Major questions doctrine

Circuit Judge Thomas Griffith and Haley Proctor, the "seminal statement" of the major questions doctrine comes from FDA v. Brown & Williamson Tobacco Corp. (2000): "[W]e must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.

Around 2015 and 2016, the concept began to be called a doctrine within law journals and gained favor with conservative think tanks such as the Federalist Society and Cato Institute, particularly after the election of Donald Trump to his first presidency and the Republic party goal of "deconstruction of the administrative state".

[* * *] As for the major questions doctrine "label[]," post, at 13[a], it took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.

[3] These include arguments that the major questions doctrine is a symptom of "judicial self-aggrandizement,"[4] that it is inconsistent with both textualism and originalism,[5] and that it is at odds with normal tools of statutory interpretation.

"[7] She continued, "[w]hile ostensibly applying existing major questions case law, the [Supreme Court] in actuality altered the doctrine of judicial review of agency action in its method and content, in ways that will have momentous consequences."

[1] Since MCI Telecommunications Corp. v. AT&T Co. (1994), the Supreme Court has occasionally declined to give agencies deference in several cases where it did not think Congress would grant sweeping authority in seemingly insignificant provisions.

[b] In 1986, Stephen Breyer, at the time a judge on the First Circuit, endorsed a narrow, flexible version of the major question doctrine in a law review article in 1986, two years after Chevron.

In four cases, from Alabama Ass'n of Realtors v. HHS (2021) to West Virginia v. EPA (2022), the Court "adopt[ed] a different and more potent variant of the 'major questions' exception," separate from Chevron deference.

), based upon the aphorism of Justice Scalia's majority opinion in Whitman v. American Trucking Ass'ns, Inc. (2001) that Congress "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.

"[12] In MCI Telecommunications Corp. v. AT&T Co. (1994),[13] Justice Scalia wrote the decision of the Court rejecting an effort by the Federal Communications Commission to deregulate prices charged by common carriers.

In Gonzales v. Oregon (2006),[16] the Court held that the Attorney General did not have authority under the Controlled Substances Act to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide where allowed by state law.

Writing for the majority, Justice Kennedy said that "[t]he importance of the issue of physician-assisted suicide, which has been the subject of an 'earnest and profound debate' across the country, [Washington v. Glucksberg], 521 U. S., at 735, makes the oblique form of the claimed delegation all the more suspect.

[18][19] In King v. Burwell (2015),[20] a case interpreting the Affordable Care Act, the decision of Chief Justice Roberts declined to apply Chevron deference based on the major questions doctrine.

In Biden v. Nebraska (2023),[26] the Court relied in part on the major questions doctrine in its holding that Congress did not authorize the Department of Education to institute a sweeping student loan forgiveness program under the HEROES Act of 2003.