Wednesday, July 11, 2018

Emerson on the Major Questions Doctrine and the Progressives' Administrative State

Our faithful assistant, Google Alert, has brought to our attention the posting of a page proof of Administrative Answers to Major Questions: On the Democratic Legitimacy of Agency Statutory Interpretation, by Blake Emerson, UCLA Law.  It is forthcoming in the Minnesota Law Review.  Cribbing from the introduction:
The latest doctrinal expression of this conflicted partnership between democracy and bureaucracy is the major questions doctrine. This doctrine is a prominent exception to the general principle of judicial deference to administrative interpretations of statutory ambiguities. Courts will normally afford agency interpretations of such ambiguities some degree of weight or deference, depending on the level of authority Congress has delegated to the agency and the formality of the procedure through which such interpretations have been issued.  However, in a series of cases in the past three decades, the Supreme Court has held that where a statutory ambiguity raises a question of great “economic and political significance,” it will presume that Congress did not intend the agency to resolve the issue. Instead, the Court will resolve the ambiguity itself, without giving any weight or deference to the agency’s position.
One of the invocations of the doctrine Professor Emerson discusses is U.S. Supreme Court nominee Brett Kavanaugh’s dissent in the net neutrality case, U.S. Telecom Ass’n v. FCC, 855 F.3d. 382 (D.C. Cir. 2017). 

Professor Emerson ranges quite widely in evaluating the major questions doctrine.  Of special interest for legal historians is Part IV of the article, “The Progressive Theory of the Administrative State.”  This draws upon his forthcoming book, The Public’s Law: A Progressive Vision of American Democracy, which is under contract with the Oxford University Press.