Abstract

Despite the focus on the Court’s recent major questions cases, signs of an emergent delegation doctrine can also be found elsewhere. Most significantly, seeds of a delegation doctrine have been planted within the Court’s Chevron jurisprudence. The Court’s increased reluctance to grant Chevron deference to administrative agencies--and its insistence that courts first conclude that interpretive authority has been delegated before deferring to any agency interpretation—rests on the same core premise as the Court’s recent major questions doctrine decisions. It also suggests that the “new” major questions doctrine is not as new as it might seem, but rather a logical outgrowth of principles the Court has already embraced: Agencies may only exercise power delegated to them by Congress, and the amount of evidence required to demonstrate that authority has been delegated should correlate with the nature and scope of the authority claimed.

In making this claim this essay is both descriptive and prescriptive. It is descriptive in that it seeks to identify doctrinal threads that cut across administrative law doctrine. It is prescriptive in that it suggests that fully embracing the delegation doctrine would result in a more coherent jurisprudence and address many contemporary concerns about the administrative state and the proper role of the judiciary in policing the exercise of delegated power. Rationalizing (and perhaps reforming) the Court’s recent major questions holdings in purer delegation terms would insulate them from some of the criticisms levied by scholars and would reduce concerns that they are unprincipled assaults on administrative power. At the same time, focusing on delegation can constrain judicial deference to agency interpretations without requiring a complete abandonment of the Chevron doctrine. Following through on the implications of using delegation as a unifying principle can also help move the Court’s administrative law jurisprudence in a more positive direction, both by placing the major questions doctrine cases on firmer footing, as well as by making sense of what sorts of delegations—and resulting deference to agency authority—should or should not be troubling to those skeptical of administrative power.

This abstract has been taken from the author's introductory paragraphs.

Document Type

Article

Publication Date

2024

Publication Information

Harvard Journal of Law & Public Policy: Per Curiam (No. 12, Summer 2024)

Comments

Written for the symposium, "Doctrinal Crossroads: Major Questions, Non-Delegation, and Chevron Deference" (2024) at Harvard Law School.

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