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William & Mary Law School




The Supreme Court of the United States has generally been a very aggressive enforcer of legal limitations on governmental power. In various periods in its history, the Court has gone far beyond enforcing clearly expressed and easily ascertainable constitutional and statutory provisions and has suppressed innovation by the other branches that do not necessarily transgress widely held social norms. Novel assertions of legislative power, novel interpretations of federal statutes, statutes that are in tension with well-established common law rules and state laws adopted by only a few states are suspect simply because they are novel or rub up against tradition. In periods of governmental innovation and assertions of expanded authority, this aggression becomes evident and perhaps more robust.

In recent years, the Court has created new barriers to government innovation even as government is confronted with serious threats to the health and welfare of mankind. Chief among this new set of limitations on the power of federal administrative agencies is an interpretive device that has become known as the Major Questions Doctrine. This doctrine purports to be based on a traditional view of legislative intent and judicial role, but in reality it resonates more with conservative anti-regulatory political views. Under this new doctrine, the Court rejects agency assertions of regulatory authority when it finds that the agency’s action would have major social and economic affects and lacks crystal-clear congressional authorization. Ironically, because the MQD has no basis in the Administrative Procedure Act or prior law, the Court has in effect created a major new doctrine of administrative law severely limiting agency authority without clear authorization from Congress.

The Court has also suppressed agency innovation by confining Chevron deference to unimportant issues of statutory construction. Chevron, for all of its faults, has the virtue of validating agency policy innovation so long as Congress had not clearly denied agency authority. This reform to Chevron, together with the creation and application of the Major Questions Doctrine, in effect accomplishes the aim of some Justices to impose a more robust nondelegation doctrine, making agency innovation even more difficult. In addition, the Court has worked to prevent innovation in other areas of law, such as agency structure, gun control and the spending power, preventing the state and federal governments from taking action to deal with pressing social problems. The current Court has truly become an anti-innovation Court.


Article forthcoming 2023/2024

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