West Virginia v. EPA: Questions About “Major Questions”
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, i.e., 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 legislative 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 s
Article from Reason.com