The Major Question of “Major Question” Doctrine

The six conservatives on the Supreme Court seem to be gearing up to use a new tool in the effort to hobble government agencies, and this could have major consequences for the environment, financial regulation, and many other facets of our society.

The major question doctrine is an offshoot of the non-delegation doctrine, Article one of the constitution states

All legislative Powers herein granted shall be vested in a Congress of the United States

The non-delegation doctrine states that congress can NOT delegate the legislative powers vested in it. That when Congress writes laws that are unclear or ambiguous and give administrative agencies broad powers to create rules (which are essentially laws) Congress abdicates its responsibility and violates the separation of powers that is crucial in our system. The major decisions doctrine states that the constitution requires that decisions that will have major economic impacts must be clearly stated by congress, and not by unelected agency employees, The argument is that only congress is directly answerable to votes,

Currently, the court has a case before it about carbon emissions at power plants in which the major decisions doctrine has been raised .

The case, West Virginia v. Environmental Protection Agency, hinges on a technical provision of the Clean Air Act, but much of the argument focused on two broader themes: whether the Supreme Court has jurisdiction to resolve the dispute at all and, if so, whether the lower court’s decision violates the “major questions” doctrine — the idea that if Congress wants to give an administrative agency the power to make “decisions of vast economic and political significance,” it must say so clearly. A ruling that adopts an expansive interpretation of the major-questions doctrine – as some conservative groups are advocating – could curtail the regulatory scope not just of the EPA but many other federal agencies as well.

Reading Howe on the Court’s reporting on the hearing, it is not at all clear to me that the court will even get to the decisions doctrine in their ruling, as it is possible that the case might rule that they don’t have jurisdiction at all.

Writing for EarthJustice, Sambhav Sankar takes a far more pessimistic view. According to Sankar, the court is eager to apply the stricter standard

In the most recent example, the Court issued a ruling in January blocking OSHA’s vaccination or mask-and-test mandate. On the way, the Court told us that whenever a government agency acts in a way that may have “major” economic and political effects, judges should demand a “clear statement” from Congress that “unambiguously authoriz(es)” the agency’s action.

In simpler terms, the conservative bloc is saying that when agencies try to regulate in ways that will have big economic impact, judges should go back and read Congress’ laws more narrowly than they would otherwise. The Court calls this novel rule the “major questions doctrine.”  It’s novel not only because it returns us to the pre-New Deal era where the Court exercised freestanding authority to second-guess laws with economic impacts, but also because it contradicts right-wing judges’ long-running demand that we focus on the “plain text” of our laws and nothing else

Dan Farber, a professor of environmental law at UC Berkeley is skeptical of this new standard, and says that far too much is unresolved. Farber raises six big questions about the doctrine

  • What’s the effect of holding something to be a major question?
  • When does the economic effect of an issue become “major”? 
  • When does an issue have “major political significance”?  
  • Why “economic” significance but not other impacts?  
  • Why doesn’t the doctrine apply to the Court itself? 
  • Is the major question doctrine constitutional?  

I find the most interesting question to be number four “Why “economic” significance but not other impacts?   Unfortunately that seems to be the mindset for too many of us. Only $$ matters.

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