The Major Rules Doctrine: How Justice Brett Kavanaugh’s Novel Doctrine Can Bridge the Gap Between the Chevron and Nondelegation Doctrines
Should major issues of political and economic significance be resolved by unelected agencies when justified primarily on ambiguous statutory authority? How much better is a system in which unelected judges determine these issues? Consider Net Neutrality and the regulation of the internet.
In 1996, Congress decided to update the Communications Act with the express purpose of “preserv[ing] the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”1 “Information services” were excepted from regulation by the Federal Communications Commission (“FCC”) at the same high degree as typical phone companies operating as monopolistic public utilities. 2 And, until 2015, broadband internet service providers continued to operate as information service providers as the internet grew to be one of the most important services in American life. In 2015, however, the FCC decided to switch positions. The FCC determined the phrase addressing which services are covered—“telecommunication service”—was ambiguous, thus granting the FCC the implied delegated authority from Congress to determine whether or not to regulate the internet—an undeniably significant authority. 3 In 2017, after President Trump and FCC Chairman Ajit Pai replaced President Obama and former FCC Chairman Tom Wheeler, the FCC reversed course and deregulated the internet.4 The public submitted millions of comments prior to both rulemakings, to limited effect.5
It is notable that a federal agency can find authorization through an ambiguous statutory provision to take both sides of an issue of major economic and political significance while an engaged and frustrated public is left without the ability to have a direct democratic control of the outcome of the rulemaking. Policy positions of major significance swing back and forth, removed from direct accountability, while Congress and the judiciary watch from the sidelines. This has resulted from a combination of an inactive Congress, flagging nondelegation doctrine, and a highly-deferential Chevron6 doctrine.
This Note will argue that in order to remedy this upside-down process, the Court should adopt Judge Brett Kavanaugh’s major rules doctrine.7 The major rules doctrine requires that Congress provide agencies with clear statutory authorization to promulgate rules resolving ambiguities touching upon major political issues. Adopting this doctrine promotes democratic accountability, preserves the constitutional structure, and avoids entangling the judiciary in political questions.
