The major questions doctrine says Congress must explicitly give an agency a power, which has implications for net neutrality and Big Tech.
Last week, the Supreme Court punctuated a blockbuster term with a significant administrative law case. Although West Virginia v. Environmental Protection Agency was not as flashy as gun control or abortion, the Court’s decision to strike down the Clean Power Plan has implications far beyond climate change. This post explores that decision and examines what the Court’s major questions doctrine means for agencies going forward—including those regulating Big Tech.
The Decision
West Virginia v. Environmental Protection Agency involved the Obama-era Clean Power Plan. The Clean Air Act allows the Environmental Protection Agency (EPA) to regulate emissions from power plants. In 2015, the agency used that authority to announce a sweeping plan to address climate change: Rather than simply reduce carbon dioxide emissions at coal-fired power plants, the EPA would force these plants to transition to lower-emission natural gas—and ultimately to renewable energy such as wind and solar. The Trump administration EPA reversed this rule, explaining that the existing statute did not give the agency such broad authority. A coalition challenged that repeal in court.
The Court agreed that the existing language did not support the Clean Power Plan and that the Obama-era agency’s reasoning ran afoul of the major questions doctrine. The agency “claimed to discover an unheralded power representing a transformative expansion of its regulatory authority in . . . a long-extant, but rarely used, statute.” In such cases, the Court should be skeptical that “Congress . . . intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” It needs “clear congressional authorization” for agencies to regulate these major questions. Although this case was the most comprehensive articulation of the major questions doctrine, shades of this reasoning run through nearly a quarter century of the Court’s administrative law jurisprudence, including the Food and Drug Administration’s early effort to regulate cigarettes, the Obamacare case, and more recently, the pandemic-era eviction moratorium and workplace vaccination decisions.
Broader Implications
Perhaps influenced by the weightiness of the term generally, early commentary suggests this decision is a major blow to the administrative state. But the major questions doctrine is unlikely to affect most agencies’ day-to-day operations. The Court has long recognized that Congress can—and does—delegate huge swaths of authority to federal agencies. Our modern society is complex, and Congress has neither the time nor the expertise to make every one of the thousands of policy judgments that the government must decide virtually every day. The vast majority of these decisions do not raise issues of “economic and political significance.” So the major questions doctrine is unlikely to affect, for example, the Federal Communications Commission’s (FCC) technical decisions about spectrum management practices or the structure through which broadband subsidies may be distributed.
But we are likely to see the doctrine arise in challenges involving, well, major questions. For example, whether the Communications Act of 1934 gives the FCC authority to impose net neutrality requirements on broadband providers could be a question of economic and political significance. The act was last amended in 1996, back when only 50 percent of us were online—and those mostly through dial-up. During earlier rounds of litigation, then-Judge Brett Kavanaugh raised similar concerns about the 2015 net neutrality rule, in an opinion that the West Virginia v. EPA decision cited with approval. I explored the major questions challenge to broadband regulation in some detail for the Free State Foundation in 2016. The Court has acknowledged that the statute is “not a model of clarity” and could someday find that Congress did not speak clearly enough regarding what authority, if any, the agency has over broadband networks. That would suggest the need for additional legislation (something many, including me, have argued would be best anyway).
Importantly, the major questions doctrine does not prevent agencies from regulating on significant matter; it only requires that Congress be clear when an agency may do so. For example, the Federal Trade Commission (FTC), which has taken the lead on Big Tech antitrust issues, is authorized by statute to prevent unfair methods of competition and unfair or deceptive acts or practices. This is likely a delegation of power to create competition law—a delegation that is both clear and clearly broad. One may ask whether Congress can delegate such broad authority—a question that implicates the nondelegation doctrine—but that’s distinct from the major questions doctrine, which merely asks whether Congress has in fact done so. (Whether “unfair acts or practices” includes data privacy, as the FTC claims, is a closer question that might implicate the doctrine.)
Time will tell how the major questions doctrine will affect administrative law. But the Court’s impulse seems to be to incentivize Congress to make important policy judgments, rather than leaving it to agencies. This could be a step in the right direction.
Originally published by American Enterprise Institute. Republished with permission. For more Budget & Tax News.
