Does the Separation of Powers Justify the Major Questions Doctrine?

Abstract

In West Virginia v. EPA, the Supreme Court announced the arrival of the major questions doctrine in a ruling limiting EPA’s ability to address the global climate crisis. It held that judges should resolve major questions— extraordinary questions of economic and political significance—through application of a clear statement rule forbidding major new applications of general policies embodied in legislation.

The West Virginia Court claimed that the separation of powers justifies the major questions doctrine but failed to explain why. The major questions cases, however, strongly suggest that when the Court decides a major question itself rather than let the executive branch do so the Court preserves congressional authority to legislate on major questions.

This Article shows that this assumption is wrong. Judicial resolution of major questions interferes with the prerogatives of the enacting Congress and does nothing to preserve the authority of current and future Congresses. Indeed, this Article shows, in cases employing the clear statement rule announced in West Virginia v. EPA, the Court usurps the powers of Congress by, in effect, amending legislation. Accordingly, the major questions doctrine undermines, rather than supports the separation of powers.

Keywords: separation of powers, Major questions doctrine, Nondelegation doctrine, Public choice theory, administrative law, chevron doctrine, clear statement rules