William & Mary Bill of Rights Journal
Abstract
A few years ago, I started wondering about the “major questions doctrine” (or MQD) in administrative law, and I found myself asking: “When did that become a thing?” I was familiar with the cases that stand for the proposition that Congress does not lightly delegate high stakes questions to administrative agencies—cases that date back to 2000 and specifically to a decision about cigarette advertising and the FDA. But up until 2022, it was rare for courts and commentators to refer to that collection of cases as a “doctrine.” Today, by contrast, the major questions doctrine is bread and butter administrative law; it gets its own section on my syllabus and appears in the table of contents of the casebook I use.
During the course of that project, I learned that the word “doctrine” was first attached to the major questions concept by law professors, and then it was quickly picked up by political actors and conservative interest groups on social media. Interestingly, I had previously assumed that “doctrines” were judge-made, but at least in the MQD example, that was not true—judges were actually late adopters of the label. This quest unearthed a lot of thorny questions about the power of the word “doctrine” and the role of law professors in bestowing that label. In this short Symposium Essay, I reintroduce those concerns and apply them to the choices faced by authors of constitutional law casebooks.