An Affirmative Approach to the Supreme Court's Major Questions Doctrine & Chevron Skepticism

Authors

Brandon Weiss, American University Faculty AccountFollow

Document Type

Article

Publication Date

6-2024

Journal

Kansas Law Review

Volume

72

First Page

541

Last Page

565

Abstract

In light of the Major Questions Doctrine and the U.S. Supreme Court’s broader retrenchment from Chevron, which for forty years has dictated that in the face of statutory ambiguity courts will defer to reasonable agency interpretations, difficult questions arise for agency officials. For example, as the U.S. Department of Housing and Urban Development (HUD) considers options for implementing the Federal Fair Housing Act, some scholars have cautioned against running afoul of the Court’s recent jurisprudence and have argued for a relatively conservative approach to rulemaking, focused on voluntary incentives for compliance.

In this Essay, I disagree and argue for a mandatory approach that penalizes jurisdictions that do not comply with strong fair housing rules. I make this argument for two primary reasons. First, under the terms of the Major Questions Doctrine as currently defined by the Court, and in a post-traditional Chevron world in which less deference is afforded to administrative discretion, a voluntary incentive-based approach is no more immune from being struck down than a mandatory one. Second, building on recent social movement literature, it is not clear that losing at the Supreme Court would be more detrimental to the cause of furthering long-term fair housing goals in the United States than conservatively trimming regulatory sails. Drawing on administrative constitutionalism, I argue that this is far from a call for lawlessness by agency officials, but rather fortifies democratic and checks-and-balances features of our political system.

Recommended Citation

Brandon Weiss, An Affirmative Approach to the Supreme Court's Major Questions Doctrine & Chevron Skepticism, 72 Kansas Law Review 541 (2024).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2274