A recent study has explored the rise of the “major questions doctrine”, which has been invoked by the US Supreme Court in several cases, including a recent one involving the Biden administration’s plan to cancel more than $400 billion in student loans. The idea behind the doctrine is that Congress must speak clearly when it authorizes the executive branch to take on matters of political or economic significance. However, the study suggests that the doctrine’s rapid and curious rise has been spurred by conservative scholars and commentators and driven by hostility to administrative agencies.
According to the study, “The phrase was used just once by any federal judge before 2017, and in only five federal decisions — at any level of court — before 2020.” Nonetheless, the idea was quickly adopted by law professors, advocacy groups, and conservative legal groups like the Federalist Society, who began using it as a rallying cry in opinion pieces and programming aimed at challenging the administrative state.
The turning point came in 2017, when Justice Brett M. Kavanaugh, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, used the term in a dissent. “That moment,” the study’s author, Allison Orr Larsen, wrote, “seems to have changed the game.” Kavanaugh later clarified that the “major questions doctrine is rooted in Supreme Court precedent.” Still, in his 2017 dissent, he conceded that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.”
The study’s author suggests that elevating an idea into a doctrine is particularly attractive to conservative judges, who “don’t want to be accused of activism or of making it up.” However, scholars have raised objections to the major questions approach, saying it had changed the rules in the middle of the game and had, in any event, placed unrealistic burdens on Congress.
“Even if lawmakers had anticipated the new doctrine,” two law professors wrote in “The New Major Questions Doctrine,” “it is unrealistic and unlikely that Congress could, at the time of drafting, both foresee and spell out every possible form of regulation that would be perceived as major at some point in the future.”
The theory’s requirement that Congress speak clearly when the issue is of major political significance, they added, allows after-the-fact gamesmanship. “In politically polarized times,” they wrote, “this aspect of the major questions doctrine allows political parties and movements to make an issue ‘major’ through generating controversy.”
The study’s author notes that calling something a doctrine has consequences, as it can lead to mechanical application and a lack of nuance. “The nature of the shorthand,” she said, “eliminates nuance.”
Overall, the rise of the major questions doctrine highlights the ongoing debate over the role of administrative agencies and the extent of their power. As the Biden administration faces challenges to its efforts to tackle climate change and cancel student debt, it remains to be seen how the doctrine will continue to shape legal debates and decisions.