Given the amount of commentary being addressed to the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, it would appear that the Chevron decision may continue to be one of the Court’s most-discussed opinions even after its demise.  But the Court can, and should, seize the opportunity created by Loper Bright to shrink, rather than expand, the number of “doctrines” that govern administrative law decision making.  And it could start with the “major questions” doctrine.

Toward the end of the Loper Bright opinion, the majority is refreshingly frank in explaining that “major questions” was the latest in a series of attempts to restrict the scope of Chevron.  It is worth quoting that discussion at length to demonstrate this provenance:

Consider the many refinements we have made in an effort to match Chevron’s presumption to reality. We have said that Chevron applies only “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” Mead, 533 U. S., at 226–227. In practice, that threshold requirement—sometimes called Chevron “step zero”—largely limits Chevron to “the fruits of notice-and-comment rulemaking or formal adjudication.” 533 U. S., at 230. But even when those processes are used, deference is still not warranted “where the regulation is ‘procedurally defective’—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.” Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 220 (2016) (quoting Mead, 533 U. S., at 227).

Even where those procedural hurdles are cleared, substantive ones remain. Most notably, Chevron does not apply if the question at issue is one of “deep ‘economic and political significance.’” King v. Burwell, 576 U. S. 473, 486 (2015). We have instead expected Congress to delegate such authority “expressly” if at all, ibid., for “[e]xtraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s],’” West Virginia v. EPA, 597 U. S. 697, 723 (2022) (quoting Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001); alteration in original). Nor have we applied Chevron to agency interpretations of judicial review provisions, see Adams Fruit Co., 494 U. S., at 649–650, or to statutory schemes not administered by the agency seeking deference, see Epic Systems Corp. v. Lewis, 584 U. S. 497, 519– 520 (2018). And we have sent mixed signals on whether Chevron applies when a statute has criminal applications. Compare Abramski v. United States, 573 U. S. 169, 191 (2014), with Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 704, n. 18 (1995).

Justice Kagan also flagged the origin of “major questions” as a response to Chevron in her dissent in West Virginia v. EPA.  There, she documented how, in Brown v. Williamson – the chief progenitor of the yet-unnamed doctrine – the Court adopted it as an alternative to having to give the FDA Chevron deference:

The key case here is FDA v. Brown & Williamson. . . .  “In extraordinary cases,” the Court stated [there], “there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” 529 U. S., at 159. For anyone familiar with this Court’s Chevron doctrine, that language will ring a bell. The Court was saying only—and it was elsewhere explicit on this point—that there was reason to hesitate before giving FDA’s position Chevron deference. See id., at 132–133, 159–161.

But Chevron deference is gone now.  So what’s the point of keeping the “major questions” doctrine?  Why not follow what Justice Kagan, in her West Virginia dissent, called “normal principles of statutory interpretation: look at the text, view it in context, and use what the Court called some ‘common sense’ about how Congress delegates.”  That’s what Justice Barrett urged in her concurrence in Biden v. Nebraska (even if that’s not what the Court did in either that case or West Virginia):

I understand [the major questions doctrine] to emphasize the importance of context when a court interprets a delegation to an administrative agency. Seen in this light, the major questions doctrine is a tool for discerning—not departing from—the text’s most natural interpretation.

The alternative is to adopt Justice Gorsuch’s view, in his concurrence in West Virginia, that “major questions” is the newest in a series of “clear statement” rules that serve as substantive canons of statutory construction.  Justice Kagan famously criticized this approach in West Virginia as a “get-out-of-text-free card[]” that “magically appear[s] . . . [w]hen [textualism] would frustrate broader goals.”  Justice Barrett in Nebraska concurred that this approach “should give a textualist pause.”  It should bother all of us – the fewer “doctrines” and “canons” we have putting their thumbs on the interpretive scales, the more we can focus on text, context, legislative history (which the majority remarkably considered in Loper Bright) and, as Justice Breyer has argued in his recent book Reading the Constitution, purpose and consequences – traditional tools of statutory interpretation that have served us well for centuries. 

Jamie Conrad is the owner of the Conrad Law & Policy Counsel.