Mutually Intelligible Principles?

Abstract

Are the nondelegation, major questions, and political question doctrines mutually intelligible? This article asks whether there is more than superficial resemblance between the nondelegation, major questions, and political question concepts in Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825), an early nondelegation case that has become focal in recent nondelegation and major questions scholarship and jurisprudence. I argue that the nondelegation and political question doctrines do interact conceptually in Wayman, though not as current proponents of the nondelegation doctrine on the Supreme Court seem to understand it. The major questions doctrine by contrast conscripts the nondelegation concept while overwriting its relationship with elements of the political question doctrine. In West Virginia v. EPA, 142 S. Ct. 2587 (2022), Justice Neil Gorsuch and his adherents have, in effect, subverted key aspects of Chief Justice John Marshall’s reasoning in Wayman while outwardly relying upon it to claim legitimacy. I conclude that faithfully reading Wayman urges a political question rationale for lower courts to decline to reach the merits of major questions and nondelegation challenges in the wake of West Virginia