Major questions doctrine
Based on Wikipedia: Major questions doctrine
In 2022, the Supreme Court told the Environmental Protection Agency that it couldn't fight climate change by shifting America's power grid away from coal. Not because the law said so explicitly—but because it didn't say so explicitly enough.
This is the major questions doctrine in action: the idea that when federal agencies try to do something really big, really important, or really transformative, they need crystal-clear permission from Congress. A general grant of authority won't cut it. If Congress wants to hand an agency the power to remake a major sector of the economy, reshape social policy, or fundamentally alter how Americans live their lives, it has to say so in unmistakable terms.
The doctrine has become one of the most consequential tools in American administrative law. And whether you see it as a vital check on bureaucratic overreach or a judicial power grab masquerading as constitutional principle depends largely on whom you ask.
The Elephant in the Mousehole
Before diving into the major questions doctrine, it helps to understand what it replaced—or, more accurately, what it carved an exception into.
For decades, the standard approach was something called Chevron deference, named after a 1984 Supreme Court case involving the oil company. The basic idea was elegant and practical: when Congress writes a law but leaves some details ambiguous, and a federal agency fills in those gaps with a reasonable interpretation, courts should defer to the agency's reading. After all, agencies employ subject-matter experts. They deal with these issues every day. Why should judges—generalists who hear everything from patent disputes to murder appeals—second-guess technical regulatory decisions?
Chevron deference reflected a certain humility about judicial competence. It also reflected a practical reality: Congress can't anticipate every situation, and somebody has to make the calls that statutes don't explicitly make.
But critics saw a different dynamic. They saw agencies using Chevron as a license to expand their own power. Find an ambiguity in a statute? Interpret it broadly. Courts will defer. Repeat until your agency regulates things Congress never imagined.
Justice Antonin Scalia captured the counterargument in a memorable phrase from a 2001 case. Congress, he wrote, "does not hide elephants in mouseholes." If lawmakers want to grant an agency sweeping new authority, they don't bury it in an obscure provision or leave it to be inferred from general language. They say so clearly.
This elephants-in-mouseholes principle became the intuition behind the major questions doctrine. Small provisions can authorize small things. But if an agency claims to have discovered vast new powers lurking in old statutory language? The Supreme Court increasingly said: show us where Congress explicitly gave you that authority.
Origins and Evolution
The phrase "major questions" first appeared in legal scholarship in 1986, in an article by Stephen Breyer—at the time a judge on the First Circuit Court of Appeals, later a Supreme Court justice. Breyer endorsed a narrow, flexible version of the concept: courts should be skeptical of agency claims to major authority, but only as one factor among many in interpreting statutes.
The Supreme Court began applying something like this approach in 1994, in a case about whether the Federal Communications Commission could effectively eliminate rate regulation for long-distance telephone carriers. The relevant statute said the FCC could "modify any requirement." The FCC interpreted "modify" expansively—broadly enough to abolish requirements entirely. The Court said no. "Modify" means to make modest changes, not to fundamentally transform a regulatory scheme.
Then came tobacco.
In 2000, the Court confronted whether the Food and Drug Administration could regulate cigarettes as "drugs" or "devices." The FDA, after decades of disclaiming authority over tobacco, had changed its mind and issued sweeping regulations. The problem, as the Court saw it, was that if the FDA's interpretation was correct, the agency would have a legal duty to ban cigarettes entirely—because under the FDA's own framework, products that are unsafe and have no therapeutic benefit cannot be marketed. Congress, the Court reasoned, could not have intended such a dramatic result through such indirect means.
The decision crystallized what would become the major questions doctrine. Agencies shouldn't interpret statutes to grant themselves transformative authority unless Congress clearly intended it. Common sense matters. Context matters. And the bigger the claim, the clearer the congressional authorization needs to be.
Two Versions of the Same Idea
Legal scholars identify two different versions of the major questions doctrine, which matters because they have very different implications.
The narrow version treats it as an exception to Chevron deference. In ordinary cases, courts defer to reasonable agency interpretations. But when the question is "major"—economically significant, politically contentious, or transformative in scope—courts apply greater scrutiny. They don't automatically defer. They look more carefully at whether Congress really intended to delegate such authority.
This version is relatively modest. It doesn't say agencies can never exercise major authority. It just says that when they claim such authority, courts will examine the statutory basis more rigorously rather than rubber-stamping any plausible interpretation.
The broad version is different. It's a "clear statement rule"—a requirement that Congress speak with unmistakable clarity before major authority can be delegated. Under this version, ambiguity in a statute doesn't give agencies room to act; it prevents them from acting. If Congress wanted the agency to have transformative power, it should have said so explicitly. Silence or vague language means no.
The difference matters enormously. Under the narrow version, agencies can still act on major questions if their statutory interpretation is persuasive. Under the broad version, they effectively cannot act unless Congress has spelled out the authority in bright-line terms—which, given how Congress actually writes laws, often means they cannot act at all.
The Roberts Court Takes Control
The major questions doctrine remained relatively obscure until around 2021, when it suddenly became the Roberts Court's favorite tool for blocking federal agency actions.
That August, the Supreme Court struck down the Centers for Disease Control and Prevention's eviction moratorium, which the CDC had imposed to prevent the spread of COVID-19. The agency had relied on a statute giving it authority to take measures "necessary to prevent the spread of disease." The Court was unconvinced. An eviction moratorium affects "an area that is the particular domain of state law," the Court noted. Congress could not have intended to grant such sweeping power through such general language.
A few months later, the Court blocked the Occupational Safety and Health Administration's vaccine-or-test mandate for large employers. OSHA had relied on its authority to protect workers from "grave danger." But COVID-19, the Court observed, was a universal risk not specific to any workplace. Requiring vaccination across most of the American economy was a "significant encroachment into the lives and health of a vast number of Americans." If Congress wanted OSHA to have that power, it needed to say so more clearly.
Then came the blockbuster: West Virginia versus EPA.
The case involved the Clean Power Plan, an Obama-era regulation designed to shift American electricity generation away from coal. The EPA had relied on a provision requiring power plants to use the "best system of emission reduction adequately demonstrated." The agency interpreted this to include shifting generation from dirtier to cleaner sources—not just improving efficiency within each plant, but transforming the entire energy mix.
The Supreme Court said no. This was "a transformative expansion" of the agency's authority, hidden in "an ancillary provision" that had "rarely been used in the preceding decades." The EPA was attempting to adopt "a regulatory program that Congress had conspicuously and repeatedly declined to enact itself." Without "clear congressional authorization," the agency couldn't claim such sweeping power.
West Virginia was the first case where the Court explicitly named and formally adopted the "major questions doctrine." Chief Justice John Roberts wrote the majority opinion. The doctrine, he explained, applies in "extraordinary cases"—cases where agencies claim to have discovered "unheralded power" that represents a "transformative expansion" of their regulatory authority. In such cases, courts will be skeptical. Agencies need clear authorization.
The Constitutional Shadow
Behind the major questions doctrine lurks a more radical idea: the nondelegation doctrine.
Under the Constitution, Congress has legislative power—the power to make laws. The executive branch has executive power—the power to carry out laws. But what happens when Congress passes a law that essentially says "the agency shall regulate in the public interest"? Has Congress made a law, or has it delegated its lawmaking power to an unelected bureaucracy?
The Supreme Court last struck down a statute on nondelegation grounds in 1935. Since then, the doctrine has been essentially dormant. Courts have allowed Congress to delegate enormous discretion to agencies as long as it provides an "intelligible principle" to guide the agency's choices—and almost any guidance counts as an intelligible principle.
Some conservative justices want to revive nondelegation. They argue that the modern administrative state—with agencies making rules that have the force of law, affecting every aspect of American life—represents an unconstitutional transfer of legislative power to the executive branch.
The major questions doctrine can be understood as a halfway point. Rather than striking down delegations entirely, it limits their scope. Congress can give agencies general authority, but that authority doesn't extend to transformative actions. The bigger the impact, the more specific the authorization needs to be.
Justice Neil Gorsuch has made this connection explicit. The major questions doctrine, he wrote in one case, "operates as a vital check on expansive and aggressive assertions of executive authority." It preserves separation of powers by ensuring that Congress—the politically accountable branch—makes the fundamental policy choices.
Critics see this differently. To them, the major questions doctrine lets the Supreme Court decide which agency actions are "major" enough to trigger heightened scrutiny—a standardless determination that invites justices to strike down regulations they dislike while upholding ones they favor. It's judicial power, dressed up in separation-of-powers rhetoric.
The Textualist Problem
There's an irony in the major questions doctrine's success: it sits uneasily with textualism, the interpretive method championed by many of the same justices who endorse the doctrine.
Textualism holds that judges should interpret statutes based on their text. What did Congress actually write? Not what did Congress intend, not what would make good policy, not what seems reasonable—just what do the words say?
But the major questions doctrine doesn't follow from text. It's a rule about what text isn't enough. Even if the words of a statute, read straightforwardly, would grant an agency broad authority, the major questions doctrine says: that's not clear enough. We need something more explicit.
This troubled Justice Amy Coney Barrett enough that she wrote a separate concurrence in the 2023 student loan case specifically to address it. The major questions doctrine, she argued, isn't actually a clear statement rule that conflicts with textualism. It's a contextual interpretive principle. Reasonable people don't assume that general language authorizes extraordinary actions. If someone tells you to "clean up the kitchen," you don't assume permission to knock out a wall. Context constrains meaning.
Whether this defense is convincing depends on how you think about interpretation. If the statutory text genuinely supports the agency's reading, does it matter that the reading is "major"? Should courts add extra-textual requirements because the consequences of an interpretation are significant?
Tariffs and the Limits of Emergency
The major questions doctrine's latest test involves tariffs—and an unexpected collision with another area of law where courts traditionally defer to the executive branch: national security.
During his second term, President Donald Trump invoked the International Emergency Economic Powers Act (IEEPA) to impose sweeping tariffs on imports from numerous countries, claiming national security justified the measures. The IEEPA gives the president broad authority to regulate international economic transactions during a declared national emergency. But does it authorize tariffs?
Multiple courts have said no. The District Court for the District of Columbia and the Court of Appeals for the Federal Circuit both ruled that the IEEPA doesn't grant tariff authority. The Federal Circuit went further, holding that even if the statute could be read to authorize tariffs, such a reading would violate the major questions doctrine. Using emergency powers to fundamentally restructure American trade policy—to tax imports across the economy based on a president's unilateral declaration—represents exactly the kind of transformative authority that requires explicit congressional approval.
The cases are headed to the Supreme Court. And they present a genuine dilemma. The Court has long given the executive branch extraordinary deference on national security matters. But it has also increasingly insisted that agencies cannot claim transformative domestic authority without clear congressional authorization. What happens when a president invokes national security to justify sweeping economic regulation?
Legal analysts are watching closely. The outcome could define the major questions doctrine's outer limits—and determine whether "national security" becomes an escape hatch that swallows the rule.
The Death of Chevron
In 2024, the Supreme Court took the logical next step. In Loper Bright Enterprises versus Raimondo, it overruled Chevron deference entirely. Courts no longer need to defer to reasonable agency interpretations of ambiguous statutes. They decide what statutes mean for themselves.
This makes the narrow version of the major questions doctrine—the one framed as an exception to Chevron—somewhat obsolete. If courts don't defer to agencies generally, there's no need for a special rule about when not to defer on major questions.
But the broad version remains fully operational. Indeed, Chevron's death may make the major questions doctrine more important, not less. Without Chevron, agencies can still regulate—but courts will scrutinize their statutory authority independently. And for major questions, the clear statement requirement adds an additional layer of skepticism. Agencies need not just a plausible textual basis for their actions, but unambiguous authorization for anything transformative.
The administrative state isn't dead. Federal agencies still write thousands of regulations every year, interpreting statutes and filling gaps in congressional instructions. But the zone of permissible agency action has narrowed considerably. And the judiciary—specifically, the Supreme Court—has positioned itself as the ultimate arbiter of which regulatory actions exceed congressional authorization.
Democracy and Delegation
What's really at stake in these debates?
Supporters of the major questions doctrine frame it as democracy-enhancing. Elected representatives should make major policy decisions. Unelected bureaucrats shouldn't be able to transform American society based on creative readings of decades-old statutes. If the EPA wants to reshape the energy sector, or the CDC wants to halt evictions nationwide, or the Department of Education wants to forgive half a trillion dollars in student loans—those are choices for Congress, not agencies.
Critics offer a different account. Congress is dysfunctional, they point out. It often fails to act on pressing problems. When it does act, it frequently uses broad language precisely because specific language would be politically impossible. Agencies aren't power-grabbing; they're trying to address real problems using the authority Congress gave them. The major questions doctrine doesn't enhance democracy; it creates a one-way ratchet where agencies can never respond to new challenges without waiting for Congress to pass new laws—which, given congressional gridlock, may mean waiting forever.
There's also a question about who really benefits. Major agency regulations often target powerful industries—coal companies, pharmaceutical manufacturers, big employers. The major questions doctrine makes it harder to regulate such industries. Is that protecting democracy, or protecting the regulated?
And then there's the judicial angle. Under the major questions doctrine, courts decide which questions are "major," which agency actions are "transformative," and which statutory provisions are too "ancillary" to support broad claims of authority. These are not technical legal questions with clear answers. They are judgment calls. The doctrine, critics argue, transfers power not from agencies to Congress, but from agencies to courts—specifically, to the current Supreme Court's conservative majority.
A Doctrine Still Taking Shape
The major questions doctrine is barely a decade old as a formal legal framework. It emerged from older principles about statutory interpretation, crystallized through a series of high-profile cases, and has now become a central feature of how the Supreme Court polices executive power.
Its contours remain uncertain. When is a question "major" enough to trigger heightened scrutiny? How clear must congressional authorization be? Does the doctrine apply differently in different regulatory contexts? These questions will be answered case by case, decision by decision, over the coming years.
What's clear is that the ground rules have shifted. Federal agencies accustomed to interpreting their organic statutes flexibly—using general grants of authority to address new problems in new ways—now operate under tighter constraints. Congressional silence no longer implies delegation. Ambiguity no longer means agency discretion. For transformative regulatory actions, the new rule is: if Congress didn't clearly say yes, the answer is no.
Whether that represents a restoration of constitutional balance or a judicial power grab—or both simultaneously—remains a matter of fierce debate. But for anyone trying to understand how federal law shapes American life, the major questions doctrine has become essential vocabulary. It's the reason the EPA can't fight climate change through generation shifting, the reason the CDC couldn't maintain its eviction moratorium, the reason student loan forgiveness fell apart in court.
And it may be the reason tariffs imposed under emergency powers don't survive judicial review. The elephants-in-mouseholes principle has consequences. We're living with them now.