Academic journal article Harvard Law Review

Major Question Objections

Academic journal article Harvard Law Review

Major Question Objections

Article excerpt

The Supreme Court constantly mediates the relationship between law and administration. Of the tools available for that task, none sees more use than the ubiquitous Chevron (1) doctrine, which establishes the conditions for judicial deference to administrative interpretations of law. In part because of its centrality to administrative law, in part because the Court regularly tinkers with the doctrine, Chevron has inspired "a virtual cottage industry within the [legal] academy" (2) that churns out a seemingly endless stream of Chevron-related praise, criticism, and analysis. (3) One pocket of Chevron confusion concerns the mercurial "major question exception, " under which the Court occasionally refuses to defer to an agency's interpretation of an economically or politically significant statutory provision. (4) The academic commentary has alternately denounced and defended various rationales for the exception. (5) The Supreme Court's latest resort to the major question exception, in King v. Burwell, (6) has sparked a fresh round of critical examination. (7)

This Note enters the fray, though with a sense of hesitation: like a pickled monster, the rare and freakish major question exception may make a dubious case study. (8) Still, the Court continues to invoke the exception, and arguably to make it more robust, while the lower courts continue to follow the Supreme Court's lead. (9) Perhaps now is a good time to reappraise the major question exception, while it is still a minor excrescence on administrative law. In the hope of producing some order, this Note argues as follows. First, it proposes to abandon the fruitless quest to rationalize the disorderly major question cases in terms of conventional doctrine, and suggests it might be better to regard them as episodes of vaguely equitable intervention, where the Court's "olfactory sense detects the odor of administrative waywardness." (10) It then argues that the Court's functionally equitable mode in major question cases conflicts with its own understanding of Chevron doctrine. The Court has invoked the major question exception both while conducting a pre-Chevron threshold inquiry and while interpreting statutes within the Chevron framework. The former confuses proxies for congressional delegation with proxies for agency opportunism; the latter short-circuits arbitrary and capricious review under the Administrative Procedure Act (11) (APA).

This Note proceeds in three Parts. Part I briefly reviews the elements of Chevron. Part II uses five cases to introduce the major question exception and to illustrate its haphazard application and elusive rationale(s). Part III begins by arguing that no coherent principle animates the major question cases, which are better understood as equitable-mode cases that aim to prevent agencies from taking undue advantage of Chevron's simple deference rule. Section III.A then argues that deploying the major question exception as part of a pre-Chevron threshold inquiry confuses proxies for delegation with proxies for agency opportunism, while section III.B argues that deploying it while interpreting statutes under the Chevron framework effectively curtails arbitrary and capricious review.

I. BACKGROUND: CHEVRON

Suppose the Food and Drug Administration (FDA) issues a rule intended to implement some portion of its organic statute, the Food, Drug, and Cosmetic Act (12) (FDCA). Suppose further that a regulated party sues in court to invalidate the FDA's rule, claiming that the rule is based on an impermissible interpretation of the FDCA. Before 1984, a baroque body of case law determined what weight to accord the FDA's interpretation. (13) The Supreme Court's 1984 decision in Chevron streamlined the inquiry. Formally, Chevron instructs courts to engage in a two-step process, asking first whether Congress has "directly spoken" to the interpretive question--that is, whether the statutory language forecloses the agency's interpretation--and second, in the face of ambiguity, whether the agency's interpretation is reasonable. …

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