Finding the Major Questions Doctrine

<p>The major questions doctrine has been invoked primarily in the&nbsp;rulemaking context, where it requires agencies to identify particularly clear&nbsp;statutory authority before promulgating rules of “major” importance. Some&nbsp;scholars have suggested that the doctrine is a tool that should be limited to&nbsp;agency actions that are purportedly “legislative” in nature (<i>e.g.</i>,&nbsp;rulemakings)—meaning the doctrine would not apply in other contexts, such&nbsp;as agency adjudications and enforcement actions that may not be similarly&nbsp;“legislative.” This Essay responds by arguing that the major questions&nbsp;doctrine is best understood as a limit on executive authority—meaning the&nbsp;doctrine could apply across a wider range of administrative actions that are&nbsp;formally exercises of executive power, regardless of whether the actions&nbsp;appear “legislative” in nature. That means that the doctrine could apply not&nbsp;just in the rulemaking context, but in the adjudication and enforcement&nbsp;action contexts as well.</p> <p><span>In advancing that argument, this Essay suggests that the major&nbsp;questions doctrine might be in the process of being “found” by judges.&nbsp;Thinking of the major questions doctrine as being found, rather than&nbsp;created, leaves room for the idea that only parts of the doctrine have been&nbsp;found to date. Thus, although the doctrine has been observed primarily in&nbsp;the rulemaking context so far, understanding the nature of the doctrine from&nbsp;first principles indicates that there are additional, yet-to-be observed&nbsp;aspects of the doctrine that apply in additional contexts.&nbsp;</span></p> <p><span>Recognizing the major questions doctrine as having been found would&nbsp;also make sense of how various jurists have discussed the doctrine to date.&nbsp;Justice Barrett, for example, has argued that the doctrine is a component of&nbsp;human language patterns—</span><i>i.e.</i><span>, patterns that judges find and apply, rather&nbsp;than create from whole cloth. Similarly, in&nbsp;</span><i>West Virginia v. EPA</i><span>, the Court&nbsp;formally recognized the major questions doctrine by name in an opinion that&nbsp;discussed the doctrine as if it had long existed—with the concurring Justices&nbsp;stating more clearly that the doctrine was first observed by jurists reviewing&nbsp;actions taken by the first modern regulatory agency. As the modern&nbsp;administrative state continues to expand, revealing new aspects of itself, we&nbsp;might expect additional aspects of the major questions doctrine to be&nbsp;revealed as well. In short, thinking of the major questions doctrine as having&nbsp;been found is consistent with how the Supreme Court has discussed the&nbsp;doctrine to date, and might shed light on how the Court views the doctrine in&nbsp;the future.</span></p>