Major Questions, Modern Times: Revisiting the “Major Questions Doctrine” in 2024

Introduction

The administrative state is becoming increasingly important in the execution of crucial governmental functions [1]. A term used to describe the complex interactions within federal executive agencies that are the core of American bureaucracy, the administrative state is being charged with more and more responsibilities to compensate for a gridlocked Congress. Rather than turning to the dysfunctional legislature, presidential administrations seek to use ambitious agency regulations to achieve desired policy outcomes. For example, in recent years, the Environmental Protection Agency (EPA) has been known to promulgate stringent regulations in order to circumvent a heated congressional debate [2].

In recent years, however, an increasingly conservative Supreme Court has caught on to this Congressional circumvention. Thus, the administrative state’s exact role in statutory interpretation is turning into a heated point of contestation [3].

At their core, administrative agencies are at the behest of Congress; after all, it is congressional statutes that breathe life into these executive offices in the first place. In turn, it is up to the agencies to interpret these statutes to properly understand and execute the role Congress has assigned them [4].

This inevitable interaction between administrative offices and their congressional creators necessitates a judicial response; otherwise, there would be no way to guarantee an agency was not attempting to maliciously maximize their power. It was this dilemma that led the court to seek out a standardized rule for determining the legitimacy of statutory interpretations posited by executive agencies [5].

The Court’s solution to this problem presented itself in its decision in Chevron v. Natural Resources Defense Council (1984) [6]. The Court established that it would defer to an agency’s interpretation regarding statutes deemed ambiguous if their understanding was neither arbitrary nor capricious [7].

The logic for this blanket deference is simple. The Constitution vests Congress with the power to legislate. In Chevron, the court determined that ambiguous statutes regarding agencies was an “express delegation of authority to the agency” [8]. Therefore, the lack of specific delegation is implicitly an intent to give agencies authority over areas they deem necessary to fulfill their duty. With that, the doctrine of Chevron Deference was born.

In 2022, however, a major rewrite of this deference policy was implemented through the Court’s decision in West Virginia v. EPA [9]. The decision hinged on a concept known as the “major questions doctrine” (MQD). The MQD is a doctrine that seeks to limit the applicability of deference. At its core, the MQD says that if an agency’s interpretation of a statute might have “economic and political significance,” it is not deserving of deference [10]. While the conservative majority argued the MQD had been an implicit rule when determining application of deference in the past, the dissenting justices disagreed.

The decision in West Virginia centered the MQD as the future of deference, declaring it a necessary correction to Chevron’s blanket violation of textualist and separation of powers principles [11].

This article disagrees; the MQD is not an attempt to restore order to statutory interpretation, but rather a thinly veiled attempt to dismantle the administrative state in order to prevent it from being used as a vehicle for Biden’s policy agenda [12].

The Court got it right the first time; restrictions to agency deference beyond what was established in Chevron are not only unjustifiable, but inconsistent with past understandings of the role of the judiciary when determining the validity of agency interpretations of statutes.

Justifying the MQD

At first glance, the MQD seems reasonable: regulations that could have a major societal effect should probably have a more stringent review process by some entity other than the agency desiring their implementation. Under the original Chevron framework, an agency would only have to provide a “reasonable” [13] interpretation in order to receive deference — West Virginia raised the threshold to providing proof of “clear congressional authorization” [14].

However, when investigated further, there is a much more insidious rationale present than simply attempting to improve the quality of rulemaking.

The decision in West Virginia declares the MQD an imperative corrective to deference under “separation of powers principles and a practical understanding of legislative intent” [15]. Unfortunately, further elaboration beyond invocation of these buzzwords is lacking in the majority opinion. People are thus left to interpret for themselves how a doctrine seemingly pulled out of thin air is able to reconcile these concerns.

Separation of Powers

Although separation of powers is lacking in-depth explanation in the majority, Supreme Court Justice Neil Gorsuch sheds some light on the issue in his concurrence. He declares that, as per Article I of the Constitution, the People “vested ‘[a]ll’ federal legislative powers … in Congress” [16]. Unchecked deference, he argues, essentially turns executive agencies into pseudo-legislators because it allows them to bend ambiguous statutes to fit their agenda.

This argument fails on two fronts.

First, it presupposes that the original Chevron ruling presented a separation of powers problem that needed to be remedied. It did not. The reasonableness test created by the original Chevron decision ensured that any agency interpretation was in line with the desires of the original legislation [17]. Similarly, if an agency was found to be overstepping their bounds, Congress could right the wrong by passing new, stricter legislation.

The logic of the decision in Chevron was that the role of an agency to execute “a congressionally created … program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress” [18]. If Congress were to be required to spell out every intimate detail involved in agency execution, no legislation would ever be acted upon because it would be impossible for legislators to foresee every question that needed an answer.

Second, the MQD creates a new separation of powers problem with the judiciary. It makes individual judges a roadblock for executive agencies attempting to administer the goals of legislation. These judges are now to decide whether or not an executive interpretation will have significant effects — whatever that means to them. And they are likely to make those decisions along partisan lines, adding another concern to allowing non-experts to interpret the possible effects of proposed regulation [19].

These new concerns are necessarily worse than those associated with the original Chevron framework. Whereas agencies are statutorily delegated the authority to execute legislative goals and thus it is arguable they should be allowed deference, there is no argument for why courts should become policymakers [20]. Deference to agencies could be explained in a manner that is in line with Article I of the Constitution, seeing as they are simply executing policies assigned to them via the legislature. But there is no world in which the notion of judges as legislators is reconcilable with Congress empowered to be the only legislative body [21].

Textualism

The second rationale for the MQD is rooted in a rigid defense of textualism. A textual approach to statutory construction attempts to use only the plain meaning of the text of a statute when determining its interpretation. According to defenders of the MQD, by refusing to defer when a statute regarding a major question is ambiguous, it prevents the agency from acquiring authority that is not explicitly stated. Thus, the MQD prevents extrapolation beyond the exact text.

However, a doctrine born out of thin air cannot reconcile a problem dealing with statutory interpretation beyond the scope of the text. If the creation of the MQD came without any textual basis, then it would be wholly antithetical to the core principles of textualism.

The West Virginia decision relies on two major citations to prove the MQD is not a new creation:

First, it cites FDA v. Brown & Williamson [22]. The majority decision determined that although deference is true, in “extraordinary cases, however, there may be reason to hesitate” [23]. This line was then reconstructed as precedent for the MQD in the recent West Virginia ruling. However, the reason this case was “extraordinary” was not because of the major questions it sparked, but because of how Congress had consistently made the “judgment to deny the FDA this power” [24]. The hesitation the court had in giving deference was not because of the presence of some informal MQD, but because they found the FDA’s interpretation unreasonable given the “unique political history” [25]. This is therefore an unpersuasive substantiation of the doctrine.

Second, they cite Utility Air Regulatory Group v. EPA [26]. The West Virginia decision uses Utility Air to demonstrate that the Court “’typically greet[s]’ assertions of ‘extravagant statutory power over the national economy’ with ‘skepticism’” [27]. However, similarly to the misconstruction of the FDA case, the reason for this skepticism was not because of possible economic consequences, but because interpreting the statute in the proposed manner would have “[rendered] the statute ‘unrecognizable to the Congress that designed’ it” [28]. This is distinct from the criteria established in the MQD; rather than looking at political implications of policy, Utility Air simply determined the agency’s interpretation was unreasonable given the statute’s wording. Thus, once again, the decision deemed the agency interpretation unreasonable under the Chevron framework, not because of some implicit MQD framework.

Conclusion

Chevron gives life to agency flexibility. Without it, the executive branch would be unable to pass regulations on issues Congress had not issued regulations regarding. That means emerging problems would remain unsolved as we are forced to wait for our polarized legislature to develop a solution. And with there being constant new developments in technology, health, and innovation, that added time could prove fatal. More tangibly, that may severely hinder agency initiatives regarding higher education.

The most visible of these policies under threat is Biden’s initiative to help alleviate student debt. Under Chevron, the US Department of Education (DOE) could assume authority over student loans despite it not being statutorily clear. Then, the agency could begin implementing strategies to help forgive loans and ease the cost of education. However, without deference, it is unlikely the conservative-majority Supreme Court will allow the DOE to manage student loans broadly.

The doctrine has existed since the 1980s; attempts to deconstruct a policy that has been in place for over four decades should be met with skepticism. Efforts to dismantle the administrative state are not good-faith efforts to promote more holistic policy, but instead attacks by bad actors to secure a locked-in conservative government.

Bibliography

[1] Becker-Cohen, Miriam. “RELEASE: Neither the APA nor Separation of Powers Principles Require Overruling Chevron.” Constitutional Accountability Center (blog), January 17, 2024. https://www.theusconstitution.org/news/release-neither-the-apa-nor-separation-of-powers-principles-require-overruling-chevron/.

[2] “RELEASE: Neither the APA nor Separation of Powers Principles Require Overruling Chevron.” Constitutional Accountability Center (blog), January 17, 2024. https://www.theusconstitution.org/news/release-neither-the-apa-nor-separation-of-powers-principles-require-overruling-chevron/.

[3] Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Driesen, David M. “Does the Separation of Powers Justify the Major Questions Doctrine?” University of Illinois Law Review, September 9, 2022. https://doi.org/10.2139/ssrn.4200508.

[9] “Does the Separation of Powers Justify the Major Questions Doctrine?” University of Illinois Law Review, September 9, 2022. https://doi.org/10.2139/ssrn.4200508.

[10] Dudley, Susan E. “Milestones in the Evolution of the Administrative State.” Daedalus 150, no. 3 (July 1, 2021): 33–48. https://doi.org/10.1162/daed_a_01858.

[11] Emerson, Blake. Why the Supreme Court’s “administrative state” decision matters, June 21, 2022. https://www.marketplace.org/2022/06/21/why-you-should-care-about-a-supreme-court-decision-on-the-administrative-state/.

[12] FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Guillén, Alex, and Josh Gerstein. “Supreme Court Takes on Executive Branch in Broad Fight over Policymaking Power.” POLITICO, January 17, 2024. https://www.politico.com/news/2024/01/17/supreme-court-biden-agenda-executive-policymaking-power-00135966.

[17] Ibid.

[18] Siegel, Jonathan R. “The Constitutional Case for Chevron Deference.” Vanderbilt Law Review, GWU Law School Public Law Research Paper, 2018. https://papers.ssrn.com/abstract=3125081.

[19] Ibid.

[20] Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).

[21] Ibid.

[22] West Virginia v. Environmental Protection Agency, 597 US _ (2022).

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Ibid.