The Major Questions Doctrine: Judicial Power and the Prevalence of Policy Drift in the United States

Abstract A major challenge of governance in the United States is policy drift, the phenomenon wherein a policy’s outcomes are transformed due to a failure to update its rules or structures to meet changing circumstances. Policy drift has been prevalent in recent decades due to declining legislative productivity, a veto-riddled legislative process, and the rapid pace of technological and environmental change. We argue that the emergence of the “major questions doctrine” in Supreme Court jurisprudence is likely to exacerbate the problem of policy drift. This new doctrine enables courts to declare administrative actions as invalid if they are “novel” or of “economic or political significance” and lack “clear congressional authorization.” This doctrine, which departs from past standards that were more deferential to agencies, exacerbates the likelihood of policy drift by limiting the capacity of agencies to actively adapt policy implementation to changing circumstances. By rendering agency action suspect on the basis of novelty or significance, the doctrine limits action in precisely those policy domains most in need of adaptation. We show the relationship between the doctrine and policy drift through case studies of three policy domains (air pollution, student loan debt, and workplace vaccine mandates). We then examine how the doctrine has already begun to spread through lower courts, where its impact is likely to be felt most strongly. Finally, we discuss the normative and theoretical implications of our analysis, noting how the doctrine further concentrates power in the judiciary and undermines democratic accountability and transparency in the policy process.