“Major Questions” About Preemption

Abstract

The major questions doctrine upends the balance of federal and state authority by operating as a new “Step Zero” for preemption litigation. Previously, by express or implied preemption federal laws displaced state laws that would interfere with the operation of those federal laws, thereby shifting the regulatory burden from the state to federal level. Now, post-West Virginia v. EPA, state law advocates can oppose the preemptive effects of federal rules on the basis that the rules are themselves ultra vires in the first instance under the major questions doctrine. The broadest interpretation of the doctrine challenges even preemption itself as a major question. Case-specific examples in the abortion, net neutrality, and climate change arenas demonstrate the significant impact the major questions doctrine will have on preemption litigation at this Step Zero.

Keywords: major questions doctrine, preemption, step zero, chevron, abortion, net neutrality, climate change, separation of powers, federalism, delegation, nondelegation, supremacy