April 6, 2022
The Major Questions Doctrine
Congress frequently delegates authority to agencies to
the Environmental Protection Agency’s (EPA’s)
regulate particular aspects of society, in general or broad
consideration of costs in regulating air pollutants under
terms. However, in a number of decisions, the Supreme
its authority to prescribe ambient air quality standards
Court has declared that if an agency seeks to decide an
that “are requisite to protect the public health” with “an
issue of major national significance, its action must be
adequate margin of safety” (Whitman, 531 U.S. 457),
supported by clear statutory authorization. Courts,
commentators, and individual Supreme Court Justices have
the Attorney General’s regulation of assisted suicide
referred to this doctrine as the major questions doctrine
drugs under his statutory authority over controlled
(or major rules doctrine), although the Court has never used
substances (Gonzales v. Oregon, 546 U.S. 243 (2006)),
that term in a majority opinion.
EPA’s determination that the regulation of greenhouse
This In Focus provides an overview of the major questions
gas emissions from motor vehicles triggered greenhouse
doctrine. It discusses the doctrine’s framework, provides
gas permitting requirements for stationary sources
examples of its application, explores recent Supreme Court
(UARG, 573 U.S. 302), and
developments, and offers considerations for Congress in
crafting legislation against the backdrop of the doctrine.
the Internal Revenue Service’s (IRS’s) decision that a
federal health care exchange is “an exchange established
Overview
by the State” for purposes of determining eligibility for
Agencies often must interpret statutes that grant them
tax credits (King v. Burwell, 576 U.S. 473 (2015)).
regulatory authority. If challenged, courts may need to
review such interpretations to determine if an agency has
On the other hand, in Massachusetts v. EPA, 549 U.S. 497
exceeded its authority, and in doing so, will sometimes
(2007), the Court rejected EPA’s argument, which was
defer to an agency’s interpretation of an ambiguous statute.
based on the major questions doctrine, that it did not have
Under the major questions doctrine, however, the Supreme
legal authority to regulate greenhouse gas emissions from
Court has rejected agency claims of regulatory authority
motor vehicles.
when (1) the underlying claim of authority concerns an
issue of “vast ‘economic and political significance,’” and
These examples indicate the range of questions the Court
(2) Congress has not clearly empowered the agency with
has defined as “major” under the doctrine. However, the
authority over the issue. Util. Air Regul. Grp. (UARG) v.
precise scope of the doctrine is unknown. The Court has not
EPA, 573 U.S. 302, 324 (2014).
clearly explained when, as a general matter, an agency’s
regulatory action will raise a question so significant that the
In requiring an agency to point to a clear “textual
doctrine applies.
commitment of authority” to regulate issues involving
major questions, the Court has explained that “Congress . . .
Relationship to the Chevron Doctrine
does not alter the fundamental details of a regulatory
The Court traditionally has treated the major questions
scheme in vague terms or ancillary provisions—it does not,
doctrine as an exception to the Chevron doctrine, which
one might say, hide elephants in mouseholes.” Whitman v.
the Court established in Chevron U.S.A., Inc. v. Natural
American Trucking Ass’ns, 531 U.S. 457, 468 (2001).
Resources Defense Council, Inc., 467 U.S. 837 (1984). The
Chevron doctrine governs judicial review of an agency’s
The Court has used the doctrine a number of times to reject
interpretation of a statute it administers. If Chevron applies,
agency claims of regulatory authority, including in regard
a court will typically engage in a two-step analysis to
to
determine if it must defer to an agency’s statutory
interpretation. At step one, the court asks whether the
the Federal Communication Commission’s waiver of a
statute directly addresses the precise issue before the court.
tariff requirement for certain common carriers under its
If the statute is ambiguous or silent in that respect, the court
statutory authority to “modify” such requirement (MCI
must proceed to step two, which instructs the court
Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994)),
generally to defer to the agency’s reasonable interpretation.
However, when an agency’s interpretation of an ambiguous
the Food and Drug Administration’s regulation of the
statute concerns an issue of vast economic and political
tobacco industry pursuant to its statutory authority over
significance, the Court has at times invoked the major
“drugs” and “devices” (FDA v. Brown & Williamson
questions doctrine to deny the agency the deference
Tobacco Corp., 529 U.S. 120 (2000)),
traditionally accorded under Chevron.
https://crsreports.congress.gov
The Major Questions Doctrine
The major questions doctrine’s precise relationship to the
“major questions doctrine” or a similar label in its majority
Chevron doctrine is unclear. At times, the Court has applied
opinions in OSHA and Alabama Association of Realtors,
the major questions doctrine at step one of Chevron,
although Justice Gorsuch did refer to the doctrine by name
concluding that Congress did not give the agency authority
in his concurring opinion in OSHA.)
to regulate the major question at issue. The Court also has
invoked the major questions doctrine at step two,
The Court may provide additional guidance on the major
determining that the agency’s interpretation was
questions doctrine this year. In West Virginia v. EPA, the
unreasonable because Congress did not clearly give it such
Court has been asked to review EPA’s authority to regulate
authority. The Court has even used the doctrine as a reason
greenhouse gas emissions from existing power plants under
to reject engaging in the Chevron two-step analysis
the Clean Air Act. The court below rejected an argument
altogether. The Court, therefore, arguably has applied the
made under the major questions doctrine that EPA’s
major questions doctrine in the Chevron context in an
regulation was not supported by clear congressional
unclear, ad hoc manner.
authorization. The Court heard oral arguments in West
Virginia on February 28, 2022. For more information on the
When the Court refuses to defer to the agency’s
case, see CRS Legal Sidebar LSB10666, Congress’s
interpretation of a major question, it ultimately often rejects
Delegation of “Major Questions”: The Supreme Court’s
the agency’s position. That is not always the case. While
Review of EPA’s Authority to Regulate Greenhouse Gas
the Court in King v. Burwell (listed above) refused to defer
Emissions May Have Broad Impacts, by Linda Tsang and
to IRS’s interpretation under Chevron, the Court ultimately
Kate R. Bowers.
upheld the agency’s reading of the statute based on its own
interpretation.
Considerations for Congress
Under the Court’s formulation of the major questions
Recent Developments
doctrine, an agency will lack the ability to determine
In its two most recent major questions doctrine decisions,
authoritatively a major question if its underlying statutory
the Court has appeared to signal that the doctrine is not
authority does not clearly permit or require it to do so.
merely an exception to Chevron, but also an independent
Therefore, if Congress wants an agency to decide issues in
principle of statutory interpretation focused on ensuring
an area courts likely would consider to be of vast economic
Congress bears the responsibility for confronting questions
and political significance, Congress should clearly specify
of major national significance. In Alabama Association of
that intention in the relevant underlying statute, as opposed
Realtors v. HHS, 141 S. Ct. 2485 (2021) (per curiam), the
to relying on vague or imprecise statutory language. This
Court used the major questions doctrine as a basis to block
task may be difficult at times, given the lack of clear
enforcement of the Centers for Disease Control and
guidance from the Court on what can be considered a
Prevention’s (CDC’s) nationwide eviction moratorium.
“major” question.
CDC issued the moratorium under its authority “to prevent
the introduction, transmission, or spread of communicable
Even when a statutory delegation of authority over a major
diseases” into the country or from one state to another. The
economic and political question is clear, courts may find
Court explained that CDC’s action was of major national
that the underlying statute raises other problems. For
significance and, therefore, required a clear statutory basis
example, in his concurrence in the OSHA case, Justice
because the agency’s action covered 80% or more of the
Gorsuch argued that even had Congress clearly authorized
nation; created an estimated economic impact of tens of
the vaccination mandate at issue in that case, that delegation
billions of dollars; and interfered with the landlord-tenant
probably would have violated the non-delegation
relationship, which the Court explained is “the particular
doctrine—the separation-of-powers principle that limits
domain of state law.”
Congress’s ability to confer legislative authority on
entities—because the statute contained no meaningful
Further, in National Federation of Independent Business v.
restrictions on the agency’s regulatory power and, per the
OSHA, 142 S. Ct. 661 (2022) (per curiam), the Court
agency, conferred near-unlimited discretion on the agency.
blocked enforcement of the Occupational Safety and Health
Two Justices—Justices Thomas and Alito—joined Justice
Administration’s (OSHA’s) emergency temporary standard
Gorsuch’s concurrence.
imposing Coronavirus Disease 2019 (COVID-19)
vaccination and testing requirements on a large portion of
In his concurrence, Justice Gorsuch opined that the major
the national workforce pursuant to its authority under the
questions doctrine is a key separation-of-powers principle
Occupational Safety and Health Act. The Court considered
related to the non-delegation doctrine. Justice Kavanaugh
OSHA’s action to be of major economic and political
did not join Justice Gorsuch’s OSHA concurrence, but he
significance because, in its estimation, it seriously intruded
has approvingly remarked in the past that adoption of
upon the lives of more than 80 million people.
Justice Gorsuch’s views on the major questions doctrine
and separation of powers would leave agencies only with
Although the Court did not discuss Chevron deference in
authority to make “less-major or fill-up-the-details
either the OSHA or Alabama Association of Realtors
decisions.” Paul v. United States, 140 S. Ct. 342, 342
decision, it nonetheless applied the major questions doctrine
(2019) (Kavanaugh, J., respecting the denial of certiorari).
in both cases, determining that the agencies lacked clear
textual authority for their interpretations of the nationally
Daniel J. Sheffner, Legislative Attorney
impactful subjects at issue. (In line with its prior major-
questions-doctrine decisions, the Court did not use the term
IF12077
https://crsreports.congress.gov
The Major Questions Doctrine
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.
https://crsreports.congress.gov | IF12077 · VERSION 1 · NEW