Major Questions: An Extraordinary Doctrine for “Extraordinary” Cases


Wake Forest Law Review, Vol. 58, 2023

In West Virginia v. EPA, the Supreme Court held a climate-change policy unlawful by relying on what it called for the first time the “major questions doctrine.” In the wake of the Court’s decision, commentators and litigants have argued that this doctrine should prove fatal to a wide range of regulatory actions on topics ranging from environmental and economic policy to civil rights and immigration. This Article contends that those claims are wrong. To start, West Virginia does not stand alone, but instead must be interpreted in light of the decisions that preceded it. As the Court explained, the major questions doctrine “developed over a series of significant cases,” and close examination of those cases yields fundamental lessons about the doctrine’s limited scope—lessons that West Virginia itself confirms. Most importantly, the economic and political significance of an agency’s action, however great, does not alone trigger the doctrine. Instead, to qualify as one of the “extraordinary cases” in which the doctrine applies, additional factors must demonstrate that an agency is seeking to fundamentally alter and expand its authority “beyond what Congress could reasonably be understood to have granted.” In short, the doctrine applies only where an agency asserts a breathtaking new power that context reveals to be a dubious effort to transform the basic nature of its authority. The Court’s decision to limit the doctrine to such extraordinary cases makes sense because the doctrine is in tension with principles of textualism, the original understanding of the Constitution, and the judiciary’s limited role under the separation of powers. Aggressively employing the doctrine beyond the limited sphere prescribed by the Court would exacerbate those tensions and undermine the legitimacy of the courts. By relying on the doctrine only sparingly, as West Virginia instructs, courts can best ensure that they stay within their constitutional role interpreting the laws and avoid inappropriately interfering with the decisions of the elected branches.