In Biden v. Nebraska, the decision in which the Court invalidated the Biden administration’s student loan forgiveness program, Justice Barrett wrote a theoretically ambitious concurrence, joined however by no other Justice. The aim of the concurrence was to put the so-called major questions doctrine on a more secure basis by justifying it as a natural inference […]

If the Supreme Court next term overrules Chevron USA v. Natural Resources Defense Council, its decision will crown a complete paradigm shift in the Supreme Court’s framework for the judicial review of agency interpretations of law. The era of “Chevron deference” will have been displaced by what ought to be called the era of “West Virginia skepticism.” The latter label […]

The Supreme Court’s recent decision in Biden v. Nebraska marks a new chapter in debates about the major questions doctrine (MQD). Writing for a six-Justice majority, Chief Justice Roberts relied partly on the MQD to find that the Biden Administration’s loan forgiveness program lacked statutory authority. Justice Kagan’s dissent criticized the MQD as “made-up” and antidemocratic. And […]

The major questions doctrine seems to know no bounds.  In Biden v. Nebraska, the Court blew past what should have been fatal objections to the States’ standing and launched a broader-than-ever version of MQD when invalidating the Biden administration’s loan forgiveness under the HEROES Act.  Last term, the Court held that MQD checked substantive statutory authorizations. In Biden v. […]

Next term the Supreme Court will hear argument in CFPB v. Community Financial, which concerns whether the Consumer Financial Protection Bureau (“CFPB”) may constitutionally receive its funding from the Federal Reserve, rather than through the annual appropriations process.  The case presents the Court an opportunity to address an important point made earlier this summer by Justice Thomas in a dissenting […]

My goal in this essay is to explain why the Major Questions Doctrine (MQD) has become such a powerful tool to the Supreme Court’s conservative majority and why it seems to be replacing, along with the unitary executive theory, the nondelegation doctrine as one of the primary means of constraining congressional and administrative power. What the […]

As many of you know, the Supreme Court just shot down the student-loan forgiveness plan in Biden v. Nebraska. The majority opinion written by John Roberts predictably held that the HEROES Act does not empower the Secretary of Education to cancel loans on the scale envisioned by the Biden Administration. In a separate subsection (see pgs. 19–25 […]

Putting aside for the moment the possibility of the Supreme Court overruling Chevron U.S.A., Inc. v Natural Resources Defense Council, 467 U.S. 837 (1984) (“Chevron”), in the coming term the Supreme Court will hear argument on and consider, in the case of Loper Bright Enterprises v. Raimondo (“Loper”), whether the Court should “clarify that statutory silence concerning controversial powers […]

My article, West Virginia, the Inflation Reduction Act, and the Future of Climate Policy, in the July issue of the Environmental Law Reporter, examines two momentous events in summer 2022 with broad implications for the nation’s capacity to tackle dangerous climate change. One year ago tomorrow, in West Virginia v. Environmental Protection Agency, the Supreme Court formally […]

This month marks one year since the Supreme Court decided West Virginia v. EPA, in which the Court expressly named and relied on the major questions doctrine for the first time. It is thus an apt time to take stock of West Virginia’s impact, particularly as we may see yet another landmark major questions doctrine decision from […]

Earlier this month on a Friday afternoon, the Securities and Exchange Commission quietly issued an extraordinary administrative order. In one fell swoop, the SEC unconditionally abandoned more than 40 enforcement cases the agency had previously spent untold staff resources prosecuting over the past decade. In essence, the agency largely shut down what I’ve previously called its “Hotel California” adjudication system. […]