Kyle Pasucci
91 Geo. Wash. L. Rev. 1360
Administrative agencies must respond to innovation in their field of expertise to keep their regulatory approach efficient and effective. However, the recent expansion of the major questions doctrine threatens to undermine agency capacity to respond to new technology and new practices. Recently, the Supreme Court has endorsed what scholars have referred to as a strong version of the major questions doctrine. Two of the key components of this version of the doctrine are a demanding clear statement rule and an unprecedented skepticism toward new applications of long-standing statutes. This Essay begins by tracing the development of those two components of the doctrine and describing the threat they pose to agencies tasked with regulating rapidly changing sectors of the economy. It then proposes a judicial method to ensure that agencies can respond to these changes. Specifically, it recommends that the Court draw on its own jurisprudence in energy law and related areas to craft a purposivist limit to the major questions doctrine where it collides with agency capacity to respond to innovation.
