Abstract
The major questions doctrine, which requires agencies claiming important powers to identify clear authority from Congress, is transforming administrative law. Breaking with recent practice, the doctrine prevents the executive branch from issuing laws addressing pressing, novel issues without Congress’s affirmative consent.
In response, scholars have generally criticized the doctrine and questioned its legitimacy. Critics have alleged that the doctrine was fabricated by the Supreme Court without proper justification, is incapable of principled application, frustrates the intent of past Congresses to delegate broad power to agencies, aggrandizes judicial power, and hinders desirable executive branch lawmaking.
This Article disagrees with those criticisms and defends the major questions doctrine. It offers five arguments—though more are possible. First, the doctrine appropriately enforces Article I’s requirement that Congress (not others) legislate on “important” subjects. Second, the doctrine is a straightforward application of longstanding constitutional avoidance. Third, within a textualist analysis, the doctrine reflects how readers would expect important powers to be delegated. Fourth, the major questions doctrine has deeper historical roots than most admit and is capable of continued incremental, common-law-style implementation. Finally, under a functionalist approach, the doctrine promotes a healthy balance of power within the federal government, preserves federalism, and protects the rule of law.
Recommended Citation
Louis J. Capozzi III,
In Defense of the Major Questions Doctrine,
100
Notre Dame L. Rev.
509
().
Available at:
https://scholarship.law.nd.edu/ndlr/vol100/iss2/2
