West Virginia v. EPA: Major Questions for the Future of the Administrative State and American Federalism

BYU Law Research Paper No. 23-10

Publius: The Journal of Federalism (2023)

Posted: 7 Jul 2023

See all articles by Elysa Dishman

Elysa Dishman

Brigham Young University - J. Reuben Clark Law School

Date Written: June 29, 2023

Abstract

State attorney general (AG) lawsuits have led to judicial limitations on federal agencies’ powers, including the Supreme Court’s formal adoption of the major questions doctrine in the West Virginia v. EPA case in 2022. These limitations empower states to further challenge federal agencies and shape national policy while correspondingly weakening agencies’ ability to defend such lawsuits and aggressively regulate important issues of the day. AG lawsuits against the Biden administration regularly asserted the major questions doctrine leading up to the West Virginia decision, setting the stage for the Court’s adoption of the doctrine, and states continue to rely on the doctrine in the aftermath of the opinion. The major questions doctrine has important implications for relationships between the federal government and the states and among the states, exposing patterns of cooperation and conflict. Such conflict and cooperation will likely be heavily influenced by ideology and policy outcomes, further exacerbating political partisanship and polarization.

Keywords: administrative law, major questions, agencies, attorneys general, federalism, partisanship, polarization

Suggested Citation

Dishman, Elysa, West Virginia v. EPA: Major Questions for the Future of the Administrative State and American Federalism (June 29, 2023). BYU Law Research Paper No. 23-10, Publius: The Journal of Federalism (2023), Available at SSRN: https://ssrn.com/abstract=4495756

Elysa Dishman (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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