Responding to the New Major Questions Doctrine: Congress should adopt a fast-track, legislative process to make the value judgments that courts leave to it when they apply the major questions doctrine.

• Author: Walker, Christopher J.
• Position: REGULATORY REFORM

In its October 2021 term, the U.S. Supreme Court embraced a new and more sweeping version of the major questions doctrine for interpreting congressional delegations of regulatory authority to federal agencies. Invoking this doctrine, the Court stayed the Occupational Safety and Health Administration's attempt to impose a COVID-19 test-or-vaccine mandate on large employers and vacated the stay of an injunction on the Centers for Disease Control and Prevention's COVID-19 nationwide eviction moratorium. In both cases, the Court interpreted the agencies' authorizing statute to not allow such regulation of matters of great economic and political significance. But it provided little to no guidance about how this rule of statutory interpretation would apply in subsequent cases.

At the end of the term, in West Virginia v. U.S. Environmental Protection Agency, 142 S. Ct. 2587 (2022), the Court articulated the major questions doctrine in greater detail. In interpreting the Clean Air Act to not allow the EPA to implement the Obama-era Clean Power Plan, Chief Justice John Roberts, writing for the Court, announced a presumption

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. When it comes to agencies claiming authority to regulate such major policy questions, he continued, "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."

The amount of scholarly attention the major questions doctrine has received in the last year has been staggering. Over at the Yale Journal on Regulation's "Notice and Comment" blog, Justice Department attorney Beau Baumann lists more than three dozen full-length law review articles written on the subject since West Virginia v. EPA, and I see at least a dozen more articles that can be added to the list. And then there are hundreds of blog posts, opinion pieces, podcast episodes, and legal briefs. Most of the scholarly attention has been critical, including questioning whether the doctrine is consistent with textualism, whether it has any historical or even normative foundation, and how it could lead to the deconstruction of the administrative state.

One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president's ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various "vetogates" imposed by Senate and House rules, it is fair to conclude that the new major questions doctrine will be difficult for Congress to override via legislation. Thus, its predominant, asymmetric effect will be deregulatory, as opposed to getting Congress to make the major value judgments in federal lawmaking.

But that does not have to be the case. Congress has tools at its disposal to respond to the major questions doctrine. I focus here on one: Congress can enact legislation similar to the 1996 Congressional Review Act that would enable it to quickly address agency rules that have been invalidated on major questions doctrine grounds. This process would bypass the Senate filibuster and similar congressional slow-down mechanisms. The successful passage of a CRA-like joint resolution would amend the agency's governing statute to expressly authorize the regulatory power that the agency had claimed in the judicially invalidated rule. This would enable Congress to decide the major policy question itself--helping to restore Congress's legislative role in the modern administrative state--and would counteract the major questions doctrine's asymmetric deregulatory effects.

FROM THE NONDELEGATION DOCTRINE TO THE MAJOR QUESTIONS DOCTRINE

Before turning to how Congress can respond to the major questions doctrine, it is important to appreciate how the major questions doctrine differs from the nondelegation doctrine--and, in particular, how the major questions doctrine preserves more flexibility for Congress to respond than a reinvigorated nondelegation doctrine would.

Over the last decade or so, there has been a growing call, mainly among conservatives and libertarians, for the Supreme Court to reinvigorate the nondelegation doctrine. This doctrine, as Harvard professor Cass Sunstein has quipped, had "only one good year." That year was nearly nine decades ago, in 1935, when the Court invoked the doctrine to strike down as unconstitutional two congressional delegations of lawmaking authority to the president. In so doing, the Court underscored that Congress is vested with "all legislative powers" under Article I of the U.S. Constitution, and it cannot delegate that power to anyone else. To be sure, it can delegate law implementation or execution authority to the executive branch, and the line between legislation and law execution is not easy to draw. The Court has said that such delegations are constitutionally permissible so long as Congress includes an "intelligible principle" to guide the...