Publication
Drake Law Review
Volume
71
Page
435
Year
2024
Abstract
This symposium piece reflects on the Supreme Court’s October 2022 term and what it reveals for the direction of administrative law. It argues first that the nondelegation doctrine is dead but not for the reason functionalists have been arguing for so long. It is dead rather because the causes of its revival have been effectively removed. Nondelegation concerns are most felt when there is significant executive unilateralism; in the past such unilateralism was encouraged by the Chevron doctrine, which allows the executive branch to interpret statutes creatively and, so long as those interpretations are plausible, requires courts to defer to that branch’s interpretation. Part I describes this legal framework and how it contributes to executive unilateralism.
In the Court’s two most important administrative law decisions this past term, Sackett v. EPA and Biden v. Nebraska, involving executive interpretations of statutes, not once did the Supreme Court mention Chevron; indeed, not once did the parties mention Chevron. The doctrine is therefore dead, at least at the Supreme Court, and the Court will be giving the statutes their best readings. That alone would go a long way to deflating concerns about nondelegation. But the Court has gone even further: in both cases, the Court deployed a version of the “major questions doctrine” to conclude that the statutes did not authorize the politically and economically significant regulations in question. That doctrine requires a clear statement from Congress when delegating questions of major political or economic significance. In short, the Court will no longer defer, and in fact will demand, a clear statement that Congress intended major delegations. Between the two phenomena, there will likely be no reason to address nondelegation in the near future. Part II explains this shift.
Importantly, however, the removal of serious nondelegation challenges is not because the Court’s new approach to statutory interpretation enforces the nondelegation doctrine, at least not directly. Rather, the Court’s new approach is consistent with textualism and only incidentally affects the nondelegation concern. This Article concludes with a positive evaluation of Justice Amy Coney Barrett’s concurrence in Biden v. Nebraska, which tracked the view the present Author has defended at length elsewhere that the major questions doctrine is a linguistic rather than substantive canon. At times, however, Justice Barrett’s defense of the major questions doctrine serves to enforce the nondelegation doctrine more than it lets on. Part III elaborates on these observations.
Recommended Citation
Ilan Wurman, OT '22 and the Path of Administrative Law, 71 Drake Law Review 435 (2024)
