Notice & Comment

To Be Clear, the Major Questions Doctrine Is Not a Clear-Statement Rule, by Natasha Brunstein & Donald L. R. Goodson

As many readers of this blog know, for at least the past decade, court watchers had observed the emergence of the major questions doctrine, but the Supreme Court did not expressly name or rely on it until West Virginia v. EPA. Much of the commentary before West Virginia had rightly focused on the doctrine’s lack of clarity, demonstrating that, even if a doctrine was emerging, it lacked a framework to guide lower courts and litigants. What few seem to have examined is whether West Virginia provides such a framework.

We argue it does. The Court used a two-prong framework for determining when the major questions doctrine applies that asks whether the agency action (a) is “unheralded” and (b) represents a “transformative” change in the agency’s authority. If both prongs are met, the doctrine applies, and the reviewing court should greet the agency’s assertion of authority with “skepticism.” To overcome that skepticism, the agency must identify “clear congressional authorization” for its action.

One of the most important features of West Virginia’s articulation of the major questions doctrine—and perhaps the feature most overlooked—is that it is not a clear-statement rule. At least not yet.

Before West Virginia, some scholars began calling the doctrine a clear-statement rule, particularly after the Court referred to the lack of “clear congressional authorization” for the agency action in Utility Air Regulatory Group v. EPA, a key precedent for the doctrine.

Litigants and others also picked up the label. In the West Virginia litigation itself,  the Trump Administration’s Environmental Protection Agency (EPA), in its repeal of the Clean Power Plan (CPP) through its replacement with the Affordable Clean Energy (ACE) Rule, argued that the CPP was unlawful, in part, because it “must be supported by a clear statement from Congress.” When litigation over the ACE Rule (and thus CPP) reached the D.C. Circuit, Judge Walker, writing in dissent, contended that no one defending the CPP could “make a serious and sustained argument that [the relevant statutory provision] . . . satisfies the major-rules doctrine’s clear-statement requirement.” At the Supreme Court, both the state petitioners and the North American Coal Corporation argued that the major questions was a clear-statement rule.

Even though the West Virginia majority ultimately agreed with the petitioners that EPA lacked authority to issue the CPP under the major questions doctrine, the majority did not use the petitioners’ framework and never used the phrase “clear statement” in its legal analysis. Instead, it repeatedly used the phrase “clear congressional authorization.” The only times the majority opinion uses “clear statement” are in attributing that language to the Trump Administration’s EPA or the D.C. Circuit in its discussion of the case’s procedural history. In contrast, Justice Gorsuch’s concurring opinion recasts the majority opinion’s use of “clear congressional authorization” as a “clear-statement rule” and then uses the phrase “clear statement” 17 times. As far as we can tell, however, Justice Gorsuch’s equating of the doctrine with a clear-statement rule was the first and so far only time a Supreme Court opinion has done so.

The omission of “clear-statement” from West Virginia’s legal analysis appears to have been intentional. To begin with, if the Court had wanted to call the major questions doctrine a clear-statement rule, it knew how: It has used that phrase in other settings, including in an opinion issued a few weeks before West Virginia, and Justice Gorsuch showed them how to do it for the major questions doctrine, too (17 times). The possibility was also top of mind for several of the Justices at oral argument: Three in the majority (Chief Justice Roberts, Justice Thomas, and Justice Barrett) pressed West Virginia Solicitor General Lindsay See on this point, expressing some skepticism that the doctrine was “simply a variety of the clear statement doctrine.” And if the Court had wanted to equate the major questions doctrine with a clear-statement rule, there is no apparent reason why it would have held back in the majority opinion.

Despite the conspicuous absence of the phrase “clear-statement” from West Virginia’s legal analysis,early commentary onon the decision often calls the major questions doctrine a clear-statement rule. These commenters may be relying on Justice Gorsuch’s concurring opinion rather than the majority or equating requiring “clear congressional authorization” with requiring a “clear statement.”

But the omission of “clear statement” from West Virginia’s legal analysis should not be overlooked. For starters, West Virginia’s analysis reveals that the need for “clear congressional authorization” is different from the need for a “clear statement.” After the Court determined that the CPP triggered the major questions doctrine and said that EPA had to show “clear congressional authorization” for the CPP, the Court determined that the statutory text EPA relied on was “vague.” But it did not stop there. The Court then looked to other provisions of the Clean Air Act and statutory history to search for clear congressional authorization and ultimately determined that it was “not plausible that Congress gave EPA the authority to adopt” the CPP, not that Congress failed to use the appropriate “clear statement” to confer this authority.

In addition, there is a good reason the majority refused to ground the major questions doctrine in clear-statement terms: Clear-statement rules are often viewed as more aggressive canons of statutory interpretation that may allow courts to choose a less plausible reading (over the more natural one) if in service of a constitutional norm, like separation of powers. Relying on Justice Barrett’s scholarship, Justice Gorsuch makes this very point in his concurrence.

The majority does not. Rather, the majority says that, if “Congress could reasonably be understood to have granted” the authority, the court can—and should—uphold it. In other words, although a court must approach an agency’s assertion of authority with “skepticism” once it triggers the major questions doctrine, if the most natural reading of the statute would permit the agency action, the agency has “clear congressional authorization” for the action.

The key takeaway is that the Justices in the majority who did not join Justice Gorsuch’s concurring opinion (Chief Justice Roberts and Justices Thomas, Kavanaugh, and Barrett) appear to have been unwilling to call the major questions doctrine a clear-statement rule, indicating that they do not view the major questions doctrine as allowing courts to depart from the most natural reading of a statute to avoid potential constitutional problems. 

But commentary on Supreme Court opinions can sometimes turn into self-fulfilling prophecies. The major questions doctrine itself may be a case in point. And the more that commenters, litigants, and lower courts start using the West Virginia concurring opinion’s use of clear statement rather than the majority’s use of “clear congressional authorization,” the more likely it is that the clear-statement label will take hold.

With Biden v. Nebraska now on the February argument calendar, the Court may soon have an opportunity to explain that it meant what it said in West Virginia: The major questions doctrine requires only a showing of “clear congressional authorization” and is not a clear-statement rule.

Natasha Brunstein is a Legal Fellow at the Institute for Policy Integrity at NYU School of Law.

Donald L. R. Goodson is a Senior Attorney at the Institute for Policy Integrity at NYU School of Law.

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