The Major Questions Doctrine
Updated November 2, 2022
The Major Questions Doctrine
Congress frequently delegates authority to agencies to
the Food and Drug Administration’s regulation of the
regulate particular aspects of society, in general or broad
tobacco industry pursuant to its statutory authority over
terms. However, in a number of decisions, the Supreme
“drugs” and “devices” (FDA v. Brown & Williamson
Court has declared that if an agency seeks to decide an
Tobacco Corp., 529 U.S. 120 (2000)),
issue of major national significance, its action must be
supported by clear congressional authorization. Courts and
the Environmental Protection Agency’s (EPA’s)
commentators have referred to this doctrine as the major
consideration of costs in regulating air pollutants under
questions doctrine (or major rules doctrine). The Supreme
its authority to prescribe ambient air quality standards
Court never used that term in a majority opinion prior to
that “are requisite to protect the public health” with “an
2022, but the doctrine has recently become more prominent.
adequate margin of safety” (Whitman v. Am. Trucking
Ass’ns, Inc., 531 U.S. 457 (2001)),
This In Focus provides an overview of the major questions
doctrine. It discusses the doctrine’s framework, provides
the Attorney General’s regulation of assisted suicide
examples of its application, explores recent Supreme Court
drugs under his statutory authority over controlled
developments, and offers considerations for Congress in
substances (Gonzales v. Oregon, 546 U.S. 243 (2006)),
crafting legislation against the backdrop of the doctrine.
EPA’s determination that the regulation of greenhouse
Overview
gas (GHG) emissions from motor vehicles triggered
Agencies often must interpret statutes that grant them
GHG permitting requirements for stationary sources
regulatory authority. If challenged, courts may need to
(UARG, 573 U.S. 302),
review such interpretations to determine if an agency has
exceeded its authority. In doing so, courts will sometimes
the Internal Revenue Service’s (IRS’s) decision that a
defer to an agency’s interpretation of an ambiguous statute.
federal health care exchange is “an exchange established
The Supreme Court has explained that, in general, courts
by the State” for purposes of determining eligibility for
interpret statutory language “in [its] context and with a
tax credits (King v. Burwell, 576 U.S. 473 (2015)),
view to [its] place in the overall statutory scheme.” In cases
where there is something extraordinary about the “history
the Centers for Disease Control and Prevention’s
and breadth of the authority” an agency asserts or the
(CDC’s) nationwide eviction moratorium (Ala. Ass’n of
“economic and political significance” of that assertion,
Realtors v. HHS, 141 S. Ct. 2485 (2021) (per curiam)),
however, the Court indicated courts should “hesitate before
concluding that Congress meant to confer such authority.”
the Occupational Safety and Health Administration’s
West Virginia v. EPA, 142 S. Ct. 2587, 2607–2608 (2022).
(OSHA’s) emergency temporary standard imposing
COVID-19 vaccination and testing requirements on a
Under the major questions doctrine, the Supreme Court has
large portion of the national workforce (Nat’l Fed’n of
rejected agency claims of regulatory authority when (1) the
Ind. Business v. OSHA, 142 S. Ct. 661 (2022) (per
underlying claim of authority concerns an issue of “vast
curiam)), and
‘economic and political significance,’” and (2) Congress
has not clearly empowered the agency with authority over
an EPA regulation of GHG emissions that was premised
the issue. Util. Air Regul. Grp. (UARG) v. EPA, 573 U.S.
on “generation shifting,” or shifting electricity
302, 324 (2014). In requiring agencies to point to clear
generation from higher-emitting sources to lower-
congressional authorization for their actions in major
emitting ones (West Virginia, 142 S. Ct. 2587).
questions cases, the Supreme Court has further explained
that Congress rarely provides an extraordinary grant of
On the other hand, in Massachusetts v. EPA, 549 U.S. 497
regulatory authority through language that is modest,
(2007), the Court rejected EPA’s argument, based on the
vague, subtle, or ambiguous.
major questions doctrine, that it did not have legal authority
to regulate GHG emissions from motor vehicles.
The Court has used the doctrine to reject agency claims of
regulatory authority, including in regard to
These examples indicate the range of questions the Court
has defined as “major” under the doctrine. However, the
the Federal Communication Commission’s waiver of a
precise scope of the doctrine is unknown. The Court has not
tariff requirement for certain common carriers under its
clearly explained when an agency’s regulatory action will
statutory authority to “modify” such requirement (MCI
raise a question so significant that the doctrine applies, nor
Telecomms. Corp. v. AT&T Co., 512 U.S. 218 (1994)),
has it specified what legislative acts could constitute clear
congressional authorization.
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The Major Questions Doctrine
Recent Developments
to reject engaging in the Chevron two-step analysis
In several recent decisions, the Court has placed increasing
altogether.
emphasis on the major questions doctrine. First, in Alabama
Association of Realtors v. HHS, the Court explained that the
The Court, therefore, has arguably applied the major
CDC’s eviction moratorium was of major national
questions doctrine in the Chevron context in an unclear, ad
significance and required a clear statutory basis because the
hoc manner. In its three most recent cases applying the
agency’s action covered 80% or more of the nation; created
major questions doctrine, the Court did not discuss the
an estimated economic impact of tens of billions of dollars;
Chevron framework, possibly signaling that the major
and interfered with the landlord-tenant relationship, which
questions doctrine is an independent principle of statutory
the Court explained is “the particular domain of state law.”
interpretation focused on ensuring Congress bears the
Then, in National Federation of Independent Business v.
responsibility for confronting questions of major national
OSHA, the Court considered OSHA’s emergency temporary
significance. This approach also appears to be consistent
standard to be of major economic and political significance
with other recent cases in which the Court has not applied
because, in its estimation, it seriously intruded upon the
or referred to the Chevron doctrine in reviewing agency
lives of more than 80 million people.
actions. See, e.g., Am. Hosp. Ass’n v. Becerra, 142 S. Ct.
1896 (2022). That silence leaves unanswered questions
Most recently, the Court’s decision in West Virginia v. EPA
about how to determine which doctrine applies or whether
marked the first express reference to the major questions
courts should undertake a major questions inquiry prior to
doctrine in a majority opinion of the Supreme Court. In
or as part of their Chevron analyses. These questions will
West Virginia, the Court rejected EPA’s reliance on a
likely be important to the lower courts in challenges to
statutory provision that, in the Court’s view, was a
agency action in the near future.
“previously little-used backwater.” The Court concluded
that it was unlikely Congress would task EPA with
Considerations for Congress
“balancing the many vital considerations of national policy
Under the Court’s formulation of the major questions
implicated in deciding how Americans will get their
doctrine, an agency will lack the ability to determine
energy,” such as deciding the optimal mix of energy
authoritatively a major question if it lacks “clear
sources nationwide over time and identifying an acceptable
congressional authorization” to do so. Therefore, if
level of energy price increases. For more information on the
Congress wants an agency to decide issues in an area courts
case, see CRS Legal Sidebar LSB10791, Supreme Court
would likely consider to be of vast economic and political
Addresses Major Questions Doctrine and EPA’s Regulation
significance, Congress should clearly specify that intention
of Greenhouse Gas Emissions, by Kate R. Bowers.
in the relevant underlying statute as opposed to relying on
vague or imprecise statutory language. This task may be
Relationship to the Chevron Doctrine
difficult at times, given the lack of clear guidance from the
The major questions doctrine’s precise relationship to the
Court on what can be considered a “major” question or
Chevron doctrine is unclear. The Chevron doctrine, which
clear congressional authorization. The Court’s
the Court established in Chevron U.S.A., Inc. v. Natural
jurisprudence also leaves open the question of how, or even
Resources Defense Council, Inc., 467 U.S. 837 (1984),
whether, Congress may grant agencies the authority to act
governs judicial review of an agency’s interpretation of a
to address major issues in the future that Congress did not
statute it administers. If Chevron applies, a court will
anticipate when it enacted a statute.
typically engage in a two-step analysis to determine if it
must defer to an agency’s statutory interpretation. At step
Additionally, the Supreme Court has not specified whether
one, the court asks whether the statute directly addresses the
material other than the text of an enacted statute could
precise issue before the court. If the statute is ambiguous or
constitute clear congressional authorization. The Court in
silent in that respect, the court must proceed to step two,
West Virginia looked beyond the statutory text in its
which instructs the court generally to defer to the agency’s
analysis of EPA’s authority, including by considering that
reasonable interpretation.
Congress “conspicuously and repeatedly declined to enact”
a program similar to aspects of the challenged regulation.
In some cases, the Court has treated the major questions
doctrine as an exception to the Chevron doctrine. In those
Even when a statutory delegation of authority over a major
cases, when an agency’s interpretation of an ambiguous
economic and political question is clear, courts may find
statute concerns an issue of vast economic and political
that the underlying statute raises other problems. For
significance, the Court has invoked the major questions
example, in his concurrence in the OSHA case, Justice
doctrine to deny the agency the deference traditionally
Gorsuch argued that even had Congress clearly authorized
accorded under Chevron. When the Court refuses to defer
the vaccination mandate at issue in that case, that delegation
to an agency’s interpretation of a major question, it has
would have probably violated the non-delegation
often (but not always) rejected the agency’s position. At
doctrine—the separation-of-powers principle that limits
times, the Court has applied the major questions doctrine at
Congress’s ability to confer legislative authority on
step one of Chevron, concluding that Congress did not
entities—because the statute contained no meaningful
authorize the agency to regulate the major question at issue.
restrictions on the agency’s regulatory power and, per the
The Court has also invoked the major questions doctrine at
agency, conferred near-unlimited discretion on the agency.
step two, determining that the agency’s interpretation was
unreasonable because Congress did not clearly give it such
Kate R. Bowers, Legislative Attorney
authority. The Court has even used the doctrine as a reason
IF12077
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The Major Questions Doctrine
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