The Supreme Court signaled trouble ahead for broad assertions of agency power – including efforts to address climate change— in its decision striking down President Joe Biden’s vaccine-or-test mandate.
Conservative justices have embraced a judge-made “major questions” doctrine that asserts Congress—rather than agencies and courts—should tackle the biggest issues facing the country.
In the process, the court is undercutting the so-called administrative state and hamstringing regulators at a time when a deeply divided Congress shows little ability to address national crises. The next test will come in February when the justices hear arguments over whether Congress gave the EPA the authority to regulate greenhouse gas emissions from power plants.
“There’s no doubt that anything that looks like an effort to do the kind of bold policy move that we’d traditionally expect from Congress rather than agencies is going to have tough sledding in the Supreme Court,” said Dan Farber, a Berkeley law professor.
At a minimum, the vaccine-or-test decision will embolden opponents of the so-called administrative state to continue to launch aggressive challenges in court.
“Moving forward, litigants are likely to try to follow the successful strategy of the business groups and states here, challenging whether the broadest actions by agencies really fit within the terms of the authority they have received from Congress,” said George Mason administrative law professor Jennifer Mascott.
Bureaucrats vs. Judges
The idea of a “major questions” doctrine isn’t new, said Aaron Nielson, an administrative law expert at Brigham Young University. Then-appeals court Judge Stephen Breyer referred to a version of it in a 1986 law review article.
But the Supreme Court didn’t articulate the doctrine until 1994, in a telecommunications case, and then again in a 2000 ruling about the FDA’s ability to regulate tobacco, said Jonas Monast, who focuses on environmental issues at the University of North Carolina Law School.
Trump-appointed judges and justices have reinvigorated the idea. Without always referring to it explicitly by name, they’ve been applying it in the past year to strike down federal measures, said University of California law professor Dorit Reiss, who is an expert in administrative law and vaccine mandates.
To date, the court has provided very little guidance about what triggers the doctrine, Monast said.
Previous cases suggest the doctrine kicks in whenever an agency action “will have vast economic and social consequence,” said Luke Wake of the libertarian public interest law firm, the Pacific Legal Foundation.
For conservatives, the doctrine reaffirms “the notion that in our constitutional order it is for Congress,” as the most politically accountable branch, “to decide the truly momentous issues,” he said.
But those on the left see the doctrine as shifting power from so-called unelected bureaucrats to unelected judges, who don’t have the same expertise to balance the pros and cons of a particular action.
By “appropriating to courts the power to decide what’s a major question an agency cannot act on,” it’s the courts, rather than Congress, who gets to decide the scope of agency power, Reiss said.
Northwestern administrative law expert Daniel Rodriguez said the doctrine has a tenuous basis in modern administrative or constitutional law.
“It is basically made up, and not warranted by either a close attention to how Congress/agency relations work in practice or in how they should work, as a matter of our system of administrative constitutionalism,” he said.
‘Slow, Cumbersome and Fractured’
In the case of the private sector vaccine-or-test rule, lawmakers did weigh in. The Senate in December voted to repeal the rule, using a little-known tool that allows Congress to repeal recent regulations it disagrees with. Democratic Sens. Jon Tester (Mont.) and Joe Manchin (W. Va.) sided with all the Senate’s Republicans to nix it.
But the House never voted on the measure, and it faced an uphill battle to gain approval from the Democratic-majority chamber.
“The fact that Congress had a chance to repeal this vaccine mandate and was not able to really fundamentally undermines,” the Supreme Court’s view of workplace regulators’ authority, said Amit Narang, who works on regulatory policy at the left-leaning consumer advocacy group, Public Citizen.
Reiss said the Thursday decision will undermine a major reason that Congress delegates powers to the agency in the first place—giving flexibility to act.
“If agencies have to go back to Congress for every new action, they can’t respond fast to emergencies or issue,” Reiss said.
“Congress is slow, cumbersome and fractured,” Reiss said. So “there will be trouble mounting a federal response,” he said.
The doctrine is almost certain to come up next month when the justices hear arguments in West Virginia v. EPA, which challenges the EPA’s ability regulate climate change.
Rodriguez said Thursday’s decision “doesn’t bode well for the EPA and its authority to regulate.”
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