ANALYSIS: Major Questions’ Losing Record Since West Va. v. EPA

The US Supreme Court enshrined the major questions doctrine in West Virginia v. EPA in 2022, and since then, it has become a mainstay of many challenges to agency actions. In these cases, plaintiffs that disagree with the agency action will make the argument that the agency has, without clear authorization from Congress, regulated in the area of a “major question"—one of vast economic or political significance.

From criminal cases to workplace safety cases, if a regulation is being challenged, there’s a good chance a major questions argument will make an appearance.

But two years after West Virginia, the ...