It has been nearly a century since the United States Supreme Court last struck down a delegation of congressional power to the President. Over that time, however, the federal administrative state has vastly grown in importance and authority. And this growth appears even starker when contrasted with the increasingly atrophied role of Congress. This status quo, when confronted with a Supreme Court inclined towards a formalistic view of separation of powers, has necessarily given way to renewed conflict over the scope of the President’s power to act in Congress’s absence. The Court’s mode of choice for resolving that conflict has been the major questions doctrine.
That doctrine has not wanted for critics. Among the most strident are those claiming that the major questions doctrine is an anti-textual vector for minority rule. This criticism unsurprisingly echoes those laid at the feet of the Court’s previous attempts to rein in congressional delegations of authority: namely, that such efforts are indistinguishable from the contemporaneous overreaches of substantive due process. This Comment argues that these consanguinity arguments are a sleight of hand, allowing critics of the Roberts Court’s slow unwinding of almost a century of unconstitutional overreach by Congress and administrative agencies to avoid squarely addressing the nondelegation principles inherent in the Constitution’s original public meaning.
