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Breyer to Exit After High Court Tackles ‘Major Questions’ Law

Jan. 28, 2022, 10:01 AM

Justice Stephen Breyer announced he’ll leave the U.S. Supreme Court as its conservative majority is poised to strengthen a judicial doctrine that he had an unwitting hand in developing and has criticized as an improper limit to agency regulations.

As a federal appellate court judge in 1986, Breyer wrote about the many factors that go into interpreting laws that give agencies their authority. The high court’s 2000 decision that rejected the U.S. Food and Drug Administration’s authority to regulate tobacco cited Breyer’s article to support the idea of doubting whether Congress meant to implicitly delegate power to agencies on major questions.

Breyer penned dissents in that tobacco case and in three other rulings that invoked the “major questions doctrine,” including the court’s 6-3 decision earlier this month that killed the Biden administration’s Covid-19 shot-or-test rule for large employers. The court has only applied the doctrine in six decisions since Breyer joined the court more than 27 years ago.

New York University School of Law professor Richard Revesz, who specializes in regulatory law and policy, spoke to Bloomberg Law about Breyer’s role in the Supreme Court’s handling of the major questions doctrine, how the doctrine has evolved, and a major environmental case set for oral argument Feb. 28 that gives the conservative justices a chance to further expand it. Breyer plans to leave at the end of the court’s term, after it’s ruled in that environmental case.

The following conversation has been edited for clarity.

What aspect of Breyer’s article did the court seize on in FDA v. Brown & Williamson?

Justice Breyer disagreed with the characterization of his article in Brown & Williamson because he wrote the dissent.

Justice Breyer’s article was not about the major questions doctrine. The major questions doctrine didn’t exist at the time he wrote the article. Justice Breyer said statutory interpretation is a complex process and many factors are relevant.

The statement that the majority relied on in Brown & Williamson was a fairly innocuous statement about statutory interpretation, saying that it’s one factor among many that courts could look at when determining congressional intent.

Has the court expanded the major questions doctrine since the early cases like Brown & Williamson?

There’s been a huge expansion. The early cases in which the court invoked the major questions doctrine were when the agencies were taking actions that were really quite extraordinary, given the agencies’ authority. It was not clear that the agency had the authority. They were quite exceptional cases and they happened infrequently.

We’re seeing a potential transformation of this from a very unusual doctrine invoked in very exceptional cases to a run-of-the-mill thing that is brought up every time an agency regulates on anything of any importance.

Does that expansion also include going beyond invoking the doctrine to deny agencies the deference they typically get when interpreting ambiguous laws?

Yes. In King v. Burwell, a 2015 case, the court invoked the major questions doctrine. It said this is a major question, so the agency doesn’t get Chevron deference. But then it said, “doing our own statutory analysis, we get to the same place as the agency.” So the agency decision was affirmed, but not on the basis of deference.

By the time we get to the eviction moratorium and the vaccine-and-testing mandate, the doctrine is transformed into that the agency loses the authority. The court doesn’t just say, “We’re not giving deference to the agency.” Instead, it is that the agency doesn’t have the authority to do this. There is a shift from King v. Burwell to the those two Covid cases.

What does West Virginia v. EPA (involving the power to regulate greenhouse gases) tee up for the court regarding the major questions doctrine?

There are major questions objections to the Obama administration’s actions all over the briefs in that case. I actually wrote an amicus brief arguing the application of the major questions doctrine in that case would be inappropriate. But the case gives the court an opportunity to invoke the major questions doctrine again.

If the court invokes the doctrine, what effect might that have on its development?

There are dozens of different major questions arguments being made, so it’s hard for me to speculate. I’ll give you one example. One argument is that invoking the major questions doctrine is appropriate because millions of comments were filed in the proposed rule.

Turns out that there’s been a lot of study about how interest groups generate mass comments. Some of these comments are generated by Russian bots. Multiple comments on these major rules are filed on behalf of Barack Obama, Donald Trump, and Elvis. These people are not writing these comments.

It would make a charade of the courts because now any group would find it pretty easy to generate millions of comments and use that as an argument for striking down rules. I have no idea whether the court would take that seriously, and I certainly hope they won’t, because it is beyond-the-pale wrong.

Breyer has arguably been the Supreme Court’s leading critic of the major questions doctrine. Who will pick up that mantle after he leaves?

I think Justice [Elena] Kagan would be regarded as the administrative law expert who is skeptical of a broad invocation of the major questions doctrine. None of the other justices on the other side of this issue made their mark as an administrative law scholar. The only two on the court right now are Justice Breyer and Justice Kagan.

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; John Lauinger at