Per Curiam
The Major Questions Doctrine: A Check on Presidential Administration – Paul J. Ray
Download PDF The Major Questions Doctrine: A Check on Presidential Administration Paul J. Ray* The major questions doctrine serves an important purpose of administrative law: ensuring Congress knows what it is doing when it delegates to agencies and thus can control its delegations. The doctrine does so by requiring a clear statement that Congress intended an agency to resolve a particular question, a statement whose clarity ensures members of Congress can understand the content of delegations before they delegate. The major questions...
read moreReplacing the Major Questions Doctrine with Originalist Statutory Interpretation – Michael B. Rappaport
Download PDF Replacing the Major Questions Doctrine with Originalist Statutory Interpretation Michael B. Rappaport* As the basis for many recent politically salient Supreme Court cases that have restrained administrative agency authority, the Major Questions Doctrine (MQD) has become an important topic of legal discussion.[1] Although the doctrine has been endorsed by the more conservative Supreme Court Justices, originalist and textualist commentators have disagreed about its validity. Some have defended it either as a substantive canon or...
read moreDoes the Major Questions Doctrine Get Congress Right? – Joseph Postell
Download PDF Does the Major Questions Doctrine Get Congress Right? Joseph Postell Introduction The emergence of the major questions doctrine (MQD) as a “doctrine” has generated enormous scholarly and political backlash. Advocates of the doctrine on the Supreme Court have been accused of using the doctrine to promote “judicial self-aggrandizement,”[1] and as a screen for “politically and ideologically infused judgments”[2] on important policy issues. While much of this criticism focuses on the broader policy implications of the doctrine and...
read more“The Game” (or How I Learned to Stop Worrying and Love the Major Questions Doctrine) – Gary Lawson
Download PDF “The Game” (or How I Learned to Stop Worrying and Love the Major Questions Doctrine) Gary Lawson* I have been dubious about the so-called major questions doctrine[1] ever since it emerged as a theorized concept in scholarly discourse in the early 2000s. To be clear: I am not claiming that the practice represented by cases thought to exemplify the major questions doctrine is that novel. It is not.[2] But its theorization as a distinct doctrine dates back only about two decades.[3] Once the major questions idea took shape, I...
read moreBiden v. Nebraska and the Continued Refinement of the Major Questions Doctrine – Louis J. Capozzi III
Download PDF Biden v. Nebraska and the Continued Refinement of the Major Questions Doctrine Louis J. Capozzi III* Introduction The major questions doctrine, which requires the Executive Branch to point to clear congressional authorization to issue economically or politically significant regulations, is transforming administrative law by limiting the power of administrative agencies. The Supreme Court applied the doctrine most recently in Biden v. Nebraska, holding that the Biden Administration lacked authority to cancel “roughly $430 billion...
read moreThe Delegation Doctrine – Jonathan H. Adler
Download PDF THE DELEGATION DOCTRINE Jonathan H. Adler* After Gundy v. United States[1] the Supreme Court seemed poised to revive the nondelegation doctrine.[2] Four justices expressed a willingness to consider nondelegation arguments in a future case, and they were joined by a fifth just a few months later.[3] It was only matter of time before five justices would vote to limit the extent to which Congress could delegate core legislative power to administrative agencies.[4] Reports of the nondelegation doctrine’s resuscitation were greatly...
read moreDoctrinal Crossroads: Major Questions, Non-Delegation and Chevron Deference – Donald F. McGahn
Download PDF Doctrinal Crossroads: Major Questions, Non-Delegation and Chevron Deference Donald F. McGahn* Thank you for the kind introduction and the opportunity to speak to you today. And thank you to the Pacific Legal Foundation—these sorts of conferences are massive undertakings, and require countless hours of thankless work and worry. I also must note that I am here today on my own accord, not on behalf of any client or my law firm. But of course, if a future President should make the mistake of nominating me for something in the...
read moreDoctrinal Crossroads: Major Questions, Non-Delegation, and Chevron Deference
JLPP: Per Curiam and the Pacific Legal Foundation are proud to present a symposium: Doctrinal Crossroads: Major Questions, Non-Delegation, and Chevron Deference which was held at Harvard Law School on January 25, 2024. The essays in this symposium, authored by academics and practitioners alike, attempt to elucidate a deeper examination of the origins of the major questions doctrine, its theoretical underpinnings, and its compatibility (or incompatibility) with earlier precedent. The essays in this symposium can be accessed at the following...
read moreHon. Robert H. Bork Memorial Lecture: Toxic Political Polarization and the Judiciary – Judge Thomas B. Griffith
Download PDF Toxic Political Polarization and the Judiciary Judge Thomas B. Griffith (ret.)* I am honored to be here today and especially to speak in a lecture series that honors the memory of Judge Robert H. Bork. We are all indebted to Ed Whelan for his Confirmation Tales column. Forgive my self-indulgence in telling you my story. It features Judge Bork in a prominent role. Although it was far from a pleasant experience, my Senate confirmation experience was smooth sailing compared to the tempestuous proceedings others have endured. For...
read moreThe Missing Endpoint of Rule 609(b) – Bobby Levine
Download PDF The Missing Endpoint of Rule 609(b) Bobby Levine* Introduction Federal Rule of Evidence 609(b) (“609(b)”) limits when a lawyer can impeach a witness using their prior criminal convictions.[1] To impeach a witness with a prior conviction that is more than 10 years old, there is a heightened standard for admissibility. The judge must find that its probative value “substantially outweighs its prejudicial effect.”[2] That language may sound familiar. It is a specialized application of the far less demanding threshold of Rule...
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