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MAJOR QUESTIONS DOCTRINE:
REAL OR FANTASY?
VINCENT J. SAMAR*
I. INTRODUCTION
The U.S. Supreme Court's recent development of the Major
Questions Doctrine has given rise to various challenges concerning
whether the doctrine is truly grounded in Constitutional Law or is it just a
disguise for the current Court majority to undermine rules and regulations
of federal agencies they disagree with.' In this article, I plan to present a
justification for the major questions doctrine utilizing a modem
philosophical view of separation of powers that looks not only to the form
of government the Constitution created, but also takes into account the
need for a regulatory state in order to ensure basic human rights are
protected. That justification affirms Congress's authority to empower
federal agencies, which include any department, independent
establishment, governmental or quasi-governmental agency, authority,
board, bureau, commission, department, Government corporation, or other
agency of the executive branch2 that are responsible for enforcing laws,
regulating industries, and providing public services.3 Such an approach I
believe should impose limits on how the Court views the major questions
doctrine going forward.
Copyright C 2024 Vincent J. Samar
* Vincent J. Samar is an Advanced Lecturer in Philosophy, Associate Member of the
Graduate Faculty, and Adjunct Professor of Law at Loyola University Chicago. The author
would like to thank Professor Joy Gordon, the Ignacio Ellacuria, S.J. Professor of Social
Ethics at Loyola University Philosophy Department with a joint appointment in the Law
School, for putting to me the question of what I thought about the Supreme Court's Major
Questions Doctrine.
1 See Rachel Reed, What Critics Get Wrong and Right About the Supreme Court's
New 'Major Questions Doctrine', HARV. L. TODAY (Apr. 19, 2023),
https://hls.harvard.edu/today/what-critics-get-wrong-and-right-about-the-supreme-courts-
new-major-questions-doctrine/ [https://perma.cc/7ZLV-J44Y].
2 See 42 U.S.C. § 5122(9); 5 C.F.R. § 2641.104 (2024).
3 Government Agency, LSD, https://www.1sd.law/define/govemment-agency
[https://perma.cc/UC63-2EMD].](ViewImageLocal?handle=hein.journals/capulr52&div=1&collection=&method=preview&ext=.png&size=3)
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