On its face, the “major questions” doctrine, pulled out of thin air by the Roberts Court, should apply to actions by administrations of both parties. In practice, that won’t happen. I anticipate you will see the following exceptions created in the next three years to protect the interests of Trump and the GOP:
- The doctrine only applies to actions taken by bureaucrats. Actions taken directly by the president are exempt;
- The doctrine is inapplicable to any action that touches in any way on war powers and foreign affairs; and
- The doctrine only applies when the government is attempting to extend its regulatory powers. Attempts to change the law by reducing regulatory burdens are exempt.