The Major Questions Doctrine in the States

Abstract

In West Virginia v. EPA and Biden v. Nebraska, the Supreme Court firmly established the major questions doctrine as a tool of statutory interpretation, although debates about its legitimacy, wisdom, and administrability rage on. As commentators have noted, the doctrine has the power to change the federal regulatory landscape, dramatically limiting the ability of federal agencies to regulate subjects like the environment, labor, and food and drugs. But, even these dire predictions consider only half of the equation. Just as the federal courts are starting to adopt the major questions doctrine into federal law, state courts are starting to adopt their own versions of the doctrine under state law. Because adoption of the major questions doctrine by both federal and state courts is likely to lead to dangerous regulatory gaps, the efficacy of regulation depends in no small part on whether states adopt the major questions doctrine.

This Article evaluates whether state courts should adopt the major questions doctrine used in West Virginia v. EPA and Biden v. Nebraska. It examines the arguments supporting the major questions doctrine at the federal level to determine whether they have any force in the context of state court statutory interpretation. Despite some similarities, there are pervasive differences between state and federal constitutional structures that undermine the adoption of the federal major questions doctrine in the states. First, state constitutions tend to allocate policymaking power in different ways than the federal Constitution. Second, many states maintain a different approach to textualism and the search for legislative intent than federal courts. And third, all states have a significantly different relationship with their constituent parts (e.g. cities and counties) than the federal government has with its constituent parts (i.e. the states). Each state court system should consider these differences before determining whether the major questions doctrine is the right fit with their state.