'Major Questions' Moderation

Abstract

The Chevron doctrine instructs federal courts to afford deference to reasonable agency interpretations of ambiguous authorizing statutes. Yet in select instances, courts have deviated from Chevron’s command. One of the more confounding deviations is found in cases involving “major questions.” Under this burgeoning doctrine, courts have appropriated what would appear to be typical deference cases, on the basis of the claimed political or economic exceptionality of the stakes. This “major questions exception” is at the center of ongoing debates about the future of Chevron deference and administrative governance more broadly.

In this Article, I appraise the major questions doctrine by way of comparison to two other doctrines under which federal courts deviate from convention, and assume principal decision-making authority in light of political or economic concerns. The first arises from a set of cases in which an agency interpretation presents a “serious” constitutional question, leading courts to employ the constitutional avoidance canon. The second arises from cases involving state law claims implicating “substantial” federal issues, leading courts to find federal court jurisdiction where it otherwise wouldn’t exist.

Both doctrines provide useful comparators, and in examining how they have been applied, we gain valuable insight into the current and future legitimacy of the major questions doctrine. After drawing the comparisons, the Article argues that the “expertise” justification for the constitutional avoidance canon does not extend to the major questions exception. But the “uniformity” justification for the federal court jurisdictional anomaly might justify the major questions exception as well, depending on how it is employed. The Article concludes by presenting a novel proposition for how the major questions doctrine could evolve to promote uniformity concerns. Until we learn more about which direction the doctrine is headed, moderation is the best approach.