The Major Questions Doctrine: Unfounded, Unbounded, and Confounded

62 Pages Posted: 16 Dec 2022

See all articles by Ronald M. Levin

Ronald M. Levin

Washington University in St. Louis - School of Law

Date Written: December 13, 2022

Abstract

As recently explicated by the Supreme Court in West Virginia v. EPA, the major questions doctrine provides that an administrative agency’s rule in a “major” case must rest on “clear congressional authorization.” Many commentators have deplored the major questions doctrine on the basis of its policy consequences. This article offers a critique of the doctrine from a different angle. It primarily contends that the reasons the Supreme Court has given for enforcing the doctrine do not withstand scrutiny even on their own terms.

In West Virginia, the Court relied heavily on its prior precedents, but this article’s review of the history of the doctrine highlights the Court’s repeated use of overstatements of the holdings in these prior cases as a substitute for giving reasons to justify the doctrine’s expanding scope.

The majority and concurring opinions in West Virginia did offer some normative arguments on behalf of the doctrine, but the article takes issue with them. For example, the doctrine’s supposed foundations in the nondelegation doctrine and other separation of powers principles are unsatisfactory, because they do not supply a credible basis for distinguishing major rules from non-major rules. Moreover, the major questions doctrine appears to make overly optimistic assumptions about the extent to which our currently polarized and dysfunctional Congress can be counted on to resolve pressing and important social policy problems itself.

Thus, the Court has not provided an adequate justification for the major questions doctrine, which threatens not only to weaken administrative governance, but also to politicize the Court’s decisionmaking in cases involving major questions (a regrettably ill-defined term). Although the Court may be unlikely to abandon the doctrine entirely, the article’s analysis suggests that the Court should apply it restrictively rather than expansively.

Keywords: administrative law, major questions doctrine, judicial review, separation of powers, nondelegation

Suggested Citation

Levin, Ronald M., The Major Questions Doctrine: Unfounded, Unbounded, and Confounded (December 13, 2022). Washington University in St. Louis Legal Studies Research Paper No. 22-10-02, C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 22-23, Available at SSRN: https://ssrn.com/abstract=4304404

Ronald M. Levin (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-6490 (Phone)
314-935-5356 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
152
Abstract Views
613
Rank
290,783
PlumX Metrics