A Congressional Review Act for the Major Questions Doctrine.

• Author: Walker, Christopher J.

INTRODUCTION

In a series of Supreme Court decisions this past Term, culminating in West Virginia v. EPA, (1) a majority of the Court embraced a new version of the major questions doctrine for interpreting congressional delegations of regulatory authority to federal agencies. (2) Writing for the majority in West Virginia v. EPA, Chief Justice Roberts perhaps best captures this new substantive canon of statutory interpretation:

We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies. Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to clear congressional authorization for the power it claims. (3) The impact of this new major questions doctrine on the field of administrative law will be profound. To borrow a line from the dissent in another administrative law decision, "[i]t is indeed a wonderful new world that the Court creates, one full of promise for administrative-law professors in need of tenure articles and, of course, for litigators." (4) Application of the doctrine will no doubt be urged in challenges to regulatory actions in federal courts across the nation. And the lower federal courts will have to flesh out the doctrine's contours, especially given that the majority opinion in West Virginia v. EPA did little to establish an administrable framework. Indeed, Justice Gorsuch's separate concurrence may well be the more important opinion for the new doctrine, as it provides a roadmap for further development. (5)

Scholarly questions abound. For example, textualists, especially those of us who struggle to situate substantive canons and clear-statement rules in the interpretive toolkit, may find it difficult to square the new major questions doctrine with ordinary statutory interpretation. (6) When it comes to current debates on the constitutional future of the administrative state, this series of cases seems to suggest that the Roberts Court--or at least the ideological middle of the Court, including Chief Justice Roberts--may be embracing what Professor Jeff Pojanowski has dubbed "neoclassical administrative law." (7) In particular, the Court may be retreating, at least for now, from recent calls to revive the nondelegation doctrine as a constitutional constraint on regulation, (8) instead opting to cabin administrative action via non-deferential statutory interpretation. (9)

Here, however, I do not wade into these doctrinal and theoretical debates. Instead, my goal is more modest and practical, focusing on how Congress can respond. I suggest that Congress could enact a Congressional Review Act (CRA) for the major questions doctrine. This fast-track legislative process would bypass the Senate filibuster and similar congressional slow-down mechanisms whenever a federal court invalidates an agency rule on major questions doctrine grounds. The successful passage of a CRA-like joint resolution would amend the agency's governing statute to authorize expressly the regulatory power that the agency had claimed in the judicially invalidated rule. This proposal would encourage Congress to decide the major policy question itself--helping to restore Congress's legislative role in the modern administrative state--and would counteract the new major questions doctrine's asymmetric deregulatory effects.

1. THE MAJOR QUESTIONS DOCTRINE'S POTENTIAL DEREGULATORY EFFECTS

   As Professor Jonathan Adler and I have explored elsewhere, there is an often-overlooked temporal problem with congressional delegation, especially when it comes to federal agencies leveraging old statutes to address new problems. (10) Textually broad statutory delegations to federal agencies can become a source of authority for agencies to take action at a later time. This later action could be wholly unanticipated by the enacting Congress and may not receive support in the current Congress. One way to address this temporal problem of delegation, we argue, is for Congress to revive the practice of regular reauthorization of statutes that govern federal regulatory action. To do so may require Congress to adopt reauthorization incentives, such as sun-setting provisions, in some statutory contexts. (11)

   Some version of the major questions doctrine could be another way to address the temporal problems with congressional delegation. (12) If it is apparent from the statutory text, structure, and context that the enacting Congress would not have anticipated the agency's use of regulatory authority to address a new or different major policy problem, the reviewing court could invoke the major questions doctrine to cabin the agency's regulatory authority. For the agency to be able to regulate in this area, Congress would have to enact legislation to declare more expressly that it has delegated power to the agency to address the major policy question at issue. The doctrine thus forces Congress to make the value judgment when it comes to federal agencies attempting to use old statutes to address new or otherwise unanticipated issues of great economic or political significance.

   In The New Major Questions Doctrine, Professors Dan Deacon and Leah Litman underscore an important criticism of this vision for administrative governance. (13) The new major questions doctrine seems to operate in only one direction: deregulatory. The reviewing court asks Congress for a clearer statement of delegation on the major question. Yet the "vetogates" in Congress, (14) especially in our current era of political polarization, make it near impossible to respond. These deregulatory effects are exacerbated by a clear-statement rule imposed retroactively on statutes enacted prior to the announcement of the new doctrine. That enacting Congress may not have anticipated the need to provide more than broad statutory text to authorize the agency to regulate on a major policy question based on new facts or changed circumstances.

   For some supporters of a reinvigorated nondelegation doctrine, this is a feature--not a bug--of the new major questions doctrine. In their view, regulation should be the exception for federal lawmaking, not the rule. For others concerned with congressional over-delegation, however, our normative end is not necessarily deregulation, but rather entrusting Congress--not federal agencies (or courts)--to make the major value and policy judgments when it comes to lawmaking at the federal level. The new major questions doctrine may constrain federal agencies in this area, but it does too little to encourage Congress to play its role in making major policy judgments. And it risks entrenching a potential judicial error concerning congressional intent about an otherwise textually plausible agency statutory interpretation.

2. A POTENTIAL CONGRESSIONAL RESPONSE

   For those of us interested in reinvigorating Congress's role in the modern administrative state, there are ways for Congress to fast-track legislative responses to pressing problems. Congress has enacted statutes that bypass the Senate filibuster for various reasons. Budget reconciliation, created by the Congressional Budget Act of 1974, (15) is one prominent example that Congress has used aggressively in recent years. (16) Congress has also enacted various statutes to fast-track authority for the president to negotiate international trade agreements. (17) And under the National Emergencies Act and the War Powers Act, Congress has bypassed the Senate filibuster to terminate presidential declarations of emergency (18) and to authorize or terminate the use of force overseas, (19) respectively.

   1. The Congressional Review Act

      If Congress were interested in responding to the new major questions doctrine, perhaps the most analogous legislative tool is the Congressional Review Act of 1996 (CRA). (20) Motivated by concerns that federal agencies may adopt regulations opposed by current legislative majorities, the CRA creates an expedited process for considering joint resolutions to overturn agency regulations. (21) In effect, the CRA creates a means through which Congress can police an agency's exercise of its delegated authority. (22)

      Congress can only use the CRA within a relatively short window of time after the promulgation of a major rule. (23) Under the CRA, before any new rule may take effect, the agency must submit a report on the rule to Congress (and the Comptroller General). (24) If the regulation is deemed a "major rule"--defined as any rule the White House's Office of Information and Regulatory Affairs concludes will likely have "an annual effect on the economy of $100 [million] or more," or otherwise have a significant effect on consumer prices or the economy (25)--it shall not take effect for at least (60) days after its submission to Congress. (26) This waiting period provides Congress with an opportunity to review major rules and consider whether to overturn them before the major rules go into effect.

      The CRA creates a streamlined process for Congress to overturn a major...