The Anti-democratic Major Questions Doctrine

Abstract

In its most important administrative law decision in decades, the Supreme Court in West Virginia v. Environmental Protection Agency embraced an aggressive version of the so-called “major questions doctrine” (MQD), which appears to require unusually explicit statutory authorization before agencies may undertake “major” regulatory actions. The West Virginia majority claimed that this strong MQD is based on longstanding precedent and will have salutary effects on the policymaking process. This Article argues that neither claim is accurate. First, the strong version of the MQD embraced in West Virginia is in fact relatively new, a fact that has been obscured by the Court’s unhelpful conflation, in a series of cases, of quite distinct interpretive approaches. Disentangling these approaches shows just how novel and far-reaching the aggressive version of the MQD turns out to be. Second, the new MQD will likely weaken democratic accountability, undermine transparency, and exacerbate the already excessive tendency toward minoritarian obstruction in Congress. This aggressive MQD will also make it much more difficult for the federal government to address new problems under broadly worded statutes. Both the MQD’s supporters and its detractors anticipate that the doctrine will result in less, and less aggressive, federal regulation. That is true and important. But, as this Article shows, the aggressive MQD has another consequence that may prove more consequential yet has been less discussed: it will make American policymaking less democratic.

Keywords: major questions doctrine, deference, democracy, judicial aggrandizement, separation of powers, judicial review, regulation, administrative state