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Short-Circuiting the New Major Questions Doctrine

Posted by on Tuesday, April 25, 2017 in En Banc, Responses.

Short-Circuiting the New Major Questions Doctrine

Response to Michael Coenen & Seth Davis, Minor Courts, Major Questions, 70 Vand. L. Rev. 777 (2017).


In Minor Courts, Major Questions, Michael Coenen and Seth Davis advance perhaps the most provocative proposal to date to address the new major questions doctrine articulated in King v. Burwell. They argue that the Supreme Court alone should identify “major questions” that deprive agencies of interpretive primacy, prohibiting the doctrine’s use in the lower courts. Although we agree that the Court provided little guidance about the doctrine’s scope in King v. Burwell, we are unpersuaded that the solution to this lack of guidance is to limit its doctrinal development to one court that hears fewer than eighty cases per year. On the contrary, our recent empirical study of every published circuit court decision that implicates Chevron deference over an eleven-year period suggests that the circuit courts have much value to add to the doctrine’s development and that they are unlikely to engage in the sort of widespread mischief that seems to motivate the Coenen and Davis proposal. Especially for a doctrine in its infancy that goes to the heart of Chevron’s theoretical foundations, short-circuiting the development of the new major questions doctrine in the lower courts only exacerbates its problems.

Kent Barnett
Associate Professor, University of Georgia School of Law.

Christopher J. Walker
Associate Professor, The Ohio State University Moritz College of Law.