Keeping Big Cases from Making Bad Law: The Resurgent “Major Questions” Doctrine

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Description: Forthcoming, Connecticut Law Review 2016 Recent Supreme Court decisions have made it clear that reports of the death of the “major questions” doctrine—under which judicial deference to agency interpretations of law (i.e. Chevron deference) is denied in certain “extraordinary cases”—are premature. The major questions doctrine is no mere legal curiosity; although invoked rarely, it has been central to important cases such as the Court’s recent decision to uphold key provisions of the Affordable Care Act. It also appears likely to play a role in the Court’s upcoming consideration of the EPA’s Clean Power Plan, the nation’s most significant and controversial climate change regulation. This Article first analyzes the history of the major questions doctrine, showing that not only has it returned in force, but it appears to have been present in another form during its supposed hiatus. The Article then reviews the cases employing the doctrine and identifies factors that appear to make a case sufficiently “extraordinary” to trigger it, all of which appear to be present in the Clean Power Plan litigation. Finally the article considers whether the major questions doctrine leads to better judicial decisions. Critics have claimed it is arbitrary or impossible to administer, or that it merely serves judges’ policy preferences. While these critiques have merit, this Article argues that the doctrine is worth keeping because it functions as a crucial safety valve for Chevron deference. Judges may be tempted, or other actors might demand, that courts rather than agencies decide interpretive questions in big cases. Without a major questions exception, these pressures could lead to Chevron being substantially curtailed or even overruled. Chevron’s virtues in ordinary cases, this Article argues, are not worth risking, whatever the failings of the major questions doctrine.

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