Trump Seeks Lasting Deregulation by Disavowing Agency Authority

The Trump administration is attacking its own agencies’ regulatory power on at least two fronts by invoking an argument companies raise in anti-government lawsuits.

The Environmental Protection Agency has rejected its own authority to regulate greenhouse gases in a bid to loosen emissions standards by pointing to the US Supreme Court’s major questions doctrine. The Occupational Safety and Health Administration cited the doctrine in identifiying a gap in its ability to require employers to provide safe workplaces, in an attempt to ease oversight.

The administration’s use of the doctrine—which bars agencies from acting on issues of vast economic and political significance without clear congressional authorization—has the potential to eliminate regulations in a way that President Donald Trump’s successors can’t undo.

“This is an attempt not only to deregulate in the present, but also to entrench it in the future,” said Seth Davis, an administrative law professor at the University of California-Berkeley. “If they can invoke the major questions doctrine to explain a deregulatory action and, upon judicial review, a court signs off on it, it would entrench that policy unless and until Congress acts.”

In addition to durably diminishing agencies’ regulatory reach, another advantage the major questions doctrine has over more traditional policy-based deregulation is that it requires fewer resources, administrative law scholars said.

To eliminate regulation based on policy, an agency must develop detailed analyses—often relying on career staff committed to its mission—to develop explanations that are thorough enough to survive legal challenges.

By contrast, “to deregulate based on legal authority, all you need is a couple of lawyers in a room,” said Daniel Deacon, a University of Michigan administrative law professor.

Authorization Challenged

Trump directed agencies to examine rules for rollbacks through a major-questions lens in a February executive order calling on officials to identify “regulations that implicate matters of social, political, or economic significance that are not authorized by clear statutory authority.”

The EPA responded by raising the doctrine as a justification in its proposal to ax its 2009 determination that carbon dioxide, methane, and other planet-warming gases endanger public health and welfare. That finding, prompted by the Supreme Court’s 2007 ruling in Massachusetts v. EPA, forms the bedrock of the agency’s power to impose greenhouse gas limits.

While the endangerment finding addresses global climate change and triggers a mandate to regulate, the Clean Air Act doesn’t clearly authorize the EPA to decide that “question of undeniable political and economic significance,” it said.

OSHA has also cited the major questions doctrine to support its plan to narrow its interpretation of the Occupational Safety and Health Act’s general duty clause, which requires employers to keep workplaces free of recognized hazards that can seriously harm or kill workers. The agency uses that clause to police occupational hazards not covered by a specific rule.

OSHA wants to exclude “inherently risky activities” essential to “professional, athletic, or entertainment occupations” from the clause. Although the agency’s proposal is focused on sports and entertainment jobs, it leaves the door open for the exception to apply to other professions.

Congress knew about the hazards in football, boxing, and other sports, the agency said, but didn’t clearly authorize the regulation of “some undefined swath of America’s sports and entertainment behemoth.”

‘Sea Change’

The first Trump administration pioneered the use of the major questions doctrine as a deregulatory tool in a rule repeal in 2019 that led to the landmark Supreme Court case formally adopting the doctrine.

“They constructed this sea change in administrative law from the executive to the judiciary,” said Jaclyn Lopez, law professor and director of Stetson University’s Jacobs Public Interest Law Clinic for Democracy and the Environment.

The major questions doctrine was more obscure and less coherent than it is today. The high court had used the doctrine in just six cases to reject agency regulation from 2000 to 2015, according to the Congressional Research Service, although it didn’t use the term in those rulings.

But the EPA raised the major questions doctrine by name as a justification to overturn its Obama-era Clean Power Plan, a comprehensive program to reduce carbon emissions.

The legal fight over the Trump administration’s rollback culminated in the Supreme Court’s 2022 decision in West Virginia v. EPA, which relied on the doctrine to hold that the plan exceeded the agency’s regulatory power under the Clean Air Act.

The justices provided guidance on what constitutes a major question requiring explicit congressional delegation for the agency action at issue, beyond the immensity of its political and economic significance. They indicated that the doctrine is triggered when an agency action qualifies as “unheralded” and “transformative.”

Loper Bright Uncertainty

The Trump administration’s use of the major questions doctrine in the EPA and OSHA proposals could face trouble in court.

For example, the EPA’s 2009 endangerment finding wasn’t unheralded, as the agency followed its traditional approach for determining pollutants and acted under the Supreme Court’s explicit direction, said Richard Revesz, an administrative law professor at New York University.

“The invocation of the major questions doctrine is preposterous,” said Revesz, who served as the head of the Office of Information and Regulatory Affairs during the Biden administration.

Regardless of the Trump administration’s success defending the EPA or OSHA deregulations in court, it will continue to raise the major questions doctrine because of its strategic advantages, administrative law scholars said.

Courts will assess the administration’s claims of regulatory impotence under the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which ended judicial deference to agency interpretations of ambiguous laws. That denies the administration a litigation edge, and could change how courts view arguments challenging congressional authorization to regulate major questions.

“Do we even need the major questions doctrine when courts are doing independent statutory analysis on whether an agency’s action conforms with the authority Congress vested it?” University of Dayton administrative law professor Kevin Leske said.