The major questions doctrine has become one of the least administrable features of modern administrative law. Since formally announcing it in 2022, the U.S. Supreme Court has invoked the doctrine to invalidate agency action addressing critical societal problems, while declining to articulate a stable or defensible test for when the doctrine applies. This article, published in the Environmental Law Institute’s Environmental Law Reporter, argues that to the extent that the major questions doctrine continues to be invoked, it has a simpler and more coherent core—one the Court itself repeatedly invokes but has never fully systematized: whether the agency’s action is different in kind from the authority Congress conferred. Actions that depart in kind from the statutory grant represent an impermissible assertion of power; actions that differ only in degree fall within the delegation and are subject to ordinary arbitrary-and-capricious review.
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