Major Questions Doctrine: An Extraordinary Doctrine for 'Extraordinary' Cases

53 Pages Posted: 27 Apr 2023

See all articles by Brianne J. Gorod

Brianne J. Gorod

Constitutional Accountability Center

Brian R. Frazelle

Constitutional Accountability Center

J. Alex Rowell

Constitutional Accountability Center

Date Written: April 15, 2023

Abstract

In West Virginia v. EPA, the Supreme Court held a climate-change policy unlawful by relying on what it called for the first time the “major questions doctrine.” In the wake of the Court’s decision, commentators and litigants have argued that this doctrine should prove fatal to a wide range of regulatory actions on topics ranging from the environment and economic policy to civil rights and immigration. This Article contends that those claims are wrong. To start, West Virginia does not stand alone, but instead must be interpreted in light of the decisions that preceded it. As the Court explained, the major questions doctrine “developed over a series of significant cases,” and close examination of those cases yields fundamental lessons about the doctrine’s scope that are confirmed in West Virginia itself. Most importantly, the economic and political significance of an agency’s action, however great, does not alone trigger application of the doctrine. Instead, to qualify as one of the “extraordinary cases” in which the doctrine applies, additional factors must demonstrate that an agency is seeking to fundamentally alter its authority and expand it “beyond what Congress could reasonably be understood to have granted.” In short, the doctrine applies only where an agency makes a breathtaking assertion of power that context reveals to be a dubious effort to transform the basic nature of its authority. The Court’s decision to limit the doctrine to such extraordinary cases makes sense because the doctrine is in tension with principles of textualism, the original understanding of the Constitution, and the judiciary’s limited role under the separation of powers. Aggressively employing the doctrine beyond the limited sphere prescribed by the Court would exacerbate those tensions and undermine the legitimacy of the courts. By relying on the doctrine only sparingly, as West Virginia instructs, courts can best maintain their constitutional role of interpreting the laws and avoid inappropriately interfering with the decisions of the elected branches.

Keywords: Major Questions Doctrine, Administrative Law

Suggested Citation

Gorod, Brianne J. and Frazelle, Brian R. and Rowell, J. Alex, Major Questions Doctrine: An Extraordinary Doctrine for 'Extraordinary' Cases (April 15, 2023). Wake Forest Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4419602 or http://dx.doi.org/10.2139/ssrn.4419602

Brianne J. Gorod (Contact Author)

Constitutional Accountability Center ( email )

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Brian R. Frazelle

Constitutional Accountability Center ( email )

1200 18th Street
Suite 501
Washington, DC 20036
United States

J. Alex Rowell

Constitutional Accountability Center ( email )

1200 18th Street
Suite 501
Washington, DC 20036
United States

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