The Major Questions Doctrine, Post-Chevron?: Skidmore, Loper-Bright, and a Good-Faith Emergency Question Doctrine

Abstract

When my students and colleagues fretted about Chevron's fate, I have said, "Worry less. Skid-more."

Just as old Skidmore "weight" or "respect" returns post-Chevron, the new (and newer) major questions doctrine(s) survive as a reason to give less weight to an agency interpretation. This symposium essay suggests a special role for the post-Chevron major questions doctrine: an Emergency Questions Doctrine. When the executive asserts an emergency power, when the statutory basis is open-ended (often for very good reasons), majorness means less deference to simple and fast textualism, and more time for courts to engage in deeper purposivism to make sure those emergency powers are being used as intended, or if they are being abused as a pretext. This essay focuses on the Biden student debt waiver and its pretextual reliance on late-Covid as an emergency, and Biden v. Nebraska as a case study.

This symposium essay first summarizes two less-obvious practical justifications for Chevron deference that survive post-Chevron and explain why Skidmore weight will function as frequent deference in non-major cases: a) judicial triage to manage a huge administrative docket, and b) comparative expertise in non-major cases vs. major publicly-salient cases. This essay then offers "three cheers" for the major questions doctrine, all of which apply in major emergencies cases: 1) no deference when the case is so major that it diminishes the justifications of triage and relative agency expertise; 2) emphasizing "purpose" over "text" for similar reasons: majorness is a reason to go beyond open-ended text and do extra work to examine purposes and make sure the emergency power is consistent with congressional intent; and 3) Congress does not "hide elephants in mouseholes."

Unfortunately, the Roberts Court has added a big fourth question about Major Questions: a judicial overreach in the shadow of the non-delegation doctrine. The Roberts Court has turned the major questions doctrine into a problematic substantive canon of "no more elephant holes, only specified elephants," a rule that Congress must specify the policy, and cannot purposely write an open-ended statute to delegate flexibility to agencies. The majority opinion in Biden v. Nebraska could and should have relied on the first three steps to invalidate the student debt waiver as a pretextual abuse of emergency powers. Unfortunately, it reached for the fourth step, a potentially dangerous limitation on necessary flexibility in the face of emergencies and their inevitable "known unknowns."