The Past and Future of the Major Questions Doctrine

45 Pages Posted: 3 Oct 2022

See all articles by Louis Capozzi

Louis Capozzi

University of Pennsylvania Carey School of Law; Jones Day - Washington, D.C. Office

Date Written: September 30, 2022

Abstract

In West Virginia v. EPA, the Supreme Court held that administrative agencies must point to clear congressional authorization when they issue economically or politically significant regulations. This rule, usually called the major questions doctrine, will be an important part of administrative law for the foreseeable future. And it has the potential to dramatically reduce the power of administrative agencies by preventing them from claiming new powers—unless Congress passes updated laws addressing new problems.

However, the major questions doctrine has been subject to substantial criticism from academics. Scholars frequently question its legitimacy, claiming that the Court fabricated the doctrine within the past few decades as part of an anti-administrative state agenda. Justice Kagan’s dissent in West Virginia made the same allegation. Others argue that the doctrine is unworkable, particularly because courts will struggle to differentiate between major and nonmajor questions.

This article contends that both criticisms are overstated. First, this article demonstrates that the major questions doctrine has a substantially longer and more robust history than most have appreciated. The doctrine originated in the state courts in the mid-to-late nineteenth century as part of a general rule against implied delegations. The Supreme Court applied the major questions doctrine at least as early as 1897. Although the rule has been enforced unevenly ever since, the major questions doctrine has persisted in our law for a long time. It is not a recent innovation, and future assessments of the doctrine’s legitimacy should account for that fact.

Second, this article argues that courts should not struggle to apply the major questions doctrine. In establishing a more specific definition of what constitutes a “major” economic or political question, courts can draw upon substantial bodies of precedent and other sources—including the Executive Branch’s own practices. In applying the major questions doctrine’s clear statement rule, courts can again lay out more specific markers to ease enforcement, drawing on the Court’s precedents and Justice Gorsuch’s concurrence in West Virginia.

Keywords: Major Questions Doctrine, Administrative Law, Constitutional Law, West Virginia v. EPA

Suggested Citation

Capozzi, Louis, The Past and Future of the Major Questions Doctrine (September 30, 2022). Forthcoming, Ohio State Law Journal, Vol. 84, 2023, Available at SSRN: https://ssrn.com/abstract=4234683. or http://dx.doi.org/10.2139/ssrn.4234683

Louis Capozzi (Contact Author)

University of Pennsylvania Carey School of Law ( email )

Jones Day - Washington, D.C. Office ( email )

51 Louisiana Avenue, N.W.
Washington, DC 20001-2113
United States

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