Brian Chen (New York University School of Law) & Samuel Estreicher (New York University Law School) have posted The New Nondelegation Regime (University of Pennsylvania Journal of Constitutional Law, Vol. 26, 2023) on SSRN. Here is the abstract:
The “major questions” doctrine has sparked extensive criticism from across the political and ideological spectrum. Some view it as naked purposivism; others denounce it as a baseless blow against the regulatory state. This Article casts new light on the debate. We argue that the major questions doctrine enforces otherwise underenforced constitutional norms without the disruption that comes with a reinvigorated nondelegation doctrine. The major questions doctrine further clarifies the scope and basis of Chevron deference. If the line between “major” and “nonmajor” questions is drawn in a principled manner (which it can be), the doctrine serves as an important and sensible way for federal courts to check agencies which assert unprecedented and immense authority under broadly worded statutory language. Therefore, the major questions doctrine steers courts away from a robust nondelegation doctrine. Prospects of sound, much-needed regulations would fare far worse under that alternative regime.
Highly recommended.
