Over the years, an increasing part of this country's legal system has been based not on laws passed by legislators or the Congress, but on regulations issued by administrative agencies.  The courts have long struggled with the issues pertaining to whether the federal regulations were valid, but instead were issues that should be determined by the voters acting through their designated representatives in Congress.  In recent rulings, however, the Supreme Court has shifted the discussion to the perspective that Congress must explicitly give agencies the power to regulate "major questions" with significant economic or political implications.  The most recent application of the policy occurred in the Environment Protection Agency's (EPA) authority to regulate power-plant emissions.  West Virginia v. EPA, 597 U.S. _____ (June 30, 2022.)

In a 6-3 ruling, written by Chief Justice John Roberts, the Court struck down the EPA's plan to shift power generation away from fossil-fuel plants.  Chief Justice Roberts said that agencies "must point to clear Congressional authorization" when undertaking policies of great "economic and political significance."  In a separate concurrence, Justice Gorsuch said the doctrine has its roots in the bedrock principle of separation of powers.  Justice Gorsuch writes that the doctrine applies when "an agency claims the power to resolve a matter of great political significance."   Second, an agency "must point to clear Congressional authorization when it seeks to regulate a significant portion of the American economy."  Third, it may apply when an agency seeks to intrude "into an area that is a particular domain of state law."  Although the major questions doctrine has been around for over 25 years, it has now been applied three times by the U.S. Supreme Court in the past term, including the eviction ban issued by the Centers for Disease Control and Prevention (CDC) and the vaccine mandate issued by the Occupational Safety and Health Administration (OSHA).  

Some contend that the expanded use of the major questions doctrine presents a risk to the ability of the administrative agencies to adopt rules to address engaging circumstances.  Others say that the concept simply emphasizes the nature of a democracy, that the people have the right to make these choices through their elected representatives.  In other words, Congress must give direction before the Executive Branch through agencies can write costly rules. 

This is part of our August 2022 Newsletter.

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