MAJOR QUESTIONS HYPOCRISY.

“[W]ere the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.” The Federalist No. 47 (James Madison) (quoting Montesquieu). If asked to name some of the core beliefs of the current Supreme Court Justices, one would undoubtedly identify their allegiance to maintaining the separation of powers and to interpretative methods such as textualism, as well as taking an anti-activist approach in their roles as decisionmakers. Yet several of these bedrock principles, especially textualism, have been trumped in several notable recent cases when the Court has invoked the newly-metamorphosized “major questions” doctrine. The major questions doctrine, as it stands today, requires courts to scrutinize agency action where the agency is attempting to exercise powers of deep economic or political significance or to exercise powers in a way that would effectuate an enormous and transformative expansion of the agency’s regulatory authority. Only if the court finds that Congress clearly authorized such power can the court sustain the action. But this approach is not the way the doctrine had previously functioned in our administrative state. In my 2016 article on the major questions doctrine, I highlighted a significant expansion in how the doctrine had recently been applied in Supreme Court cases at that time. As originally conceived in two early cases, the Court raised the doctrine as part of its Chevron Step-One analysis to determine whether the statutory language in question was ambiguous. But upon resurrecting the doctrine in 2014 and 2015, the Court invoked the doctrine in other stages of the Chevron analysis, including to justify that the Chevron analysis should not apply at all. Now, in a series of very recent cases, the doctrine has transformed into a much more significant —and perilous —doctrine with respect to how it functions in both our administrative state and in our democracy. The doctrine can now be better regarded as a canon of construction employed to strike down agency action —even in cases where there is statutory textual support for agency’s assertion of power and where Congress’s underlying grant of power to the agency does not effectuate an unconstitutional delegation of legislative power. This presumption against agency power (and the requirement that there be a specific congressional grant) effectively diminishes legislative and executive power. Moreover, it represents a dramatic type of judicial activism that fails to respect accountability principles in our democratic system and the separation of powers. With this new doctrine now firmly in place, this Article analyzes how the major questions doctrine is incompatible with the Court’s fidelity to textualism. The Article concludes that the Court’s application of the doctrine also manifests a hypocrisy because although the Court purports to be protecting accountability principles and Congress’s power (and more broadly the separation of powers) when it invokes the doctrine, the Court is actually subverting these principles. [ABSTRACT FROM AUTHOR]