Major Questions Doctrine: From West Virginia v. EPA to Learning Resources

The Supreme Court's decision in Learning Resources, Inc. v. Trump produced at least four distinct visions of the major questions doctrine. Chief Justice Roberts's plurality treated the doctrine as a separation-of-powers canon requiring clear congressional authorization before the Executive may exercise Article I prerogatives like the taxing power. Justice Gorsuch offered a lengthy historical defense of the doctrine's constitutional roots, tracing it from the nondelegation principles of the Founding era and arguing it is fundamentally "pro-Congress." Justice Kagan, concurring in the judgment, rejected the doctrine as unnecessary and potentially dangerous, contending it has been used to override rather than discover the best reading of delegation statutes. And Justice Kavanaugh's dissent argued that the major questions framework should not apply with equal force to emergency powers and foreign-affairs statutes.

The decision raises immediate practical questions. Does the major questions doctrine now apply to all exercises of delegated authority by the Executive, or only in cases involving core Article I powers? What weight should lower courts give to the plurality's analysis versus Justice Kagan's concurrence, which reached the same result on narrower grounds? How should agencies and regulated parties assess litigation risk in light of the doctrine's uncertain vote count? And what room, if any, remains for the government to invoke emergency powers or foreign-affairs considerations as a basis for more deferential review? This panel will discuss the practical implications of Learning Resources for administrative law practitioners, agency counsel, and litigants challenging executive action.

Featuring:

• Andrew Grossman, Partner, BakerHostetler; Adjunct Fellow, The Manhattan Institute
• Prof. Kristin Hickman, Associate Dean for Research and Intellectual Life, McKnight Presidential Professor in Law, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, Associate Director, Corporate Institute, University of Minnesota Law School
• Prof. Gillian Metzger, Harlan Fiske Stone Professor of Constitutional Law, Columbia Law School
• Max Sarinsky, Legal Director, Institute for Policy Integrity, New York University School of Law
• (Moderator) Prof. Aram Gavoor, Associate Dean for Academic Affairs and Associate Professor of Law, The George Washington University Law School

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.