Notice & Comment

Barnett and Walker on Coenen and Davis on the New Major Questions Doctrine (AdLaw Bridge Series)

lawreview-2011As my co-blogger Aaron Nielson covered in his D.C. Circuit Review — Reviewed “postscript” two weeks ago, the D.C. Circuit recently denied rehearing in United States Telecom Ass’n v. FCC, which was the challenge to the FCC’s net neutrality regulations.

Among more than one hundred pages of separate opinions concerning the denial, Judge Kavanaugh has a dissent  that traces the evolution of the “major questions” doctrine over the last 25 years to the Court’s most recent articulation of it in King v. Burwell. As Judge Kavanaugh frames the broad principle (slip op. at 9),

The lesson from those cases is apparent. If an agency wants to exercise expansive regulatory authority over some major social or economic activity – regulating cigarettes, banning physician-assisted suicide, eliminating telecommunications rate-filing requirements, or regulating greenhouse gas emitters, for example – an ambiguous grant of statutory authority is not enough. Congress must clearly authorize an agency to take such a major regulatory action.

For those interested in an in-depth response, Asher Steinberg pulls no punches in criticizing Judge Kavanaugh’s formulation of the major questions doctrine.

But what I want to focus on here is a different type of criticism of the major questions doctrine advanced in an article just published in the Vanderbilt Law Review.  In Minor Courts, Major Questions, Michael Coenen and Seth Davis advance perhaps the most provocative proposal to date to address the new major questions doctrine articulated in King v. Burwell. They argue that the Supreme Court alone should identify “major questions” that deprive agencies of interpretive primacy, prohibiting the doctrine’s use in the lower courts. Here’s a summary of their argument, from the article’s abstract:

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court deferred to an agency’s controversial interpretation of a key provision of a regulatory statute. Lower courts now apply “Chevron deference” as a matter of course, upholding agencies’ reasonable interpretations of ambiguous provisions within the statutes they administer. Recently, however, the Court refused in King v. Burwell to defer to an agency’s answer to a statutory question, citing the “deep economic and political significance” of the question itself. The Court in King offered barebones guidance regarding the scope of and rationales for embracing this so-called “major questions exception” to Chevron deference, and the decision has thus created uncertainty regarding Chevron’s application in the courts below. Surveying the post-King landscape, we advance in this Article a simple and straightforward proposal designed to ameliorate the confusion that King has wrought. Our proposal is that only the Supreme Court should apply the major questions exception: absent further instruction from the Court, neither the federal district courts nor the U.S. courts of appeals should withhold Chevron deference on grounds of majorness alone. Our argument stems from a comparative institutional analysis of the Court and its subordinates, coupled with an unpacking of the various policies and purposes that the major questions exception might serve. These investigations yield the surprising conclusion that only the Court has the institutional capacity to realize the exception’s benefits, whereas all the federal courts would realize its costs. That being so, we believe the most sensible means of implementing the major questions exception would be to treat it as the exclusive province of the Supreme Court.

The Vanderbilt Law Review editors were kind to invite Kent Barnett and I to respond to the article. In Short-Circuiting the New Major Questions Doctrine, we agree with Coenen and Davis that the Supreme Court provided little guidance about the doctrine’s scope in King v. Burwell. But we are left unpersuaded that the solution to this lack of guidance is to limit its doctrinal development to one court that hears fewer than eighty cases per year. On the contrary, the findings from our forthcoming empirical study of every published circuit court decision that implicates Chevron deference over an eleven-year period suggests that the circuit courts have much value to add to the doctrine’s development and that they are unlikely to engage in the sort of widespread mischief that seems to motivate the Coenen and Davis proposal. Especially for a doctrine in its infancy that goes to the heart of Chevron’s theoretical foundations, we argue that short-circuiting the development of the new major questions doctrine in the lower courts only exacerbates its problems.

We, of course, published this response before Judge Kavanaugh’s dissent from denial of rehearing in the net neutrality case. Perhaps some would view that dissent as Exhibit A of the lower-court mischief. That seems to be Steinberg’s take. (Note that Coenen and Davis would actually allow such a dissent, as they want lower courts to write separate opinions to help the Supreme Court shape the new major questions doctrine.) I won’t pretend to speak for my coauthor, but I see Judge Kavanaugh’s articulation of the doctrine here as part of the important “further percolation” in the lower courts that is necessary for a healthy development of an evolving doctrine (such as the major questions doctrine).

In all events, definitely go read Coenen and Davis’s provocative article here. And if you’re craving more after that, you can check out our response here.


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.


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