Supreme Court conservatives using once-obscure doctrine to 'hamstring' government
Brett Kavanaugh (Photo by Melina Mara for AFP)

With the decidedly conservative Supreme Court on the precipice of issuing another series of rulings, there is a distinct trend among the majority justices to rely upon a doctrine that has lurked in the shadows to tamp down on government programs that help the general public.

Described as the "major questions doctrine," the New Republic's Matt Ford reports that the court, with three justices appointed by Donald Trump, has used that argument to knock down progressive initiatives by arguing they can, "overturn a federal regulation if they think Congress didn’t 'speak clearly' enough to authorize it."

According to the report, the reliance on using that mechanism has exploded over the past two years and falls in line with the conservative bent towards limiting the power of the government.

As Ford points out, "it first appeared by name in a federal court opinion in 2017, when then-Judge Brett Kavanaugh mentioned it in a dissenting opinion on the D.C. Circuit Court of Appeals. Before then, it had spent only a few years percolating in conservative legal circles."

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By way of explanation, he added, "the major questions doctrine is not some finely wrought canon of legislative interpretation or a time-honored rule of constitutional law. Instead, it is the result of a dedicated campaign by the conservative legal movement to make it harder for federal regulatory agencies to carry out their mission—to hamstring the so-called administrative state. It was developed in a moment of American political paralysis, and its expanding use will make that paralysis worse than ever."

The latest trend has been duly noted by Associate Justice Elena Kagan who wrote in a dissent in 2021, "Some years ago, I remarked that ‘[w]e’re all textualists now. It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence.”

According to Ford, "It’s hard to avoid the conclusion that the major questions doctrine is less about law and more about power," to which he added, "The major questions doctrine, in short, lets the justices strike down federal policies on hazy and amorphous grounds while ostensibly blaming Congress and agencies for overreaching. It shuffles blame onto the elected branches for not taking further action after the ruling, even though the least democratic branch is responsible for the problem in the first place."

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