Black Hole of Administrative Law: The Threat of an Ever-Expanding Major Questions Doctrine to the Judiciary

Authors

Fred B. Jacob

Document Type

Symposium

Abstract

(Excerpt)

Below, this essay explores how an aggressive major questions doctrine could extend its reach to judicial interpretation and the implications of doing so. Indeed, had the Court applied the major questions doctrine to its own judicial holdings in seminal cases such as Bostock v. Clayton County or Allen v. Milligan, it would have flunked. This is also true for West Virginia’s creation of the doctrine itself, which claimed newfound authority to transform administrative law despite Congress’s significant legislative attention to agency rulemaking.

Expansion of the major questions doctrine to cases arising in the courts’ original jurisdiction would undermine the judiciary’s Article III duties, threaten enforcement of statutory rights, and further transfer policymaking from the politically accountable branches to the courts. Concluding, the essay echoes my previous plea that, because of the doctrine’s potentially unlimited breadth, it is incumbent on the Court to lay down firm guardrails to ensure that the doctrine is applied modestly, only to truly extraordinary cases, and only in limited administrative law contexts. Otherwise, the major questions doctrine, like an ever-expanding black hole, endangers the constitutional prerogatives of all three branches.