THE MAJOR QUESTIONS DOCTRINE AND THE THREAT TO REGULATING EMERGING TECHNOLOGIES

Emerging technologies offer the potential to improve health and quality of life but also pose notable risks to safety, wellbeing, and equity. Law and technology scholarship posits that robust policy and regulatory strategies in the public interest are required to manage these complex benefits, risks, and uncertainties. At the same time, the Supreme Court in its recent jurisprudence appears eager to revitalize nondelegation legal norms, especially through the major questions doctrine—a shifting administrative law doctrine that increasingly appears to act as a clear statement rule when interpreting statutory grants of authority to regulatory agencies. This article argues the major questions doctrine and other aggressive implementations of nondelegation principles pose both direct and indirect challenges to the regulation of emerging technologies. These challenges often involve not only novel rulemaking but also “inherited regulation,” or the process of extending existing rules to capture emerging technologies. Particularly considering the political incapacitation of Congress, the major questions doctrine could pose significant legal challenges (and uncertainty), creating new policy and political issues in administrative agency efforts to manage emerging technologies. Empirical studies are needed to determine exactly how and where aggressive nondelegation canons, such as the major questions doctrine, impact the regulation of emerging technologies. Accordingly, the article concludes by reflecting on coming challenges and opportunities for which state and non-state regulators and stakeholders should be prepared