Major Questions about the 'Major Questions' Doctrine

After over a decade of hibernation, the United States Supreme Court has awoken the “major questions” doctrine, which has re-emerged in an expanded form. Under the doctrine, a court will not defer to an agency’s interpretation of a statutory provision in circumstances where the case involves an issue of deep economic or political significance or where the interpretive question could effectuate an enormous and transformative expansion of the agency’s regulatory authority. While the doctrine’s re-emergence in recent Supreme Court cases has already raised concerns, a subtle shift in its application has gone unnoticed. Unlike in earlier cases, where the Court invoked the major questions doctrine under Step One of the Chevron framework, the Court has recently applied the doctrine in other stages of the Chevron analysis. For instance, in Utility Air Regulatory Group v. EPA, the Court first found that the statutory provision at issue was ambiguous under Chevron Step One. It then raised the major questions doctrine as part of its Step Two analysis to find that the agency’s interpretation was unreasonable. In stark contrast, the Court in King v. Burwell invoked the major questions doctrine at Chevron Step Zero and thereby declined to apply the Chevron framework altogether. The re-emergence of the major questions doctrine and its expanded application is significant and raises doctrinal and pragmatic concerns. Accordingly, this Essay seeks to re-introduce the doctrine to the legal community and explain the Court’s recent application of the doctrine to demonstrate how and why its newfound scope warrants further study.