The Major Questions Doctrine: Right Diagnosis, Wrong Remedy

Abstract

The Supreme Court has recently adopted the “major questions” doctrine, the gist of which is that courts should not uphold novel agency efforts to regulate questions of economic and political significance absent clear congressional authorization. Although the new doctrine has been attacked as an attempt to revive the nondelegation doctrine, the better view is that it responds to two perceived failings of the Chevron doctrine: that it contributes to instability in the law and provides an inadequate basis for courts to police agency deviations from the scope of their regulatory authority. The article criticizes aspects of the major question doctrine for asking courts to engage in a type of political punditry and proposes two more conventional modifications to the Chevron doctrine that would preserve the traditional role of courts as legal interpreters.

Keywords: major questions, nondelegation, legislative supremacy, Chevron doctrine, agency jurisdiction, West Virginia v. EPA, John Roberts, Neil Gorsuch, Antonin Scalia, legal instability, scope of agency authority