Open for Business: The Supreme Court Curbs Federal Regulatory Power

The current U.S. Supreme Court has been making a habit of pushing itself into the center of American politics, issuing high-profile decisions on controversial topics such as guns and abortion, with decisions on affirmative action and religious objections to antidiscrimination law expected soon. A theme running throughout these opinions has been the Court’s focus on redefining individual rights: removing them from pregnant women, granting them to people who want to carry guns. But alongside these truly radical redefinitions of constitutional rights, the Court has also been busily redefining the nuts and bolts of how government actually functions at its most basic level, with potentially monumental consequences.

In its decision last year in West Virginia v. EPA (the Environmental Protection Agency), the Court set out its new approach to reviewing the work done by government agencies. While its new method—the “major questions doctrine”—purports to return power to Congress, it is in fact designed to vacuum up power for itself as the final arbiter of policy choices. If it proves to be as durable and flexible as the current majority on the Court seems to hope, it has the potential to constrain the work of government agencies and by extension, the ability of Congress to effectively regulate private interests, and could enforce a libertarian vision of governance on the American public.

When Congress passes laws, they entrust the execution of those laws to the executive branch, whose sole job is to make the law work. The vast majority of that work is done by the myriad agencies that constitute the federal government. These agencies act pursuant to the statutes that direct their work. The National Labor Relations Board (NLRB), for example, was created in the National Labor Relations Act and exists solely to implement that statute. The NLRB is an “independent agency,” meaning it is not contained within any bigger agency, but most other agencies are part of a larger group. (The Occupational Safety and Health Administration [OSHA], for example, is part of the Department of Labor.)

West Virginia v. EPA . . . has the potential to constrain the work of government agencies and by extension, the ability of Congress to effectively regulate private interests . . .

Agencies have taken on significant roles in our daily lives as our world has gotten bigger and more complicated. And they have taken on this additional work because Congress has asked them to do so. The growth of government agencies to help us manage the challenges of modern life has been a source of consternation to a majority of current members on the Court, who seem to perceive danger lurking behind every government scientist taking an air quality sample and every complaint issued by the NLRB. Rather than seeing agencies as part of our legitimate structure of governance, these Justices believe that these agencies are profound threats to individual liberty and illegitimate interlopers in our constitutional system. With that perspective guiding their actions, these members of the Court have taken it upon themselves to prevent agencies from using the powers given to them by Congress.

The EPA Case: A Major Step Toward Obstruction
The Court took a huge step in obstructing governmental regulation in its decision last June in West Virginia v. EPA. That case considered a rule proposed by the EPA that would have required coal-fired power plants to make changes to their production and investment practices with the goal of (eventually) spurring a sector-wide shift to renewable energy. The EPA was acting under the direction of the Clean Air Act, which requires the EPA to set a “standard of performance” for the emission of certain pollutants. More specifically, the Clean Air Act requires the EPA to set a standard that reflects the “best system of emission reduction.” In 2015, when the EPA first proposed this rule, the agency believed the “best” form of emission reduction would be a gradual shift away from coal and toward renewable energy.

Chief Justice Roberts wrote for the Supreme Court in declaring that the EPA’s proposed rule was invalid because it violated the newly announced “major questions doctrine.” According to this new doctrine, in “certain extraordinary cases,” an agency must be able to do more than point to textual authorization (e.g., a law like the Clean Air Act) for its action. Instead, in these  “extraordinary cases,” the agency must be able to “point to clear congressional authorization for the power it claims.”[1] There is, in other words, a certain category of cases in which the Court will invalidate agency action that would otherwise be licit unless the agency can point to “something more” than it would need in less “extraordinary” cases.

A prime danger of this new doctrine is that it is a very vague test for a judge to apply. For example, what bumps an agency action from regular agency actions that merit only regular  judicial review into the category of “extraordinary” cases that require “something more”? At different points in the opinion, Roberts suggested a case might be “extraordinary” if the regulation was new or different from old regulations. Or it might be “extraordinary” if the agency is regulating an important issue about which people disagree.[2] In the end, he simply described the rule in the case as one of “magnitude and consequence.”[3] Or, in Justice Kagan’s words, the majority decided the rule was “too new and too big a deal” and thus “extraordinary” for purposes of this new type of review.[4] When the terms are this vague, the application of the doctrine will be left to the choices of judges who may wield it strategically. And unfortunately, the major questions doctrine admits of only one strategic use. As law professor Blake Emerson has explained, the major questions doctrine is a “one-way deregulatory ratchet.”[5]

Rather than seeing agencies as part of our legitimate structure of governance, these Justices believe that these agencies are profound threats to individual liberty and illegitimate interlopers in our constitutional system.

The deregulatory nature of the doctrine is evident in the Court’s description of what it means by “something more”: Roberts told us this means “clear congressional authorization” for the agency action. But agencies are already limited to acting only within the powers given to them by Congress. So rather than pointing to statutory authority for the action—which is already a requirement of all agency action—the Court is using the major questions doctrine to demand that the agency point to statutory language telling the agency to do precisely the exact thing it is trying to do.

In the EPA case, for example, the EPA pointed to the language in the Clean Air Act that required the EPA to set a “standard of performance” for pollutants based on the “best system of emission reduction.” Congress did not state what the “best” system was. Instead, Congress left that determination to the EPA, the government agency staffed with scientists and experts on environmental policy. In Kagan’s words, Congress understood that “regulating power plant emissions is a complex undertaking” and “knew well what it was doing” when it left it to the EPA to figure out how  “best” (in the words of the statute) to do that.[6] Kagan describes that statutory language as indicating that Congress wanted the EPA to “keep up” with technology.[7] Congress must use words like “best” because, alas, “Congress usually can’t predict the future.”[8] Delegating the nuts and bolts of the statutory scheme to the agency is a rational way to ensure that Congress’s statutory goals are actually implemented. Truly, there is no other way to effectively govern.

The cases that Roberts relied on . . . are all cases in which the Court invalidated an agency action designed to regulate private businesses.

But effective governance and successful implementation of Congress’s statutory schemes are not the purposes of the major questions doctrine. The cases that Roberts relied on to claim that the doctrine was not new (despite the debut of the phrase “major questions doctrine” in this  opinion) are all cases in which the Court invalidated an agency action designed to regulate private businesses. Two of those opinions were issued in the same term as West Virginia and in both cases, the Court invalidated two agency regulations regarding the Covid-19 pandemic: a temporary eviction moratorium and a rule requiring people to either get a vaccine or mask and test at work.[9] In both cases, the Court invalidated the agency action based on the same squishy criteria we saw in West Virginia: novelty and significance. Another case cited by Roberts involved the Clean Air Act and the Court’s refusal to permit the EPA to regulate pollutants in a particular manner.[10] Two others were applicable to the case at hand only if someone reads the facts and the reasoning of the opinions in a very creative manner.[11] But for what it’s worth, the agency lost in those cases, as well. Major questions cases, in other words, are cases in which the Court has decided the agency may not regulate.

In each opinion, the Court purported to be protecting congressional control over agency regulations. 12 Kagan has the better take on things:

[T]he Court substitutes its own ideas about delegations for Congress’s. And that means the Court substitutes its own ideas about policymaking for Congress’s. The Court will not allow the Clean Air Act to work as Congress instructed. The Court, rather than Congress, will decide how much regulation is too much.[13]

The Court is taking power away from Congress and hoarding it for itself because doing so enables the Court to, in Kagan’s words, “prevent agencies from doing important work, even though that is what Congress directed.”[14]

The Major Questions Doctrine: A Case of Supreme Court Overreach
For several decades now, a number of conservative legal academics and lawyers have been arguing that the “nondelegation doctrine” should invalidate the many laws in which Congress gives an agency the power to figure out the details of implementation. Proponents of nondelegation argue that because the Constitution tells us that the legislative power is “vested” in Congress, it is unconstitutional for Congress to delegate some of that power to agencies when it asks them to implement its laws. For all intents and purposes that doctrine has been dead for over a century, but conservatives have been hammering away at it nonetheless because it contains such great potential to destroy the foundations of agency work. Imagine what the government would look like if Congress had to spell out all the details of implementation for every law it passed. The task is an impossible one, which is, of course, the point. Congress could never do that, so a full-throated embrace of nondelegation would burn down the whole house of administrative government. Despite its radically destructive potential, at various points, five of the current Justices on the Court (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh) have openly indicated their willingness to resuscitate the nondelegation doctrine. But those opinions have been aired in concurrences and dissents, not in majority opinions. It may be the case that nondelegation is too dramatic even for this Court.

Enter the major questions doctrine: a “doctrine” cobbled together from a few cases here and there—recall that two of the five cases cited for support in West Virginia were decided in the same term by the same justices who decided West Virginia itself—that enables the Court to slowly chip away at the foundation of the house, rather than blowing it up in one dramatic blast.[15] The final outcome, of course, is the same: no more house. But there are key differences between these two scenarios. For one, the timeline is longer and the destructive behavior less apparent.

The major questions doctrine . . . requires Congress to predict the future, to legislate minutiae, to order agencies with a level of expertise and foresight it simply does not have.

The major questions doctrine is such an effective chisel because it asks Congress to do something that on its face seems reasonable: speak clearly when it wants an agency to do something. But the problem with the doctrine in practice is that the Court’s new definition of Congress “speaking clearly” is entirely untethered from reality. It requires Congress to predict the future, to legislate minutiae, to order agencies with a level of expertise and foresight it simply does not have. The fact is, Congress did speak clearly when it told the EPA to use the “best” system of emission reduction and when it told OSHA to set standards that ensure “safe and healthful working conditions.” Congress directed the agencies to act and it told them what to do. It did not tell the EPA that “the ‘best’ system of emissions reduction involves a three-part typology of emission reduction options that may include transitions to renewable energy.” It did not tell OSHA that in the event of a global pandemic that arises from a virus that is both found to be highly transmissible via air and effectively combatted via a vaccination, you must order vaccination and/or masking and testing in workplaces you regulate.

It is absurd to think that these are the kind of legislative pronouncements Congress should be making to agencies, but this is precisely the type of universe in which the Supreme Court has decided our government should operate.

There are two additional concerns with this new approach. The first is that its impact may be amplified by agencies who decide to self-police around this new doctrine. Agencies want their rules to be upheld in court. If they believe that a court is likely to invalidate their action on major questions grounds—perhaps the issue is an important one or perhaps it is a new one on which the agency has not yet regulated—they may decide to preempt a court challenge by not regulating at all, even if the agency believes the statute directs them to do so. The second concern is that the doctrine will be easy to manipulate by anti-regulatory forces. As one factor courts must consider under the new major questions doctrine is whether a regulatory topic is controversial, it will be easy for well-funded interests to gin up controversy surrounding a regulation. Because the Court told us in West Virginia that policy disagreement suggests the agency should not regulate, any disagreement over the proposal will be a point in the column of anti-regulatory forces when litigation arises.[16]

If [agencies] believe that a court is likely to invalidate their action on major questions grounds . . . they may decide to . . . not regulat[e] at all . . .

From the perspective of labor, the Court’s reframing of regulations as fundamentally dangerous and constitutionally suspect is especially problematic. Government regulations set essential
floors for workplace conditions. Particularly in an era in which most workers are not covered by union contracts, those regulations are often the only protections workers have against abuse by their employers. By contrast, the major questions doctrine offers an additional layer of protection for powerful private interests, including employers. By limiting agencies to regulating only on small issues about which no one can disagree, the major questions doctrine severely curtails the ability of labor agencies to meaningfully regulate in ways that would improve working conditions.

Although West Virginia v. EPA is a radical decision and though it is merely one of many radical decisions the Court has issued in the recent past, there is nothing new about the Supreme Court undermining attempts at government regulation of private interests. As Steve Fraser recently reminded us, the Supreme Court has long been a conservative, reactionary force in American politics.[17] The Warren Court was an aberration, not the norm. Today, we are confronted by a new round of rightwing rule by judicial fiat. The decisions are coming fast, and they are designed to weaken the foundations of the American government. These decisions may also have the effect (perhaps intentional, perhaps not) of planting a seed of despair in many of us. What is the point of  organizing, lobbying, legislating, and regulating when the court is just going to invalidate anything Congress does anyway?

The check the Court needs—and has repeatedly received throughout American history—must come from outside of the legal system.

That question is revealing of the fundamental threat underlying West Virginia v. EPA (and many other decisions). Namely, the Supreme Court is taking steps to make our country less democratic.

The Court has always been an aberration in our constitutional system. There is no definition of democracy that includes nine unelected humans holding jobs for their entire lives that enable them to decree democratically passed legislation to be invalid. Although that power is often defended with the argument that courts are the last line of defense against minorities that may be trampled by prejudicial majoritarian institutions, the Court has not served that noble role in practice. Instead, as Professor Nikolas Bowie observed to the Presidential Commission on the Supreme Court of the United States, the Court gave its blessing to slavery, Jim Crow, Japanese internment, and Muslim bans, to name just a few instances of the Court failing to live up to its minority-protecting title. Instead, Bowie remarked, “the principal ‘minority’ most often protected by the Court is the wealthy.”[18]

Lawyers around the country are working hard at this very moment to push back against the major questions doctrine. They will assuredly have some successes. The malleability of the doctrine lends itself to both strategic use and strategic dis-use. Just as some judges will pick it up and use it to run far in the deregulatory direction, others will set it aside and reject it for the thinly veiled deregulatory policy it is. Flexibility can push in both directions.

But more lasting change will require limiting the ability of the Court to undermine democratic governance. Many have suggested court packing and term limits as ways to limit the power of this Court. Professor Bowie suggested a more fundamental restructuring of judicial power in his remarks to the committee, arguing that judicial review—the power of a court to refuse to enforce a piece of legislation—is fundamentally antidemocratic and should be abandoned.

All the proposed reforms are geared toward the goal of loosening the grip of the Court on American democracy. But the check the Court needs—and has repeatedly received throughout American history—must come from outside of the legal system. It must come from politics, not law.

The famous “switch in time that saved nine”—the changed vote from one of the conservative Justices on the New Deal Court that resulted in an opinion upholding the constitutionality of state minimum-wage legislation—was not a change of heart that arose after court packing was proposed, as is commonly recounted. The deciding Justice seems to have changed his mind on the New Deal after a different event: Roosevelt’s FDR overwhelming reelection in 1936 (FDR won every state except Maine and Vermont).[19] The story is much the same when it comes to the  implementation of law issued from the Supreme Court. Political scientist Gerald Rosenberg has reminded us that although the Supreme Court declared school segregation illegal in 1954’s  Brown v. Board of Education, it took decades—and the threat of losing federal funds for public schools via congressional action—before southern states actually took meaningful steps to desegregate public schools.[20] These are two famous examples of the Court really mattering, but what we see in both is that the Court was more responsive to outside politics than institutional reform proposals and that the law on the books only became the law in reality once Congress put its weight (and money) behind it.

In this respect, labor unions have an essential role to play in counteracting the major questions doctrine ‘specifically’ and the power of courts more generally. The need for union involvement is particularly striking regarding legal doctrines such as major questions that privilege private interests and weaken the ability of the government to stand on the side of working people. Longtime organizer Jane McAlevey has described labor unions as “absolutely essential to democracy” insofar as unions provide the only effective counter to the power of wealthy interests and insofar as unions teach and practice the kind of consensus-building (among other things) that is necessary for effective democratic governance.[21]

If we aspire toward a world that is more supportive of working people, more genuinely democratic, and less beholden to the ideological views of a handful of judges, then unions and other forms of political organizing are the only way to get there. History suggests that the most effective way to change the impact of the Court on American politics and governance is to change the politics in which the Court is immersed. History has shown us that a transformative court cannot transform much of the real world without the help of the other branches of government and that an obstructionist (or in the current case, destructive) court is attentive to its institutional legitimacy and threats to its power when it is badly out of step with the other branches and the public at large. We may not be close to another switch in time but the route to a switch does not lead through lawyers or lawsuits (as important as those may be). It runs instead through politics with a more democratically responsive Court at its end.

1. West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022).
2. Ibid., 2610, 2614.
3. Ibid., 2616.
4. Ibid., 2628 (Kagan, J., dissenting).
5. Blake Emerson, “The Real Target of the Supreme Court’s EPA Decision,” Slate, June 30, 2022, available at https://slate.com/news-andpolitics/2022/06/west-virginia-environmental-protection-agency-climate-change-clean-air.html.
6. Ibid., 2636 (Kagan, J., dissenting).
7. Ibid., 2640 (Kagan, J., dissenting).
8. Ibid., 2642 (Kagan, J., dissenting).
9. Alabama Association of Realtors v. Department of Health and Human Services, 141 S. Ct. 2485 (2021) (eviction moratorium); National Federation of Independent Business v. Occupational Safety and Health Administration, 142 S. Ct. 661 (2022) (vaccine or test mandate).
10. Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).
11. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (holding the FDA did not have authority to regulate tobacco products), Gonzales v. Oregon, 546 U.S. 243 (2006) (holding
the Attorney General could not revoke the license of any physician who prescribed medication for assisted suicide).
12. See, for example, National Federation of Independent Business v. Occupational Safety and Health Administration, 142 S. Ct. at 666 (“It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes”).
13. West Virginia, 142 S. Ct. at 2643. (Kagan, J., dissenting)
14. Ibid., 2641 (Kagan, J., dissenting).
15. Because the major questions doctrine is litigated on a case-by-case basis—did this statute give that power to this agency?—its destructive route is more circuitous than that of nondelegation.
If presented with the right set of facts, a nondelegation challenge could conceivably enable the Court to declare all congressional delegations to be constitutionally invalid.
16. This point is persuasively made by Daniel T. Deacon and Leah M. Litman, “The New Major Questions Doctrine,” Virginia Law Review (forthcoming).
17. Steve Fraser, “The Trump Supreme Court Is Nothing New: A History of the Tyranny of the Supremes,” New Labor Forum, September 2022, available at https://newlaborforum.cuny.
18. Nikolas Bowie, “The Contemporary Debate over Supreme Court Reform: Origins and Perspectives” (Written Statement of Nikolas Bowie, Assistant Professor of Law, Harvard Law School, Presidential Commission on the Supreme Court of the United States, June 30, 2021).
19. There are a plethora of academic studies exploring when and why the Court’s opinions about the New Deal changed when it did, including whether the change was in fact so sudden or whether it simply reflected more gradual doctrinal evolution. More prominent have been “internalist” and “externalist” debates, namely, debates about whether the Court was driven by the “internal” logic of legal doctrine or the “external” pressures of politics and court packing, among other things. My own view is that the Court was driven by both external and internal factors; it is irresponsible to ignore the role of law and legal reasoning when trying to understand how courts work. But even that doctrinal evolution took place within the larger political context of the day, one that included FDR’s landslide election, as well as (to be fair to current reformists) other proposals by Congress to reform and limit the power of the Court. Laura Kalman offers a full accounting of the background and debate on question of FDR’s Court. Laura Kalman, “The Constitution, the Supreme Court, and the New Deal,” The American Historical Review 110, no. 4 (2005): 1052. 20. Gerald N. Rosenberg, “Tilting at Windmills: Brown II and the Hopeless Quest to Resolve Deep-Seated Social Conflict through Litigation,” Law & Inequality 24 (Winter 2006): 31.
21. Jane McAlevey, A Collective Bargain: Unions, Organizing, and the Fight for Democracy (New York: HarperCollins, 2020), 1. Joseph A. McCartin has similarly called for a “labor-led democracy movement.” Joseph A. McCartin, “U.S. Labor and the Struggle for Democracy,” New Labor Forum 32, no. 1 (January 2023): 24-31.

Author Biography 
Jenny Breen is an associate professor of law at the Syracuse University College of Law where she teaches Constitutional, Administrative, and Labor Law.