ADMINISTRATIVE ANSWERS TO “MAJOR QUESTIONS”: ON THE DEMOCRATIC AUTHORITY OF AGENCY STATUTORY INTERPRETATION

Abstract

This Article critiques the legal and theoretical premises of the “major questions doctrine,” and proposes a revision of the doctrine that better comports with the institutional structure and ideological origins of our administrative state. The major questions doctrine holds that courts generally should not defer to agency statutory interpretations that concern questions of “vast economic or political significance.” This doctrine, most recently invoked by the Supreme Court in King v. Burwell, purports to enforce the constitutional norms of non-delegation and popular sovereignty. But it relies on two auxiliary political-theoretic assumptions about the proper roles of courts and agencies. First, it imports the assumption of the Legal Process School that courts are always the primary interpreters of the important value questions implicated by statutory law. Second, it imports Max Weber’s assumption that administrative officials are morally-neutral technocrats, who should only implement value choices specified by statute. These assumptions do not capture important aspects of the institutional structure and ideological justification for our American administrative state. I show how the Progressive thinkers who first advocated administrative governance in the United States believed that administrators should resolve important value questions in consultation with the affected public. Our current institutions reflect this vision to a significant degree, with broad-textured statutes that leave significant norm-setting authority to agencies, while requiring that such decisions be made through participatory procedures. I propose that the major questions doctrine should be reformulated, so that an agency’s resolution of a “major question” can receive full Chevron deference if it is promulgated through notice-and-comment rulemaking and addresses the relevant political and economic questions in the rulemaking record. If an agency’s interpretation is not promulgated through rulemaking, the reviewing court should give deference to the agency’s interpretation proportional to the degree of its deliberative engagement with the affected public, and its discussion of the relevant policy questions.