Why the Word ‘Doctrine’ Matters in the Major Questions Doctrine

The US Supreme Court just struck down President Joe Biden’s student debt relief plan, sparking yet another debate about the “major questions doctrine” (or “made-up major questions doctrine,” as Justice Elena Kagan said critically in dissent).

The idea behind the doctrine is straightforward: Congress doesn’t delegate high-stakes decisions to administrative agencies without being explicit, and courts should stand guard against any agency claiming such power.

In the past two years, the doctrine has been invoked in Supreme Court decisions striking down the Clean Power Plan, the pandemic eviction moratorium, and now student debt relief.

This doctrine is fiercely debated in my law school classroom today. But the “major questions doctrine” (or MQD ) is likely foreign to people who graduated from law school even 10 years ago. Recent headlines have led generations of lawyers to scratch their heads and ask, “When did the major questions doctrine become a thing?”

It’s a good question. Although the concept behind the major questions doctrine has existed for at least 20 years, the Supreme Court never referred to the MQD as a doctrine until 2022, and only five federal judges anywhere attached the word “doctrine” to the idea before 2020. Put to the side whether the idea is new, there’s no denying that the label surely is. Why does the name matter? Two reasons.

First, bestowing the word “doctrine” to a legal argument is a momentous baptism. The label increases the concept’s prevalence, amplifies its authority, and necessarily eliminates its nuance. “Doctrine” means something specific to people who have been through a legal education. Classes are divided into “doctrinal” and “not doctrinal.”

“Doctrine” is something you must memorize to pass the bar. Legal arguments about how best to interpret language come and go and are bantered about generously. “Doctrine”—a word with religious connotations—brings with it a different level of seriousness and authority: This is law.

Significantly, this means the word “doctrine” can operationalize legal change. As federal courts are increasingly staffed with judges who were brought up to avoid the charge of “judicial activism”—the improper use of courts to promote policy change—having a “doctrine” that effectively brings that change through the guise of formalism can be very powerful.

The MQD is a way to connect powerful political movements—i.e., deconstructing the administrative state—to formal mechanisms for judge-made legal evolution.

Second, we now live in a world in which legal decisions are crowd-sourced online—through blogs and tweets and podcasts aimed at the justices’ ears. It’s thus very important to pay attention to how the word “doctrine” is being used … and by whom.

We tend to think of doctrine as court-generated: a tool to resolve legal disputes that is judge-made, judge-tweaked, and judge-inherited. But that is not the whole story. The journey from legal idea to doctrine has outsiders’ fingerprints all over it.

The word “doctrine” to describe the major questions concept was first used by law professors, and then bandied about on blogs, quickly picked up by advocacy groups and commentators on Twitter, and used as a rallying cry in opinion pieces, amicus briefs and programming by those seeking to challenge the administrative state.

To be sure, there’s nothing nefarious about the creation of new doctrines. Nor is there anything mischievous with outsiders joining the conversation—law professors have been naming doctrines for as long as they’ve been tasked with teaching them.

But modern communication tools in legal circles—new search methods, social media, robust amicus briefing from interested parties—are changing the nature and speed of this process.

Rather than proceed by analogy to cases of the past, once an idea becomes a doctrine it needs to be easily transferrable from court to court. That means—like in data transmission—the concept is necessarily simplified and truncated and easy to access. Catchy labels are the name of the game; nuance and detail are not.

Lawyers all know the power of the word “doctrine.” And those seeking change through the courts know it too. Becoming a doctrine is now a campaign. And it is one that deserves our attention and skepticism.

The case is Biden v. Nebraska, U.S., No. 22-506, decided 6/30/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Allison Orr Larsen is professor of law and director of the Institute of the Bill of Rights at William & Mary Law School.

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