ArtII.S1.C1.7 Major Questions Doctrine and Administrative Agencies

Article II, Section 1, Clause 1:

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

In several twenty-first century decisions with significant implications for the administrative state, the Court held that under the “major questions doctrine,” the Executive Branch cannot interpret ambiguous legislation to effectuate sweeping changes of national consequence. Instead, Congress must, at a minimum, provide clear authorization that it intends to grant the Executive Branch such far-reaching powers.

In its 2014 decision in Utility Air Regulatory Group v. Environmental Protection Agency (EPA), the Court found that EPA could not construe the Clean Air Act (CAA) to enable it to regulate millions of small sources of air pollution, including hotels and office buildings, when Congress had not sought to regulate these entities under the CAA in the past.1 Although the Court did not explicitly refer to the major questions doctrine, it held that an agency exceeds its regulatory authority when (1) the agency’s action involves an issue of “vast ‘economic and political significance,’” and (2) Congress has not clearly granted the agency authority over the issue.2 The Court noted that Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” 3

The Court’s concern about the Executive Branch establishing law that exceeded the authority Congress had delegated was also evident during the coronavirus disease 2019 (COVID-19) pandemic. For example, in August 2021, the Court vacated a lower court’s stay, effectively halting an eviction moratorium issued by the Centers for Disease Control and Prevention (CDC).4 The Court noted that the CDC had no legal authority to mandate an eviction moratorium and that Congress itself had declined to extend the eviction moratorium.5 Likewise, in National Federation of Independent Business v. Department of Labor, the Court stayed the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine mandate on the grounds that the plaintiffs were likely to succeed on the merits of their claim that OSHA did not have authority to require that “84 million Americans . . . either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense.” 6 By comparison, on the same day, the Court vacated a stay of a a more limited vaccine mandate from the Secretary of Health and Human Services requiring that facilities receiving Medicare and Medicaid funding “ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID-19.” 7 In reaching this decision, the Court agreed that “the Secretary’s rule falls within the authorities that Congress has conferred upon him.” 8

In its 2022 decision West Virginia v. EPA, the Court held that EPA exceeded its CAA Section 111(d) authority9 in the 2015 Clean Power Plan (CPP) by requiring “generation shifting” whereby coal-fired power plants would “reduce their own production of electricity or subsidize increased generation by natural gas, wind, or solar sources.” 10 Stating that “[i]t is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme,” 11 the Court observed: “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” 12 Examining EPA’s assertion that Section 111(d) provided EPA authority to require generation shifting, the Court noted that Section 111(d) was a little-used statutory “gap-filler” that allowed EPA to regulate emissions not covered by the CAA National Ambient Air Quality Standards (NAAQS)13 or Hazardous Air Pollutants (HAP) programs.14 In light of this, the Court held, Section 111(d) could not be read as granting EPA power to transform the national economy by adopting a “regulatory program that Congress had conspicuously and repeatedly declined to enact itself.” 15

Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014). back
Id. at 324. back
Id. back
Ala. Ass’n of Realtors v. Dep’t of Health and Hum. Servs., No. 21A23, slip op. at 3 (U.S. Aug. 26, 2021) (per curiam). back
Id. at 6–8. back
Nos. 21A244 and 21A247, slip op. at 8 (U.S. Jan. 13, 2022) (per curiam). back
Biden v. Missouri, Nos. 21A240 and 21A241, slip op. at 1 (U.S. Jan. 13, 2022) (per curiam). back
Id. at 4. back
Clean Air Act, 42 U.S.C. § 7411(d) back
West Virginia v. EPA, No. 20-1530, slip op. (U.S. June 30, 2022). Through the CPP, EPA sought to reduce carbon dioxide emissions that were contributing to global warming by shifting the Nation’s energy from coal-fired generation to natural gas and renewables. Id. at 10. According to EPA estimates at the time it issued the rule, such changes “would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors.” Id. back
Id. at 31. back
Id. back
42 U.S.C. §§ 7408-7410 (requiring states to adopt plans to comply with EPA standards for specified air pollutants). back
Id. § 7412 (requiring EPA to set standards to achieve “the maximum degree of reduction of emissions” for new and existing major sources of non-NAAQS hazardous air pollution that can be achieved using the “best existing technologies and methods” ). back
EPA, No. 20-1530, slip op. at 20. back