Posted on August 16, 2022 by J.B. Ruhl
Now that Congress knows there is such a thing as the Major Questions Doctrine, what can Congress do about it? Think big or go home.
In West Virginia v EPA, the Supreme Court faulted the EPA’s plan for shifting electric power generation away from fossil fuels as “asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” The Court explained that “extraordinary grants of regulatory authority” with “vast economic and political significance” cannot permissibly be accomplished through “modest words,” “vague terms,” or “subtle device[s].” Rather, “a decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” If the latter, then “the agency … must point to clear congressional authorization” for the power it claims. All of this, the Court explained, flows from the previously unnamed but much anticipated Major Questions Doctrine.
These are strong words, having led to much hand-wringing over how Congress can leverage administrative agencies to address problems like climate change before it knows about problems like climate change. Ironically, this doctrine, designed to police agencies from extracting expansive powers from vague delegations, is itself both expansive and vague. The concern is that agencies will be shot down every time they take bold, innovative action to manage new and substantial problems that are not spelled out by name in a statute. And given the long list of problems that fit that description, bold and innovative action is sorely needed. What are agencies to do?
But this kind of thinking misses seeing the major question forest through the major questions trees. Rather than approaching this one major question at a time, pondering whether Congress gave a specific agency “clear congressional authorization” over a specific major question before it knew about the specific major problem that led to it, why not create a legislative scheme for all major questions arising now and into the future?
Under this Major Questions Management Act (MQMA), Congress would create the Ministry of Major Questions and give it “clear congressional authorization” to manage all future major questions. Problem solved! Well, not so fast. That would certainly raise Nondelegation Doctrine concerns, as it seems quite open-ended. But Congress could go a long way in deflecting such a challenge to the regulatory scheme. In Mistretta v US, the Court recognized that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” To accomplish such delegations, it is “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” The MQMA could do just that.
First, Congress would define the kind of major problems posing major questions of “vast economic and political significance.” It could do so with broad metrics such as an economic impacts threshold, say $1 Trillion, and it could identify types of problems with vast significance, such as substantial threats to the viability of the financial system, global biodiversity, or public health. It could be a long list, the longer the better. The MQMA would also define general policy objectives, such as managing financial system disruption and losses, protecting human health, conserving important ecological resources, and so on. Then Congress would authorize the Ministry to adopt regulations fleshing out those criteria and to use them to declare that a major problem has surfaced over which no other agency has clear congressional authorization to take action having “vast economic and political significance.”
From there, the MQMA would explicitly declare that it grants the Ministry “extraordinary … regulatory authority” to take on the major problem. The Ministry could use a large tool kit of specified authorities (e.g., regulations, incentives, standard setting) to address the major problem, including enlisting a collection of other agencies and their authorities to patch together a holistic response. Congress could also place boundaries on the Ministry’s powers. For example, after declaring a major problem, the Ministry would be required to delay action for 180 days while Congress decides whether to intervene with legislation. And some options could be off limits, such as tinkering with the Federal Reserve’s monetary policy. Ultimately, Congress would draft a very long statute, with detailed policies, authorities, and boundaries, clearly authorizing the Ministry to identify and tackle the major problems of the future that Congress was unable ahead of time to identify and clearly delegate to another agency.
This is, of course, a thought exercise for many reasons. Congress is unlikely ever to create such an omnipotent agency and set it loose on a broad array of potential problems. Even if Congress did so, the Court would likely apply the Major Questions Doctrine, or the Nondelegation Doctrine, or some new doctrine to find Congress went too big. The Ministry of Major Questions is unlikely ever to be open for business, or wouldn’t be for very long.
But the purpose of envisioning the Ministry is to suggest a way of thinking about the Major Questions Doctrine that doesn’t mean Congress gives up and goes home. The MQMA may be too sprawling to be viable, but its core idea of anticipating “known unknowns” can be scaled down and tailored to more manageable focused themes, such as health, finance, or environment, and Congress can be more explicit in legislation about how an agency, or multiple agencies in shared regulatory space, can act to tackle new problems even when doing so involves “extraordinary grants of regulatory authority” and has “vast economic and political significance.” To be sure, it will be a balancing act to provide enough clear statement of authority over unknown future major problems so as to avoid the Major Questions Doctrine, but with enough detail to avoid the Nondelegation Doctrine. Given the major problems that are ahead in our future, it’s a balancing act worth taking on.