Minor Courts, Major Questions
Seth Davis and Michael Coenen, Minor Courts, Major Questions, 70 Vand. L. Rev. (2017).
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court deferred to an agency’s controversial interpretation of a key provision of a regulatory statute. Lower courts now apply “Chevron deference” as a matter of course, upholding agencies’ reasonable interpretations of ambiguous provisions within the statutes they administer. Recently, however, the Court refused in King v. Burwell to defer to an agency’s answer to a statutory question, citing the “deep economic and political significance” of the question itself. The Court in King offered barebones guidance regarding the scope of and rationales for embracing this so-called “major questions exception” to Chevron deference, and the decision has thus created uncertainty regarding Chevron’s application in the courts below. Surveying the post-King landscape, we advance in this Article a simple and straightforward proposal designed to ameliorate the confusion that King has wrought. Our proposal is that only the Supreme Court should apply the major questions exception: absent further instruction from the Court, neither the federal district courts nor the U.S. courts of appeals should withhold Chevron deference on grounds of majorness alone. Our argument stems from a comparative institutional analysis of the Court and its subordinates, coupled with an unpacking of the various policies and purposes that the major questions exception might serve. These investigations yield the surprising conclusion that only the Court has the institutional capacity to realize the exception’s benefits, whereas all the federal courts would realize its costs. That being so, we believe the most sensible means of implementing the major questions exception would be to treat it as the exclusive province of the Supreme Court.