Taking Legality Seriously: What the Major Questions Doctrine Is — And Isn\u27t

Abstract

The Major Questions Doctrine (MQD), a controversial recent innovation of the Roberts Court that applies stricter scrutiny to “major” actions taken by federal agencies, has faced criticism for being atextual, unprincipled, and nakedly ideological. But this critique misses the fact that the doctrine has near-exact analogues in many other legal systems, where it is an established tool for reining in executive overreach. This Article argues that, while the MQD reflects valid rule-of-law concerns, as applied, it lacks theoretical clarity, consistency and limits. More importantly, the Court itself lacks a theory of what the MQD is. We provide an answer grounded in a theory of legality, and propose a revised doctrinal test for its application. As this Article shows, across legal systems, judicial “majorness” tests are rooted in the principle of legality, which requires that all government action be traced back to a legal authority. In an American administrative law context “legality” has mainly been the concern of those who want to dismantle the regulatory state. Our approach is different. At the core of our theory is the idea that legality is a principle, not a binary, and therefore that a test of majorness can, and ought to, not only hold government to the rule of law, but also allow it to function efficiently. We thus propose a revised test for MQD review: First, we clarify what should qualify as a “major” action, as opposed to routine matters or total delegations. We then argue that “majorness” can take two distinct forms: (1) actions that pose a risk to fundamental rights or the political process, and (2) actions that are exceptionally large in scale or significance but do not carry such risks. Each type, we contend, warrants a different judicial response depending on the clarity or ambiguity of the statutory delegation. We apply our test to a pair of case studies—the student loan debt relief case and a hypothetical executive program banning abortion pills under the Comstock Act—to illustrate its purchase.Legality is about the line between legislation and execution, a line that is fuzzy at best, but one which, we believe, can and should be enforced by judges. This Article offers two novel contributions. First, we provide a better understanding of the MQD, offering both a critique and a constructive path forward. Second, we advance a theory of legality that better grounds executive power in the rule of law, while suggesting how judicial review can place principled limits on its exercise. In the unfolding Trump era and the post-Loper Bright world, both are significant