Questions Doctrine, formally unveiled by the Supreme Court in West Virginia v. EPA, is said to be based on separation of powers doctrine, preventing agencies from asserting powers beyond what Congress could reasonably be understood to have granted. Masquerading as a doctrine that protects congressional authority, the doctrine does the opposite.

It targets open-ended grants of authority to an agency, a necessary tool in the legislative process. It usurps authority consciously granted to an expert agency that is politically accountable to the President and Congress, and places decision-making in the hands of unelected judges that lack expertise and are less accountable to the democratic polity. It is unpredictable in application and unnecessary to preserve traditional judicial review of agency actions. It ignores the realities of how democratic legislatures function and invites judicial activism whenever someone disagrees with an agency interpretation of open-ended authority. Perversely, it subjects politically accountable agency interpretations of general authority to stricter scrutiny than would conventionally apply when Congress implicitly grants general authority to courts.

Keywords: Supreme Court, Administrative Law, Canons of Interpretation, agency authority

JEL Classification: K20, K23, K32