Legitimacy and the Major Questions Doctrine
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Ronald M. Levin*
Q uestions about the legitimacy of
recent Supreme Court decisions
are occupying an increas-
ingly prominent place in public law
discourse. Last February, a
widely discussed feature in
the New York Times quoted
several well-known law profes-
sors' laments that multiple
decisions by the newly
empowered conservative
majority of the Court have
departed so far from accepted
constitutional law premises
that the professors could not figure out
how to teach them to their students.
Jesse Wegman, The Crisis in Teaching
ConstitutionalLaw, N.Y. TIMES, Feb.
26, 2024. On the other hand, various
commentators have argued that the
Court's current activism is not funda-
mentally different from its activism
in earlier eras, and that a change in
direction should not be equated with
lawlessness. E.g., Jonathan H. Adler,
The Restrained Roberts Court, NAT'L.
REV. (NR PLUs MAG.), July 31, 2023.
The Court itself has taken note of the
controversy and has dismissed the criti-
cism. In the Court's latest decision on
the major questions doctrine (MQD),
Chief Justice Roberts's opinion for
the majority was unapologetic: It has
become a disturbing feature of some
recent opinions to criticize the decisions
with which they disagree as going
beyond the proper role of the judiciary
[but it] is important that the public not
be misled.... Any such misperception
would be harmful to this institution
and our country. Biden v. Nebraska,
143 S. Ct. 2355 (2023).
Up to a point, I agree with the
commentators' premise that the
charge of illegitimacy should not be
deployed too readily. An epithet will
lose credibility and potency if invoked
indiscriminately. But this does not mean
RONALD M. LEVIN
that the label can never be appropriate.
With due respect to the Chief Justice,
I will explain here why the MQD is
itself among the few legal developments
that I would describe as
giving rise to serious concerns
about legitimacy.
First, a bit of background. As
most readers of this essay are
doubtless aware, the Roberts
Court has deployed the MQD
during the past few years to
invalidate EPA rules on emis-
sions from power plants, health
requirements that OSHA imposed
during the COVID pandemic, the Biden
student loan program, and so forth.
The doctrine is hard to define, and
this is part of the problem, as I will
discuss. Roughly speaking, however,
the doctrine asserts that an administra-
tive agency may not adopt a regulation
that would have vast economic and
political significance unless the agency
has clear congressional authorization
for the rule-that is, a more secure
foundation in legislation than would be
required in the case of most regulations.
The bulk of academic commentary
on the MQD has been critical, but
much of that commentary has focused
on issues such as why it has bad conse-
quences, how it should be interpreted,
whether it is consistent with textualism
or originalism, etc.
This essay has a different focus. It
suggests that the doctrine has a serious
legitimacy problem, because the Court
has made no serious effort to justify
the existence of the doctrine, as I will
explain. In developing this argument, I
will draw on a full-length article of mine
that will soon appear in the California
Law Review. Readers may consult that
article for full elaboration and documen-
tation of the points made here.
The Court came closest to trying to
justify the doctrine in a Clean Air Act
case, West Virginia v. EPA, 597 U.S.
697 (2022). Chief Justice Roberts's
opinion for the majority devoted several
pages to arguing that the Court had
already applied the doctrine in a host of
past decisions.
The problem with this claim is that,
apart from a pair of COVID cases
decided earlier in the same term of
Court, those decisions didn't actually
provide the precedential support that
he claimed for them. Some of the
cited cases, such as FDA v. Brown &'
Williamson Tobacco Corp., 529 U.S. 120
(2000), reflected the major questions
doctrine as it was originally understood,
as an exception to Chevron deference-
not as it is currently understood, as a
clear statement principle. Others, such
as Gonzales v. Oregon, 546 U.S. 243
(2006), ruled against the government on
the particular facts presented, but didn't
purport to endorse any interpretive prin-
ciple that would apply to a broad range
of cases. The only pre-2021 case that
arguably did endorse a clear statement
rule was Utility Air Regulatory Group
v. EPA, 573 U.S. 302 (2014). But that
endorsement, if it did occur, consisted of
one ambiguous sentence dropped into
the middle of a discussion of a different
point, unaccompanied by any reasons to
justify such a requirement.
Of course, the Court often does
overstate the teachings of its past cases,
but the West Virginia opinion was
exceptional in the extent to which the
Court used exaggerated accounts of
its case law as a substitute for analysis
rather than as a supplement for it.
Chief Justice Roberts also relied
heavily on what he said was a presump-
tion that Congress itself would not
use ambiguous language to confer on
agencies the authority to adopt rules
with a major economic and political
impact. But a serious objection to that
reasoning is that, in the past, the Court
SPRING 2 0 2 4 1 5 ADMINISTRATIVE & REGULATORY LAW NEWS
William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis. This essay is a shortened version of the author's
forthcoming law review article The Major Questions Doctrine: Unfounded, Unbounded, and Confounded, which is scheduled to be published in June at
112 CALIF. L. REV. Issue 3 (forthcoming 2024). A draft is currently posted at https://ssrn.com/abstract=4304404.
15
S PRING 2024
ADMINISTRATIVE & REGULATORY LAW NEWS](ViewImageLocal?handle=hein.journals/admreln49&div=35&collection=&method=preview&ext=.png&size=3)
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Legitimacy and the Major Questions Doctrine
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