Patrick J. Sobkowski (United States District Courts) has posted Of Major Questions and Nondelegation (Yale Journal on Regulation, 2023) on SSRN. Here is the abstract:
A short essay on the U.S. Supreme Court's decision in Biden v. Nebraska, the Major Questions Doctrine, and the Nondelegation Doctrine.
And from the paper:
What the Court has done is elevate the MQD, seemingly at the expense of a reinvigorated nondelegation doctrine. As I see it, there are a couple of reasons for this. First, the MQD as currently formulated is an exercise in “strategic ambiguity”, by which I mean that the Court’s formulation of the doctrine is deliberately vague. This allows the Justices to strike down or uphold policies without being criticized by other actors for judicial activism and aggrandizement. Second, the MQD is more practical. It allows the Court to seemingly constrain itself to statutory—rather than constitutional—interpretation and foists the leg work largely on the lower federal courts.
And:
As other scholars have noted, Amy Coney Barrett filed an interesting concurrence in the student loans decision. She signaled her belief that the MQD is inconsistent with textualism when viewed as a substantive canon. Her separate opinion was devoted to arguing that the MQD could be consistent with textualism if viewed as a rule of thumb to discern the legislative context. I will not rehash her opinion here; Beau Baumann and others have already done so. What I will note is that not a single justice joined Barrett’s opinion.
Short and insightful. Recommended.