Kevin O. Leske (University of Dayton School of Law) has posted More Major Questions Hypocrisy on SSRN. Here is the abstract:
There is little dispute that many current Supreme Court Justices regard safeguarding the constitutional separation of powers as crucially important in their judicial approach. Likewise, they faithfully apply an originalism methodology and reject an activist approach in their roles as decisionmakers. But their creation and application of the major questions doctrine go against these principles.
The major questions doctrine requires a court to first determine whether an agency seeks to wield powers of deep economic or political significance or whether an agency’s action would represent a transformative expansion of the agency’s regulatory authority. If so, a court then must find that Congress clearly authorized the agency to act in that manner before the court can uphold the action.
But as a principal justification for the “major questions” doctrine, the Court has rested on a fallacy, resulting in hypocrisy when applying the doctrine. Justices purport to invoke the doctrine to guard against situations where, in their view, there is a potential impermissible delegation of legislative power by Congress. But applying an originalism methodology, on which they typically rely, the major questions doctrine cannot be justified on nondelegation grounds, and, hypocritically, applying the major questions doctrine runs counter to nondelegation principles.
As I explained almost a decade ago in Major Questions about the Major Questions Doctrine and then more recently in 2024 in Major Questions Hypocrisy, the Court has radically transformed the doctrine and its application subverts normative democratic values and imperils our administrative state. Effectively, the doctrine now functions as clear statement rule to quash agency action even where Congress has statutorily empowered the agency to act.
In this Article, I expand on the arguments that I set forth in Major Questions Hypocrisy. Here, I show how an originalist view of the Constitution does not support the major questions doctrine’s justification based on Article I concerns. Furthermore, I show that even if the doctrine could be justified on nondelegation grounds, the major questions doctrine does not actually support nondelegation principles that the Justices purport to protect. Hypocritically, the application of the doctrine results in judicial legislation and judicial activism that goes directly against separation of powers and constitutional accountability principles.
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