Full Transcript — Part 1

EPISODE 10: THE MAJOR QUESTIONS DOCTRINE EXPLAINED

Administrative Remedies — Season 1

Transcript

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress, for reasons we’ll be addressing over the course of this series.

Opening: The Babysitter and the Knife-Throwing

Gwen: All right. So, Marc, let’s say you’re going out for the night. You’ve left the kids with the babysitter and you said something like, feel free to use anything in the kitchen. What would you have meant?

Marc: I mean, like stuff in the refrigerator, the microwave, the oven, maybe a blender if they’re making cookies.

Gwen: So you’d be surprised if you came home and saw that she mounted a cutting board to the wall and was teaching your kids knife throwing.

Marc: I mean, I’d be impressed, actually, especially if they got more accurate with their knife throwing.

Gwen: But what if they got less accurate with their knife throwing?

Marc: That would be a problem. It would be a little scary, actually.

Gwen: Or what if you told her to keep the house tidy and came home to find that she had purchased and installed a $6,000 organizing system in one of the kids’ closets?

Marc: Well, if I’m being fair, their closets are really messy. But it depends on if I’m paying for it.

Gwen: Oh, yes, you are.

Marc: If I’m paying for it? Oh, I would be absolutely livid. That would be very upsetting.

Gwen: Sometimes the literal words of the directions that someone was given or the permission that someone was given can cover something, even though it really, really wasn’t what you meant. Today, we are talking about the Major Questions Doctrine, and that is essentially the Court saying, yes, the statute’s words could technically cover that, but if Congress meant to let you do it, they would have been a lot clearer.

The Birth of the Doctrine: FDA v. Brown & Williamson

Gwen: So let’s talk about how this played out. So, we are going back to 1996.

Marc: So just a question. Did the idea about major questions exist before the name?

Gwen: Very much so. This is before the Major Questions Doctrine was called the Major Questions Doctrine. But I think this is the clearest way to think about how it began. We’re talking about FDA v. Brown & Williamson. In this case, FDA looked at its statute, the Food, Drug, and Cosmetic Act, and said nicotine is a drug, cigarettes are drug delivery devices. We have authority over those, so we can regulate tobacco.

Marc: That sounds logical.

Gwen: It’s definitely a fair reading of the statute. Look at the definition of a drug.

Marc: “The term ‘drug’ means articles, other than food, intended to affect the structure or any function of the body.”

Gwen: Under that, is nicotine a drug?

Marc: Absolutely. It’s addictive. It changes brain chemistry.

Gwen: Just like an asthma inhaler or an insulin injector is a device that delivers drugs to the body, cigarettes deliver nicotine. So, case closed. FDA can regulate them, right?

Marc: I’m guessing where you’re going is that they can’t.

Gwen: The tobacco companies sued and the Supreme Court said no.

Marc: Justice O’Connor said, “We are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion. To find that the FDA has the authority to regulate tobacco products, one must not only adopt an extremely strained understanding of ‘safety’ as it is used throughout the Act—a concept central to the FDCA’s regulation scheme—but also ignore the plain implication of Congress’s subsequent tobacco-specific legislation.”

Gwen: She’s essentially explaining the logic of the doctrine there. She’s not naming it, but the seed is planted. If this is some sort of huge economic decision, you’re going to need clear congressional permission.

Marc: So then when did they actually name the Major Questions Doctrine?

Gwen: That wasn’t until 2022.

The Baptism: West Virginia v. EPA

Gwen: This is really new. This was in West Virginia v. EPA, and it’s the first time they’re explicitly using the label, although there had been cases that hinted at it on the shadow docket earlier.

Marc: This is a climate change case.

Gwen: Yes. In 2015, Obama’s EPA issues the Clean Power Plan. It’s supposed to reduce CO2 from power plants, but they didn’t just require better technology at each plant. They required generation shifting—pushing the entire grid to move from coal towards natural gas and renewables.

Marc: So that sounds pretty massive.

Gwen: It was. Here, read what the plan actually required.

Marc: So, it says, “The best system for emissions reductions for existing plants included three types of measures which the agency called ‘building blocks.’ The first building block was heat rate improvements at coal-fired plants—essentially practices such plants could undertake to burn coal more efficiently. But such improvements, EPA stated, would lead only to small emission reductions because coal-fired power plants were already operating near optimum efficiency. On the agency’s view, much larger emission reductions were needed from coal-fired plants to address climate change. So the agency included two additional building blocks in its BSER, both of which involve what are called generation shifting from higher emitting to lower emitting producers of electricity.”

Gwen: It’s pretty dense. But what she’s saying is the EPA is functionally restructuring the entire American electricity sector. However, this rule never took effect. Trump came into office and repealed it. Then Biden’s EPA was considering something similar when the Supreme Court decided to step in.

Marc: So the Court reviewed a dead rule?

Gwen: They did, which alone upset a lot of people. The Court wanted to settle the question and refused to let the case drop when it was no longer a live dispute.

Marc: Aren’t there abstention doctrines that prevent the Court from considering those kinds of cases?

Gwen: There certainly should have been. This case was moot, but they forged ahead nevertheless.

Marc: Huh. So, when Justice Roberts used this opinion to crystallize the Major Questions Doctrine, he wrote, “In certain extraordinary cases, both separation of powers principles and practical understanding of legislative intent make us reluctant to read into ambiguous statutory texts the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to clear congressional authorization for the power it claims.”

Gwen: Importantly, he also used the name.

Marc: “Our precedent counsels skepticism toward EPA’s claim that Section 111 empowers it to devise carbon emission caps based on a generation-shifting approach. To overcome that skepticism, the government must—under the Major Questions Doctrine—point to clear congressional authorization to regulate in that manner. All the government can offer, however, is the agency’s authority to establish emissions caps at a level reflecting the application of the best system of emission reduction adequately demonstrated.”

Gwen: At this point, EPA is saying we need to establish the best system of emissions reductions for CO2 in general, which they had been explicitly ordered to do by the Supreme Court in Massachusetts v. EPA. And the best way we can do that is moving away from coal power plants. Per unit of heat, coal is a lot less efficient than natural gas. So it is not the most efficient way to generate heat to create electricity. But the Court had major issues with this interpretation. Even if the text technically fits—like “nicotine is a drug”—it’s not enough for transformative powers like this.

Marc: So Brown & Williamson was the birth, but West Virginia was the baptism.

Gwen: Yes. Now it has a name.

What Makes Something a “Major Question”?

Marc: Well, okay. So how do we know what counts as a major question? What exactly is the test?

Gwen: That is a crucial question, which nobody can really say for sure. The Court has talked about several factors to consider, although they haven’t given a clear test yet. Let’s break down some of the main factors in both of the cases we just talked about.

Marc: Okay. The first factor: economic significance. In Brown & Williamson, what was the economic impact of the tobacco industry? It was massive. Hundreds of billions of dollars.

Gwen: Yes. So, if we have some sort of economic impact in the billions, that’s a major question. Now let’s look at West Virginia v. EPA and see what Roberts had to say about the economic impact there.

Marc: “EPA’s own modeling concluded that the rule would entail billions of dollars in compliance costs, raise electricity prices in every state, and eliminate tens of thousands of jobs across various sectors.”

Gwen: So both of these cases involve billions of dollars in fundamental economic restructuring. But it’s not just about money. The next issue is: is there political significance? Does the issue generate significant political controversy?

Marc: Okay, tobacco regulation has always been politically explosive, and climate change is one of the most politically divisive issues of our time.

Gwen: When an agency wades into some sort of political charged territory, like in these cases, using statutory language that wasn’t just enacted to allow the agency to do that, that’s another reason that the Court can determine it’s a major question doctrine. The next factor is what the Court’s calling regulatory significance—where this dramatically expands the agency’s authority. In Brown & Williamson, FDA had existed since 1906 and had never tried to claim authority over tobacco, but it suddenly claimed to discover this power after 90 years. That was suspicious. And in West Virginia, Roberts made the same point about the EPA. Here’s what he said.

Marc: “Prior to 2015, the EPA had always set emissions limits under Section 111 based on the application of measures that would reduce pollution by causing the regulated source to operate more cleanly. It had never devised a cap by looking into a system that would reduce pollution simply by shifting polluting activity from dirtier to cleaner sources.”

Gwen: Both agencies were trying to claim new powers based on old statutes. But it’s important to note that in West Virginia, the Court said it was absolutely fine for EPA to tell power plants that they needed to burn coal more cleanly themselves. That was sort of stage one of that three-step process. That part was fine. That’s what they’ve been doing for decades. They just couldn’t make the coal plants pay for other types of energy.

Marc: Okay, so we have costs. We have political significance. We have regulatory significance. Is there anything else?

Gwen: Yes. Another issue. Has Congress considered and rejected giving the agency this specific authority? Here’s what they said about that in Brown & Williamson.

Marc: “Congress has directly spoken to the question at issue and precluded the FDA from regulating tobacco products. Congress has created a distinct regulatory scheme for tobacco and squarely rejected proposals to give the FDA authority over tobacco.”

Gwen: She’s saying Congress had literally voted down bills to allow the FDA to do this. And in West Virginia, Roberts said something similar.

Marc: “Finally, we cannot ignore that the regulatory writ EPA newly uncovered conveniently enabled it to enact a program that, long after the dangers posed by greenhouse gas emissions had become well-known, Congress considered and rejected multiple times. At bottom, the Clean Power Plan essentially adopted a cap-and-trade scheme or set of state cap-and-trade schemes for carbon. Congress, however, has consistently rejected proposals to amend the Clean Air Act to create such a program.” So if Congress has looked at this exact question and said no, that’s a strong signal that’s a major question.

Gwen: Yes. There’s also another factor that’s clear in West Virginia. Does the agency’s interpretation involve some sort of fundamental policy question that the Court thinks Congress should address?

Marc: So, like, some decisions are just too important for society for us to leave to courts. We expect our elected representatives, not agencies, to make them. Like restructuring the entire energy sector.

Gwen: Yes. Roberts said EPA was essentially choosing America’s energy future. And that’s the kind of thing that Congress should be doing, not agency bureaucrats interpreting vague statutory language.

Marc: Okay. So, to summarize the factors: billions in economic impact, political controversy, novel use of old authority, Congress having considered and rejected it, and fundamental policy questions.

Gwen: Right. Those are the big ones. And you can see how both of these cases, at least arguably, hit all of them. There is a question, however, if a case doesn’t hit all of them. Is two of these factors enough? Is three? The Court hasn’t said.

Marc: Well, that seems problematic.

Gwen: It is really problematic because this means that agencies won’t know in advance where the line is. And that’s also because there are really two versions of the Major Questions Doctrine.

The Two Flavors of Major Questions

Marc: So two flavors of the Major Questions Doctrine. I’m assuming that there are flavors that are more favorable to agencies and flavors that are less favorable to the agencies.

Gwen: Yes, you could say that. So the first version we’re going to call the weak version. This says if an agency is claiming power over a major question, courts should be skeptical. They should interpret the statute narrowly and not assume that Congress meant to delegate significant authority unless the statute clearly says so.

Marc: So it’s about how courts read the statute.

Gwen: Yes, it’s just an interpretive tool. The strong version is a lot more aggressive. It says that if something qualifies as a major question, ordinary statutory authorization isn’t enough. Congress has to provide extraordinarily clear statutory authorization, like a clear statement rule. So even if the statute unambiguously seems broad enough to cover this, the courts would require Congress to speak with increased clarity—extraordinary clarity, one might say. We think of this in terms of the babysitter. You tell the babysitter, make sure the kids are safe. Under the weak version, she can’t build a fence around your entire yard. We’re going to read the instructions narrowly. It means keep an eye on them. Don’t let them play with knives. But even though building a fence could help keep them safe, because it’s questionable whether that’s what you meant, they would assume you didn’t. But under the strong version, even if you said, do whatever you think is necessary to keep them safe, she still can’t install the fence unless you say so explicitly, because this would be such a major decision, one you’d expect the parents to make.

Marc: So the strong version says, don’t just look at the text. Ask whether Congress would really hide a huge power inside the ordinary words it used.

Gwen: Yes. And that’s the version we’re going to be talking about next time.

Closing

Marc: So next time on Administrative Remedies, we will pick up where this stopped and continue our exploration of the Major Questions Doctrine.

Marc: That does it for today’s episode of Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time, where we’ll continue to dive into the contours of administrative law. Because remember—you can’t fix what you don’t understand.

Full Transcript — Part 2

EPISODE 11: THE MAJOR QUESTIONS DOCTRINE IN PRACTICE

Administrative Remedies — Season 1

Transcript

Intro

Gwen: Hello, and welcome to Administrative Remedies, because you can’t fix what you don’t understand. Brought to you in part by the University of Tulsa College of Law. I’m Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I’m Marc Roark. I’m the dean of the College of Law.

Gwen: We’ll be breaking down complex doctrines with real-life analogies and examples to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way the federal government gets things done. It’s not through Congress, for reasons we’ll be addressing over the course of this series.

Opening: The Two Flavors, Continued

Gwen: Welcome to Administrative Remedies. Last time we were talking about the Major Questions Doctrine and about how it comes in two flavors. The weak version, which is really just statutory interpretation that says, if it’s unclear whether or not the statute would include this, we’ll assume it doesn’t. And the strong version, which says even if it really does seem like the statute includes this, we’ll still say it doesn’t unless Congress has functionally said the agency could do that exact thing. So, let’s start with the student loan case.

Marc: Fantastic. Biden v. Nebraska.

The Student Loan Case: Biden v. Nebraska

Gwen: So in 2023, the Biden administration tried to cancel up to $20,000 in student debt using the HEROES Act of 2003.

Marc: What is the HEROES Act?

Gwen: It was passed after 9/11 and designed to deal with national emergencies. Here’s the key provision.

Marc: “The Secretary may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under Title IV of the Higher Education Act as the Secretary deems necessary in connection with a war or other military operation or national emergency.”

Gwen: So, during COVID, which was declared a national emergency, the Secretary said, I am using my power under this act to forgive up to $20,000 per borrower because the pandemic was an economic catastrophe.

Marc: Waive or modify? I mean, waive means to eliminate, right? So that seems pretty clear.

Gwen: Yes. That’s why I would say the Court’s applying the strong version here. Here’s what Roberts said about the economic significance.

Marc: “It would cancel roughly $430 billion of federal student loan balances, completely erasing the debts of 20 million borrowers and lowering the median amount owed by the other 23 million from $29,400 to $13,600.”

Gwen: $430 billion affecting 43 million borrowers? That’s major by any measure. But here’s where we can really see that Roberts is using the strong version of the doctrine.

Marc: He says the Secretary has never previously claimed powers of this magnitude under the HEROES Act.

Gwen: And then he says that even though “waive” literally means eliminate, that is not enough to grant the Secretary the authority to do this. Here’s his version of “modify.”

Marc: So, “Modify carries a connotation of increment or limitation and must be read to mean to change moderately or in minor fashion.” And then he says, “The Secretary’s new ‘modifications’ of these provisions were not moderate or minor. Instead, they created a novel and fundamentally different loan forgiveness program. The Secretary’s plan has ‘modified’ the cited provisions only in the same sense that the French Revolution ‘modified’ the status of the French nobility—it has abolished them and supplanted them with a new regime entirely.”

Gwen: That really is a good quote.

Marc: Kudos to you, John.

Gwen: Yeah. He’s essentially saying for a major question, we’re going to need more than statutory language that would very clearly seem to cover the action. We need explicit authorization saying, in this case, you can forgive hundreds of billions of dollars in student loans.

Marc: That seems like an impossible standard, though. Congress never writes laws that specifically.

Gwen: Yes, exactly. So this is what Kagan said in the dissent. Can you read this part?

Marc: “The majority picks the statute apart piece by piece in an attempt to escape the meaning of the whole. But the whole—the expansive delegation—is so apparent that the majority has no choice but to justify its holding on extra-statutory grounds. So the majority resorts, as is becoming the norm, to its so-called Major Questions Doctrine. The statute, read as written, gives the Secretary broad authority to relieve a national emergency’s effect on borrowers’ ability to repay their student loans. The Secretary did no more than use that lawfully delegated authority. So the majority applies a rule specifically crafted to kill significant regulatory action, by requiring Congress to delegate not just clearly, but also micro-specifically.”

Gwen: She’s saying it is unambiguous that what the Secretary can do falls within the act. He is waiving the loans of some people. He is modifying the loans of other people. And yet the majority still says that’s not good enough.

The Separation of Powers Theory

Marc: What is the constitutional theory behind all this? Why does the Court think it can require extra clear authorization for certain questions?

Gwen: So, the Court says this is part of the separation of powers. And the idea here is that certain decisions are so significant, they must be made by Congress—the elected representatives—not by agencies. Here’s what he said about this in West Virginia.

Marc: “Agencies have only those powers given to them by Congress. And enabling legislation is generally not an open book to which the agency may add pages and change the plotline. We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies.”

Gwen: So, this is related to the nondelegation doctrine that we talked about in Episode 3. Congress can’t just hand over its legislative powers to agencies. So, for really major decisions, the Court is saying, we need to be extra sure Congress actually meant to delegate that authority.

Marc: But doesn’t that give the Court huge power to decide what counts as major?

Gwen: It does. That’s the criticism. The Court has essentially created a constitutional clear statement rule without any textual basis in the Constitution. And Kagan really hammered this part home in Biden v. Nebraska. Here’s this section.

Marc: “In this case, the Secretary responsible for carrying out the student loan programs forgave student loans in a national emergency under the core provision of a recently enacted statute empowering him to provide student loan relief in national emergencies. Today’s decision thus moves the goalposts for triggering the Major Questions Doctrine. Who knows—by next year, the Secretary of Health and Human Services may be found unable to implement the Medicare program under a broad delegation because of his actions’ enormous economic impact.”

Gwen: So she’s saying the Court really is just striking down policies it doesn’t like and calling them Major Questions Doctrine without any sort of consistent standard.

The Counter-Arguments

Marc: Okay, but isn’t there something to the idea that really big decisions should be made by Congress, not agencies?

Gwen: Sure. There’s definitely an appeal to that argument. If we’re restructuring the entire energy sector or forgiving hundreds of billions of dollars in debt, you could say elected representatives should make that call.

Marc: That does seem more democratic.

Gwen: It does. But here’s the problem. Congress often can’t or won’t be specific. And sometimes Congress is intentionally using deliberately broad language because it wants to give agencies flexibility to address problems as they evolve. Kagan talks about this part too.

Marc: “Congress delegates to agencies often and broadly, and it usually does so for sound reasons. Because agencies have expertise Congress lacks. Because times and circumstances change and agencies are better able to keep up and respond. Because Congress knows that if it had to do everything, many desirable and even necessary things wouldn’t get done.”

Gwen: So then she gets really specific about what the majority would have required them to do here.

Marc: “The doctrine forces Congress to delegate in highly specific terms—respecting, say, loan forgiveness of certain amounts for borrowers of certain incomes during pandemics of certain magnitudes. Of course, Congress sometimes delegates in that way, but also often not. Because if Congress authorizes loan forgiveness, then what of loan forbearance? And what of the other 10 or 20 or 50 knowable and unknowable things the Secretary could do? And should the measure taken—whether forgiveness or forbearance or anything else—always be of the same size or go to the same classes of people? Doesn’t it depend on the nature and scope of the pandemic and on a host of other foreseeable and unforeseeable factors? You can see the problem. It’s hard to identify and enumerate every possible application of a statute to every possible condition years in the future. So again, Congress delegates broadly, except that this Court now won’t let it reap the benefits of that choice.” So, we end up paralyzed. Agencies can’t act without explicit permission, and Congress often won’t give that permission.

Gwen: Right. In this case in particular, it was clear that Congress was acting after a major shock to the U.S. to try and give the Secretary power to act when there were other major shocks to the U.S. But the Court says, well, they didn’t foresee this kind of major shock. So it doesn’t count. This is also the case where Kagan says that the Major Questions Doctrine is a “get out of text free card,” which is cute.

Marc: A lot of good lines in this podcast.

Gwen: I know it is. This is a good one. So it’s also understandable given everything we’ve read. It’s like if the babysitter gave the kids ibuprofen for a headache and then the parents came home and got furious—you can’t make any sort of medical decision without explicit instructions. So now tonight the kid is having an asthma attack, the babysitter can see that, but she’s calling the parents and they’re not answering. She’s already been yelled at once for doing something similar, so she’s terrified to go get the kid’s asthma inhaler without specific instructions.

The Practical Impact

Marc: So how does this actually work in practice? Are agencies just simply paralyzed right now?

Gwen: Not completely, but they’re definitely being a lot more cautious. They’re trying different strategies so they can break big actions into smaller pieces that might not trigger the Major Questions Doctrine.

Marc: They’re gaming the system.

Gwen: Or we could say they’re working within the constraints that the Court has imposed. Instead of one Clean Power Plan, we might have 10 smaller rules that together achieve something similar. Each one alone might not be major.

Marc: So does that work?

Gwen: Nobody knows. The Court could say the cumulative effect is major, the doctrine still applies, or it could treat each one individually and let them slide. Agencies are also being much more careful about trying to find explicit statutory authorization and trying to find the clearest possible language in the statute.

Marc: Like what?

Gwen: Like after West Virginia v. EPA struck down generation shifting, the EPA can try and find other provisions of the Clean Air Act that might allow it to do this more clearly. Agencies also can obviously push Congress to pass new explicit authorization.

Marc: So will Congress actually do that?

Gwen: Theoretically, it could. Congress did explicitly give the FDA authority over tobacco in 2009 after Brown & Williamson. But on most controversial issues, as everybody by this point knows, Congress is generally too divided to act.

Marc: So what does that mean for ordinary people? How does the Major Questions Doctrine actually affect the way we live?

Gwen: In ways people might not realize. Now, anytime an agency considers any sort of significant regulation, they have to ask, will the Court consider this a major question? And if the answer is yes, they may not act at all.

Marc: So less ambitious government action across the board.

Gwen: Certainly in some instances. We could still see agencies pushing boundaries, betting that their action won’t be seen as major. But there’s a lot on the line here. It takes a long time to get these through the agency process. And if the thought is, it’s just going to be annihilated at the end, agencies have very little incentive to do that.

Marc: So it sounds like it creates a lot of uncertainty for different people.

Gwen: It does. It creates uncertainty for everyone. Businesses don’t know if regulations will survive a challenge. Beneficiaries don’t know if programs will be struck down. And agencies don’t know how aggressive they can be.

The Future of the Doctrine

Marc: Okay, so where is all this heading? Will the Court keep expanding the Major Questions Doctrine?

Gwen: That’s the big question. Some justices seem to apply it really broadly. Gorsuch has written concurrences saying that he would use it even more aggressively than it’s been used. But others seem to want to pump the brakes.

Marc: Why would they pump the brakes?

Gwen: If we take this to its logical extreme, the Major Questions Doctrine can invalidate huge swaths of the administrative state. There are tons of major decisions that agencies make. Drug approvals for major diseases. Safety standards for technologies. Regulations for airlines, financial regulations after crises. If these all become major questions requiring explicit congressional authorization, agencies can no longer really act. So we could think of an example like Ozempic. Insurance companies have already said this year they’re raising insurance rates in part due to the cost they’re expecting from so many people taking the drugs. And my rough back-of-the-envelope calculations earlier were that it would be about $100 to $150 billion a year if everyone who could take it on label, which is type 2 diabetes, used it, and hundreds of billions more if it was just used for weight loss for everybody eligible. So that certainly sounds like we’re remaking a huge part of the economy right there.

Marc: This is probably a good time to mention that this podcast is not brought to you by the makers of Ozempic, your favorite GLP-1 supplement.

Gwen: It’s good. I like it. So, I think even conservative justices can recognize the danger we’re facing here. The question is where they’re going to draw the line. Here’s what Barrett wrote in her Nebraska concurrence. She joined the majority but seemed concerned about potentially going too far.

Marc: She said, “I take seriously the charge that the doctrine is inconsistent with textualism. And I grant that some articulations of the Major Questions Doctrine on offer—most notably, that the doctrine is a substantive canon—should give a textualist pause. Yet I do not see the Major Questions Doctrine that way. Rather, I understand it to emphasize the importance of context when a court interprets a delegation to an administrative agency. And seen in this light, the Major Questions Doctrine is a tool for discerning—not departing from—the text’s most natural interpretation.”

Gwen: So. she’s clearly trying to frame the Major Questions Doctrine as the weak version here. This is just careful statutory reading. It’s not a super strong clear statement rule. And this may be where the Court ends up finding a limiting principle.

Marc: So, we might see the doctrine stabilize rather than keep expanding?

Gwen: Potentially. The question isn’t whether the Major Questions Doctrine will survive. It will. The question is more, can the Court articulate some sort of test so that everybody has an idea of what qualifies as a Major Questions Doctrine? Right now, it can seem like the doctrine expands and contracts depending on whose policy is in front of the Court.

Marc: What if Congress were to pass a law that simply said, we want you to interpret our agency powers that we grant in as expansive of a manner as possible? Would that bind the Court’s hands to interpret—or to do away with the Major Questions Doctrine?

Gwen: No. We’re going to talk about Chevron next time. Congress could easily put Chevron back in place. But if we view this as a concern about the constitutional role of the Court, that’s not something Congress can fix by just saying, please believe we’re trying to do stuff within the outer limits of what the Constitution says.

Marc: And that seems very problematic. I mean, it creates different rules for different policies.

Gwen: Yes. It makes it look like the doctrine is really about policy preferences, not legal principles. It is also really worth noting that so far the Court has just applied this to Democratic policies. There have been some discussion about whether the Court is going to use it for Trump’s tariffs. If so, that would be the first explicit use of the Major Questions Doctrine against Republican action. This discrepancy is one reason why people feel so suspicious about the Major Questions Doctrine and that the Court is really trying to reach political ends rather than applying the law in a neutral manner. A year ago today, virtually every Democrat wildly hated the Major Questions Doctrine—until the tariff case came up and, suddenly, Democrats were realizing that maybe they didn’t like out-of-control executive action. And that’s the important thing about most of these administrative law rules. Unchecked executive power seems really abhorrent when the other party is in control but right, proper, and necessary when your party is in control.

Closing: The Bigger Picture

Marc: So let’s zoom out. How does the Major Questions Doctrine fit with everything else we’ve covered this season?

Gwen: It’s all connected. The Major Questions Doctrine, Chevron deference, which we’re talking about next time, the push against agency independence. It’s all part of a broader skepticism about the administrative state itself.

Marc: The Court is reining in agency power across the board.

Gwen: That is absolutely the trend. We’ll be continuing that next episode when we talk about the Chevron Doctrine. We’ll spend one episode talking about what the Chevron Doctrine was before we get back to the death of Chevron in a different episode.

Outro

Marc: So that does it for today’s episode of Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast and enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you’re listening on. And be sure to tune in next time where we’ll continue to dive into the contours of administrative law, because remember—you can’t fix what you don’t understand.

Related Guides

• The Supreme Court's Tariff Ruling Explained — The most recent application of the major questions doctrine, where the Court struck down presidential tariffs but only three justices applied the doctrine by name.
• The Nondelegation Doctrine Explained — The major questions doctrine's older cousin. If nondelegation asks whether Congress can give away its power, the major questions doctrine asks whether Congress actually did.
• Corner Post and Regulatory Finality Explained — The major questions doctrine limits what agencies can do. Corner Post ensures they can be challenged for it forever.