Finding the Major Questions Doctrine

Abstract

The major questions doctrine has been invoked primarily in the rulemaking context, where it requires agencies to identify particularly clear statutory authority before promulgating rules of “major” importance. Some scholars have suggested that the doctrine is a tool that should be limited to agency actions that are purportedly “legislative” in nature (e.g., rulemakings)—meaning the doctrine would not apply in other contexts, such as agency adjudications and enforcement actions that may not be similarly “legislative.” This Essay responds by arguing that the major questions doctrine is best understood as a limit on executive authority—meaning the doctrine could apply across a wider range of administrative actions that are formally exercises of executive power, regardless of whether the actions appear “legislative” in nature. That means that the doctrine could apply not just in the rulemaking context, but in the adjudication and enforcement action contexts as well.

In advancing that argument, this Essay suggests that the major questions doctrine might be in the process of being “found” by judges. Thinking of the major questions doctrine as being found, rather than created, leaves room for the idea that only parts of the doctrine have been found to date. Thus, although the doctrine has been observed primarily in the rulemaking context so far, understanding the nature of the doctrine from first principles indicates that there are additional, yet-to-be observed aspects of the doctrine that apply in additional contexts.

Recognizing the major questions doctrine as having been found would also make sense of how various jurists have discussed the doctrine to date. Justice Barrett, for example, has argued that the doctrine is a component of human language patterns—i.e., patterns that judges find and apply, rather than create from whole cloth. Similarly, in West Virginia v. EPA, the Court formally recognized the major questions doctrine by name in an opinion that discussed the doctrine as if it had long existed—with the concurring Justices stating more clearly that the doctrine was first observed by jurists reviewing actions taken by the first modern regulatory agency. As the modern administrative state continues to expand, revealing new aspects of itself, we might expect additional aspects of the major questions doctrine to be revealed as well. In short, thinking of the major questions doctrine as having been found is consistent with how the Supreme Court has discussed the doctrine to date, and might shed light on how the Court views the doctrine in the future.