Major Questions Require Major Coordination: Enhancing Regulatory Coordination to Combat Nondelegation and Anti-Deference Judicial Scrutiny

While Congress’s ability to legislate in a timely and effective fashion has declined substantially over recent decades, the complexity of issues demanding serious attention from the United States legal system has risen, leading to a situation where problems outpace solutions. Administrative agencies have regularly stepped in to address novel and highly technical crises. Agencies utilize longstanding statutory delegations of authority that are sufficiently general in their terms to enable them to handle problems that did not exist when a statute was originally drafted. Lately, an emphatic de-regulatory nondelegation movement has developed in the courts with conservative judges seeking to narrow delegations of authority, especially in areas of progressive administrative action. When a cited delegation of authority to regulate is countermanded by the courts, it effectively remands the matter to Congress, where it will meet bipartisan gridlock. Prominent among the nondelegation rationales for blocking agency action is the “major questions” doctrine, coupled with a growing criticism of Chevron deference. Serious societal problems like climate change require responsive administrative actions, providing increased opportunity for use of the major questions doctrine to block their implementation. Recent decisions in the U.S. Circuit Courts of Appeals provide a solution to this regulation constricting dilemma: the case for courts to extend deference to agency interpretations of regulatory authority is substantially strengthened where agencies have engaged in a process of coordination among those with relevant expertise and overlapping statutory authority on the subject matter at issue. This Note argues that to solve the nondelegation tensions and effectively address pressing crises like climate change, judicial review of agency actions under nondelegation and deference doctrines should always incorporate a thoughtful analysis of an agency’s coordination policies and practices.