The Major Questions Doctrine Reading List, by Beau J. Baumann - Yale Journal on Regulation

Beau Baumann has saved many of us a lot of time.  The "major questions doctrine" is a great example of judicial aggrandizement or, as Blake Emerson puts it The Binary Executive means the establishment of the Supreme Court as a rival Executive. - GWC

The Major Questions Doctrine Reading List, by Beau J. Baumann - Yale Journal on Regulation

November 7, 2022

Chris Walker had the great idea to assemble a bibliography on the major questions doctrine (MQD) so that we can have a one-stop shop for all things MQD. Below, I’ve listed as much of the existing MQD literature as I could get my arms around. I intend on updating this list periodically so that we can stay on top of the expanding literature.

Below, you’ll see many articles organized by focus and topic. If you’d rather just see all the pieces listed chronologically, there’s a more straightforward bibliography at the bottom of the page. I hope this helps!

The Many MQDs

Considerable work has gone into describing what the MQD is, how it operates, and what purposes it serves. While some have claimed that West Virginia gave us the definitive MQD, there is already disagreement on whether there is one MQD or many. Even folks who supports the MQD disagree about whether it is a way to vindicate the nondelegation doctrine. And in the background, we have a very complicated debate about whether we ought to conceive of the MQD as part of the Chevron framework.

At any rate, the iterative nature of the MQD is essential to understanding its rise, and these pieces will help you get a flavor for that underlying volatility. Watch as the literature moves on and tries to explain why the MQD has been so volatile. (hat tip to the Brunstein and Revesz piece below)

• The Past and Future of the Major Questions Doctrine, 84 Ohio St. L.J. __ at 28 (forthcoming 2023) (writing that in West Virginia decision “the Court resolved preexisting confusion about what the major questions doctrine is”); id. (“There is one version of the major questions doctrine: a clear-statement rule grounded in the ‘separation of powers.’”).
• The New Major Questions Doctrine, 109 Va. L. Rev. __ at 3–4, 16–18 (forthcoming 2023) (describing the MQD as a clear statement rule requiring courts “not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies”); id. at 6 (noting that the MQD “flips the normal Chevron analysis on its head”).
• There Are Three Major Questions Doctrines, Notice & Comment (Jul. 16, 2022).
• Thoughts on West Virginia v. EPA, Notice & Comment (Jul. 5, 2022) (describing the MQD as a “subconstitutional means of checking agency authority”).
• Chevron’s Latest Step, Notice & Comment (July 3, 2022) (situating the MQD, post-West Virginia, as a step in the Chevron framework). Note also the handy diagram!
• Americana Administrative Law, 111 Geo. L.J. __ at 3–4 (forthcoming 2023) (describing an unexplained transition from the MQD as a tool of construction in the eviction moratorium case to the MQD as “a super-charged rule of interpretation” in the vaccine-or-test case).
• Natasha Brunstein & Richard L. Revesz, Mangling the Major Questions Doctrine, 74 Admin. L. Rev. 317–20 (2022) (attributing the expansion of the MQD over the last six years to its aggressive use by the Trump Administration).
• Chevron’s Next Chapter: A Fig Leaf for the Nondelegation Doctrine, 55 U.C. Davis L. Rev. 955 (2022) (treating the MQD as an outgrowth of the Chevron framework and suggesting that it is a “fig leaf” for the nondelegation doctrine).
• The Power Canons, 58 Wm. & Mary L. Rev. 1933, 1937–38 (2017) (casting the MQD as a set of clear statement rules that “oust” the Chevron paradigm).
• The [Perhaps] Unintended Consequences of King v. Burwell, 2015 Pepp. L. Rev. 56, 63–66 (2015) (suggesting after King v. Burwell that the MQD is serving as a kind of jurisdictional tool that’s meant to keep agencies from exceeding their zone of expertise, à la Chief Justice Roberts’s dissent in City of Arlington).
• KEEP READING