Marla Tortorice (United States Court of Appeals for the Third Circuit) has posted Nondelegation and the Major Questions Doctrine: Displacing Interpretive Power (Buffalo Law Review Vol. 67, No. 4, 2019) on SSRN. Here is the abstract:
This Article deconstructs Justice Gorsuch’s non-delegation argument against Chevron deference and its subsequent manifestation in the Supreme Court as the major questions doctrine. It argues that:
1) because a dispute in the constitutional interpretation of Chevron exists over the proper separation of powers, it is insufficient for Justice Gorsuch to claim to rely solely on a non-delegation argument to refute Chevron deference and
2) the major questions doctrine acts more as a facade for the Court’s separation of power effort to diminish administrative power.
Both Justice Gorsuch and advocates of the major questions doctrine believe that the Court should be the entity to resolve statutory ambiguity — at the very least in cases that present significant questions. But in setting out the constitutional critique of Chevron, both Justice Gorsuch and the major questions doctrine, as a manifestation of the same criticism, offer a remedy that does not solve the problem of which their critique complains. It appears that the Court is now substituting the major questions doctrine for the traditional non-delegation doctrine to deal with what it believes are unconstitutional delegations by Congress. But the delegation is not being restored to the legislature. The result is a diminution of agency deference and an enhancement of the Courts’ interpretive role. This development, coupled with the fact that a legitimate dispute in the constitutional interpretation of Chevron exits, demonstrates that what really underlies the arguments over Chevron’s existence are policy disagreements over the proper role of the current administrative state.
While other scholarly articles note that the enhancement of the Court’s own interpretive powers is one of the major questions doctrine’s ramifications, this Article is distinct in the depth in which it addresses this issue and in its argument against non-delegation as both a critique of Chevron and a rationale of the major questions doctrine.