The Supreme Court Is Making America Ungovernable

The West Virginia v. EPA ruling signals a future in which no one in power has the ability to tackle the biggest issues society faces.

Illustration of the American flag being shredded.
John J Custer

About the author: Lisa Heinzerling is a law professor at the Georgetown University Law Center.

Like many governmental agencies, the Environmental Protection Agency has an elaborate process for developing important rules. As I saw during the Obama administration, when I headed the EPA office that oversees this process, getting a major rule over the finish line can take years. Almost every step of the way offers obstacles to addressing any serious environmental problem.

This work just got much harder, if not altogether impossible. In West Virginia v. EPA, the Supreme Court held that Congress may not authorize an administrative agency like the EPA to address an issue of great economic and political significance—in the Court’s parlance, a “major question”—unless Congress speaks extremely precisely in doing so. Broad statutory language, written with the aim of empowering an agency to take on new problems in new ways, will no longer suffice.

The Court’s decision has the immediate effect of limiting the EPA’s power and flexibility in regulating fossil-fuel-fired power plants under the Clean Air Act. But it extends beyond that: Any agency that asserts authority over an issue of great economic and political significance could meet a hostile reception in the courts precisely because it has tried to do something big. Many agencies will just avoid taking such actions in the first place, knowing the risk. The obvious result could be a federal government with little ability to tackle many of the biggest issues society faces.

The specific focus of the Court’s decision was an EPA regulation, known as the Clean Power Plan, that set emission limits for power plants in part by shifting electricity generation from coal-fired power plants to gas-fired power plants and renewable energy sources such as wind and solar power. Soon after the EPA issued the rule, the Supreme Court used its shadow docket—rulings it makes without full briefing and oral argument—to stop the rule from ever taking effect. Even so, the emission reductions required by the rule were met on time and without any of the catastrophic effects that the rule’s challengers had conjured. By the time the Supreme Court had determined the validity of the rule, in other words, real-world events had proved its modesty and workability.

Nevertheless, not only did the Court decide to take on a case challenging a rule that never took effect; it also went on to find that the rule—again, the rule whose deadlines and goals were met, even without the rule, and with little apparent difficulty—reflected the exercise of “highly consequential power beyond what Congress could reasonably be understood to have granted.” The Court referred to at least half a dozen different and apparently nonexhaustive factors that led it to this conclusion (Justice Neil Gorsuch, in a concurrence, added at least one more), including the economic and political significance of the relevant issues.

Having found a “major question” in West Virginia, the Court thought it appropriate to apply a clear-statement requirement to the legal question in front of it. To empower an agency to tackle an important question, the Court announced, Congress must speak super clearly. Although the Court conceded that the Clean Air Act contained a “plausible textual basis” for the EPA’s rule, that wasn’t enough for the conservative justices. They wanted crystalline clarity.

Evidence of the extreme legislative clarity the Court now demands can be seen in two other cases the Court decided in the past year. Both involved the Biden administration’s efforts to stem the spread of COVID. The first case arose out of the CDC’s rule imposing a nationwide moratorium on evictions in areas with particularly high COVID-transmission rates; the second arose out of the Occupational Safety and Health Administration’s rule requiring COVID vaccinations or testing by large employers. In both cases, the health-focused language of the relevant statutes were well tailored to the pandemic threat, yet in neither case would the Court listen to what Congress had said. The Court simply deployed the major-questions idea to make close inquiry into the statutory text irrelevant.

The Court’s major-questions doctrine will make effective governance of this country even harder than it has long been. Somewhat ironically, the first victim is Congress itself. Congress has long addressed important problems by empowering agencies to regulate based on newly developed scientific and technical information. That is what Congress did in the Clean Air Act and in the public-health and workplace-safety statutes the Court narrowed in the COVID cases. All laws with a similar structure, passed in at least implicit reliance on a different interpretive framework from the one the Court has embraced, are now vulnerable to severe judicial cropping. So while the Court is purporting to hand Congress the baton, in reality it’s creating a major hurdle that will stand in the way of Congress’s work.

Moreover, although the Court in West Virginia cited what it regarded as the advanced age of the Clean Air Act as a factor in its decision, the bulk of the Court’s reasoning can be applied to brand-new statutes as well. Indeed, very soon after Congress passed the Affordable Care Act, the Court did not hesitate to deploy a variant of the major-questions principle in assessing the IRS’s power under the new statute. Going forward, Congress will need to try to figure out whether any one of the dozens or even hundreds of choices it makes is “major” in light of the Court’s open-ended, multifactorial, inherently subjective test, and then speak clearly enough in its legislation that the conservative justices can hear.

Congress must also contend with the legal theory underlying the Court’s embrace of the major-questions principle. The majority in West Virginia is coy on this point, referring obliquely to the “separation of powers principles” underlying its decision, but Gorsuch’s concurrence is forthright: The major-questions doctrine is a way of enforcing the constitutional idea known as nondelegation, which holds that the Constitution’s vesting of “legislative” power in Congress means that Congress cannot delegate any “legislative” power to any other person or entity. No constitutional provision, however, tells us what “legislative” power—as opposed to “executive” or “judicial” power—is. Yet the nondelegation principle assumes and requires a theory about how to neatly distinguish one governmental power from another. In recent concurring and dissenting opinions, conservative justices have suggested that the Court should define legislative power—the kind of power Congress cannot delegate to administrative agencies—by looking at the importance of the relevant policy issues.

If that sounds familiar, it is: It is the major-questions doctrine in constitutional form. Should the Court deploy the major-questions idea in this way, it will have the power not just to trim a statute but to invalidate it altogether if Congress did not clearly decide for itself a policy question that the Court deems important.

The West Virginia decision pares back agencies’ authority as well as Congress’s. Already-finalized regulations may fall to the major-questions doctrine, and the ambition of regulations under development may need to be shrunk. Within days of the case’s conclusion, Texas Attorney General Ken Paxton argued in federal court that the Court’s decision validated his legal challenges to the Department of Homeland Security’s Deferred Action for Childhood Arrivals program and the Nuclear Regulatory Commission’s decision licensing a nuclear-waste facility in Texas. Legal commentators opined that the climate-related regulatory plans of the Securities and Exchange Commission and the Federal Energy Regulatory Commission were dead on arrival because of the decision. Agencies will need to navigate these shoals with the most primitive of instruments: the agencies’ guesses about the kinds of rules the conservative justices will deem too big to succeed.

This latest obstacle to effective regulation comes amid the Court’s retrenchment on a long-standing legal doctrine that gave agencies (and regulated parties) some assurance that courts would accept agencies’ interpretations of the statutes Congress has charged them with administering. This doctrine, known as “Chevron deference,” after the case that solidified this approach, directed courts to accept an agency’s reasonable interpretation of a statute it administers unless the statute clearly rules out the agency’s interpretation. The major-questions idea is kind of the opposite: It directs courts to reject an agency’s interpretation unless the statute clearly rules it in. But Chevron was on the ropes long before the Court decided West Virginia. The Court has not deferred to an agency interpretation in more than six years, and in most statutory decisions, the Court has stopped referring to it altogether. A majority of the conservative justices have written opinions denouncing Chevron deference, and even the more progressive justices seldom refer to it, perhaps wanting to avoid the conservative justices’ anaphylactic reaction to the idea. The seeming disappearance of Chevron deference from the Court’s vocabulary just deepens the legal uncertainty that agencies face in proposing ambitious regulatory programs.

One way to break the government is to make legislators and administrators look over their shoulder every time they think they might have a creative idea for addressing one of this country’s many pressing problems. When they try to understand the ramifications of the Supreme Court’s major-questions doctrine for their work, legislators and administrators will be looking over their shoulder at the Court’s conservative justices.