By now most have heard of the landmark Supreme Court case West Virginia v. EPA, 597 U.S. _, 2022, which—with Chief Justice Roberts delivering the Court’s opinion—clarified and cemented a new rule of statutory interpretation called the “major questions doctrine” (MQD). This prudential doctrine requires that an agency point to a “clear congressional authorization” when claiming authority from a statute. It is unclear at this time how frequently litigants and lower courts will employ this doctrine, which the Supreme Court devised to address a “recurring problem” of agency overreach, or whether the test will come up only in “extraordinary cases.” While the Court declined to articulate a specific standard for the lower courts to follow, it is possible to glean the contours of the doctrine from the majority opinion and concurrence.
Chief Justice Roberts held that the Clean Power Plan was a major question in West Virginia v. EPA because it involved a “transformative expansion” of the EPA’s regulatory authority, which stemmed from an infrequently used provision of the Clean Air Act, and because the plan had the potential to affect many aspects of national policy involving subjects outside the EPA’s traditional realm of expertise. Ultimately, the opinion holds that: “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” One can glean that the MQD might apply where an agency’s new policy or rule will have a significant impact on the economy or national policy and springs from an enlargement of an agency’s power or growth in a new area of regulation, or if the agency’s use of the statute is novel.
Justice Gorsuch tried to provide a clearer standard for applying the MQD in his concurring opinion, explaining that the doctrine is relevant when agencies assume authority to resolve a matter of great “political significance,” signs of which can be found in Congress failing to pass similar proposals. Other clues that a question is major, according to Justice Gorsuch, are that the agency is attempting to regulate “a significant portion of the American economy,” requiring “billions of dollars in spending,” or intruding into an area that is the “particular domain of state law.” Justice Gorsuch also tried to provide guidance on what constitutes “clear congressional authorization” recommending an examination of 1. legislative provisions, 2. the age and focus of the statute, 3. the agency’s past interpretations of the statute, and 4. when present, the mismatch between the agency’s action and its congressionally assigned mission and expertise.
In delivering the MQD in West Virginia v. EPA, the Supreme Court built upon its earlier cases that examined agency action and congressional intent: FDA v. Brown & Williamson (2000) (invalidating Food and Drug Administration rules regarding tobacco where Congress precluded the agency from regulating tobacco); Massachusetts v. EPA (2007) (holding Congress gave EPA broad authority to regulate greenhouse gases from new motor vehicles); City of Arlington v. FCC (2013) (upholding Federal Communication Commission’s finding that it had jurisdiction to determine what was a “reasonable period of time”) (but note Justice Scalia rejected MQD as relying upon a false premise that there are two different types of rulemaking: “ones that are big, important and others that are humdrum, run-of-the-mill”); Utility Air Regulatory Group v. EPA (2014) (holding EPA incorrectly interpreted its authority over the licensing program when it determined that it could regulate emissions from stationary sources as well as mobile sources because that would bring about such transformative change without express congressional authorization); King v. Burwell (2015) (upholding the Internal Revenue Service’s interpretation of the Affordable Care Act regarding tax credits for enrollment in exchange); and see Alabama Association of Realtors v. HHS, 141 S. Ct. 2485 (2021) (per curiam) (Justice Gorsuch’s dissent relied on major questions doctrine by name). These cases may likewise provide some guidance as to when courts should invoke the doctrine.
Some speculated that West Virginia v. EPA would launch a comeback for the nondelegation doctrine. However, it only really came up in Justice Gorsuch’s concurrence. The concurrence cabins his separation of powers argument in terms of the Framers’ intent that the power to make new laws regulating private conduct be the sole province of the legislature, elected by the people. The rationale is that, if that power is not properly checked, it poses a serious threat to individual liberty. See Congressional Research Service, The Major Questions Doctrine (Nov. 2, 2022). Others thought the case might gut Chevron, but as it turns out, Chevron was not even mentioned in the opinion. In operation it appears the major questions doctrine might function less as an exception to Chevron and more as an independent principle of statutory interpretation, like a pre-screening requirement for “major” agency actions.
In fact, since West Virginia v. EPA was decided, only two federal courts have adjudicated matters using the MQD. In Georgia v. President of the United States, the Eleventh Circuit Court of Appeals upheld the Southern District of Georgia’s holding that the president likely exceeded his authority under the Procurement Act regarding vaccine mandates. 46 F.4th 1283 (11th Cir. 2022) (but see Judge Anderson’s dissent observing major questions doctrine applies to agency overreach, not presidential). In Louisiana v. Becerra, the U.S. District Court for the Western District of Louisiana held the federal agencies’ vaccine mandate violated the major questions doctrine. Case No. 3:21-cv-04370, 2022 U.S. Dist. LEXIS 170714 (W.D. La. Sept. 21, 2022).
The major questions doctrine inherently benefits the status quo, and with industry, the environment, and society evolving at a pace far faster than Congress can legislate with the specificity apparently required by West Virginia v. EPA, the ruling has cast doubt on how agencies will be able to act on the major issues of our day. On the other hand, because the doctrine is to be invoked in only “extraordinary cases,” it is possible that agencies can go about their business, if carefully and cautiously, and courts will invoke the doctrine sparingly, lest the extraordinary become the ordinary.
