West Virginia v. EPA is clearly designed to impose new limits on federal agencies insofar as they seek to rewrite the scope of their authority. The Supreme Court’s attention to the scope of agency authority is welcome. As noted in the immediately prior post (the third in this five-post guest series, here being the first and second), the Court held in City of Arlington v. FCC (2013) that federal courts must give Chevron deference to an agency’s interpretation of the scope of its authority. This would effectively give agencies the power to determine the dimensions of their regulatory mandate unless it is clear that Congress has not conferred authority on the agency to act.
West Virginia turns this Chevron doctrine principle on its head: At least with respect to “major questions,” an agency will be presumed to have no authority to act unless the court finds that Congress “clearly” has conferred authority on the agency to decide the matter in question.
West Virginia Thus establishes a “two-step” standard of review very different from the “two-step” standard commonly associated with Chevron. As formulated in West Virginia, a court is supposed to ask, first, whether the agency is seeking to regulate in a manner that presents a “major question” of “economic and political significance.” If the answer is yes, the court asks, second, whether there is a “clear statement” by Congress conferring such authority. In the absence of a clear statement, the agency will be held to have exceeded the scope of its authority. (West Virginia does not say what happens if the answer to the first question is that the question is “minor.”)
Before considering the workability of the major questions doctrine, it is worth asking whether, as Justice Gorsuch suggested in his concurring opinion, West Virginia is a way station on the road to the revival of the nondelegation doctrine, ie, the idea that under the Constitution only Congress has the power to legislate. It helps here to distinguish between two nondelegation doctrines.
One such doctrine says that Congress may not delegate too much discretion to non-legislative actors such as agencies because this would constitute a delegation of authorized power. This is the source of the requirement (which has proved to be very difficult to enforce) that Congress must include in any delegation an “intelligible principle” for an agency or other delegate to follow.
The major questions doctrine does not enforce the nondelegation principle in this sense. It is essentially contradictory to say that Congress cannot delegate too much discretion to an agency unless Congress does so clearly.
The other nondelegation doctrine says that only Congress has authority to delegate power to act with the force of law to agencies or other non-legislative actors. In other words, an agency—and for that matter the president—has no inherent authority to regulate unless this power has been conferred by Congress. This principle has proved to be much easier to enforce—indeed, it is enforced every time a court strikes down an agency action for violating a clear limitation found in the statute under which the agency operates.
West Virginia‘s major questions doctrine is designed to reinforce this second version of nondelegation. It is imperative to enforce this version of nondelegation in some way if the separation of powers and the principle of supremacy are to continue to have any meaning. And there is nothing contradictory about saying that an agency has no authority to act unless the power to do so has been clearly delegated by Congress.
The more telling objection to the major questions doctrine, as articulated in West Virginiais that it either will prove unworkable or—worse—will invite judges to overturn agency initiatives based on reasons other than the court’s best judgment about what Congress has actually authorized to agency to do.
The major questions doctrine did not come out of nowhere. But in the Court’s previous decisions that made some reference to “major questions,” the idea was advanced in the context of a careful exercise in statutory interpretation. The Court took a close look at the agency’s statute, and concluded that the agency was either exceeding, or declining to exercise, authority conferred by Congress. Then, as a kind of afterthought or rhetorical flourish, the Court would observe that it was Parliament Congress ever imagined the agency’s taking the step it was proposing to take—given the “economic and political significance” of the agency action.
But in West Virginia, the inquiry into whether the question is “major” comes first, and the examination of the statute is limited to searching for a “clear statement” authorizing such action. The ultimate reason for this, as I suggested in the first blog post, is that the Obama Administration’s Clean Power Plan was not before the Court, and there was no Biden plan yet in existence. Accordingly, the Court was forced to open in the abstract about whether “generation shifting” or a standard based on a cap-and-trade system was a “major question.”
This is essentially to ask the federal courts to engage in a kind of political punditry. In determining whether something is a “major question,” the factors mentioned by the Chief Justice, and by Justice Gorsuch in his concurring opinion, include such things as whether the matter is politically controversial, whether large numbers of dollars are involved, whether large numbers of people are affected, whether Congress has sought and failed to legislate on the matter, whether the question takes away authority from state governments, and whether the agency action is any or departed from settled agency practice.
There are several problems with this approach. One is the extreme indeterminacy of the inquiry—something that is endemic to any inquiry that posits a large number of variables of no specified weight. The net effect is a kind of all-things-considered test that confers enormous discretion on a court to decide whether the agency does or does not have authority over the relevant issue.
A related problem is what is meant by a “clear statement” from Congress conferring the required authority. Does this mean authority must be conferred in the text of the statute? Or can it be “clear” based on the context? And just how “clear” is clear?
Another problem is how lower courts will respond to the major questions doctrine. Some lower court judges will undoubtedly regard the new doctrine as an invitation to overturn agency rules they do not like by declaring the question “major.” Other judges will just as surely disagree. The new doctrine thus raises the prospect of all sorts of confusion and conflicts in the circuits breaking out, which the Supreme Court does not have the decisional capacity to sort out.
Finally, the major questions doctrine ignores the most important insight of the Chevron doctrine. Justice Stevens pointed out in Chevron that when the statutory interpretation ultimately turns on a policy dispute, agencies have two big advantages over courts: agencies are accountable to elected officials and thus indirectly to the people, and they have more experience with the statute in question and the problems it is designed to solve .
In theory, the major questions doctrine means that really important policy questions should be decided Congress. Which of course is as it should be.
But what we face all too often today is a question of the second best. Yes, Congress is the best choice for resolving controversial policy questions. But if Congress does not want to face the music, what is the second-best choice: an agency or a court? The major questions doctrine portends a world in which the most consequential questions—the most controversial and those implicating the most significant conflicting interests—will be made by unelected courts having no expertise. This is, let me mildly say, a questionable allocation of authority over regulatory policy.
My fifth and final post will suggest that the best way to preserve the separation-of-powers principle of supremacy, while preserving the understanding that courts are charged with interpreting the law rather than meddling in policy, is to require courts to determine in each case, as a matter of independent judgment, whether Congress has actually delegated authority to the agency to decide a particular question.
To be sure, careful interpretation of the statute requires more work by judges. No presumptions, no clear-statement shortcuts. But a central reason why we have federal courts, and give their judges life tenure, is to answer such difficult questions.