Reincarnating the “Major Questions” Exception to Chevron Deference as a Doctrine of Non-Interference (Or Why Massachusetts v. EPA Got It Wrong)

This Article proceeds as follows. Part I describes the birth of the major questions exception in MCI and Brown & Williamson and the death of the exception in Massachusetts. Part II identifies the three forms of the major questions rule that the Court and the literature have proposed to date and rejects all three, concluding that the rule ought not to be reincarnated if it cannot also be reformed. Part III proposes the noninterference form of the Chevron exception, demonstrating its foundations in the history of the major questions cases and demonstrating its similarities to other noninterference rules. Part IV offers Massachusetts as a disanalogy to demonstrate the value and, indeed, the necessity of the noninterference rule. Part V proposes a doctrinal form for the reincarnated rule: a test for future application of the noninterference doctrine. Part V concludes.