In a 2015 amicus brief, I contended that President Obama's executive action known as DAPA was not supported by statutory authority. And in a footnote, I made an alternate argument, hinting at what would become known as the major questions doctrine:
[F]inding the wholesale authority in these provisions that the government claim would be akin to discovering the "elephants in mouseholes" that the Supreme
Court has described as indicia of an implausible delegation from Congress. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133–35 (2000).
To this day, the Supreme Court has somehow managed to avoid resolving this issue. In 2016, after Justice Scalia's death, the Court split 4-4 on the validity of DAPA. And in 2020, the Court ruled that the Trump Administration's rescission of DACA failed to adequately consider reliance interests. Last month, Judge Hanen heard oral argument in Texas's challenge to the DACA policy. Yes, this case is still going on.
