Notice & Comment

The Minor Questions Doctrine

I’m pleased to report that the University of Pennsylvania Law Review has agreed to publish my latest article: The Minor Questions Doctrine.

Here’s the abstract:

Few aspects of administrative law are as controversial as the major questions doctrine—the exception to Chevron deference that bars courts from deferring to an agency’s otherwise reasonable interpretation of an ambiguous statute where doing so has extraordinary policy implications. Proponents of the major questions doctrine believe that the nation’s most significant questions should be decided by Congress, not agencies. The doctrine’s critics, however, counter that there is no sound reason to treat major questions differently from ordinary questions, if such a distinction even exists. The elevation of Justices Neil Gorsuch and Brett Kavanaugh, two major proponents of the major questions doctrine, has reignited the debate. Both the doctrine’s friends and foes expect that the Supreme Court will soon begin to more aggressively target major questions.    

This Article, however, argues that focusing on major questions is myopic. Minor questions—those bipartisan, “good government” policies that do not attract much attention but that affect countless individuals in small ways—also matter. Because of Chevron deference, Congress and the Executive Branch often have overlapping authority to tackle such minor questions. Yet if one branch acts, that decision confers positive externalities on the other branch: the non-acting branch benefits from a policy it wants without having to pay for it. When incentives are structured this way, collective-action dynamics may prevent either branch from acting. Critically, moreover, although ordinary politics often moots the need for judicial review of major questions, policy stagnation may be permanent for minor questions. The time thus has come for what this Article dubs the “minor questions doctrine”—a new approach to deference that targets collective-action dynamics by reducing overlapping policymaking authority over minor policies.       

The current draft is available here on SSRN. Comments are welcome. And many thanks to those who have already helped. I’ve been working on this project for a couple of years — really, ever since I read this article by Daniel Hemel. I’m biased, but I think my paper says something new about deference, which, frankly, is hard to do.