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12/23/2022

Ronald Levin on the Major Questions Doctrine
Michael Ramsey

Ronald M. Levin (Washington University in St. Louis - School of Law) has posted The Major Questions Doctrine: Unfounded, Unbounded, and Confounded (62 pages) on SSRN.  Here is the abstract:

As recently explicated by the Supreme Court in West Virginia v. EPA, the major questions doctrine provides that an administrative agency’s rule in a “major” case must rest on “clear congressional authorization.” Many commentators have deplored the major questions doctrine on the basis of its policy consequences. This article offers a critique of the doctrine from a different angle. It primarily contends that the reasons the Supreme Court has given for enforcing the doctrine do not withstand scrutiny even on their own terms.

In West Virginia, the Court relied heavily on its prior precedents, but this article’s review of the history of the doctrine highlights the Court’s repeated use of overstatements of the holdings in these prior cases as a substitute for giving reasons to justify the doctrine’s expanding scope.

The majority and concurring opinions in West Virginia did offer some normative arguments on behalf of the doctrine, but the article takes issue with them. For example, the doctrine’s supposed foundations in the nondelegation doctrine and other separation of powers principles are unsatisfactory, because they do not supply a credible basis for distinguishing major rules from non-major rules. Moreover, the major questions doctrine appears to make overly optimistic assumptions about the extent to which our currently polarized and dysfunctional Congress can be counted on to resolve pressing and important social policy problems itself.

Thus, the Court has not provided an adequate justification for the major questions doctrine, which threatens not only to weaken administrative governance, but also to politicize the Court’s decisionmaking in cases involving major questions (a regrettably ill-defined term). Although the Court may be unlikely to abandon the doctrine entirely, the article’s analysis suggests that the Court should apply it restrictively rather than expansively.

Via Larry Solum at Legal Theory Blog, who comments: "Recommended.  The paper does not consider the possibility that the Major Questions Doctrine is a 'compensating adjustment' that aims to achieve an originalist second best."

My tentative views of the major questions doctrine align with Professor Solum's suggestion. Also, I don't think the doctrine makes "overly optimistic assumptions about the extent to which our currently polarized and dysfunctional Congress can be counted on to resolve pressing and important social policy problems itself," or indeed makes any assumptions at all in this regard.  It only says that if major social policy problems are to be resolved at the federal level, Congress is the institution to do it.  If Congress can't or won't, the problems aren't resolved at the federal level and are left to the states.