ANALYSIS: Major Questions Doctrine Filings Are Up in a Major Way

A surge in federal court filings in 2021 referencing the “major questions doctrine"—and the increased use of the doctrine by certain U.S. Supreme Court justices recently—indicate that limits to federal agency power may become a more frequently argued topic in the near future.

In a Jan. 13 concurrence with the high court’s decision staying OSHA’s shot-or-test rule, Justice Neil Gorsuch—joined by Justices Samuel Alito and Clarence Thomas—referred to the doctrine, which bypasses the court’s usual agency deference on issues it deems important.

What Is the Major Questions Doctrine?

The major questions doctrine states that agencies may not regulate in ...