The Supreme Court Conservatives’ Favorite New Weapon for Kneecapping the Administrative State

Over the last two years, the Supreme Court’s six conservative justices have wielded tremendous power over federal decision-making by striking down a wide range of consequential policies: the Centers for Disease Control’s national eviction moratorium, the Occupational Safety and Health Administration’s Covid-19 testing mandate, and a moribund Obama-era rule on power-plant emissions. If the justices likewise nullify President Biden’s executive order on student debt relief, they will use the same mechanism as in those prior examples: the major questions doctrine.

That doctrine, which allows the justices to overturn a federal regulation if they think Congress didn’t “speak clearly” enough to authorize it, has seen a meteoric rise amid the court’s increasingly conservative tilt. And unlike most legal doctrines frequently cited by the court, this one does not have a long and distinguished history. The New York Times’ Adam Liptak noted earlier this week that it first appeared by name in a federal court opinion in 2017, when then-Judge Brett Kavanaugh mentioned it in a dissenting opinion on the D.C. Circuit Court of Appeals. Before then, it had spent only a few years percolating in conservative legal circles.

That is, the major questions doctrine is not some finely wrought canon of legislative interpretation or a time-honored rule of constitutional law. Instead, it is the result of a dedicated campaign by the conservative legal movement to make it harder for federal regulatory agencies to carry out their mission—to hamstring the so-called administrative state. It was developed in a moment of American political paralysis, and its expanding use will make that paralysis worse than ever.

In the court’s telling, or at least the court’s conservatives’ telling, the major questions doctrine is a staple of American constitutional law. Like many staples of American constitutional law, it first began to emerge in the 1990s. In 1994, the court ruled that the Federal Communications Commission couldn’t use its statutory authority to “modify” telecommunications tariffs in a way that effectively abolished them. The justices later ruled in a 2000 case that the Food and Drug Administration could not regulate tobacco products even though nicotine is a drug, pointing to a series of other federal laws that intended to treat it differently. In these cases, the court appeared to recognize that there was some outer bound when federal agencies tried to interpret federal law to their own ends.

The Roberts court went one step further in West Virginia v. Environmental Protection Agency. That case was, like Seinfeld, about nothing. A group of Republican-led states challenged a defunct Obama-era regulation for carbon emissions from power plants. The conservative majority blocked it during litigation in 2015, marking the first time in the Supreme Court’s history that it had ever stayed a regulation while it was being reviewed by the lower courts. When the Trump administration took power in 2017, it repealed the rule. When the Biden administration arrived in 2021, it announced it would start from scratch.

That did not stop the justices from holding a cadaver synod of sorts for the policy and kneecapping future ones. Chief Justice John Roberts, writing for the 6–3 majority, ruled that the Clean Air Act could not be read to justify the policy. “It is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d),” he wrote. “A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” He summarized the doctrine itself by quoting a 2014 decision to explain that “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”

The court’s liberals sharply criticized this development. “Some years ago, I remarked that ‘[w]e’re all textualists now,’” Kagan wrote in her dissent. “It seems I was wrong. The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards. Today, one of those broader goals makes itself clear: Prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative-state stance shows up in the majority opinion, and it suffuses the concurrence.”

In the concurring opinion to which Kagan referred, Justice Neil Gorsuch hailed the decision as a major step forward in reining in the “administrative state,” a term often used by conservative legal thinkers to describe (and perhaps make sound more menacing) federal regulatory agencies like the Environmental Protection Agency and the FDA. He wrote that strictly policing Congress’s delegations of legislative power is “vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’”

Whether Gorsuch appreciated the irony of that statement is unclear. In practical terms, the major questions doctrine allows unelected judges to veto federal regulations based on laws written by a democratically elected Congress and drafted by federal agencies that answer to democratically elected presidents. Congress, not keen to constantly decide which pharmaceutical drugs should be sold or which air and water pollutants should be banned on a case-by-case basis, has set the bounds by which federal agencies can make those decisions. The “administrative state” is not a republic usurped; it is a republic in action.

Just look at how amorphous the doctrine itself is in the court’s own words: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” What does it mean to “speak clearly”? Where does the court draw the line between a broad grant of authority by Congress and a usurpation of power by a rogue federal agency? When does a federal regulation not address a question of “vast economic and political significance”? What is vast? What is significant? Is there a dollar amount? A threshold market capitalization for an industry? Or does the court, as it once did, simply know it when it sees it?

It’s hard to avoid the conclusion that the major questions doctrine is less about law and more about power. Its existence flows from two basic facts about American governance in 2023. One is that Congress, both as a legislative body and as an independent branch of government, is barely functional at the moment. It struggles to pass significant legislation even when one party has a democratic mandate to do so. It has not passed a budget under normal procedures since 1997. It failed to keep the federal government funded and open three times in the last 10 years. It’s uncertain whether lawmakers will be able to raise the debt ceiling later this year.

For the doctrine’s purposes, it doesn’t really matter why Congress is currently broken. Possible explanations include the filibuster’s continued existence, the broader hyperpartisan divide in American politics, the elimination of competitive districts through gerrymandering, the centralization of power within congressional leadership offices, the erosion of campaign-finance regulations—I could go on for hours. The point is that Congress, for varying reasons and with few exceptions, isn’t able to function as consistently and as credibly as it did 30 years ago, and the Supreme Court knows it.

The other basic fact is that the Supreme Court has six conservative justices and three liberal ones. If the court consisted of six liberals and three conservatives, you would not be reading an article about the major questions doctrine right now. I wouldn’t be writing about it. Lawyers wouldn’t be looking up precedents about it and incorporating them into their arguments. Plaintiffs wouldn’t dream of bringing cases based on it. The doctrine is a product of a very specific ideological moment in the Supreme Court’s history.

Those six conservatives are products of the conservative legal movement. It’s often assumed from the left that the conservative legal movement is some sort of monolithic entity, with the Federalist Society’s Leonard Leo handing down marching orders to handpicked jurists and lawyers. In reality it is just a social network of powerful and not-so-powerful conservative and libertarian legal professionals. Like any large group of people, its members occasionally disagree with one another, sometimes about important things. But one of the movement’s defining traits is a deep skepticism (at minimum) of the powers currently wielded by federal agencies.

The court’s conservative justices have tried to figure out how best to chip away at those powers in recent years, but until recently their efforts always seemed to fall a little short of movement expectations. One of their would-be chisels was the “nondelegation doctrine.” As its name suggests, it holds that Congress cannot delegate its legislative powers to another branch of government. At a certain level, this principle is obvious: Congress can’t just write a law, for example, that says the Supreme Court can try impeachments instead of the Senate.

Some conservatives have taken an even broader view of the doctrine, arguing that Congress has effectively “delegated” its lawmaking powers to federal agencies by giving them broad legal authority to carry out their missions. The Supreme Court only briefly entertained this idea—in two decisions in 1935, when it struck down portions of the New Deal—and then swiftly retreated from it. The prevailing view thereafter was that as long as Congress laid down at least an “intelligible principle” to guide the other branch, then it did not qualify as an impermissible delegation of congressional power.

The court’s liberals have warned of the immense real-world consequences if the court embraces a more expansive view of nondelegation. Nondelegation cases appeared to peak in 2019 when the justices heard Gundy v. United States, which challenged a federal law that gave the attorney general broad authority to set up a federal sex-offender registry and prosecute those who didn’t comply with it. The justices may have realized that reviving the doctrine in full would be a sledgehammer instead of a mere chisel. If that law was unconstitutional, Kagan wrote for the plurality in Gundy, “then most of government is unconstitutional.”

Another option for the justices was to move away from Chevron deference. Under that doctrine, which was crystallized in the case Chevron v. Natural Resources Defense Council, federal courts will generally defer to federal agencies when those agencies reasonably interpret the federal statutes that give them their authority. The Chevron court reasoned that the specialized agencies were better equipped and more democratically responsible to decide those questions than unelected federal judges. Conservative judges and legal scholars generally argue, on the other hand, that it gives too much leeway to agencies when deciding how much power they should wield.

Scrapping Chevron deference, as with reviving the nondelegation doctrine, would give judges more leeway to block new regulations under existing statutes. Multiple justices have called for the court to overturn Chevron deference, but it hasn’t done so. Instead, it appears to be ignoring it altogether. The justices did not apply Chevron deference by name in any of the above-mentioned cases. It wasn’t part of the analysis whatsoever in West Virginia v. EPA. Indeed, that silence has led some scholars to question whether Chevron has been effectively overturned through the court’s implicit avoidance of it.

The major questions doctrine is a particularly clever tool because it does not do what the other options would have: permanently foreclose a specific policy action as unconstitutional. The doctrine instead suggests without stating that, if Congress had just been a little clearer, the policy could go forward as enacted. All one has to do, the conservative justices implied in West Virginia v. EPA, is somehow push a new environmental law through a gerrymandered House and a filibuster-happy Senate before the loosened campaign finance laws allow donors to dissuade lawmakers from voting “yes.” Just as the Founders intended.

If this sounds familiar, it’s because the Supreme Court used the exact same tactic to gut the Voting Rights Act in Shelby County v. Holder 10 years ago. In that decision, the court’s five conservative justices broke the VRA’s preclearance regime—which required certain states to get approval for potentially discriminatory changes to voting laws from the courts or the Justice Department—by striking down the formula used to decide which states qualified for it. Roberts suggested that Congress could simply pass a new formula, even though the previous one had been unanimously approved in 2006. Republicans on Capitol Hill declined to do so at the time, and subsequent efforts have stalled out thanks to the filibuster.

The major questions doctrine, in short, lets the justices strike down federal policies on hazy and amorphous grounds while ostensibly blaming Congress and agencies for overreaching. It shuffles blame onto the elected branches for not taking further action after the ruling, even though the least democratic branch is responsible for the problem in the first place. And it is flexible enough to avoid accidentally abolishing the Federal Reserve or the Securities and Exchange Commission. (Even the justices have 401(k)s, after all.) It just might be the perfect tool for a conservative Supreme Court to make progressive governance impossible. And they’re just getting started with it.