https://www.talksonlaw.com/briefs/major-questions-doctrine

Summary:
In "Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine," Thomas B. Griffith and Haley N. Proctor aim to "survey [former Supreme Court Justice] Breyer’s administrative-law jurisprudence" by tracing the origins of the Major Questions Doctrine and his involvement in its development. Although they admit the origins of the doctrine are somewhat hazy, Griffith and Proctor mention that Justice Breyer was the first person to coin the term "Major Questions." They then try to define the doctrine and come to the conclusion that it is  "rather a collection of related principles concerning congressional intent and the separation of powers." They decide this based on the fact that courts have used and continue to apply the Major Questions Doctrine differently from case to case, but most fall into 2 camps - absolute measures of significance and relative measures of significance. Later, they explain how the doctrine interacts with both the Chevron and Nondelegation Doctrines. The article continues in more detail about Breyer's life, and how his decisions related to the Chevron case have impacted the development of the Major Questions Doctrine before comparing his definitions to those of Justice Kavanaugh Finally, the article concludes by speculating on the future of the Major Questions Doctrine, arguing that the court has sided more with Kavanaugh's broad interpretation recently and presuming that trend will continue.

Response:
This source ticks so many boxes for my research questions that I couldn't not use it. It explains the origin of the MQD and points out the lovely irony of Breyer being the one to coin the term even though he would later fight against the doctrine, it explains both Chevron and the Nondelegation Doctrines, and it also represents the progressive view of the issue which can later be contrasted with other views.

Research Notes:
Found in the footnotes of another source.

Link:
https://www.yalelawjournal.org/forum/deference-delegation-and-divination

In "Antideference: Covid, Climate, and the Rise of the Major Questions Canon," Nathan Richardson argues that the Major Questions Doctrine is fundamentally flawed in almost all of its facilities. Enough to make listing them here as a claim into a pretty ridiculous idea, so I will just summarize the article and everything from here on can be taken as a part of the claim if you would like. He begins by providing multiple definitions of Chevron and the Nondelegation Doctrine and then describes the trajectory of their overall loss of power and significance. In his description of Chevron, he notes that it "shifted interpretive authority from courts to agencies" (Richardson, 176), and basically created a “counter-Marbury for the administrative state” (Richardson, 177). Attributing that quote to Cass Sunstein. Additionally, he notes that the Major Questions Doctrine has expanded so much as to effectively be a reversal of Chevron and the creation of a new “super-Marbury for the administrative state”(Richardson, 177). This line of reasoning continues throughout the text with many noteworthy quotes such as but not limited to, “the major questions canon is in fact simply the nondelegation doctrine masquerading as a principle of statutory interpretation” (Richardson, 177), “it [the MQD] asserts power over Congress—and, by extension, over popular rule and representative government” (Richardson, 177-178), and “a new, extra-constitutional veto point in an American political system already crippled by a surfeit of them” (Richardson, 178). The article then walks through the creation of Major Questions and the relevant cases therein, before describing its eventual split from an offshoot of Chevron to a new doctrine entirely. This was written prior to the conclusion of the WEST VIRGINIA V. EPA case, so when Richardson writes about the lack of a conclusive definition or opinion from the supremes, we can now safely ignore it and move on. However, his writing on the structural effect of the Major Questions Doctrine is still relevant, as he points out that it provides an additional layer of bureaucracy that can hinder the speed at which our government can respond to crises - in effect it “encodes a status quo bias” (Richardson, 204). 

Response:

This source answers so many of my research questions, I could reasonably write my entire essay only by using it. However, it also uses the most specialized language of any source I have, and therefore it is not a great tool to contextualize for a general audience. It provides alternate definitions and ideas about Chevron and the Nondelegation doctrines defined by Griffith and Proctor. It also provides a significant connection to the constitutionality part of this assignment and helps answer the overall question about the constitutionality of the Major Questions Doctrine as a whole.

Research Notes:

One of the later sources I found simply using Google out of curiosity about Chevron and the Nondelegation doctrines as a whole.

Link:

https://virginialawreview.org/wp-content/uploads/2022/04/Richardson_Book.pdf

Liptak, Adam. "The Curious Rise of a Court Doctrine that Threatens Biden's Agenda: [National Desk]." New York Times, Mar 07, 2023, Late Edition (East Coast). https://www.proquest.com/newspapers/curious-rise-court-doctrine-that-threatens-bidens/docview/2783549579/se-2.

In “What critics get wrong - and right - about the Supreme Court’s new ‘major questions doctrine’”, Rachel Reed presents Oren Tamir’s argument that the major questions doctrine is too rigid, too easy to invoke, and deregulatory; and, it can be changed to reflect a more universally accepted understanding of the idea. Reed starts by briefly defining the Major Questions Doctrine and Chevron before quickly pivoting to the opinions of Oren Tamir, a postdoctoral fellow at Harvard Law School. Tamir begins by explaining where the Major Questions Doctrine fits within administrative law, clarifying that there are in fact many different interpretations of it and that the broadest interpretation following the WEST VIRGINIA V. EPA case has no “serious work to interpret the statute” and that it lacks a “clear statement” rule. Reed asks why the doctrine is so controversial, and Tamir responds in two ways. First by summarizing the inherent veto and deregulatory power within the Major Questions Doctrine as a response to those who want to see a more active government, and second by addressing the idea that the doctrine is “lawless” - or was simply created out of thin air to combat Chevron. In response to this, he reasons that the Major Questions Doctrine can be changed to become benign, can be used strategically to normalize change, and can eventually be used to “[open] the door for much more major reforms of our entire administrative law.” To the next question, Tamir shows that Israel and Germany have similar laws to the Major Questions Doctrine, although he admits there are differences between them - differences that he intends to settle by altering the MQD. Tamir now gets into the main body of his argument and says “the doctrine shouldn’t be used as a kind of freeze on agency action,” and presents the idea that a given agency either continues working for a set period of time until Congress acts, or instead halt action immediately, wait for Congress to say something, and then unfreeze if they don’t after a similar set period of time. Essentially both options give Congress a reason to engage with the ruling and find a solution for the agency. Next, he says the Major Questions Doctrine should be reserved for the Supreme Court alone so that it cannot be invoked spuriously. Finally, he argues that the doctrine is currently asymmetrical in its implementation and that there is just as much harm to be found in inaction on the part of agencies as there is in action. He finishes the interview by stating his understanding that it will be difficult to enact these changes while still remaining hopeful that, if implemented, they could affect key issues like student loan debt relief.

Response:

Tamir provides an interesting and varied perspective on the topic while remaining rooted in logical ideas. I say this because finding a supporter of the Major Questions Doctrine in a “reliable source” context is pretty rough, and I would much rather engage with this seemingly good faith argument on its merits rather than dunk on someone paid to shill conservative ideas on the internet. Reed also includes a basic definition of a clear statement rule, which might prove useful to work into the essay.

Research Notes:

I was mostly just looking for a contrasting opinion that wasn’t horrible, and I think this totally works! I chose to look at the interview version of this so as not to get bogged down in too much legal jargon again, since contrasting viewpoints don’t necessarily need as much context and depth as the main argument.

Link:

https://hls.harvard.edu/today/what-critics-get-wrong-and-right-about-the-supreme-courts-new-major-questions-doctrine/ 

In “Importance and Interpretive Questions,” Ilan Wurman argues that there are textual threads to be woven into a semi coherent floor for the Major Questions Doctrine to stand on. The paper is broken into an introduction, a large section labeled “Major Questions” (9) with many subheadings, an additional section titled “Importance and Textualist Analysis” (35) with subheadings, and a final section titled “Historical Evidence” (48) - again with its own respective subheadings - and a conclusion. Wurman spends the introduction defining the Major Questions Doctrine and providing testimony from others about their understanding of it as it relates to the constitution - wherein opinions range from “inconsistent with textualism” (Wurman, 1) to “‘create[s] deep conceptual uncertainty about what the Court is doing” (Wurman, 4). Wurman largely agrees with these modes of analysis, saying “there are at least four versions of the doctrine that the Supreme Court has articulated, none fully defensible” (Wurman, 4). He explains the step by step details of Chevron and how two versions of the Major Questions Doctrine fail along the way, and then how an additional version (the one from WEST VIRGINIA V. EPA) is basically just the nondelegation doctrine in disguise (which avoids the constitution). Finally, Wurman describes the fourth MQD as a kind of clear statement rule that also fundamentally undermines itself. However, he volunteers that there are ways to explain some of the cases where the MQD was used by just “adopting the narrower reading of the statute… [where] it was more plausible to think that Congress intended the narrower reading” (Wurman, 6). He then delves into a long passage about linguistics that I will spare you from, with the main idea being that somewhere in the cannon of the MQD is a textualist understanding to be found based on a philosophical argument. It is here that Wurman lays out how Part 1 will cover all four possible versions of the MQD with the idea that there is some kind of linguistic version of all of them. Part 2 will then justify such interpretations differently than the actual Court has in a more defensible manner according to Wurman. The next four sections are all dedicated to reiterating how the four indefensible versions of the MQD would fail, but in greater detail and additionally taking note of in what ways they do pass. The next large section of the paper is dedicated to creating some kind of defensible version of the Major Questions Doctrine “as a type of linguistic canon for resolving ambiguities” (Wurman, 36) regarding how authority is delegated by lawmakers. Additionally, this section clarifies that there are already many canons held up using unorthodox means, and this would not be the first. Ultimately, the section claims that “if textualism requires resolving ambiguities in

favor of likely public understanding, [MQD] may be consistent with textualism in this sense as well” (Wurman, 37-38). Finally, Wurman begins to cite clauses in the Constitution from which an argument could be made. First, using the Necessary and Proper clause as a way to highlight that other clauses needed to be written so that it could exist. By this I mean that “great and important authorities - such as the power of making war, laying taxes, and regulating commerce, cannot be left to implication” (Wurman, 51), whereby the inverse is also true for the Major Questions Doctrine. Basically, Wurman says the Necessary and Proper clause is to the rest of the Constitution as the Major Questions Doctrine is to the rest of law. Next, Wurman cites Agency Law and Contract Law that quite frankly I do not understand, so I will not attempt to summarize it here. This is somewhat relevant to my research but not essential in the slightest. Before concluding, Wurman addresses objections to his argument about determining what constitutes “major” in major questions, and puts forward an idea on substantive canons. After all of this, Wurman concludes that “none of the Supreme Court’s versions of what it has called the major questions doctrine appears fully defensible” (Wurman, 66). However, by “using importance as a quasi-linguistic canon in that context may very well be consistent with textualism: it appears consistent with empirical evidence about legislative drafting practices, with how ordinary people interpret language in high-stakes contexts, and with common intuitions about how to read statutes in light of the mischiefs they are fashioned to solve” (Wurman, 66).

Response:

This is by far my most challenging source, and it is easily the least approachable or usable. The only reason I included it was to completely exhaust the idea that the Major Questions Doctrine could be constitutional, and if a trained lawyer can’t do it, then neither can I. I will attempt to summarize key ideas here but I cannot afford to give this source even as many words as I have written here.

Research Notes:

Google and regret, should’ve just used Sheridan but nooooo I wanted to get technical.

Link:

In “The Inflation Reduction Act doesn’t get around the Supreme Court’s climate ruling in West Virginia v. EPA, but it does strengthen EPA’s future abilities,” Patrick Parenteau argues that although the EPA can’t reverse the fallout of its case against West Virginia, it is better prepared for the future because of the Inflation Reduction Act. To begin, Parenteau summarizes the Inflation Reduction Act and how many people thought it would be able to get around WEST VIRGINIA V. EPA, but he quickly refutes that claim. After briefly describing the Major Questions Doctrine, Paranteau focuses on the details of the aforementioned case and explains “what the new law does for the EPA’s authority.” He explains that the EPA has a substantially increased budget and “also, for the first time, explicitly defines greenhouse gases to include the six specific gases that the EPA determined in 2009 pose a risk to public health and welfare.” Finally, he covers potential challenges to replacing the Clean Power Plan and emboldens the EPA to take action against climate change.

Response:

This is just a simple source to give me info to cite on WEST VIRGINIA V. EPA,  briefly discuss recent events related to the EPA, and our ability to fight climate change long-term.

Research Notes:

A final last-minute addition to cover my bases and be able to discuss the fallout of WEST VIRGINIA V. EPA.

Link:

https://theconversation.com/the-inflation-reduction-act-doesnt-get-around-the-supreme-courts-climate-ruling-in-west-virginia-v-epa-but-it-does-strengthen-epas-future-abilities-189279