The Three Major Questions Doctrines

Abstract

After the Supreme Court’s decision in Biden v. Nebraska, we now have three interpretations of the major questions doctrine—or, at least, three different approaches to that doctrine. The "clear statement approach," championed by Justice Gorsuch, relies heavily on the nondelegation doctrine, requiring Congress to speak clearly when empowering agencies. The "contextual approach," espoused by Justice Barrett, eschews reliance on such clear statement principles, believing that resort to these considerations disobeys the commands of textualism. Instead, the contextual approach focuses on the context that surrounds the statute, then applies a healthy dose of commonsense to interpret the limits of a congressional delegation. Finally, the "hybrid approach," as explained and applied by Chief Justice Roberts, mixes nondelegation principles with context and commonsense. While only the hybrid approach has gained the support of a majority of justices, the clear statement and contextual approaches lurk in the background. And as the Court applies the major questions doctrine to a variety of legal issues, which approach wins out will have important implications for future congressional and agency action. This Essay is the first to identify the various strands and explain their consequences for future legislation.

Keywords: Constitutional Law, Administrative Law, Court Trends, Major Questions Doctrine, Constitutional Theory