This post was originally published on Legal Planet. Reprinted with permission.
Unless you're deeply immersed in administrative law, you may not have heard of the major questions doctrine. It's a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulation of issues of "major economic and political significance."
In its initial outing, the U.S. Supreme Court's conservative majority said that the Food and Drug Administration (FDA) couldn't regulate tobacco without a clear congressional mandate. Most recently, it has applied the doctrine in striking down the Centers for Disease Control and Prevention (CDC) moratorium on evictions during the pandemic. It now seems poised to do so in a case involving EPA's power to regulate carbon emissions from coal-fired power plants.
Unfortunately, there are a host of major questions about the doctrine's legal scope that the conservative Court has never resolved. Here are just a few of them:
What's the effect of holding something to be a major question? Sometimes, the Court has said that if a statute is ambiguous about a major question, the Court will decide the question for itself rather than deferring to the agency. Sometimes it has said that if a statute is ambiguous about a major question, the statute should not apply at all. And Justice Kavanaugh, at least, has suggested that it might even be unconstitutional for Congress to give an agency power to decide a major question. Which is it?
When does the economic effect of an issue become "major"? A lot of regulations cost $100 million per year or more. Presumably the threshold is higher than that, but we don't know how much higher. Even a billion dollars a year is only 0.005 percent of GDP. We also don't know whether it's the overall cost or whether other forms of significance matter, such as job losses or the extent to which costs are spread evenly among the population. Even $1 billion is only about $3 per person.
When does an issue have "major political significance"? The Court has tended to look at indexes of political significance like editorials, media attention, and political pushback. These forms of evidence give a lot of power to political, mass media, and social media influences to decide. What is politically controversial also shifts with time. Then there's the issue of how to draw the line between "major" and "minor" political controversies. It's hard to see a clear metric apart from whether the Justices themselves are worked up over an issue.
Why "economic" significance but not other impacts? There are a lot of ways a regulation can impose costs on society. It could wreak havoc on the environment or cause deaths, for instance. Why does the Court only care about monetary impacts?
Why doesn't the doctrine apply to the Court itself? The Court often decides issues of "great economic and political impact," often based on statutes that don't precisely speak to an issue. In an earlier era, the Court broke up Standard Oil and restructured the U.S. oil industry based on the nebulous language of antitrust laws. Recently, it held that employment discrimination against LGBTQ individuals is illegal under Title VII. Indeed, you might argue that the question of when to apply the major questions doctrine is itself "an issue of major economic and political significance."
Is the major question doctrine constitutional? The doctrine involves the kind of nebulous standard that the Court finds constitutionally problematic in other settings. In the Rucho case, the Court held that the question of when political gerrymandering goes too far can't be decided by the courts because there's no judicially ascertainable standard. How, then, can determinations of when a political controversy is sufficiently "major" possibly be within the authority of courts? In short, doesn't the major questions doctrine involve the Court itself in making decisions that are far more suited to legislators than courts?
It seems almost certain that some conservative judges will try to use the major questions doctrine to block Biden administration initiatives on climate change. Doing so would be a major error.
Showing 2,823 results
Daniel Farber | November 4, 2021
Unless you're deeply immersed in administrative law, you may not have heard of the major questions doctrine. It's a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulation of issues of "major economic and political significance."
Minor Sinclair | October 28, 2021
Our society has finally reached a turning point on climate. I’m not referring to the “point of irreversibility” about which the United Nations warns us: In nine short years, the cascading impacts of climate change will trigger more and greater impacts -- to the point of no return. Rather, we have reached the turning point of political will for climate action. There is no going back to climate passivity or denialism. Choosing to electrify and greenify is a progressive agenda, a mainstream agenda, and an industry agenda -- though all of these agendas differ.
Daniel Farber | October 25, 2021
Cost-benefit analysis is required for all major regulations. It's also highly controversial, as well as being a mysterious procedure unless you're an economist. These FAQs will tell you what you need to know about how cost-benefit analysis (CBA) fits into the regulatory process, how it works, and why it's controversial.
Amy Sinden | October 19, 2021
In the actual work of crafting the regulatory safeguards that protect our environment and health, cost-benefit analysis has been largely ineffectual and irrelevant. Indeed, its ineffectiveness has been so profound as to prompt even its most ardent practitioners and proponents to question whether it has any impact on agency decisions at all. Meanwhile, it plays at best a minor role in the legal standards that actually govern agency decision-making. Despite all this, a certain cost-benefit orthodoxy has become remarkably entrenched in environmental policy circles. Especially in an era when so many progressive ideas are in ascendance, why does the idea of regulatory review based on cost-benefit analysis have such staying power?
James Goodwin | October 14, 2021
Over the last 40 years, the U.S. regulatory system has played an increasingly influential role in redefining our political and economic relationships in fundamentally neoliberal terms. A key but often overlooked institutional force behind this development is the peculiar form of cost-benefit analysis that now predominates in regulatory practice. Building a new regulatory system befitting our vision of a post-neoliberal America requires a formal rejection of prevailing cost-benefit analysis in favor of a radically different approach -- one that invites public participation, permits open and fair contestation of competing values at the heart of policy debates, and recognizes and honors our social interdependencies.
Jorge Roman-Romero, Melissa Lutrell | October 11, 2021
Cost-benefit analysis (CBA) is inherently classist, racist, and ableist. Since these are foundational problems with CBA, and are not simply issues with its implementation, they can never be fixed by mere methodological improvements. Instead, the ongoing modernization of centralized regulatory analyses must focus on "moving beyond" CBA, and not on fixing it or improving it. Thus, in implementing President Biden's memorandum on Modernizing Regulatory Review (the Biden Memorandum), the Office of Management and Budget (OMB) should make explicit that regulatory review no longer requires CBA, even—as will be true in the typical case—when regulatory review does demand economic analysis as part of a holistic, multi-factor regulatory impact analysis.
Robin Kundis Craig | October 1, 2021
Mississippi v. Tennessee is not only the Supreme Court’s first oral argument of the 2021-22 term, but it is also the first time that states have asked the court to weigh in on how they should share an interstate aquifer. The court’s decision could fundamentally restructure interstate groundwater law in the United States for decades -- or the case could be dismissed immediately on the grounds that Mississippi has failed to allege the proper cause of action.
Clarissa Libertelli | September 30, 2021
Stormwater is growing problem in the Chesapeake Bay watershed, creating toxic runoff and flash flooding. The Maryland Department of Environment has the opportunity to protect people, but it hasn't yet.
Lisa Heinzerling | September 30, 2021
President Biden has made climate change and racial justice central themes of his presidency. No doubt with these problems in mind, he has signaled a desire to rethink the process and substance of White House review of agencies' regulatory actions. On his very first day in office, Biden ordered administrative agencies to ensure that this review does not squelch regulatory initiatives nor brush aside "racial justice, environmental stewardship, human dignity, equity, and the interests of future generations." At the same time, however, Biden reaffirmed the "basic principles" of a Clinton-era executive order on White House regulatory review, subjecting agencies' major rules to a cost-benefit test. These twin inclinations -- toward acting boldly on climate change and racial justice, and toward judging regulation using cost-benefit analysis -- are trains racing toward each other on the same track. Two entrenched, perhaps even inherent, features of cost-benefit analysis practically ensure that the benefits of regulatory measures addressing climate change and racial injustice will be diminished and deformed in the process of "valuing" them.