The future of the major question exception is a live question in the wake of King v. Burwell. This Note calls on federal courts to embrace the exception, for where a toothless nondelegation doctrine has failed to curtail the ceaseless growth of executive power experienced over the past century, a more aggressively applied major question exception can succeed in ensuring that policy questions of the deepest “economic and political significance” are left exclusively to the people’s representatives in Congress. In declining to defer to an executive agency’s interpretation of an ambiguous statute, federal courts must themselves assume “the task [of] determin[ing] the correct reading” of Congress’s work. This move aggrandizes federal judges and lawmakers at the expense of regulators, but achieves a worthwhile result of blunting overgrown executive power in the process. And while increased reliance on the exception is surely incapable of completely reapportioning domestic policymaking power among the three branches, it will also do little to upset the modern reality that agencies must bear the responsibility of being detailed where Congress has only the ability to be general. Viewed through this lens, this Note’s core contention becomes clear—major questions are major opportunities.
Riley T. Svikhart,
"Major Questions" as Major Opportunities,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol92/iss4/14