Andrea Scoseria Katz (Washington University in St. Louis School of Law) & Ofra Bloch (Buchmann Faculty of Law, Tel Aviv University) have posted The Major Questions Doctrine After Learning Resources: Legality and the Limits of Presidential Power (37 pages) on SSRN. Here is the abstract:
Administrative law has entered a period of profound uncertainty. By dismantling Chevron’s regime of judicial deference to agencies and consolidating presidential control over those agencies, the Supreme Court has rendered itself the principal arbiter of executive power. President Trump’s increasingly sweeping assertions of executive authority have brought this transformation to a head, placing unprecedented pressure on the Court to articulate a theory of judicial review of executive power. In response, the Court has increasingly relied on the Major Questions Doctrine, requiring clearer statutory authorization for extraordinary assertions of administrative power. Yet it has failed to explain what makes agency action “major” or how the doctrine fits within the larger scope of judicial review of executive power. That failure was vividly exposed in Learning Resources v. Trump, which invalidated President Trump’s global tariffs program for exceeding statutory authority but fractured the Court as to why. This Article provides the MQD’s missing theoretical foundation: democratic legality. It reconceives the doctrine as part of a unified theory of judicial review of executive power. Drawing on rule-of-law theory and John Hart Ely’s representation-reinforcing theory of judicial review, we argue that legality is not merely a formal requirement that executive action be authorized by statute. It is a democratic principle requiring that significant exercises of executive power remain attributable to Congress. Properly understood, democratic legality explains both what makes executive action “major” and why more consequential assertions of executive power require greater statutory clarity. Building on this principle, we develop a unified framework for judicial review under which ordinary administrative review and the MQD emerge as different applications of democratic legality. The framework evaluates three interacting considerations: the democratic significance of the asserted authority (“majorness”), the ambiguity of the statutory authorization, and the institutional context. It distinguishes between majorness of scale and risk and explains how each interacts with ambiguity and institutional context to determine whether Congress has spoken with sufficient clarity to authorize the asserted exercise of executive power. Applying the framework to Learning Resources, we show how it resolves the disagreement that divided the Court, while translating democratic legality into a transparent and principled methodology for judicial review of executive power.
An important consequence of Learning Resources has been to focus commentary (correctly) on the major questions doctrine as a limit on presidential power (as in this paper), not merely as a limit on agency power.
Posted at 6:21 AM