The Major Answers Doctrine
The Supreme Court’s newly articulated “major questions doctrine” is not actually about major questions; it is about major answers. When faced with a problem of large economic and political significance, an agency is perfectly free to answer the legal questions raised by that problem by acting only fecklessly or even not acting at all. It is not free to answer those questions by enacting an ambitious regulatory response to the problem. The Court’s decision to deploy the major questions doctrine, in other words, turns on the character of the agency’s answer to a significant problem. Because of this, as I will explain, the major questions doctrine is not only misnamed, but also misconceived.
