The major question doctrine: a positive view

The Supreme Court recently adopted a major doctrine - called the major question doctrine - for determining Congress' intent when a federal agency takes action that has significant economic and political effects. The doctrine holds that Congress presumptively does not intend to authorize agency action that has significant economic and political effects unless Congress clearly expresses its intent that such effects will occur. As the Supreme Court has stated, the Court "expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance." Utility Air Regulatory Group v. EPA, 373 U.S. 302, 304 (2014). In the author's view, the doctrine is one of sound jurisprudence, supported by reason and common sense.

Even before the Supreme Court adopted the major question doctrine as a "doctrine," the Court struck down agency actions that had significant economic and political effects that may not have been intended by Congress. In FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), for example, the Court rejected the Food and Drug Administration's contention that its authority to regulate a "drug" included authority to regulate the tobacco industry, and even to ban cigarettes, reasoning that Congress "could not have intended to delegate a decision of such economic and political significance to an agency is so cryptic a fashion." 529 U.S. at 159.

More recently, the Supreme Court applied the major question doctrine - and for the first time described it as a "doctrine" - in West Virginia, et al. v. EPA, 142 S.Ct. 2587 (2022). The Court held that EPA's authority to adopt emission requirements under the Clean Air Act did not include authority to adopt such stringent emission requirements for coal-fired power plants that the effect would be a significant transition of the nation's electrical generating capacity from coal to wind and solar resources. "A decision of such magnitude," the Court stated, "rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body." 142 S.Ct. at 2616.

The major question doctrine does not preclude Congress from authorizing agency action that has significant economic and political effects, or address whether the effects are good or bad. Rather, the doctrine holds that - because of the significant effects - Congress must spell out its intent with reasonable clarity. Logically, an agency action that has broad national consequences should not be sustained simply because it may arguably fall within the literal statutory terms, if it is not clear that Congress intended the national consequences. As Justice Scalia has said, Congress does not hide elephants in mouseholes. Whitman v. American Trucking Ass'n, Inc., 531 U.S. 457, 468 (2001).

The major question doctrine is politically neutral, in that it applies irrespective of whether it may benefit one political party or another. The doctrine would apply equally, for example, whether a Republican administration mandates a 50% increase in offshore oil drilling to increase energy supplies, or a Democratic administration mandates a 50% reduction in offshore oil drilling to combat climate change.

The political question doctrine limits the Chevron doctrine, which holds that the courts should defer to an agency's reasonable interpretation of a statute that the agency is charged with enforcing. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-44 (1984). The major question doctrine holds that such deference is not accorded where the agency action has significant economic and political effects that may not have been intended by Congress.

Professor Erwin Chemerinsky, a recognized authority on the Constitution, has written a recent article criticizing the Supreme Court's adoption of the major question doctrine. Erwin on the Constitution: The Major Questions Doctrine, Daily Journal, SFDJ (3/20/23).

The Professor argues that the doctrine shifts power from Congress and the Executive Branch to the federal courts. On the contrary, an Executive Branch agency has only the power delegated by Congress, and Congress can authorize any agency action as long as it makes its intention clear. Thus, the doctrine preserves Congress' power rather than transfers it to the courts. In fact, the doctrine limits the courts' power, by preventing courts from interpreting a statute in a particular way based on a thin gruel of congressional expression.

The Professor also argues that the elements of the major question doctrine - a major question having economic and political effects and a lack of clearly-defined congressional intent - are inherently ambiguous and uncertain, thus allowing courts to strike down federal regulations they don't like.

But the Supreme Court has often held that Congress must speak clearly in enacting certain laws, such as those dividing the national power between the federal government and the states. As the Court has held, Congress must make its intention "unmistakably clear" in enacting legislation that affects the "constitutional balance of federal and state powers." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991); see U.S. v. Bass, 404 U.S. 336, 349 (1971). While Congress has the power to preempt state laws under the Constitution's Supremacy Clause, Congress presumptively does not preempt state laws in areas traditionally regulated by the states unless Congress' intent is "clear and manifest." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). The principle that Congress must speak clearly in enacting its laws is hardly without precedence.

Indeed, in two cases argued by the author, the Supreme Court interpreted the responsibilities of federal and state agencies in administering Congress' water quality and reclamation laws, and indicated that Congress must speak clearly if it wishes to alter the Court's interpretations. In California v. EPA, 426 U.S. 200 (1976), the Court held that the Clean Water Act does not require federal agencies to comply with state water quality permits, but that Congress could provide otherwise by "clear and unambiguous" legislation. 426 U.S. at 211. In California v. United States, 438 U.S. 645 (1978), the Court held that the Reclamation Act of 1902 requires federal agencies to comply with state water laws in operating federal water projects, but that Congress could provide otherwise by clear directives. 438 U.S. at 672, 678. The Court in both cases indicated that Congress must clearly express its intent in altering these agency responsibilities - which Congress did the following year in the Clean Water Act case, by expressly requiring federal agencies to comply with state water quality permits. 33 U.S.C. § 1323. Thus, Congress knows how to overturn a Supreme Court decision that misconstrues its intent.

To be sure, there may be ambiguities and uncertainties in determining whether an agency action has significant economic and political effects, as the Professor argues. But the Supreme Court has fashioned many doctrines and principles that involve ambiguities and uncertainties - such as the scope of Congress' power under the Commerce Clause to regulate activity that has a "substantial effect" on interstate commerce, but not to "obliterate the distinction between what is national and what is local," e.g., United States v. Lopez, 514 U.S. 549, 556-59 (1995); the scope of the Constitution's Taking Clause, and the "essentially ad hoc, factual inquiries" that apply in determining whether governmental regulation of property is a "taking," e.g., Penn Central Transp. Co. v. New York, 438 U.S. 104, 124 (1978); and the scope of substantive due process in protecting the "exercise of liberty," e.g., Lawrence v. Texas, 539 U.S. 558 (2003). Certainly the standard for defining a "major question" is more objective and certain than Justice Stewart's famously subjective standard for defining pornography - "I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (concurring).

In any event, the Supreme Court has not had difficulty in identifying cases in which the major question doctrine applies, based on its elements. In applying the doctrine, the Court's majority opinions have objectively described the economic and political effects of the agency actions, and the dissenting opinions have not contended that the agency actions did not have these effects, and instead contended that the agency actions were supported by the statutory terms and should be sustained on that ground. E.g., West Virginia, 142 S.Ct. at 2599 (majority), 2626 (dissenting). Thus, the Court's justices have not disagreed on whether the major question doctrine applies - assuming its validity - and have instead disagreed on whether the doctrine is valid in interpreting statutes.

In sum, the major question doctrine advances Congress' goals rather than obstructs them, by ensuring that Congress' enactments have the effects that Congress intended. All Congress has to do to effectuate broad national policy is to make its intention clear. In a democratic society, we should expect no less.