Codifying an Answer to the Major Questions Doctrine [Note]

Abstract

The Major Questions Doctrine is among the newest tools in the Supreme Court’s toolbox to limit the executive branch. The Doctrine explains that agencies addressing issues of economic and political significance must have clear congressional authorization to do so. Critics of the Doctrine see it as a tool to wield whenever the Court disapproves of the actions of the executive, while proponents insist it is a necessity to maintain separation of powers. The Doctrine, however, will likely lead to a flood of cases arguing that an agency has acted without congressional authorization. Since environmental law functions through delegation to the executive branch, it will be an epicenter for major questions litigation. The clearest solution would be for Congress to amend each authorizing statute to explain the delegation’s bounds clearly. This solution is unlikely because of the political will and time required for such a task. This leads to the question: Could Congress amend all agency delegations at once to clearly authorize them to act in the face of major questions? Court precedent suggests that Congress would have to be precise with structuring such a statute and that Congress may not be able to legislate away the Major Questions Doctrine with one statute while staying within the constitutional boundaries of the legislative and executive branches. This Note determines whether Congress can circumvent the Major Questions Doctrine and whether such a statute would require so much structure that it would be impossible to navigate and functionally useless.