ANALYSIS: Is This the Calm Before 2023’s Major Questions Storm?

Citations to the major questions doctrine in federal court and US Supreme Court filings dipped overall in 2022. But the major questions doctrine isn’t going anywhere.

Controversial actions by the Securities and Exchange Commission and the Department of Education will lead a wave of new major questions challenges in 2023.

Major Questions Citations: A Lull

Before Chief Justice John Roberts formally adopted the major questions doctrine in his majority opinion in West Virginia v. EPA, there had been a noticeable uptick in cites to the doctrine in federal court filings over the past few years.

Surprisingly, the number of ...