Document Type
Article
Publication Title
Jotwell
Publication Date
1-25-2023
ISSN
2330-1295
Page Number
1
Keywords
major questions doctrine, environmental law, regulation, Legal Process School, public law
Disciplines
Environmental Law | Law | Public Law and Legal Theory
Abstract
The Supreme Court’s use of the major questions doctrine in West Virginia v. Environmental Protection Agency to invalidate the agency’s regulation of greenhouse gas emission has elicited widespread criticism from commentators. David Driesen’s contribution to this chorus of condemnation goes to the heart of the issue, focusing on the role that the Supreme Court has arrogated to itself in reaching this decision.
The Court’s based its decision on the relationship between Congress and the Executive, speaking at length about the structural roles of these two institutions. What it forgot, as Professor Driesen notes, is that the Court is also an institution, and that any ruling it issues about the powers of other institutions must take account its own exercise of power as well. This is, to some extent, your father’s jurisprudence, a basic insight of the Legal Process School that dominated public law scholarship in the decades following World War II. It often serves as a background consideration upon which flashier modern arguments can be built, but there is a crucial difference between assimilating an important insight and forgetting about it. The Court would be well advised to note Professor Driesen’s reminder.
Recommended Citation
Edward L. Rubin,
A Major Answer to the Major Questions Doctrine Jotwell. 1
(2023)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1334