Kristen Eichensehr (Harvard Law School) has posted The Major Questions Doctrine, Exceptions, and Foreign Affairs (N.Y.U. Law Review Online, forthcoming) on SSRN. Here is the abstract:
The Supreme Court’s decision in Learning Resources, Inc. v. Trump marks a rare loss for the President in a foreign affairs-related case, but it is also significant as the Court’s first attempt to address the intersection of foreign affairs and the Major Questions Doctrine (MQD). The fractured opinions in the case and competing theories of exceptions to the MQD among the Justices who endorse the doctrine raise more questions than they answer and leave unsettled how—or if—the Court will apply the MQD in future foreign affairs-related cases. This Essay explores how the Justices’ divergent views of MQD exceptions in Learning Resources may affect three types of cases: challenges to international agreements and their implementing legislation, foreign affairs-related preemption cases, and litigation over presidential settlement of international claims.
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