Joshua Robe (University of Notre Dame – Notre Dame Law School) has posted Common Law Roots of the Major Questions Doctrine (Notre Dame Law Review) on SSRN. Here is the abstract:
Most scholars argue that the Major Questions Doctrine has little historical foundation. On this view, the Supreme Court invented the doctrine in the last few decades. This Note challenges that conclusion. Building on recent scholarship, I argue that Anglo-American common law as early as the 1700s contained the rule that extraordinary authority required clear authorization. In the common law of agency, “principal” powers had to be delegated expressly, while less important or “incidental” powers could be delegated implicitly. I argue that this rule applied to statutory interpretation as well. Courts applied the rule to legislative acts delegating power to municipalities, and later to statutes delegating power to the early administrative agencies. The “Major Questions” label is new, but the doctrine’s substance has deep roots in American law.
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