The Sketchy and Incredibly Recent Origins of the Major Questions Doctrine
OA1242 - Ever heard of the “major questions doctrine”? Most lawyers sure hadn’t until a few years ago. So how did it get that important-sounding name? Where did it come from? What even is it? How can we call something a “doctrine” or a rule if we don’t have a clear rule statement to cite to? (Hint: You can’t). If you’ve been feeling like maybe this is all made up and the points don’t matter, you can get your vindication here as we trace back the history of this ever-changing heavily-politicized increasingly-disputed amorphous blob. Jenessa read way too many cases and law review articles to tolerate this nonsense today. Timeline, each citing the one below it: 1. “Major questions doctrine” first appearance in any court case: West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022) 2. “Major question doctrine” [not plural] in an EPA statement on deregulations: Repeal of the Clean Power Plan, 84 Fed. Reg. 32520, 32529 (proposed Jul. 8, 2019) (to be codified at 40 C.F.R. pt. 60). 3. “Major rules doctrine”: U.S. Telecom Association v. F.C.C., 855 F.3d 381, 422-423 (D.C. Cir 2017), Kavanaugh dissent. (Note: There are many decisions by this name, including one from the D.C. Circuit in 2016, all of which are more prevalent online. Only this exact citation, minus the “422-23” pincite, will get you to the right case. Unfortunately I cannot find it outside the paywall to provide a link). 4. “Economic and political significance” allegedly the first unnamed use of the concept: F.D.A. v. Brown & Williamson Tobacco Co. 529 U.S. 120 (2000) 5. “Major questions” first appears in any legal scholarship… well those words appear in that order, at least: Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363 (1986). Meanwhile, in another timeline: Cass R. Sunstein, There are two “Major Questions” Doctrines, 73 Admin. L. Rev. 475, (2021). First ever use of “major questions rule/exception” in a positive light in legal scholarship. Would become more mainstream around 2013-2016: Abigail Moncrieff, Reincarnating the "Major Questions" Exception to Chevron Deference as a Doctrine of Non-Interference as a Doctrine of Non-Interference (Or Why Massachusetts v. EPA Got It Wrong), 60 Admin L. Rev. 593 (2008). Moncrieff, above, cites this as the original coining of “major questions”, not Breyer’s 1986 paper: Cass R. Sunstein, Chevron Step Zero, 92 VA. L. Rev. 187 (2006). Other definitions from legal scholarship: Allison Orr Larsen, Becoming a Doctrine, 76 Fla. L. Rev. 1 (2024). Austin Piatt & Damonta D. Morgan, The Three Major Questions Doctrines, Forward Wis. L. Rev. 19 (2024). Thomas B. Griffith & Haley N. Proctor, Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine, 132 Yale L.J. F. 693 (2022). Chad Squitieri, Who Determines Majorness?, 44 Harv. J.L. & Pub. Pol’y 463 (2021). Kevin O. Leske, Major Questions about the “Major Questions” Doctrine, 5 Michigan Journal of Environmental & Administrative Law 479 (2016). Jonas J. Monast, Major Questions About the Major Questions Doctrine, 68 Admin. L. Rev. 445 (2016). Other relevant cases: Learning Resources, Inc. v. Trump, 607 U.S --- (2026) Biden v. Nebraska, 600 U.S. 477 (2023) King v. Burwell, 576 U.S. 473 (2015) Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) Check out the OA Linktree for all the places to go and things to do!
