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Cardozo Law Review

Abstract

The major questions doctrine has been fiercely criticized as an example of the Supreme Court’s “imperial” turn where it concentrates ever more power in its own hands. The doctrine is sweeping, vague, and lacks a clear justification. Not only does the Court get to decide when the doctrine applies and when the heightened standard is satisfied, but it has also not offered good reasons behind this rule. A well-defined theory would give the doctrine structure, clarity, and consistency. While majority opinions have been conspicuously quiet on the theory behind the major questions doctrine, concurrences, namely by Justice Gorsuch, have argued that the doctrine safeguards democracy. This Article develops this theory into three related arguments that could justify the major questions doctrine: (1) it ensures that agencies remain faithful agents of Congress, (2) it prevents Congress from shifting blame for unpopular policies to agencies, and (3) it guarantees that any significant policies enacted are the ones approved by the voters. These arguments pack a rhetorical punch. They cast the Court as strengthening rather than subverting democracy—rejoinder to accusations of judicial self-aggrandizement. But they do not hold up to close scrutiny. This Article carefully examines each candidate democratic theory for the major questions doctrine and finds them all fundamentally flawed. In fact, this analysis shows that the Supreme Court has gotten things exactly wrong. If anything, the doctrine should be flipped on its head. The major questions are the ones where the voters’ control is at its peak. If the Court is really worried about democracy, it should instead concentrate on less important questions because those are the ones that will inevitably slip out of the people’s control. This “minor questions contradiction” further undermines the premise of the doctrine and exposes its both foundational and practical problems. This Article gives the democratic theory for the major questions doctrine its best showing but ultimately finds it unconvincing. The doctrine thus cannot be justified in democratic terms, leaving it open to claims that it has no basis and is nothing more than a “judicial power grab.”

Disciplines

Administrative Law | Constitutional Law | Law | Supreme Court of the United States

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