Major Questions Doctrine: Real of Fantasy?

In this article I review the Supreme Court’s current use of its major questions doctrine to see if the justifications commonly offered for its existence can explain its current use. In the process of doing so, I examine what the doctrine is about, how it came into existence and how the Court has applied it, especially in context to two recent cases, West Virginia v. EPA and Biden v. Nebraska. As both of these cases implicate the regulatory state, I place the primary focus of this article on how the doctrine should apply in context to judicial evaluation of the regulatory state. In so doing, I discover that the Court’s current reliance on constitutional separation of powers and checks and balances analyses seem too narrow both with respect to the concerns of the founding generation but also, and perhaps more importantly, to the Constitution’s goals for the kind of government it sought to establish going into the future.