Ofra Bloch & Andrea Scoseria Katz
94 Geo. Wash. L. Rev. 121
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 these critiques miss 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 although such “majorness” tests play an important role in enforcing the rule of law, the MQD as currently formulated lacks theoretical clarity, consistency, and limits. More important, the Court itself lacks a theory of what the MQD is. This Article provides an answer to these concerns grounded in a theory of legality and proposes a revised doctrinal test for its application.
This Article shows that 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, discussions over legality have mainly been the domain of those who want to dismantle the regulatory state. This Article’s approach is different. It argues that legality is a principle, not a rule: a sliding scale, not a binary variable. Therefore, a test of majorness can and should both hold government to the rule of law and allow it to function efficiently. This Article proposes a revised test for MQD review with that aim in mind. First, the Article clarifies what should qualify as a major action, as opposed to routine matters or total delegations. Then, it explains that majorness can take two distinct forms: (1) actions that pose a risk to fundamental rights or the political process, or (2) actions that are exceptionally large in scale or significance but do not carry such risks. Each type warrants a different judicial response depending on the clarity or ambiguity of the statutory delegation. The Article then applies this 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 utility.
Legality is about the line between legislation and execution––a line which is fuzzy at best, but which can and should be enforced by judges. As such, this Article offers two novel contributions. First, it provides a better account of the MQD, offering both a critique and a constructive path forward. Second, it advances 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 post-Loper Bright world, both are significant.
