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Full-Text Articles in Law
Major Questions About The "Major Questions" Doctrine, Kevin O. Leske
Major Questions About The "Major Questions" Doctrine, Kevin O. Leske
Michigan Journal of Environmental & Administrative Law
After over a decade of hibernation, the United States Supreme Court has awoken the “major questions” doctrine, which has re-emerged in an expanded form. Under the doctrine, a court will not defer to an agency’s interpretation of a statutory provision in circumstances where the case involves an issue of deep economic or political significance or where the interpretive question could effectuate an enormous and transformative expansion of the agency’s regulatory authority. While the doctrine’s re-emergence in recent Supreme Court cases has already raised concerns, a subtle shift in its application has gone unnoticed. Unlike in earlier cases, where the Court …
Revisiting Congresssional Delegation Of Interpretative Primacy As The Foundation For Chevron Defense, Mark Seidenfeld
Revisiting Congresssional Delegation Of Interpretative Primacy As The Foundation For Chevron Defense, Mark Seidenfeld
Scholarly Publications
Although congressional delegation is the rationale used most often to justify the Chevron doctrine, most scholars who have written about this justification have recognized that it is a fiction, albeit, they claim, a useful one. In “Chevron’s Foundation,” I proposed an alternative foundation for the Chevron doctrine—a judicial self-limitation justification for Chevron deference—based on an implicit understanding of Article III that courts should not resolve cases by making policy choices where alternative means for deciding these cases exists. In this essay, I first revisit my original critique of the delegation rationale and explicitly respond to the arguments …