Common Law Roots of the Major Questions Doctrine

Joshua Robe*

The “major questions doctrine” (MQD) is one of the most prominent and controversial developments in American administrative law.¹ The Supreme Court in recent years has emphatically recognized and robustly applied the doctrine, under which an administrative agency claiming authority to make “major policy decisions” “must point to ‘clear congressional authorization’ for the power it claims.”² This doctrine operates as a canon governing how to interpret statutes that delegate power to agencies.³ Scholars and the Justices themselves debate whether the MQD is a clear statement rule substantive canon, or a descriptive canon.⁴ On the clear statement rule view, the MQD requires agencies claiming authority to establish that their reading of the statute is not just the best reading but is clearly correct.⁵ On the descriptive canon view, the importance of power allegedly granted does not trigger a rule-like clarity requirement, but importance is a relevant contextual clue to a statute’s meaning because reasonable interpreters generally expect important powers to be granted clearly.⁶

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*J.D. Candidate, Notre Dame Law School, 2026; B.A., Bryan College, 2021. Thank you to Professors Emily Bremer and Haley Proctor for their generous feedback on prior drafts, and to the editors of the Notre Dame Law Review for their painstaking work and countless corrections. All errors remaining are of course my own. Thank you most of all to my wonderful wife for her encouragement, support, and patient grace for the time spent writing. Soli deo gloria.

1 See, e.g., Ronald M. Levin, The Major Questions Doctrine: Unfounded, Unbounded, and Confounded, 112 CALIF. L. REV. 899, 901–02 (2024).

2 See, e.g., West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (quoting U.S. Telecomm. Ass’n v. FCC, 855 F.3d 381, 419–20 (D.C. Cir. 2017) (mem.) (Kavanaugh, J. dissenting from denial of rehearing en banc)); Nate Bartholomew, Structural Implementation and The Major Questions Doctrine, 47 HARV. J.L. & PUB. POL’Y 857, 863–71 (2024 (discussing two recent cases applying the MQD).

3 See Michael D. Ramsey, An Originalist Defense of the Major Questions Doctrine, 76 ADMIN. L. REV. 817, 818–20 (2024).

4 See id. at 820–22 (describing the difference between these two categories of canons).

5 See, e.g., West Virginia, 142 S. Ct. at 2616–17 (Gorsuch, J., concurring).

6 See, e.g., Biden v. Nebraska, 143 S. Ct. 2355, 2378–80 (2023) (Barrett, J., concurring); Ilan Wurman, Importance and Interpretive Questions, 110 VA. L. REV. 909, 916 (2024) (“[O]rdinarily, lawmakers and private parties tend to speak clearly, and interpreters tend to expect clarity, when those lawmakers or parties authorize others to make important decisions on their behalf.”).