My colleagues Dan Deacon and Leah Litman have a new paper coming out in the Virginia Law Review, entitled The New Major Questions Doctrine, which explores and criticizes the Supreme Court’s decisions from last Term that created a clear-statement rule for statutory delegations to federal agencies to regulate issues of great political, policy, or economic significance. One of their main criticisms is that the new doctrine seems to operate in only one direction: deregulatory.
With that particular criticism in mind, I’ve posted a short essay to SSRN, which is forthcoming in the Harvard Journal of Law and Public Policy, that explores how Congress could respond to the new major questions doctrine and, in particular, its potential deregulatory effects. The title hopefully captures my recommendation: A Congressional Review Act for the Major Questions Doctrine.
Here’s the abstract:
Last Term, the Supreme Court recognized a new major questions doctrine, which requires Congress to provide clear statutory authorization for an agency to regulate a question of great economic, policy, or political significance. This new substantive canon of statutory interpretation will be invoked in court challenges to federal agency actions across the country, and it will no doubt spark considerable scholarly attention. This Essay does not wade into those doctrinal or theoretical debates. Instead, it suggests one way Congress could respond, by enacting a Congressional Review Act for the major questions doctrine. In other words, Congress could enact a fast-track legislative process that bypasses the Senate filibuster and similar slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of such joint resolution would amend the agency’s governing statute to expressly authorize the regulatory power the agency had claimed in the invalidated rule. In so doing, Congress would more easily have the opportunity to decide the major policy question itself—tempering the new doctrine’s asymmetric deregulatory effect and helping to restore Congress’s primary legislative role in the modern administrative state.
The current draft of the paper is available here. Comments are definitely welcome!