At Notice & Comment, T.T. Arvind (York) & Christian R. Burset (Notre Dame): “Major Questions” in the Common Law Tradition. From the introduction:
The Supreme Court’s recent decision in Biden v. Nebraska marks a new chapter in debates about the major questions doctrine (MQD). Writing for a six-Justice majority, Chief Justice Roberts relied partly on the MQD to find that the Biden Administration’s loan forgiveness program lacked statutory authority. Justice Kagan’s dissent criticized the MQD as “made-up” and antidemocratic. And Justice Barrett’s concurrence offered a textualist defense of the MQD as an “interpretive tool.”
All three opinions treat the MQD’s pedigree (or lack thereof) as crucial: Justice Kagan’s most damning charge is that the doctrine is “new.” Scholars have debated the MQD’s history at length, and we won’t try to settle it here. Nor do we opine on whether Biden v. Nebraska was correctly decided. Our goal is more modest: to point out some similarities between the MQD and eighteenth-century approaches to identifying the limits of executive authority. These doctrinal similarities, we suggest, reveal constitutional concerns about executive authority that are deeply embedded in the common law itself. We hope that reflecting on their enduring significance might inform the debate over the MQD today.
Our starting place is Entick v. Carrington (1765), an English case well known to the Founders. …
And in conclusion:
This is not to say that the MQD can claim Entick as a direct ancestor. But its critics would do well to acknowledge that it reflects a deeply held impulse in common law adjudication, which is far more nuanced than mere animus toward the modern administrative state.
(Via Jonathan Adler at Volokh Conspiracy.)
I particularly like that the essay associates the major questions doctrine with concerns about executive overreach. As I've commented here a number of times (and as reinforced by Nebraska v. Biden), the doctrine is really about limiting executive power, and people who worry about executive overreach should look on it favorably.
Posted at 6:26 AM