Questioning the Major Questions Doctrine: The Court’s Obscure Veto

The Major Questions Doctrine (MQD) is a statutory interpretation of U.S. administrative law that stipulates that courts must presume that Congress does not delegate matters of major political or economic significance to executive agencies [1]. As such, when it comes to a “major question” such as substantial loan grants or nationwide mandates, courts have the power to veto actions by executive federal agencies such as the Environmental Protection Agency (EPA) or the Food and Drug Administration (FDA). However, the implications of this doctrine become more obscure when considering questions that emerge pertaining to what specifically constitutes a “major question,” as well as whether the doctrine impedes the progress of elected officials by favoring the opinion of judicial courts.

While the origins of the MQD are disputed, former D.C. Circuit Judge Thomas Griffith and Law Professor Haley Proctor find that the doctrine traces back to the 1994 MCI Telecommunications Corp. v. AT&T decision [2]. In this case, the Supreme Court ruled that pursuant to the Communications Act, the Federal Communication Commission did not have the authority to relieve long-distance carriers of the obligation to file their rates. By reasoning that an agency did not have the authority to determine whether an industry would be rate-regulated, the case introduced the rationale behind the MQD.

It wasn’t until the recent West Virginia v. EPA case in June 2022 that the MQD truly became cemented as a rule of statutory interpretation. In this case, Chief Justice John Roberts articulated that federal agencies must point to a “clear congressional authorization” from a statute when making decisions of magnitude [3]. Consequently, the Supreme Court declared itself able to override elected branches of the federal government via the implementation of this ambiguous doctrine. In this article, I argue that the Major Questions Doctrine should be abolished as it enables the Supreme Court to seize disproportionate control over federal policy and ultimately reduces the efficacy of federal agencies.

Historically, the invocation of the Major Questions Doctrine has allowed the Supreme Court to sway federal policy time and time again. In 2022, the MQD was used to strike down Biden’s student loan forgiveness plan although a past federal law, the Heroes Act, had already authorized the plan. In 2003, the Heroes Act granted the United States Secretary of Education authority to bypass procedural barriers to provide student loan relief en masse as “the Secretary deems necessary in connection with a war… or national emergency” [4]. Biden’s plan would have forgiven up to $20,000 in debt for millions of student loan borrowers during the lasting financial after-effects of the COVID-19 pandemic. In Biden v. Nebraska, however, the court ruled the legal scope of the Heroes Act was not wide enough to effectively permit fundamental changes in the student loan plan [5]. However, the Heroes Act had explicitly granted the Secretary the power to enact student loan relief measures to the extent that they found necessary during a national emergency. If the Heroes Act did not fulfill Chief Justice Robert’s requirement of “clear congressional authorization” from West Virginia v. EPA, it becomes legally ambiguous to define what does. The ambiguity of the MQD has allowed it to be manipulated as a legal tool to veto legislation found politically unfavorable by the Supreme Court. In this manner, it has provided a pathway in which any policy handled by an executive agency could be subjectively considered as answering a “major question” without congressional authorization and thus be nullified.

In addition to education policy, the Supreme Court also took control of U.S. environmental policy in their West Virginia v. EPA decision when they ruled 6-3 that the Environmental Protection Agency (EPA) did not have the power to regulate carbon dioxide emissions of power plants without authorizations from Congress. The case dramatically limited the number of policy tools the EPA could employ to address climate change and set a dangerous precedent in which the Supreme Court could invoke the MQD to veto an environmental regulation it disagreed with. This decision was made in spite of the Clean Air Act of 1970, which explicitly authorized the EPA to regulate all sources of air emissions and to establish air quality standards; Chief Justice Roberts claimed the EPA was relying upon an “ancillary provision of the act,” and thus avoided potential areas of conflict with the act [6]. The ambiguity of the MQD has enabled such contradictions in which the Supreme Court can prevent federal agencies from utilizing the powers provided to them by the law.

Importantly, the Major Questions Doctrine also prevents Congress from acting decisively and effectively. In 1989, Mistretta v. United States established that Congress could not complete its responsibilities without the “ability to delegate power under broad general directives” [7]. In Mistretta v. United States, the petitioner claimed the United States Sentencing Commission was awarded excessive legislative powers in the Sentencing Reform Act of 1984. The court’s response established the principle that Congress cannot successfully govern if it cannot pass broad, expansive policies. The MQD threatens such broad, expansive policies. The Brookings Institution calls the MQD a “shark in the water” that may halt the development of legislation essential to the legal landscape of America, including but not limited to artificial intelligence oversight and privacy regulation [8].

The MQD additionally prevents effective action by limiting the capacity of individuals most qualified to lead certain policies. Justice John Paul Stevens analyzed the consequences of this tendency in the 1984 Chevron v. Natural Resources Defense Council case. As a judge, Justice Stevens acknowledged that judges “are not experts” in the technical policy sectors that agencies oversee, arguing that if judges are allowed to replace the judgment of agency leaders, they are more likely to make unwise decisions [9]. Similarly, the EPA likely had more scientific expertise and environmental knowledge than the Supreme Court Justices; however, as illustrated in West Virginia v. EPA, the court’s judgment on climate change was prioritized over the federal agency.

Several legal scholars have argued that the MQD can enhance Congress’s productivity and success rather than limit it. Oren Tamir, a postdoctoral fellow at Harvard Law School, claimed in an interview that the doctrine is sensible because it encourages Congress to act on truly major issues [10]. In fact, instead of letting Congress act on these major issues, the MQD lets the Supreme Court control Congress’s policy responses to national challenges. The MQD has perpetuated a cycle in which unelected officials have acted as a counteracting check on the policies written by elected officials. In Chevron USA Inc. V. Natural Resources Defense Council, Justice Stevens argued that the Chief Executive is directly accountable to the people and “it is entirely appropriate for this political branch of the Government [Federal Agencies] to make such policy choices.” According to him, if a federal agency’s policy is perceived as a poor decision, American voters can accordingly respond to that decision when voting for government officials in the next election. However, when the Supreme Court preemptively steps in, the government officials responsible for the decision cannot receive recourse from the public [11]. Thus, with the interventions completed via the MQD, Congress’s growth and ability to instate revolutionary policies become further stunted.

By examining the ever-changing landscape of political and industrial needs across the nation, it becomes clear that the MQD is more restrictive of legislative and executive powers than it should be; industry and society evolve at a pace too fast for Congress to legislate powers with the specificity demanded by the MQD, per the findings of West Virginia v. EPA. The MQD’s recent role in curtailing U.S. climate policy and student loan forgiveness specifically demonstrates its impact on federal legislation. This doctrine has and continues to pose a threat to the proactive action of agencies on critical matters impacting the American population, effectively enabling the Supreme Court's ideology to steer federal policy.

Bibliography

[1] Lopez, Jaclyn. 2023. “The Major Questions Doctrine Post-West Virginia v. EPA.” Americanbar.org. American Bar Association. January 3, 2023. https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2022-2023/january-february-2023/the-major-questions-doctrine/.

[2] Griffith, Thomas, and Haley Proctor. 2022. “Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine.” Yale Law Journal. November 21, 2022. https://www.yalelawjournal.org/forum/deference-delegation-and-divination#_ftnref18.

[3] Lopez, The Major Questions Doctrine Post-West Virginia v. EPA

[4] “Use of the HEROES Act of 2003 to Cancel the Principal Amounts of Student Loans.” 2022. https://www.justice.gov/d9/2022-11/2022-08-23-heroes-act.pdf.

[5] Millhiser, Ian. 2023. “How the Supreme Court Put Itself in Charge of the Executive Branch.” Vox. July 17, 2023. https://www.vox.com/scotus/23791610/supreme-court-major-questions-doctrine-nebraska-biden-student-loans-gorsuch-barrett.

[6] Lopez, The Major Questions Doctrine Post-West Virginia v. EPA

[7] “Mistretta v. United States, 488 US 361 - Supreme Court 1989 - Google Scholar.” 2023. Google.com. 2023. https://scholar.google.com/scholar_case?case=10855858816503634838&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

[8] Levin, Blair, and Tom Wheeler. 2023. “The Supreme Court’s Major Questions Doctrine and AI Regulation.” Brookings. September 6, 2023. https://www.brookings.edu/articles/the-supreme-courts-major-questions-doctrine-and-ai-regulation/.

[9] “Chevron USA Inc. V. Natural Resources Defense Council, Inc., 467 US 837 - Supreme Court 1984 - Google Scholar.” 2023. 2023. https://scholar.google.com/scholar_case?case=14437597860792759765&hl=en&as_sdt=6&as_vis=1&oi=scholarr.

[10] Reed, Rachel. n.d. “What Critics Get Wrong — and Right — about the Supreme Court’s New ‘Major Questions Doctrine.’” Harvard Law School. Accessed October 11, 2023. https://hls.harvard.edu/today/what-critics-get-wrong-and-right-about-the-supreme-courts-new-major-questions-doctrine/.

[11] Millhiser, The Stakes in the Supreme Court’s Vaccine Cases Are Even Bigger than They Seem