Reincarnating the Major Questions Exception to Chevron Deference as a Doctrine of Non-Interference (Or Why Massachusetts v. EPA Got it Wrong)

Abstract

In a pair of cases declaring a major questions exception to Chevron deference, the Supreme Court held that executive agencies may not implement major policy changes without explicit authorization from Congress. But in Massachusetts v. EPA, the Court unceremoniously killed its major questions rule, requiring the EPA to implement one such major policy change. Because the scholarly literature to date has failed to discern a worthy justification for the major questions rule, the academy might be tempted to celebrate the rule's death. This Article, how-ever, argues that the rule ought to be mourned and, indeed, reincarnated. It offers a non-interference justification for the major questions exception, arguing that the rule should apply whenever an agency enters debate in a regulatory re-gime to which Congress is actively considering legislative changes. The purpose of the rule, then, is to prevent agencies from altering the regulatory backdrop against which Congress is negotiating, and the purpose of judicial enforcement of a major questions rule is to restore the pre-interference regulatory reality so that congressional negotiations can pick up where they left off. This understanding of the rule explains and justifies the two major questions cases, but it cannot ex-plain or justify Massachusetts v. EPA. The Article therefore argues that the ma-jor questions holding in Massachusetts v. EPA is wrong and should be rejected.

Keywords: Law, administrative law, legislation, legislative process, Chevron deference, tobacco regulation, telecommunications regulation

JEL Classification: K2, K23, D7, D73, D74