Lingering Questions About the Major Questions Doctrine

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Scholars discuss the origins, scope, and merits of the U.S. Supreme Court’s “major questions doctrine.”

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In West Virginia v. EPA, the U.S. Supreme Court held that federal agencies “must point to clear congressional authorization” before enacting regulations that pertain to questions of major economic or political significance, known as the “major questions doctrine.” Although the West Virginia majority claimed it was articulating a long-standing principle, scholars point to outstanding questions about the doctrine.

Some scholars argue that the major questions doctrine initially functioned as an outgrowth of a canon of statutory interpretation known as Chevron deference. Chevron deference—which comes from Chevron v. Natural Resources Defense Councilrequires federal courts to defer to an agency’s reasonable interpretation of a federal statute.

The first sign of the major questions doctrine emerged in MCI Telecommunications v. AT&T, a 1994 opinion in which the Supreme Court hinted that Chevron deference may have limits in some high-stakes cases. Then, in 2000, the Court suggested in Food and Drug Administration v. Brown & Williamson Tobacco that agencies should not make decisions of great economic or political importance without clear congressional authorization.

Over the next twenty years, the Supreme Court repeatedly declined to extend Chevron deference to agency actions implicating such “major” questions. In each of those cases, however, the question’s “majorness” was only a secondary reason for the Court’s decision. For example, in Utility Air Regulatory Group v. EPA, the Court based its decision on the disjunction between an EPA regulation and EPA’s statutory power, but concluded with an observation: “We expect Congress to speak clearly if it wishes to assign an agency decisions of vast ‘economic and political significance.’”

Yet in a series of cases during the 2021 and 2022 terms—most notably West Virginia v. EPA—the Court claimed that Utility Air established a “firm rule” of statutory interpretation. Not until these cases did the Court state that it relied on the major questions doctrine to invalidate regulations. And without any mention of Chevron deference, the West Virginia majority explained that concerns for the separation of powers and congressional intent motivated its decision.

But some scholars argue that the justices are still not in agreement about the scope of the major questions doctrine. For example, in Biden v. Nebraska, Chief Justice Roberts appeared to suggest that the doctrine looks beyond the text of a statute to ensure that agency actions align with Congress’s wishes. But Justice Barrett wrote separately in Nebraska to argue that the doctrine merely prescribes a common-sense reading of a statute’s text. Other scholars cite Justice Kavanaugh’s writing in another case to interpret the doctrine as strictly enforcing the separation of powers in important cases.

In addition, scholars note that the Court has not explained what makes a question “major.” For example, the Court based its decision in Brown & Williamson Tobacco on its sense that the question at issue was, on its face, too important to leave to an agency alone. But in King v. Burwell, the majority explained that the question before the Court was major because it implicated the core of the statutory scheme at issue.

This week’s Saturday Seminar highlights recent scholarship on the major questions doctrine and its implications for the future of administrative law.

  • In a forthcoming article for the Florida Law Review, Cass R. Sunstein of Harvard Law School identifies two competing justifications for the major questions doctrine. The first approach, developed by Justice Gorsuch, aims to uphold separation of powers principles by requiring a clear statement from Congress before agencies can exercise legislative authority, Sunstein explains. Sunstein characterizes the second approach, advanced by Justice Barrett, as a less-imposing, primarily textualist doctrine. According to Sunstein, Justice Barrett would not require clear congressional authorization, but rather that courts choose the best interpretation of a statute. Following Justice Barrett’s reasoning, Sunstein explains that the best interpretation is not likely one that authorizes “extraordinary or staggering” choices unless those options were made clear by context.
  • In an article published in the Virginia Law Review, Daniel T. Deacon and Leah M. Litman of the University of Michigan Law School explain that, in determining whether a question is “major,” the Supreme Court focuses on whether the challenged action is politically controversial. This focus facilitates minority rule because the Court relies on subsequent legislative history as an indicator of controversy, Deacon and Litman argue. They argue that, as a result, a minority party can affect court interpretation by filibustering or exercising veto power, thus creating a legislative record that makes the policy it opposes more likely to be deemed “major.” Deacon and Litman contend that the doctrine’s uncertain application invites ideological reasoning by the justices, politicizing the Court.
  • In a forthcoming article for the Southern California Law Review, Kevin Tobia of Georgetown School of Law, Daniel E. Walters of the Texas A&M School of Law, and Brian Slocum of Florida State College of Law argue that the major questions doctrine is incompatible with textualism, a principle which holds that courts should apply each statute based on the text’s plain meaning. Tobia, Walters, and Slocum note that some proponents of the major questions doctrine claim that the doctrine is a common-sense way to resolve uncertainties in statutory text. But through empirical analysis, the authors suggest that non-lawyers do not understand rules in the way that major questions doctrine proponents claim, undermining characterizations of the doctrine as a common-sense canon.
  • In an article for the Harvard Journal of Law and Public Policy, Christopher J. Walker of the University of Michigan Law School argues that Congress should adopt a law allowing it to review and affirm agency decisions struck down under the Supreme Court’s new major questions doctrine. Walker notes that the Congressional Review Act of 1996 already allows Congress to review and strike regulations shortly after their enactment. The statute’s purpose, he notes, is to allow Congress to police agencies’ statutory interpretations. Walker argues that because the major questions doctrine concerns respect of congressional intent, Congress could pass a law analogous to the Act of 1996 allowing Congress to reinstate regulations struck down by courts under the major questions doctrine.
  • In an article for the Michigan Law Review, Timothy Meyer of Duke Law School and Ganesh Sitaraman of Vanderbilt Law School argue that the major questions doctrine will undermine the President’s ability to levy economic sanctions when exercising foreign affairs powers. Meyer and Sitaraman note that in a modern globalized economy, the line between the executive’s foreign affairs and domestic uses of economic measures is blurry. Federal courts may interpret statutes authorizing economic penalties to address foreign aggression as implicating the major questions doctrine, Meyer and Sitara contend. They suggest that “foreign affairs exceptionalism”—in which courts do not apply the major questions doctrine to foreign affairs statutes—may not guard against overbroad applications of the major questions doctrine.
  • Blair Levin and Tom Wheeler of the Brookings Institution anticipate that the major questions doctrine may strike down future efforts to regulate artificial intelligence. In a commentary for the Brookings Institution, Levin and Wheeler argue that the major questions doctrine could handcuff agencies that Congress tasks with addressing evolving issues in AI. Levin and Wheeler also note that regulations have a “huge impact on driving capital investments to some enterprises” over others. Thus, Levin and Wheeler contend that uncertainty surrounding the major questions doctrine’s scope and application may lead to decreased investment for those AI platforms willing to meet government standards intended to protect the public.

The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.