The Roberts Court's Structural Incrementalism
136 Harv. L. Rev. F. 75 (2022)
22 Pages Posted: 5 Dec 2022 Last revised: 1 Feb 2023
Date Written: November 20, 2022
This essay responds to Mila Sohoni, The Major Questions Quartet, 136 Harv. L. Rev. 262 (2022), which was published as part of Harvard Law Review’s annual Supreme Court issue. The essay acknowledges that the Roberts Court is more structurally formalist, more inclined to originalist and textualist methods of interpretation, and more skeptical of federal agency action than its predecessors, prompting some amount of evolution in legal doctrines governing the federal administrative state. The essay argues, however, that the recent major questions cases align with a broader pattern in Roberts Court’s jurisprudence regarding separation of powers principles, Chevron deference, and agency design. Notwithstanding lofty flights of rhetoric about the Framers, liberty, and other constitutional values, when pared down to essentials, the Roberts Court’s decisions in these areas are drawn quite narrowly, calibrated to tweak actual administrative governance only incrementally, with plenty of carve outs and caveats, and with a preference for subconstitutional solutions rather than sweeping constitutional pronouncements. For all the hype and hoopla about doctrinal change, the nondelegation doctrine is still dead, Chevron still lives, and federal government agencies soldier on with little alteration in their day-to-day functionality -- at least for now.
Keywords: administrative law, separation of powers, Roberts Court, major questions doctrine, nondelegation doctrine, Chevron deference, agency design
JEL Classification: K19, K23, K39, K49,
Suggested Citation: Suggested Citation