Chapman Law Review
Abstract
What do student loan forgiveness, a vaccine-or-test mandate, and a nationwide eviction moratorium all have in common? They are all federal administrative crisis governance measures, issued under statutory emergency authorization during the COVID-19 pandemic, that were invalidated by the Supreme Court under the major questions doctrine.
The major questions doctrine bars agencies from regulating “major” issues without express prior statutory authorization from Congress. But this is fatal to administrative crisis governance. For as the German legal theorist Carl Schmitt observed, a true emergency will always engender the unexpected, and ex ante legislation will inevitably fall short. Congress cannot see emergencies coming and, for each unique crisis, issue specific instructions to administrative agencies in advance. Yet, this is what the Supreme Court expects when it applies the major questions doctrine to administrative emergency regulations. Thus, the doctrine in its current form contains a major flaw: by denying agencies sufficient flexibility, it effectively prohibits the rapid public crisis responses that administrative agencies are uniquely equipped to supply. This is no mere bureaucratic inconvenience, but a serious threat to public safety and welfare in states of emergency.
This Article presents a solution to this problem. It is the first to propose a retheorization of the major questions doctrine as rooted in presidential plebiscitary legitimacy, drawing on the work of Schmitt and Max Weber. It then argues that if courts apply this retheorization when reviewing administrative responses to emergencies, the fact that an emergency regulation addresses a 'major question' will no longer be a death blow to administrative crisis governance. Instead, this modified major questions doctrine will be capable of upholding the administrative ability to respond effectively to unprecedented, rapidly-evolving emergencies, while also preventing overreach by meaningfully cabining executive power."
Recommended Citation
Catherine F. Le,
Major Questions in Crisis Governance,
27
Chap. L. Rev.
69
(2023).
Available at:
https://digitalcommons.chapman.edu/chapman-law-review/vol27/iss1/3