Five Times the Court Told an Agency That Big Questions Belong to Congress

If you read only the headlines in the summer of 2022, you would think the Supreme Court had invented a brand-new weapon in a single afternoon and aimed it at the environment. That is a lovely story. It has the advantage of being dramatic and the disadvantage of being wrong.

The major questions doctrine did not drop out of a clear sky in 2022. It was built, case by case, over more than two decades, by justices on both sides of the usual lines, in disputes about tobacco, evictions, vaccines, power plants and student loans. This post walks through five of them in order. For each one I give the agency's claim, the statute it relied on, and what the Court held. Then I take on the one objection that deserves a serious answer: that the whole thing is judicial invention.

What the doctrine says, in one paragraph

Here is the rule, stated plainly. When an agency claims a power of vast economic or political significance, and it rests that claim on a statute that says little or nothing on the subject, the Court expects a clear statement from Congress. Ambiguity is not enough. The reasoning is simple: we do not expect a legislature to hide a decision of enormous consequence in a vague clause, and we do not let an agency discover, in an old law, a power Congress never obviously gave. The explainer on The Major Questions Doctrine Explained, From Tobacco to the Power Plants gives the short version. Here is the history.

Entry one: March 21, 2000, tobacco

The agency claim. In 1996 the Food and Drug Administration announced that it had authority to regulate cigarettes and smokeless tobacco as "drug delivery devices," under the Federal Food, Drug, and Cosmetic Act. The statute gave the FDA power over "drugs" and "devices," and the agency reasoned that nicotine is a drug and cigarettes are devices that deliver it. For decades before 1996 the FDA had said it lacked this authority.

The statute. The FDCA says that the FDA must keep unsafe drugs and devices off the market. The Court noticed the trap in the agency's reading. If tobacco products were drugs or devices, the FDA would have to find them safe or remove them from the market, and the agency's own findings said they were dangerous. Taken literally, the statute would require the FDA to ban cigarettes.

The holding. In FDA v. Brown & Williamson Tobacco Corp., decided by a 5-4 vote, Justice O'Connor wrote that the FDA had no such authority. Congress, she observed, had passed several statutes dealing specifically with tobacco, and those laws assumed that cigarettes would stay on the market. The Court also pointed to the commonsense way people read laws: it is implausible that Congress would delegate a decision of such economic and political significance to an agency in so cryptic a fashion.

Why it mattered. This is the root of the doctrine. Notice who wrote it. Justice O'Connor was no ideologue, and the case did not involve climate or any hot-button cause of the right. It involved tobacco, and an agency reaching for a power that fit nowhere in the statute's design. The dissenters, led by Justice Breyer, argued that the plain words of the statute covered the products and that public health justified the result. The majority's answer was that the context mattered more than a dictionary.

Entry two: August 26, 2021, evictions

The agency claim. During the COVID-19 emergency the Centers for Disease Control and Prevention issued an order halting evictions of tenants who met certain conditions. A first moratorium came in September 2020, Congress extended it once, and after it lapsed at the end of July 2021 the CDC reissued it on August 3. The order covered most of the country.

The statute. The CDC relied on Section 361 of the Public Health Service Act, which lets the Surgeon General make and enforce regulations "necessary to prevent the introduction, transmission, or spread of communicable diseases," and gives examples: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. The statute then adds that the officials may take "other measures, as in his judgment may be necessary."

The holding. In Alabama Association of Realtors v. Department of Health and Human Services, decided 6-3 in an unsigned opinion, the Court blocked the moratorium. It read the list of examples as describing measures directed at the source of infection, such as disinfecting a building, and refused to read "other measures" as allowing the CDC to suspend the rights of landlords nationwide. The Court noted that the moratorium intruded into the relationship between landlords and tenants, a field traditionally left to the states. It also wrote that if a federally imposed eviction moratorium is to continue, Congress must specifically authorize it. And one line deserves quoting because of how well it reaches: "Our system does not permit agencies to act unlawfully even in pursuit of desirable ends."

Why it mattered. Congress had in fact debated and extended an earlier moratorium by statute, so it knew how to act. The point is the one the doctrine always makes: the people who write such a rule should be the people the voters can fire.

Entry three: January 13, 2022, the vaccine-or-test mandate

The agency claim. In November 2021 the Occupational Safety and Health Administration issued an "emergency temporary standard" requiring employers with 100 or more employees to ensure their workers were vaccinated against COVID-19 or wore masks and submitted to weekly testing. The Court put the number of workers covered at about 84 million.

The statute. The Occupational Safety and Health Act of 1970 lets OSHA issue an emergency temporary standard without the usual notice-and-comment process when it finds that employees are exposed to "grave danger" from toxic or physically harmful substances or "new hazards," and that the standard is necessary to protect them.

The holding. In National Federation of Independent Business v. Department of Labor, decided 6-3 per curiam, the Court stayed the mandate. It reasoned that the statute empowers OSHA to set workplace safety standards, not broad public health measures. COVID-19 is a risk that people face everywhere, at the store, in school, at the ball game, and not a hazard specific to work. The Court said OSHA had never before imposed a rule of this kind, and that the lack of a precedent for a sweeping power was itself a signal. Justice Gorsuch, in a concurrence joined by Justices Thomas and Alito, tied the result to the nondelegation principle, and the post on The Nondelegation Doctrine Says Congress Cannot Hand Its Job to Someone Else explains that connection.

A fairness note. On the same day, in Biden v. Missouri, the Court allowed a vaccine rule for workers at healthcare facilities that take Medicare and Medicaid funds, by a 5-4 vote. The Court said the Secretary of Health and Human Services had a clearer statutory footing in a field where the government was already setting conditions for funding. That is worth remembering, because it shows the doctrine is not a blanket veto. The question was whether Congress had spoken to the power claimed.

Entry four: June 30, 2022, power plants

The agency claim. In 2015 the Environmental Protection Agency issued the Clean Power Plan, a rule to cut carbon dioxide emissions from existing power plants. The plan set state-level targets that could be met largely by "generation shifting," moving production away from coal and toward natural gas, wind and solar. The Supreme Court had stayed the plan in 2016, and it never took effect, but the question stayed alive and came back after the plan was repealed.

The statute. Section 111(d) of the Clean Air Act lets the EPA set standards for existing sources based on the "best system of emission reduction" that has been "adequately demonstrated." For decades the EPA had read that phrase to mean technology a plant could install on its own site, not an instruction to shrink an entire industry.

The holding. In West Virginia v. EPA, Chief Justice Roberts wrote for a 6-3 Court that the EPA had not been given the power to restructure the national energy mix on the strength of a rarely used provision. This opinion put the name "major questions doctrine" at the center of a majority's reasoning, and it described the doctrine as applying to "extraordinary cases," where the history and breadth of the claimed power, together with its economic and political significance, give a reason to hesitate before finding that Congress conferred it. In the Court's view, the agency had found a newfound power in an old provision. The Court did not say the EPA could not regulate emissions from power plants. It said that Congress had not clearly authorized this particular, sweeping method.

Justice Kagan dissented, joined by Justices Breyer and Sotomayor. She wrote that the Court had appointed itself, rather than Congress or the expert agency, the decisionmaker on climate policy. The conservative answer is that the question of how fast to transform a national industry is exactly the sort of choice the Constitution assigns to the elected legislature, and Congress remained entirely free to pass a clear law. The courts page follows the Court's decisions through the whole period.

Entry five: June 30, 2023, student loans

The agency claim. In August 2022 the Secretary of Education announced a plan to cancel up to $10,000 of federal student debt for most borrowers, and up to $20,000 for those who had received Pell Grants. By the Court's account the plan would have canceled roughly $430 billion in debt, affecting some 43 million borrowers.

The statute. The Higher Education Relief Opportunities for Students Act of 2003, the HEROES Act, was passed after the September 11 attacks to help service members and others affected by war or national emergency. It lets the Secretary "waive or modify" statutory and regulatory provisions applicable to student financial assistance programs, in connection with a war or national emergency. The Secretary relied on the COVID-19 national emergency.

The holding. In Biden v. Nebraska, again by a 6-3 vote and again written by the Chief Justice, the Court held that the plan was not authorized. "Modify," the Court reasoned, means to make moderate or minor changes, not to rewrite the whole program, and cancelling hundreds of billions of dollars is not a modification. The Court emphasized that the plan was a decision of vast economic significance on which Congress had not spoken clearly. Justice Barrett concurred, offering a defense of the doctrine that bears on the objection below.

Why it mattered. Here the power claimed was the spending of enormous sums of public money, which is exactly what Article I, Section 9 reserves to Congress through appropriations. That makes it of a piece with the argument in The CFPB Is Funded Without an Annual Vote of Congress, and That Should Worry Us.

The objection: is this judicial invention?

Now the fair test. Here is the objection at its strongest, in the words its defenders would accept.

One: the Constitution does not mention a major questions doctrine. Two: statutes mean what they say, and if the text of the Clean Air Act or the HEROES Act reaches the agency's action, a judge should follow the text, whatever the stakes. Three: the doctrine lets judges decide which questions are "major," and nothing in the law tells them how. Four: it looks suspiciously convenient that the doctrine appears when a Democratic administration claims a large power.

These are not silly points, and the answers are better than the critics admit.

First, the Constitution does not mention most of the rules of statutory interpretation, and every court uses them. Judges read statutes using background rules, such as the presumption against retroactivity, the rule of lenity and the canon that a statute should be read to avoid constitutional doubt. The major questions doctrine is a rule of the same kind. It rests on a feature of ordinary language: context determines meaning. If your employer tells you to "take whatever measures are necessary" to keep the office tidy, you do not conclude you may rebuild the building. Justice Barrett made this point in her Biden v. Nebraska concurrence, describing the doctrine as a way of reading a text in its context, as a reasonable speaker and listener would.

Second, the doctrine is older than 2022. Brown & Williamson dates from 2000. Before it, a plurality of the Court in Industrial Union Department v. American Petroleum Institute (1980), the benzene case, read the Occupational Safety and Health Act to require a finding of significant risk before OSHA could regulate, in part to avoid giving the agency a power without limit. The idea is that vast delegations should not be found by implication. That reasoning sits within a long tradition, and the Court's 2024 decision in Loper Bright, which overruled Chevron, is a companion, since both say that agencies get the powers Congress gave and no more. The post on Chevron Began as a Win for Reagan's EPA, Which Makes Its Fall So Ironic gives the history of the older rule.

Third, the "which questions are major" problem is real, but it is a problem of degree, and the law is full of those. Courts decide what is "reasonable" and what is "material" every day. In the cases above the stakes were not subtle: tens of millions of people, hundreds of billions of dollars, a whole national industry, or a sweeping change in a field the states traditionally governed.

Fourth, the doctrine is not partisan. It binds every administration. Its first great case, Brown & Williamson, restrained an agency under a Democratic President, but a future Republican President who stretched a vague statute to do something vast would face the same rule. A principle that cuts both ways is a principle, and the way to test whether it is one is to ask whether you would accept it when your side is in office. Conservatives should say yes.

What the five cases have in common

Lay them side by side and the pattern is hard to miss.

1. In each case the agency was claiming a power it had not asserted before, or had not asserted in this way.
2. In each case the statute was old, or short, or general, and the agency read a few words to carry a mountain.
3. In each case the stakes were enormous: a legal industry, a nationwide housing market, 84 million workers, a nation's power grid, hundreds of billions in debt.
4. In most of the cases Congress had either considered the matter and declined to act, or had legislated nearby without granting the power.
5. In each case the Court did not say what the policy should be. It said who must decide.

That last point is the thing to carry away. The doctrine is not about whether any of those policies was good. It is about whose job it is. A republic assigns the biggest decisions to the people who must stand for election, and the Court's work in these cases is to hold the line between the legislator and the agency. The related post on Imagine Congress Passed One Last Law Handing All Its Power to the Experts follows the opposite instinct to its absurd end.

The case in brief

1. The major questions doctrine grew from FDA v. Brown & Williamson (2000), Alabama Association of Realtors (2021), NFIB v. OSHA (2022), West Virginia v. EPA (2022) and Biden v. Nebraska (2023).
2. In each case an agency used an old or general statute to claim a power of vast economic or political significance, and the Court required a clear statement from Congress.
3. The doctrine is a rule of reading in context, like other background canons, and it has roots reaching back before 2022.
4. It is not partisan: it limits whichever administration reaches beyond its statute.
5. The point is not whether the policy was wise but who decides, and the answer under Article I is Congress.

What you can do: read the one-page statute behind any big federal rule that affects your household, then ask your representative whether Congress has voted on that policy or only on the vague words the agency is relying on.