Comments

Deacon, Daniel and Litman, Leah, The New Major Questions Doctrine (July 18, 2022). Virginia Law Review, Forthcoming, U of Michigan Law & Econ Research Paper No. 22-033, Available at SSRN: https://ssrn.com/abstract=4165724 or http://dx.doi.org/10.2139/ssrn.4165724

Abstract

This article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the majorness of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October 2021 term, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes do not appear good enough when it comes to policies the Court deems “major.”

At the same time, the Court has increasingly relied on three new indicia of “majorness” to determine whether an agency rule is major. These include the political significance of or political controversy surrounding an agency policy; the novelty of a policy—i.e., the fact that the agency had never announced a similar policy before; and other, theoretically possible agency policies that might be supported by the agency’s broader statutory rationale.

Understanding how the major questions doctrine operates today is important not only to bring a modicum of clarity to a doctrine often described as radically indeterminate. Unpacking the new major questions doctrine also provides a way to interrogate and evaluate the new major questions doctrine on its own purportedly formalist terms and to assess how the doctrine relates to previously under-stood institutional and political pathologies. The Court’s new approach allows political parties and political movements more broadly to effectively amend otherwise broad regulatory statutes outside of the formal legislative process by generating controversy surrounding an agency policy. The new major questions doc-trine provides additional mechanisms for polarization by judicially solidifying polarization into the courts’ interpretation of statutes. It supplies an additional means for minority rule in a constitutional system that already skews toward minority rule. And it operates as a powerful deregulatory tool that limits or substantially nullifies congressional delegations to agencies in the circumstances where delegations are more likely to be used, and more likely to be effective.

Disciplines

Administrative Law | Constitutional Law | Law and Economics | Legislation | Public Law and Legal Theory

Date of this Version

2022

Download

Share

COinS