In Defense of the Major Questions Doctrine

Louis J. Capozzi III*

The major questions doctrine, which requires agencies claiming important powers to identify clear authority from Congress, is transforming administrative law.  Breaking with recent practice, the doctrine prevents the executive branch from issuing laws addressing pressing, novel issues without Congress’s affirmative consent.

In response, scholars have generally criticized the doctrine and questioned its legitimacy.  Critics have alleged that the doctrine was fabricated by the Supreme Court without proper justification, is incapable of principled application, frustrates the intent of past Congresses to delegate broad power to agencies, aggrandizes judicial power, and hinders desirable executive branch lawmaking.

This Article disagrees with those criticisms and defends the major questions doctrine.  It offers five arguments—though more are possible.  First, the doctrine appropriately enforces Article I’s requirement that Congress (not others) legislate on “important” subjects.  Second, the doctrine is a straightforward application of longstanding constitutional avoidance.  Third, within a textualist analysis, the doctrine reflects how readers would expect important powers to be delegated.  Fourth, the major questions doctrine has deeper historical roots than most admit and is capable of continued incremental, common-law-style implementation.  Finally, under a functionalist approach, the doctrine promotes a healthy balance of power within the federal government, preserves federalism, and protects the rule of law.

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© 2025 Louis J. Capozzi III.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate, Jones Day; Lecturer in Law, University of Pennsylvania Carey Law School.  I am thankful to those who have commented on drafts of this Article: Stephanie Barclay, Mitchell Berman, Christian Burset, Ronald Cass, Patrick Garry, Gary Lawson, Thomas Koenig, Michael McConnell, Eli Nachmany, Aaron Nielson, Michael Ramsey, Paul Ray, Mark Storslee, William Seidleck, David Suska, Christopher Walker, Bill Watson, Matthew Wiener, Ilan Wurman, and David Zaring.  The views reflected herein do not necessarily represent those of Jones Day.