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The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude that the new major questions doctrine will be difficult for Congress to override via legislation. Thus, its predominant, asymmetric effect will be deregulatory, as opposed to getting Congress to make the major value judgments in federal lawmaking.

But that does not have to be the case. Congress has tools at its disposal to respond to the major questions doctrine. I focus here on one: Congress could enact a Congressional Review Act (CRA) for the major questions doctrine. This fast-track legislative process would bypass the Senate filibuster and similar congressional slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of a CRA-like joint resolution would amend the agency’s governing statute to expressly authorize the regulatory power that the agency had claimed in the judicially invalidated rule. This proposal would encourage Congress to decide the major policy question itself—helping to restore Congress’s legislative role in the modern administrative state—and would counteract the major questions doctrine’s asymmetric deregulatory effects.


Reproduced with permission. Copyright 2023 the CATO Institute. Originally published as Walker, Christopher J. "Responding to the New Major Questions Doctrine." Regulation 46, no. 2 (2023): 26-30.