| Author |
Chih-Ming Liang



 

| Title |
Major Questions Doctrine and the Legal Foundation for the United States Regulatory State: Historical Background, Recent Developments, and Potential Lessons
 

| Abstract |
This paper places recent discussions by the US Supreme Court on the major questions doctrine within the historical context of the development of the legal foundation for the federal regulatory state. It interprets recent developments as conservative attacks on this legal foundation, aimed at curbing the ongoing expansion of federal government regulatory authority. The differing positions taken by liberal and conservative judges in this debate reflect not only their priorities—valuing expertise or defending democracy—but also reveal their different imaginations of the sources of legitimacy for executive authority, such as congressional authorization and regulatory expertise.

This article argues that this everlasting debate originates from the inherent conflict between the regulatory state and the rule of law. To consider how our country should respond to this conflict, Part IV examines how Taiwan and the United States handle this issue differently. It proposes further stratifying the principle of clarity of legal authorization by distinguishing among three standards of review: the loose (requiring no legal reservation), the moderate (allowing interpretation of provisions within a broader context), and the strict (demanding direct, explicit, and clear legal authorization). More importantly, the determination of which level should apply in particular cases should be based on how fundamental rights are realized or infringed upon within specific regulatory contexts.
 

| Pages |
pp. 275-344
 

| Keywords |
Regulation, Governance, Regulatory State, Major Questions Doctrine, Non-Delegation Doctrine, Chevron Deference, Principle of Hierarchical Legal Reservation, Principle of Clarity of Legal Authorization, Most Functionally Suitable Theory, Deliberative Democracy
 

| Journal Title |
Chengchi Law Review
 

| Issue |
202406 (Issue 177)
 

| Publisher |

NCCU College of Law
 

| DOI |
10.53106/102398202024060177004