The Major Questions Doctrine

Updated November 2, 2022

The Major Questions Doctrine

Congress frequently delegates authority to agencies to

regulate particular aspects of society, in general or broad

terms. However, in a number of decisions, the Supreme

Court has declared that if an agency seeks to decide an

issue of major national significance, its action must be

supported by clear congressional authorization. Courts and

commentators have referred to this doctrine as the major

questions doctrine (or major rules doctrine). The Supreme

Court never used that term in a majority opinion prior to

2022, but the doctrine has recently become more prominent.

This In Focus provides an overview of the major questions

doctrine. It discusses the doctrine’s framework, provides

examples of its application, explores recent Supreme Court

developments, and offers considerations for Congress in

crafting legislation against the backdrop of the doctrine.

Overview

Agencies often must interpret statutes that grant them

regulatory authority. If challenged, courts may need to

review such interpretations to determine if an agency has

exceeded its authority. In doing so, courts will sometimes

defer to an agency’s interpretation of an ambiguous statute.

The Supreme Court has explained that, in general, courts

interpret statutory language “in [its] context and with a

view to [its] place in the overall statutory scheme.” In cases

where there is something extraordinary about the “history

and breadth of the authority” an agency asserts or the

“economic and political significance” of that assertion,

however, the Court indicated courts should “hesitate before

concluding that Congress meant to confer such authority.”

West Virginia v. EPA, 142 S. Ct. 2587, 2607–2608 (2022).

Under the major questions doctrine, the Supreme Court has

rejected agency claims of regulatory authority when (1) the

underlying claim of authority concerns an issue of “vast

‘economic and political significance,’” and (2) Congress

has not clearly empowered the agency with authority over

the issue. Util. Air Regul. Grp. (UARG) v. EPA, 573 U.S.

302, 324 (2014). In requiring agencies to point to clear

congressional authorization for their actions in major

questions cases, the Supreme Court has further explained

that Congress rarely provides an extraordinary grant of

regulatory authority through language that is modest,

vague, subtle, or ambiguous.

The Court has used the doctrine to reject agency claims of

regulatory authority, including in regard to

 the Federal Communication Commission’s waiver of a

tariff requirement for certain common carriers under its

statutory authority to “modify” such requirement (MCI

Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994)),

 the Food and Drug Administration’s regulation of the

tobacco industry pursuant to its statutory authority over

“drugs” and “devices” (FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000)),

 the Environmental Protection Agency’s (EPA’s)

consideration of costs in regulating air pollutants under

its authority to prescribe ambient air quality standards

that “are requisite to protect the public health” with “an

adequate margin of safety” (Whitman v. Am. Trucking

Ass’ns, Inc., 531 U.S. 457 (2001)),

 the Attorney General’s regulation of assisted suicide

drugs under his statutory authority over controlled

substances (Gonzales v. Oregon, 546 U.S. 243 (2006)),

 EPA’s determination that the regulation of greenhouse

gas (GHG) emissions from motor vehicles triggered

GHG permitting requirements for stationary sources

(UARG, 573 U.S. 302),

 the Internal Revenue Service’s (IRS’s) decision that a

federal health care exchange is “an exchange established

by the State” for purposes of determining eligibility for

tax credits (King v. Burwell, 576 U.S. 473 (2015)),

 the Centers for Disease Control and Prevention’s

(CDC’s) nationwide eviction moratorium (Ala. Ass’n of

Realtors v. HHS, 141 S. Ct. 2485 (2021) (per curiam)),

 the Occupational Safety and Health Administration’s

(OSHA’s) emergency temporary standard imposing

COVID-19 vaccination and testing requirements on a

large portion of the national workforce (Nat’l Fed’n of

Ind. Business v. OSHA, 142 S. Ct. 661 (2022) (per

curiam)), and

 an EPA regulation of GHG emissions that was premised

on “generation shifting,” or shifting electricity

generation from higher-emitting sources to loweremitting ones (West Virginia, 142 S. Ct. 2587).

On the other hand, in Massachusetts v. EPA, 549 U.S. 497

(2007), the Court rejected EPA’s argument, based on the

major questions doctrine, that it did not have legal authority

to regulate GHG emissions from motor vehicles.

These examples indicate the range of questions the Court

has defined as “major” under the doctrine. However, the

precise scope of the doctrine is unknown. The Court has not

clearly explained when an agency’s regulatory action will

raise a question so significant that the doctrine applies, nor

has it specified what legislative acts could constitute clear

congressional authorization.

https://crsreports.congress.gov

The Major Questions Doctrine

Recent Developments

In several recent decisions, the Court has placed increasing

emphasis on the major questions doctrine. First, in Alabama

Association of Realtors v. HHS, the Court explained that the

CDC’s eviction moratorium was of major national

significance and required a clear statutory basis because the

agency’s action covered 80% or more of the nation; created

an estimated economic impact of tens of billions of dollars;

and interfered with the landlord-tenant relationship, which

the Court explained is “the particular domain of state law.”

Then, in National Federation of Independent Business v.

OSHA, the Court considered OSHA’s emergency temporary

standard to be of major economic and political significance

because, in its estimation, it seriously intruded upon the

lives of more than 80 million people.

Most recently, the Court’s decision in West Virginia v. EPA

marked the first express reference to the major questions

doctrine in a majority opinion of the Supreme Court. In

West Virginia, the Court rejected EPA’s reliance on a

statutory provision that, in the Court’s view, was a

“previously little-used backwater.” The Court concluded

that it was unlikely Congress would task EPA with

“balancing the many vital considerations of national policy

implicated in deciding how Americans will get their

energy,” such as deciding the optimal mix of energy

sources nationwide over time and identifying an acceptable

level of energy price increases. For more information on the

case, see CRS Legal Sidebar LSB10791, Supreme Court

Addresses Major Questions Doctrine and EPA’s Regulation

of Greenhouse Gas Emissions, by Kate R. Bowers.

Relationship to the Chevron Doctrine

The major questions doctrine’s precise relationship to the

Chevron doctrine is unclear. The Chevron doctrine, which

the Court established in Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984),

governs judicial review of an agency’s interpretation of a

statute it administers. If Chevron applies, a court will

typically engage in a two-step analysis to determine if it

must defer to an agency’s statutory interpretation. At step

one, the court asks whether the statute directly addresses the

precise issue before the court. If the statute is ambiguous or

silent in that respect, the court must proceed to step two,

which instructs the court generally to defer to the agency’s

reasonable interpretation.

In some cases, the Court has treated the major questions

doctrine as an exception to the Chevron doctrine. In those

cases, when an agency’s interpretation of an ambiguous

statute concerns an issue of vast economic and political

significance, the Court has invoked the major questions

doctrine to deny the agency the deference traditionally

accorded under Chevron. When the Court refuses to defer

to an agency’s interpretation of a major question, it has

often (but not always) rejected the agency’s position. At

times, the Court has applied the major questions doctrine at

step one of Chevron, concluding that Congress did not

authorize the agency to regulate the major question at issue.

The Court has also invoked the major questions doctrine at

step two, determining that the agency’s interpretation was

unreasonable because Congress did not clearly give it such

authority. The Court has even used the doctrine as a reason

to reject engaging in the Chevron two-step analysis

altogether.

The Court, therefore, has arguably applied the major

questions doctrine in the Chevron context in an unclear, ad

hoc manner. In its three most recent cases applying the

major questions doctrine, the Court did not discuss the

Chevron framework, possibly signaling that the major

questions doctrine is an independent principle of statutory

interpretation focused on ensuring Congress bears the

responsibility for confronting questions of major national

significance. This approach also appears to be consistent

with other recent cases in which the Court has not applied

or referred to the Chevron doctrine in reviewing agency

actions. See, e.g., Am. Hosp. Ass’n v. Becerra, 142 S. Ct.

1896 (2022). That silence leaves unanswered questions

about how to determine which doctrine applies or whether

courts should undertake a major questions inquiry prior to

or as part of their Chevron analyses. These questions will

likely be important to the lower courts in challenges to

agency action in the near future.

Considerations for Congress

Under the Court’s formulation of the major questions

doctrine, an agency will lack the ability to determine

authoritatively a major question if it lacks “clear

congressional authorization” to do so. Therefore, if

Congress wants an agency to decide issues in an area courts

would likely consider to be of vast economic and political

significance, Congress should clearly specify that intention

in the relevant underlying statute as opposed to relying on

vague or imprecise statutory language. This task may be

difficult at times, given the lack of clear guidance from the

Court on what can be considered a “major” question or

clear congressional authorization. The Court’s

jurisprudence also leaves open the question of how, or even

whether, Congress may grant agencies the authority to act

to address major issues in the future that Congress did not

anticipate when it enacted a statute.

Additionally, the Supreme Court has not specified whether

material other than the text of an enacted statute could

constitute clear congressional authorization. The Court in

West Virginia looked beyond the statutory text in its

analysis of EPA’s authority, including by considering that

Congress “conspicuously and repeatedly declined to enact”

a program similar to aspects of the challenged regulation.

Even when a statutory delegation of authority over a major

economic and political question is clear, courts may find

that the underlying statute raises other problems. For

example, in his concurrence in the OSHA case, Justice

Gorsuch argued that even had Congress clearly authorized

the vaccination mandate at issue in that case, that delegation

would have probably violated the non-delegation

doctrine—the separation-of-powers principle that limits

Congress’s ability to confer legislative authority on

entities—because the statute contained no meaningful

restrictions on the agency’s regulatory power and, per the

agency, conferred near-unlimited discretion on the agency.

Kate R. Bowers, Legislative Attorney

https://crsreports.congress.gov

IF12077

The Major Questions Doctrine

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