Judicial Determinations of “Majorness” – The Major Questions Doctrine as a Political Question

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administrative law
environmental law
west virginia v. EPA
major questions doctrine
chevron doctrine
nondelegation doctrine
agency deference
Administrative Law
Environmental Law
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Much of the robust expansion of the modern administrative state can largely be attributed to the Chevron doctrine, which empowers government agencies with broad interpretive authority in the case of legislative ambiguity. Congress frequently empowers agencies through legislation that grants them rulemaking authority over their areas of expertise. However, in the Supreme Court opinion West Virginia v. EPA, the Court has put forth a judicial framework called the “Major Questions Doctrine” to analyze agency deference cases. The construction of the framework represents a departure from Chevron deference, perhaps signaling a shift in the court’s administrative law jurisprudence. At all steps of the Chevron analysis (or even in place of Chevron), the court now asks whether the agency’s assertion of power represents an extraordinary case that is of economic and political significance. The court then requires a “clear statement” by congress on the agency’s sphere of authority on the issue. This comment argues that the Supreme Court’s reliance on the Major Questions Doctrine as a tool to advance the revival of the nondelegation doctrine and curtail agency power is misguided. The “new” version of the doctrine represents a significant departure from the Congress centric approach to administrative law cases. In order to strongarm judicial enforcement of nondelegation, the courts have taken a position as the arbiter in determining economic and political significance. This position raises several separations of powers concerns. Specifically, I argue that the determination of ‘majorness’ by the courts falls under the category of non-justiciable questions under the political questions doctrine. I observe how the growing prominence of the Major Questions Doctrine represents an intrusion by the courts into a process that should largely be left to a conversation between congress and government agencies. The courts are ill equipped to make these determinations as they have failed to provide proper guidance regarding judicially discoverable and manageable standards for resolving questions of majorness. Furthermore, the court’s proposed position in congressional legislation and agency rulemaking expresses a lack of respect for Congress, as a policymaker, and government agencies, as a regulator. Judicial determinations of economic and political significance amount to nothing more than adjusting the framing of impact. A significance threshold should instead be discussed between agencies, with their unique knowledge and subject matter expertise, and Congress, as publicly accountable representatives that empower agencies in the first place. If the major questions doctrine is, at its core, meant to adjudicate conflicts over delegation of authority, how can congress be expected to issue clear statements if congress itself does not have final say over what is major? Ultimately, the major questions doctrine is an attempt by the judiciary to claw back interpretive power from the executive branch, despite being ill suited to do so. I conclude that the MQD is a categorically erroneous attempt at revisiting nondelegation, merely inviting judges to take part in the legislative process, and make arbitrary, political designations on matters of public policy.

Sarah Light
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