The Major-questions Doctrine and the Administrative State

In National Affairs, Robert Delahunty and I critique the Supreme Court's new major questions doctrine -- we think of it as a standard less half-way house to a true nondelegation rule.

"Rounding out an extraordinary term in June 2022, the Supreme Court delivered a blow to the imperial bureaucracy, which exercises far more direct power over the daily lives of Americans than either Congress or the much feared imperial presidency. In West Virginia v. Environmental Protection Agency, the Court limited the Environmental Protection Agency (EPA) to regulating individual power plants rather than attempting wholesale control over the nation's electrical grid in the name of the environment. Conservatives rightly applauded the Court's decision.

But while the Court's conservative majority has taken important strides in arresting the growth of the administrative state, scratching below the surface of Chief Justice John Roberts's majority opinion indicates that it has yet to reverse it. This year's Supreme Court term marks only a small battle in the long war to restore accountability and transparency to the exercise of power by the federal bureaucracy."

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