Keywords
MQD; major questions doctrine; administrative law; separation of powers; nondelegation doctrine
Abstract
The new “major questions doctrine” (MQD) requires courts to apply a “distinct” approach to statutory interpretation when reviewing challenges to an agency action of “vast economic and political significance.” Under that approach, courts must assume that such an action exceeds the scope of that agency’s statutory authority unless there exists “clear congressional authorization” for it. In this Article, we examine whether this new rule for administrative agencies (or what we call the “agency MQD”) implies the existence of a similarly strong constraint on the federal courts’ power to interpret and apply statutes for themselves (or what we call the “judicial MQD”). That is, we ask whether a principled commitment to the agency MQD requires a further commitment to the idea that courts also cannot implement unclear federal statutes in “major”-seeming ways.
To answer that question, we tease out several potential justifications for the agency MQD and ask, with respect to each justification, whether there exists a coherent basis for distinguishing courts’ rendering of “major” statutory decisions from agencies’ formulation of “major” statutory policies. We begin with a pair of justifications that are “Congress-protecting” in their orientation: first, a “semantic” justification that sees the agency MQD as a means of accurately interpreting Congress’s actual statutory commands, and second, an “anti-aggrandizement” justification that sees the agency MQD as a prophylactic safeguard against agency efforts to “exploit” statutory powers that Congress “inadvertently” conferred. Both of these justifications, we argue, fully extend to statutes that are implemented by the federal courts and thus would seem to require adoption of an equally strong judicial MQD. We then consider an additional set of justifications that are “Congress-constraining” in their orientation: first, a “clarity-mandating” justification that sees the agency MQD as a requirement that seeks to ensure meaningful congressional accountability for any major actions taken on Congress’s behalf, and second, a “nondelegation-avoiding” justification that sees the agency MQD as a means of avoiding potential violations of the Article I nondelegation doctrine. For these justifications, our conclusions are more qualified: we think the clarity-mandating justification implies a similarly strong judicial MQD, but we acknowledge that the nondelegation-avoiding justification creates some—though not total—room for treating “major” judicial applications of statutes as comparatively less threatening to constitutional nondelegation norms (and thus less vulnerable to attack under a nondelegation-based version of the MQD). With all that on the table, we conclude our analysis by discussing ways in which courts might respond to the court-constraining implications of the agency MQD. While we identify a few potential ways of sidestepping or instead giving effect to the idea that the agency MQD implies a similarly strong judicial MQD, we conclude that the most promising path forward is to recast the agency MQD as a soft and context-sensitive interpretive canon along the lines of the “elephants-in-mouseholes” canon that already prevails within the judicial domain.
Recommended Citation
Michael Coenen and Seth Davis,
Does the Major Questions Doctrine Apply to the Federal Courts?,
93 Fordham L. Rev. 1951
(2025).
Available at: https://ir.lawnet.fordham.edu/flr/vol93/iss6/2
