For several months in 2022 and 2023, I wrote a series of blog posts called “The Major Questions Doctrine Reading List.” These posts came in the aftermath of several high-profile cases involving the MQD. My hope was that I could spotlight good scholarship and provide a shared language for talking about the MQD.

For the last two years, I have tried unsuccessfully to sit down and return to this series. I have not been able to justify another update to the reading list because the same categories of MQD thinking are pretty much unchanged. The real work now is in refining the existing arguments on all sides. The courts are not really innovating much, so there’s less and less to work with.

As an alternative that is more respectful of everyone’s time, I am offering the following update on the MQD. My goal is merely to put a few things on everyone’s radar and celebrate new and interesting MQD scholarship. This is inexhaustive. Some of the pieces with asterisks discuss the MQD in the periphery while tackling other issues.

My subjective impression is that (1) there’s less scholarship on the MQD being produced these days and (2) fewer pieces getting top-shelf placements. Events in the second Trump Administration seem to have overshadowed interest in the MQD. We may have also oversaturated the market and tested the law review editors’ appetites for new MQD work. I would love to see more good work in this area, but it’s going to be harder and harder to produce innovative scholarship without the courts, agencies, and Congress giving us more to chew on.

New Scholarship

• Nicholas Almendares, A Theory of Major Questions (draft 2025). This great new piece asks whether the MQD’s role in supporting democracy can stand up to inter-disciplinary scrutiny. Nick concludes that the democracy-supporting rationales fail to mask a move towards judicial self-aggrandizement. The author adds a good bit about Congress to this argument, explaining why the courts’ claim to protect our national legislature omits much of the story. It also adds a focus on voters. To Nick, the MQD is backed by a vision of voters as “goldilocks”—“they have to have just the right amount of ignorance” for the MQD to do the kind of work that the doctrine’s supporters are hoping for.
• Jack M. Beermann, The Anti-Innovation Supreme Court: Major Questions, Delegation, Chevron, and More, 65 Wm. & Mary L. Rev. 1265 (2024). Jack is ditching pretenses here. He’s arguing that the MQD is essentially conservative judicial policymaking. As if to say, “why are you surprised,” Jack argues that the courts often play a similar anti-novelty role. The MQD is part-and-parcel to a broader move that lets the Justices effectively accomplish whatever they would have gotten from the resurrection of the nondelegation doctrine. The honesty and descriptive accuracy are this piece’s great contributions.
• David M. Driesen, Context, Common Sense, and the Major Questions Doctrine: A Response to Justice Barrett (draft 2024). One of the overarching moves in the newer literature is a wave of criticisms directed at Justice Barrett’s “contextual MQD” from her concurrence in the Nebraska case. Empiricists have already taken her to task. A subsequent development is more theoretical dissections of Barrett’s propositions. Driesen here suggests that Barrett’s invocation of context is somewhat misleading. That’s because a clear statement rule can displace all the normal modes of context that are the bread and butter of statutory construction.
• Joshua Ulan Galperin, Climate Change, Democracy, and the Major Questions Doctrine, 98 St. John’s L. Rev. 585 (2025). Galperin is arguing that the MQD on display in West Virginia v. EPA represents a weak vision of American democracy and Congress’s ingenuity. He’s also suggesting that the MQD is a sort of cover for the nondelegation doctrine. So the Court should come out and play it straight with the American people because the judiciary’s authority depends on public deliberation.
• **Robert L. Glicksman & Johanna Adashek, Agency Authority to Address Chemicals of Emerging Concern, 48 Harv. Envtl. L. Rev. 369 (2024). This paper anticipates a potential MQD challenge to an EPA application of § 303 of the Clean Air Act. Towards the back of the paper, the authors try a straightforward application of the MQD’s triggers, concluding that the MQD would not be implicated by the envisioned EPA action.
• **Christopher S. Havasy, Social Justice Conflict in Public Law, 113 Calif. L. Rev. __ (forthcoming) (arguing that the MQD stands in tension with the institutionalization of social justice and exemplifies a move by courts to gain decision-making power over consequential social justice questions).
• **Christopher S. Havasy, Radical Administrative Law, Vand. L. Rev. (forthcoming) (discussing the MQD as one pathology of the modern public law canon that could be ameliorated with a return to a lost 19th century “radical administrative law).
• Ofra Bloch & Andrea Scoseria Katz, Taking Legality Seriously: What the Major Questions Doctrine Is—and Isn’t, 94 Geo. Wash. L. Rev. __ (forthcoming 2026). In this piece, the authors connect the MQD to the principle of legality in other legal systems. They admit that the current version of the MQD is too unwieldy, but still envision a new test that might fix the doctrine. There’s a lot of nuance to their proposed test, so I recommend keeping the chart on page 4 handy as you read through the piece. Highly recommended. I think the only thing that might help the substance of this paper is a discussion of the MQD’s domain. Back when I was doing the reading lists, I labeled one bucket “the MQD’s domain.” These were the pieces that questioned whether there were any threshold questions before you got to the MQD’s triggers. For example, does the MQD apply to agency enforcement actions?  The scholarship caught up, and now there are pieces questioning whether the MQD applies, e.g., to guidance and administrative adjudications. Bloch/Katz might add something on this literature in the piece and ask whether some preliminary step zero might apply to their new legality standard. It might be, to speculate, that one way of limiting judicial policymaking to where it’s needed the most is to focus in on legislative rules.

Editorial Note: Because I’m a huge Andrea Katz fan, I noticed that she released another draft around the time, Separation-of-Powers Lochnerism, 94 Fordham L. Rev. __ (forthcoming 2025). This piece only talks about the MQD in passing; it’s really about drawing a parallel between the kind of analysis from Lochner v. New York (1905) on rights and the contemporary Roberts Court’s separation-of-powers jurisprudence. This draft is well worth reading. It places the Roberts Court in historical context, and thereby provides much needed institutional history. But I think that these two drafts dropped around the same time help illustrate a tension that’s defining this moment in American legal scholarship. In Taking Legality Seriously, the authors are trying to walk a tight rope and lay down a standard that could simultaneously serve rule-of-law values and temper the judiciary’s glide towards inadequate work. At the same time, in the Lochnerism piece, one of the authors helps demonstrate how far we are from a judiciary that could play a constructive role in the separation of powers. I think reading these papers together is helpful because we’re all in a similar spot at the moment. Amidst growing rule-of-law concerns, we all want law to play a constructive role in present controversies. But concerns about the judiciary we actually have—and in particular, judges’ role in crafting our present woes—are never far from the surface.

• Fred B. Jacob, The Black Hole of Administrative Law: The Threat of an Ever-Expanding Major Questions Doctrine To the Judiciary, 98 St. John’s L. Rev. 567 (2025). This clever piece suggests that the MQD might threaten the judiciary’s own interpretive discretion. Think of the Bostock case. Is that decision really consistent with the MQD’s logic? Doesn’t the same problem reoccur throughout the Supreme Court’s famous cases?
• Anita S. Krishnakumar, What The New Major Questions Doctrine is Not, 92 Geo. Wash. L. Rev. 117 (2024). This paper takes a big swing at the existing literature and concludes that the MQD may not be able to stand on any of the extant justifications on offer. This is your kind of paper if you look at the MQD and think that the existing rationales for it are just off or just a little too clean. Highlights include Part I.B’s discussion (dissection) of the “contextual” MQD offered by Justice Barrett and Part II.B’s discussion of the MQD as an “implementation test.” (By implementation test, Krishnakumar is asking whether you could equate the MQD with something like hard look review.) This piece comes highly recommended. You are getting a proper legislation scholar who is at the top of her game quickly cutting a swath through the existing literature. I don’t even know why I bother promoting pieces like this—it’s just painfully obvious that we should all be reading it.
• Ronald M. Levin, The Major Questions Doctrine: Unfounded, Unbounded, and Confounded, 112 Calif. L. Rev. 899 (2024). This is the final, published draft from one of the admin field’s great doctrinalists. It’s a pretty systematic takedown of the MQD. For one thing, Ron provides a description of the MQD’s trajectory. He shows that we got the modern MQD through periodic overstatement. The Justices slowly made the doctrine more powerful by failing to tend to the MQD’s original, modest propositions. This is an important intervention as some scholars and practitioners seem to present the MQD as a doctrine with a pedigree. The discussion of the MQD’s development in Part I is my favorite background section in this literature. All the more normative sections are great, but I really think Part IV is one of the better takedowns of the MQD’s implications. Also check out III.C.2 on “asserted antecedents.”

Editorial Note: I wanted to note in passing that Ron has a discussion of Congress from pages 955 to 961. This is the one part of the paper I take issue with. Ron says that the MQD rests on shaky footing because of congressional “dysfunction.” He writes: “A major difficulty with this rationale for the major questions doctrine is that it appears to presuppose a Congress that will supply legislative direction and guidance when necessary. At present, however, that is not the Congress we have.” The paper in this section leans very hard on “congressional declinism.” I would only suggest a different rhetoric: we could benefit from a change in narrative from “the MQD is out of step with our broken Congress of today” to “the MQD is out of step with how legislatures work in the American system of separated powers.” As somebody who spends a lot of time studying the performance of Congress in the twentieth century, I’m hard pressed to think of some golden era where lawmakers could have durably and consistently responded to the MQD. That’s because, as others like Josh Chafetz have explained, the doctrine is almost tailor-made to stymie legislative power. But regardless of this nitpicking, Ron makes a great point by sussing out the MQD’s “fit” with the realities of the legislative branch.

• Austin Piatt & Damonta D. Morgan, The Three Major Questions Doctrines, Wis. L. Rev. (2024). This piece tries to show that the ontological debates around the MQD—is it a substantive canon, contextual rule, or something else—are not academic disputes. They have tangible implications for litigants and for Congress.
• **Bijal Shah, Statute-Focused Presidential Administration, 90 Geo. Wash. L. Rev. 1165 (2022). I missed this piece entirely when doing the original MQD reading list series. The piece is really about examining whether presidential administration is in tension with agencies’ fidelity to statutory law. Bijal concludes that this tension is real and must be ameliorated with a new approach that reorients the President towards statutory fidelity. The MQD is, she says, one tool that could allow courts to reorient presidents.
• **Bijal Shah, A Critical Analysis of Separation-of-Powers Functionalism, 85 Ohio St. L.J. 1007 (2024). This more recent take by Bijal casts the MQD as an example of how the judiciary can deploy a functionalist tool to aggrandize itself. If we were still doing the MQD Reading List, this would go under “the MQD as judicial self-aggrandizement.” This paper adds something with a larger separation-of-powers perspective that shows how all three branches can deploy functionalist tools to aggrandize themselves.  
• **Chad Squitieri, Bringing the Antiquities Act into the Modern Age, 32 Geo. Mason L. Rev. F. 27 (2025). This piece is trying to bring interpretation of the Antiquities Act into the 21st century with the help of an MQD that limits presidential authority.
• Kamaile A.N. Turcan, “Major Questions” About Preemption, 69 Vill. L. Rev. 737 (2024). Turcan’s paper flew under my radar for a while, but it’s a really clever piece about how the MQD interacts with preemption. The argument is basically that the MQD undermines federal preemption by giving states a whole new argument that federal legislative rules are ultra vires.
• **Adrian Vermeule, The Old Regime and the Loper Bright Revolution, Sup. Ct. Rev. (forthcoming). Hoping that Loper Bright might mean that the MQD has become obsolete? Don’t hold your breath, says AV.
• **Christopher J. Walker, Congress and the Shifting Sand in Administrative Law, 34 Widener L. Rev. 187 (2024). Chris here is troubleshooting the latest admin law developments with an eye towards what Congress can do to reassert itself. On the MQD front, Chris proposes a fast track for MQD cases, modeled on the Congressional Review Act.

Beau J. Baumann is a Ph.D. candidate at Yale Law School. He welcomes all comments via email.