Major questions doctrine

Administrative law of the United States
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Related topics Constitutional law Statutory interpretation
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Parts of this article (those related to Chevron deference) need to be updated. Please help update this article to reflect recent events or newly available information. (July 2022)

The major questions doctrine is a principle of statutory interpretation in United States administrative law under which, pursuant to recent Supreme Court precedent, courts have held that questions of major political or economic significance may not be delegated by Congress to executive agencies absent sufficiently clear and explicit authorization. It functions as a canon to limit broad assertions of implied powers, effectively reinforcing the role of legislative power.

The doctrine was articulated as a paradigm in FDA v. Brown & Williamson Tobacco Corp. (2000), which advised "common sense" in assessing whether Congress intended to delegate broad regulatory powers.^[1] The phrase "major questions" first appeared in legal scholarship in 2008 and gained doctrinal status by 2016 with conservative legal organization support amid the deregulatory agenda of the first presidency of Donald Trump.^[2] Brett Kavanaugh used the term in a United States courts of appeals dissent, later describing it as a know-it-when-you-see-it principle in his 2017 Supreme Court confirmation hearing.^[2]

It was then applied in Utility Air Regulatory Group v. EPA (2014) and King v. Burwell (2015), with Chief Justice John Roberts writing for the majority in the latter.^[2] The Court explicitly adopted the doctrine in West Virginia v. EPA (2022), holding that agencies must point to "clear congressional authorization" for the power asserted in "extraordinary cases".^[a] The Court characterized the doctrine as an identifiable body of case law addressing agencies repeatedly asserting transformative authority unsupported by legislative mandate.^[b]

Scholars distinguish between narrow forms of the doctrine, assessing reasonableness of interpretation as a Chevron deference limitation, and broader forms like the clear statement rule.^[3] The doctrine has been variously criticized^[4] for promotion of "judicial self-aggrandizement"^[5] and inconsistency with textualism, originalism,^[6] and norms of statutory interpretation.^[7] Mila Sohoni wrote that it portends to transform judicial review of agency action.^[8]

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