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Session Summary: Teaching and Writing in a Constantly Evolving Administrative Law Landscape

Submitted by Lou Virelli

More than fifteen administrative law scholars gathered on Tuesday afternoon to discuss how the Supreme Court’s recent articulation of the major questions doctrine (MQD) will impact our teaching and scholarship. The MQD instructs courts to read statutes empowering agencies narrowly in cases where an agency’s action under that statute addresses a “major question,” i.e. where agency action is economically, socially or politically significant.

In terms of the MQD’s impact on teaching, the group discussed whether and, if so, how to best introduce our students to the following issues:

  • Is the MQD part of the constitutional nondelegation doctrine or a tool of statutory interpretation that implicates judicial deference to agency interpretations (like Chevron deference);
  • If the MQD is properly thought of as part of the courts’ deference jurisprudence, should Chevron continue to be taught even if it is overruled next term in Loper Bright Enterprises v. Raimondo? If not, what should we tell students about judicial deference to agency interpretations?
  • Is our teaching too focused on the Supreme Court? Should we spend more time focusing on how recent Supreme Court opinions are being applied in the lower courts?
  • How much statutory interpretation should we teach in administrative law?
  • How does MQD apply to the tax code, which is generally more specific than other statutory regimes?

With respect to the MQD’s impact on scholarship, the group took up a wide variety of topics, inspired by several members’ works-in-progress:

  • Is the MQD a useful tool for understanding how the importance of statutory provisions impact their interpretation?
  • Is the MQD’s impact being overstated? Is it best understood as just another species of traditional statutory interpretation?
  • Does the MQD violate the separation of powers by contravening the principle of legislative supremacy and unduly empowering courts?
  • Are agencies really less democratically accountable than Congress?
  • Given the differences in their governmental structure and policymaking mechanisms, should States adopt the MQD?

Beyond touching on myriad hot-button topics in administrative law, the discussion was lively, thoughtful, and highly engaging, as evidenced by the fact that many of the participants continued their discussions long after the session officially ended.