An Effective and Easy Way to Challenge the Major Questions Doctrine
It is amazing that with the simple stroke of a pen judges can nullify, or at least lessen, an established doctrine unilaterally notwithstanding their supposed adherence to stare decisis and do so with reckless abandon by avoiding any input from elected officials.
We recommend that our readers give consideration to the Common Law Initiative: The Congressional Review of Judge-Made Law as discussed herein.
In a nutshell the Common Law Initiative is simply a coupling of three interactive protocols [in quantum physics a possible triple coupling] or in the alternative, the development of a choice architecture as described in behavioral economics. In any event the resultant decision structure is the most critical component of addressing any public policy issue–the institutionalization of the underlying message, in this instance: “The Common Law Initiative is an immediate process for counteracting select decisions of SCOTUS”. Here are the three basic components of the Common Law Initiative so chosen after several years of consideration, debate and analysis.
(1) ACUS
(3) Nudge
Work on the Common Law Initiative has been ongoing for several years:
Center for Regulatory Effectiveness
Implementation
One key to Congressional involvement is to keep the process for its intervention as streamlined as possible with a minimal number of involved parties.
(1) President/Congress
The Common Law Initiative can be implemented either by the President directing ACUS to issue a request to agencies as noted in (2) below or for Congress to enact a statute directing ACUS to take an identical action.
(2) ACUS
ACUS would delineate a format that agencies will use in their development of a website where each agency will post on an Interactive Public Docket (IPD) an analysis of judicial rulings that inhibit the timely accomplishment of their statutory mandates.
The aforementioned IPD will also encourage the public to recommend for agency review and consideration troublesome judicial rulings. These public submissions would include an analysis in support of their recommendation.
(3) Agency
Once an agency has determined that a particular judicial ruling inhibits the timely accomplishment of its statutory mandates, the agency would include the said judicial ruling in the Common Law Initiative List for Congressional action. The agency designation would include a detailed analysis of the said judicial ruling including its compliance, or lack thereof, with relevant Executive Orders and related guidance issued by both the agency and the Office of Information and Regulatory Affairs the totality of which constitutes a nudge.
(4) Agency
Upon publication of the Common Law Initiative List the agency, or its supporters, would publicize the nudge which would include the following outreach program:
- distribution to the media
- presentations to leading members of Congress
- meetings with Executive Branch officials
- distribution to local newspapers
- distribution to affected parties
(5) ACUS
ACUS would delineate for Congressional consideration a number of legal actions that could be taken to address the issues raised in the aforementioned Common Law Initiatives List, ranging from utilizing the Congressional Review Act to the passage of corrective legislation.
(6) Congress
In those instances where a Member of Congress decides that a Congressional intervention is warranted, the resultant action would be supported by the actions set forth above in the nudge, (3) above, and would be conducted in accord with the concerns expressed herein. At this stage a bill would be introduced to garner relief from a judicial decision using the aforementioned nudge as the basis for the action.
The Endgame
Proposals to date to address judicial overreach are long on procedure but are short on data and in all instances require the enactment of legislation. The strategy outlined herein is not encumbered by the aforementioned actions and by no means is it perfect but….it can be implemented immediately! Furthermore a potent nudge complemented by a compelling outreach program which is broadcast on a national website, all of which are overseen by a federal agency composed of leading experts from very major federal agency, leading universities and recognized practitioners will demonstrate that select judicial rulings will now be subject to a laceration previously considered to be audacious.
Jim Tozzi Center for Regulatory Effectiveness
Status: 03/11/2023
Where is the Academy on Providing a Solution to the Major Questions Doctrine?
The Academy has performed an excellent job on publicizing the shortcomings inherent in the Major Questions Doctrine; the web is replete with scholarly articles on its shortcomings. However the record is short on solutions to the problem. To date the solution provided by the Academy is based upon applying the Congressional Review Act to the MQD. The problem is that this solution requires the enactment of two major pieces of legislation: (1) enactment of legislation expanding the jurisdiction of the CRA, and (2) the passage of legislation applying the revised CRA to the MQD.
Why has the Academy been silent on the Common Law Initiative which allows an immediate intervention by the Executive Branch?
Numerous discussions with members of the Academy were not forthcoming but reading between the lines two possibilities emerge:
- The Academy is the de facto regulator of SCOTUS in that all members of the court, including their law clerks, have been schooled by a member of the Academy and it is not unusual for both judges and law clerks to read articles written by their law professors; furthermore some believe that one could jeopardize their professional reputation by supporting a strategy that provides for a possible laceration that previously was considered audacious.
- The Common Law Initiative was authored by a person who is not a member of the Academy, recognizing however that a member of the Academy has addressed this generic concern in a journal article titled Jazz Improvisation and the Law: Constrained Choice, Sequence, and Strategic Movement Within Rules,2023 23 U. Ill. L. Rev. 151-224 (2023) [WWW] [Gtown Law] [W] [L] [SSRN] “This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation.”
No more needs to be said; the collective record is “all hat, no cattle”, in complete recognition of arguments that the recommended treatment might be worse than the underlying disease.
Center for Regulatory Effectiveness
Hear hear! A common sense application to an age old problem which gives too much red tape and power to one person. I am in agreement with the above policy change!