Major questions doctrine
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The major questions doctrine, also known as the major rules doctrine, refers to the administrative law principle that Congress must provide clear authorization to an agency before the agency can issue regulations on matters of economic or political significance. This approach, first invoked in the 2022 United States Supreme Court case West Virginia v. Environmental Protection Agency (2022), does not allow courts to defer to agency interpretations of their statutory authority to issue such regulations.[1]
This page includes the following information related to the major questions doctrine:
- Background
- Major questions doctrine and other principles of administrative law
- SCOTUS justices on the major questions doctrine
- Court cases related to the major questions doctrine
- Noteworthy events
Background
- See also: Chevron deference and Nondelegation doctrine
Origins of the major questions doctrine
Chief Justice John Roberts argued in the majority opinion for West Virginia v. Environmental Protection Agency (2022) that the major questions doctrine is rooted in precedent established by the United States Supreme Court. Roberts wrote that the doctrine "took hold because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted." Though scholars point to different cases as the origin of the major questions doctrine, the Congressional Research Service stated in a 2022 report that the court developed the doctrine over a series of cases by rejecting certain agency regulatory actions on the grounds that "(1) the underlying claim of authority concerns an issue of 'vast ‘economic and political significance,’' and "(2) Congress has not clearly empowered the agency with authority over the issue."[1][2][3]
Judge Thomas Griffith and administrative law scholar Haley N. Proctor in 2022 published an article in The Yale Law Journal arguing that the groundwork of the major questions doctrine can be traced to the court's decision in MCI Telecommunications Corp. v. AT&T (1994), in which the court ruled that the Federal Communications Commission had exceeded its statutory authority in regulating certain telecommunications industry rates. Griffith and Proctor contended that MCI Telecommunications Corp. laid the foundation for the doctrine and its departure from the Chevron deference doctrine, arguing that the decision "marked a departure from the deference courts usually give to agencies’ interpretations of the statutes they administer" and set the precedent for the major questions doctrine.[4]
Harvard Law School fellow Oren Tamir, on the other hand, published a 2023 article in Harvard Law Today pointing to the court's decision in Food and Drug Administration v. Brown and Williamson Tobacco Corporation (2000) as the foundation for the major questions doctrine. The case concerned an effort by the Food and Drug Administration (FDA) to regulate tobacco under the Food, Drug, and Cosmetic Act. Justice Sandra Day O'Connor wrote in the majority opinion that "we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion." Tamir argued that the tenets of the major questions doctrine developed from O'Connor's opinion.[5][6]
Major questions doctrine invoked for the first time
West Virginia v. Environmental Protection Agency (2022) was the first time the U.S. Supreme Court formally invoked the major questions doctrine. The justices ruled 6-3 that, according to the major questions doctrine, the Environmental Protection Agency's (EPA) regulation of greenhouse gas emissions pursuant to the Clean Air Act constitutes a significant policy question that should be determined by elected lawmakers in Congress rather than by agency staff.[1][7]
Major questions doctrine in relation to Chevron deference
The following section provides information about the major questions doctrine and its relationship to Chevron deference.
Chevron deference
The major questions doctrine has been described as a reform approach to address judicial deference to administrative agencies by aiming to narrow the scope of Chevron deference. Chevron deference was an administrative law principle that compelled federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The major questions doctrine was viewed as an exception to the doctrine by denying agency interpretation on statutes that concern questions with great economic or political significance.[1][8]
Following West Virginia v. Environmental Protection Agency, legal journalist Allison Frankel argued that the court's introduction of the major questions doctrine lacked meaningful parameters to guide its application, which could incentivize judges to favor the major questions doctrine over the two-step Chevron deference test when reviewing questions of agency authority:[9]
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Chevron deference was overturned by the Supreme Court in Loper Bright Enterprises v. Raimondo on June 28, 2024.
Major questions doctrine in relation to the nondelegation doctrine
The following section provides information about the major questions doctrine and its relationship to the nondelegation doctrine.
Nondelegation doctrine
The major questions doctrine also aligns with the nondelegation doctrine, a principle of constitutional and administrative law that holds that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. The major questions doctrine "requires that agencies have clear Congressional authorization on issues of such magnitude in order to promote democratic accountability, preserve the constitutional structure, and avoid entangling the judiciary in political questions," according to Michael Sebring, editor-in-chief of the Georgetown Journal of Law & Public Policy.[8] This supports the principles of the nondelegation doctrine and the expression of the separation of powers.
Attorney Adam R.F. Gustafson wrote the following commentary on the major questions doctrine in a 2019 article and connected it to the principles of the nondelegation doctrine:[11]
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SCOTUS justices on the major questions doctrine
The following sections provide a selection of Supreme Court justices' views concerning the major questions doctrine.
Justice Brett Kavanaugh
Justice Brett Kavanaugh has argued in favor of the major questions doctrine and wrote in a dissenting opinion for the case United States Telecom Association v. Federal Communications Commission (2017) in the United States Court of Appeals for the District of Columbia Circuit that the doctrine "helps preserve the separation of powers and operates as a vital check on expansive and aggressive assertions of executive authority."[3][12][13]
Justice Sandra Day O'Connor
Justice Sandra Day O'Connor wrote in the majority opinion in Food and Drug Administration v. Brown and Williamson Tobacco Corporation that "we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion." O'Connor's opinion has been credited as the foundation for developing the tenets of the major questions doctrine.[5][6]
Chief Justice John Roberts
Chief Justice John Roberts applied the major questions doctrine in the majority opinion in West Virginia v. EPA, finding that nowhere in the Clean Air Act had Congress granted the EPA specific authority to regulate greenhouse gas emissions. Roberts wrote that "it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body."[7]
Justice Neil Gorsuch
Justice Neil Gorsuch wrote a concurring opinion in West Virginia v. EPA supporting the use of the major questions doctrine and its adherence to the separation of powers principle. Gorsuch argued that the doctrine "seeks to protect against 'unintentional, oblique, or otherwise unlikely' intrusions on these interests ... by ensuring that, when agencies seek to resolve major questions, they at least act with clear congressional authorization and do not 'exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond' those the people’s representatives actually conferred on them."[2][14]
Justice Elena Kagan
Justice Elena Kagan argued in a dissenting opinion in West Virginia v. EPA against the reliance on the major questions doctrine. Kagan argued that the doctrine is used to avoid plainly interpreting the text of a statute: "The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the 'major questions doctrine' magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed."[2]
Justice Amy Coney Barrett
Justice Amy Coney Barrett wrote a concurring opinion in Biden v. Nebraska (2023) depicting the major questions doctrine as what she refers to as a common sense doctrine. Barrett argued about the importance of context rooted in the major questions doctrine and suggested "that some articulations of the major questions doctrine on offer—most notably, that the doctrine is a substantive canon—should give a textualist pause." Barrett wrote in her concurring opinion, "I understand [the major questions doctrine] to emphasize the importance of context when a court interprets a delegation to an administrative agency. Seen in this light, the major questions doctrine is a tool for discerning—not departing from—the text’s most natural interpretation."[15][16][17]
The following section provides a timeline of court cases related to the major questions doctrine:
- Biden v. Nebraska (2023) invoked the major questions doctrine. Justice Amy Coney Barrett argued in a concurring opinion that the doctrine reinforced the conclusion reached by the majority but that it was not necessary to reach the conclusion.
- West Virginia v. Environmental Protection Agency (2022) was the first Supreme Court case to formally invoke the major questions doctrine.
- Food and Drug Administration v. Brown and Williamson Tobacco Corporation (2000) established the foundation for the major questions doctrine through Justice Sandra Day O'Connor's majority opinion, which argued "that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion."[5]
- MCI Telecommunications Corp. v. AT&T (1994) established the groundwork for the doctrine and its departure from Chevron deference.[4]
Noteworthy events
District judge blocks federal contractor minimum wage increase, invokes major questions doctrine (2023)
Judge Drew Tipton of the United States District Court for the Southern District of Texas on September 26, 2023, invoked the major questions doctrine in a decision that blocked a Department of Labor (DOL) rule increasing the minimum wage for federal contractors from being enforced in Texas, Louisiana, and Mississippi.
President Biden issued Executive Order (EO) 14026 in April 2021 requiring the DOL to issue regulations increasing the minimum wage for federal contractors to $15 an hour. Texas, Louisiana, and Mississippi challenged the executive order and subsequent DOL rule, arguing in part that the order overstepped Biden’s statutory authority under the Procurement Act and that Congress has the authority to set the minimum wage.
Judge Tipton ruled that President Biden did not have the authority to issue the executive order and based his ruling in part on the major questions doctrine—an administrative law principle that Congress must provide clear authorization to an agency before the agency can issue regulations on matters of economic or political significance. The judge agreed with the plaintiffs' argument that the executive order “presents an issue of vast economic and political significance,” and that the Procurement Act did not “[speak] clearly in granting the President the power to unilaterally raise the minimum wage of the employees of federal contractors.”
The DOL, as of October 12, 2023, added a notice to their website stating that “the minimum wage requirements of the final rule implementing Executive Order 14026 are not currently being enforced as to contracts or subcontracts to which the states of Texas, Louisiana, or Mississippi (including their agencies) are a party,” as a result of the court order.[18]
SCOTUS formally invokes the major questions doctrine (2022)
In West Virginia v. Environmental Protection Agency, the U.S. Supreme Court formally invoked the major questions doctrine for the first time to limit the scope of powers granted to the Environmental Protection Agency (EPA) through the Clean Air Act to regulate greenhouse gas emissions. The justices ruled 6-3 that, according to the major questions doctrine, the regulation of greenhouse gas emissions constitutes a significant policy question that should be determined by elected lawmakers in Congress rather than by agency staff. Post-decision commentary questioned how the decision could affect other delegations of authority and whether the major questions doctrine would replace Chevron deference as the court’s preferred tool for reviewing challenges to agency authority.[7][9]
See also
External links
Footnotes
- ↑ 1.0 1.1 1.2 1.3 Congressional Review Service, "The Major Questions Doctrine," November 2, 2022
- ↑ 2.0 2.1 2.2 Justia, "West Virginia v. Environmental Protection Agency, 597 U.S. _ (2022)," accessed August 16, 2023
- ↑ 3.0 3.1 The New York Times, "The Curious Rise of a Supreme Court Doctrine That Threatens Biden's Agenda," March 6, 2023
- ↑ 4.0 4.1 The Yale Law Journal, "Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine," November 21, 2022
- ↑ 5.0 5.1 5.2 Justia, "FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)," accessed August 3, 2023
- ↑ 6.0 6.1 Harvard Law Today, "What critics get wrong - and right - about the Supreme Court's new 'major questions doctrine'," April 19, 2023
- ↑ 7.0 7.1 7.2 United States Supreme Court, "West Virginia v. Environmental Protection Agency," June 30, 2022
- ↑ 8.0 8.1 The Georgetown Journal of Law & Public Policy, "The Major Rules Doctrine," September 17, 2018
- ↑ 9.0 9.1 Reuters, "U.S. Supreme Court just gave federal agencies a big reason to worry," June 30, 2022
- ↑ 10.0 10.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 11.0 11.1 Adam R.F. Gustafson, The Major Questions Doctrine Outside Chevron’s Domain, CSAS Working Paper 19-07 Draft (February 15, 2019)
- ↑ United States Court of Appeals for the District of Columbia Circuit, "United States Telecom Association, Petitioner v. Federal Communications Commission and United States of America, Respondents," accessed August 16, 2023
- ↑ SCOTUSblog, "Judge Kavanaugh on administrative law and separation of powers (Corrected)," July 26, 2018
- ↑ DavisPolk, "A basic primer on the major questions doctrine," July 14, 2022
- ↑ Supreme Court of the United States, "BIDEN, PRESIDENT OF THE UNITED STATES, ET AL. v. NEBRASKA ET AL.," June 30, 2023
- ↑ Yale Journal on Regulation, "Major Questions, Common Sense?, by Kevin Tobia, Daniel E. Walters, & Brian Slocum," July 27, 2023
- ↑ Yale Journal on Regulation, "Text and 'Context'," July 13, 2023
- ↑ Reuters, "Biden's $15 minimum wage for federal contractors blocked by US judge," September 7, 2023
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