Samantha Strimling (J.D. 2024, Harvard), Note, Good Governance Is Taxing: The Implications of Tax Policy for Separation of Powers and the Major Questions Doctrine, 61 Harv. J. on Legis. 421 (2024): 

Among the significant developments of the Roberts Court so far has been the announcement of the major questions doctrine, which conditions “major” agency action on a clear statement from Congress. Much of the commentary on the doctrine has framed it as a tool for reprimanding perceived agency overreach. This Note challenges that framing by focusing on tax policy, an area of governance in which several broad assertions of agency power have not been challenged by courts on separation of powers grounds. This Note argues that this phenomenon is due to Congress’s own engagement in the realm of tax policy. First, Congress takes note of agency action and acts correctively where it disagrees. 

Second, Congress is more active in passing tax legislation than it is in passing other types of legislation. Third, Congress frequently makes piecemeal edits to individual code sections specifically in response to taxpayer behavior. This Note ultimately concludes that congressional inaction rather than agency overreach is to blame for the current imbalance of executive to legislative power to which the major questions doctrine purports to respond. Thus, the appropriate response to the doctrine lies not in reigning in administrative action, but in finding fixes to legislative gridlock.

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