Elephants in Mouseholes: The Major Questions Doctrine in the Lower Courts

Abstract

In recent years, the Supreme Court has repeatedly deployed a new doctrine with potentially seismic implications for the future of the federal administrative state. The “major questions doctrine,” formally embraced by a majority of the Court for the first time in West Virginia v. EPA, 142 S. Ct. 2587 (2022), requires administrative agencies to demonstrate “clear congressional authorization” when they assert authority over matters of “vast economic and political significance.” But what makes a question “major” or congressional authorization “clear”? And how might this doctrine affect related administrative law principles? As the Supreme Court has left these questions open-ended, this Note provides a first account of how lower courts and litigants are attempting to fill in the gaps.

Keywords: West Virginia v. EPA, major questions doctrine, Chevron, nondelegation, administrative law