Smoke and Mirrors: The Ambiguous Nature of the Major Questions Doctrine as a Reflection of the Intelligible Principle Test

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McGuire, David
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2024-04
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This Note begins by tracing the intelligible principle test’s history. Then, this Note then discusses the Supreme Court’s dissatisfaction for the intelligible principal test as a protection of the separation of powers. Finally, this Note analyzes the major questions cases to provide insight on the doctrine’s utility and the Supreme Court’s concerns with administrative overreach. This Note argues that the major questions doctrine is an unworkable judicial doctrine that reflects the nature of the intelligible principal test. It also argues that coupling the intelligible principal test with a statement of available powers for self-fulfilling delegations can remedy the Supreme Courts concerns with test without casting vast areas of administrative law into doubt. Finally, this Note concludes that the Supreme Court should retire the major questions doctrine and instead compare novel interpretations of a self-fulfilling delegation to the examples enumerated and do a similarity analysis on the rights impacted.
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Creighton University School of Law
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