How the Supreme Court put itself in charge of the executive branch

In the less than three years since President Joe Biden took office, the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against Covid-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans.

In each of these decisions, the Court relied on something known as the “major questions doctrine,” which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial.

This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy.

And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government.

Consider, for example, the Court’s recent decision in Biden v. Nebraska, which invalidated a Biden administration program that would have forgiven up to $20,000 in debt for millions of student loan borrowers. The Court did so despite a federal law known as the Heroes Act, which permits the secretary of education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs ... as the Secretary deems necessary in connection with a war or other military operation or national emergency.”

So Congress explicitly granted the executive branch the power to alter or forgive student loan obligations during a national crisis like the Covid-19 pandemic. But six justices, the ones appointed by Republican presidents, decided that they knew better than both Congress and the executive.

The premise of the major questions doctrine is that courts should cast an unusually skeptical eye on federal agencies that push out ambitious new policies. As the Court said in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

In practice, however, this doctrine functions more as a freewheeling judicial veto than as a principled check on agencies. The Heroes Act, after all, is crystal clear in giving Education Secretary Miguel Cardona — and not the Supreme Court — final say over which loans are forgiven during a national emergency.

It is likely, moreover, that, although the Court did not invoke this doctrine once during the entire Trump administration, these justices will continue to wield this doctrine aggressively for at least as long as President Biden remains in office, fundamentally altering the balance of power among the three branches of government — and between the Democratic and Republican Parties.

The full origin story of the major questions doctrine is also an important chapter in one of the most important debates in US law: When should judges, who are not elected, defer to the two branches of government that are actually accountable to the American people?

The question of where exactly the doctrine comes from is nearly as contentious as the doctrine itself. Justice Neil Gorsuch has argued that it stretches back at least as far as an 1897 Supreme Court decision involving railroad prices. Other conservative legal experts, including former federal appellate judge Thomas Griffith, point to the Court’s decision in FDA v. Brown & Williamson Tobacco (2000) as “the seminal statement of the major questions principle.”

The reality is more nuanced. If anything, the Court has applied two entirely different versions of the doctrine in the last several decades — a weaker form that the Court announced in Brown & Williamson, and the much stronger form that the Court has used more recently to veto Biden administration policies.

In 1984, less than six months before President Ronald Reagan won reelection in a landslide, the Supreme Court handed down its decision in Chevron v. National Resources Defense Council. Chevron dealt with a perennial problem that will arise in any system where a legislature delegates policymaking authority to government agencies like the EPA or the FDA. Sometimes, the federal law laying out an agency’s authority is ambiguous, and it’s not entirely clear whether the agency is allowed to regulate in the way that it wants.

According to Chevron, courts should typically defer to an agency’s reading of a federal law if that law’s meaning is unclear. Such deference made sense, according to the Chevron opinion, for two reasons. The first is that “judges are not experts” in the wonky questions that often come before federal agencies. And it makes more sense to give the final say on questions of policy to experts, rather than to black-robed lawyers who may not know anything at all about, say, how much nitrogen should be discharged by a wastewater treatment plant.

Additionally, Chevron argued that giving the final say on policy questions to agency leaders is more democratic than giving this authority to judges. “While agencies are not directly accountable to the people,” the Court said in Chevron, the leaders of agencies are political appointees, and they answer to a president who is accountable to the voters. And so “it is entirely appropriate for this political branch of the Government to make such policy choices.”

Notably, Chevron — which again, was handed down at a time when the Republican Party was politically ascendant — was widely celebrated by conservatives. One of its biggest cheerleaders was Justice Antonin Scalia, who predicted in a 1989 lecture that “in the long run Chevron will endure and be given its full scope” because it “reflects the reality of government, and thus more adequately serves its needs” than the alternative.

During the Clinton administration, though, the Court created a narrow exception to Chevron. The conservative commitment to letting agencies make policy decisions without too much interference from the judiciary began to fray in Brown & Williamson, which involved a Clinton administration effort to discourage tobacco use by minors. To accomplish this, the Clinton-era Food and Drug Administration announced that nicotine counts as a “drug” that the FDA may regulate under the law giving it the authority to regulate “drug delivery devices.”

The Supreme Court, however, rejected this interpretation of federal law in a 5-4 decision that divided the justices along ideological lines.

Chevron held that courts should defer to an agency’s reading of an ambiguous federal law. The Brown & Williamson opinion argues that federal law “clearly precluded the FDA from asserting jurisdiction to regulate tobacco products” — that is, that the law is unambiguous and therefore Chevron does not apply. Essentially, the Court argued that tobacco is so dangerous that, if nicotine qualified as a drug that the FDA may regulate, then the FDA would have to ban it altogether. But other federal laws made it clear that Congress did not intend to ban tobacco outright.

After devoting nearly 30 pages to this argument, Brown & Williamson then tacked on four brief paragraphs laying out one more “reason to hesitate” before concluding that Congress intended the FDA to have authority over tobacco. “Contrary to its representations to Congress since 1914,” Justice Sandra Day O’Connor wrote for her Court, “the FDA has now asserted jurisdiction to regulate an industry constituting a significant portion of the American economy.”

The significance of this assertion, combined with the fact that Congress “repeatedly acted to preclude any agency from exercising significant policymaking authority” over tobacco, led O’Connor to conclude that “we are obliged to defer not to the agency’s expansive construction of the statute, but to Congress’ consistent judgment to deny the FDA this power.”

Brown & Williamson was a far cry from the aggressive major questions doctrine that the Court invoked in recent cases like Nebraska. In Brown & Williamson, the economic significance of tobacco was only one of many factors driving the Court’s decision, offered essentially as an afterthought after many pages of legal analysis. Brown & Williamson also did not hold that an agency’s action is invalid simply because that action was ambitious.

Nothing in Brown & Williamson prevents an agency from taking big swings when a federal law unambiguously permits it to do so. As legal scholars Daniel Deacon and Leah Litman lay out in a 2022 paper, neither Brown & Williamson, nor any other Supreme Court decision authored before Joe Biden became president, “purported to conclude that a statute unambiguously granting the agency the authority in question in fact required something more.”

During the Obama administration, though, many Republican lawyers and judges turned hard against Chevron, and against the broader idea that courts should stay away from decisions made by expert policymakers in federal agencies. Indeed, in Obama’s second term, the conservative Federalist Society’s annual meetings became a showcase of competing proposals to limit the power of executive agencies. And these proposals played a significant role in shaping the Trump administration’s judicial appointments.

According to a 2018 book by legal journalist David Kaplan, the reason the Trump White House chose Neil Gorsuch as their first Supreme Court nominee is that Gorsuch was an outspoken opponent of Chevron and a clear ally in the Federalist Society’s campaign to transfer policymaking authority from federal agencies to the judiciary.

One sign that the major questions doctrine is best understood as a partisan effort to frustrate Democratic administrations is that it laid dormant during the entire Trump administration — the Supreme Court did not invoke it once during the four years that Trump was in office, and it’s not like Trump’s administration was shy about using executive power.

After Biden took office, however, the major questions doctrine became a mainstay of the Court’s decisions limiting the new administration’s power to govern. The Court invoked it in decisions striking down an eviction moratorium intended to slow the spread of Covid-19, blocking a requirement that most workers either vaccinate against Covid or submit to regular tests for the disease, stripping the EPA of much of its authority to regulate power plants, and in its Nebraska decision halting the student loan forgiveness program.

The Court’s most recent major questions decisions went far beyond Brown & Williamson, wielding the doctrine as a freewheeling power to veto regulations that five justices do not like.

At most, Brown & Williamson created an exception to Chevron, holding that the Court will not defer to an agency’s reading of an unclear federal law when that agency seeks to regulate “a significant portion of the American economy.” In Nebraska, by contrast, the Court struck down the Biden administration’s student loan program even though it was unambiguously authorized by the Heroes Act.

The Heroes Act does not simply provide that the education secretary may “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs ... as the Secretary deems necessary in connection with a war or other military operation or national emergency,” it also contains several other provisions indicating that Congress intended to delegate broad authority to the executive.

The Heroes Act, for example, permits the education secretary to bypass procedural barriers that agencies typically must overcome before they announce a new regulation. It allows the secretary to dole out student loan relief en masse, rather than “on a case-by-case basis.” And it states that the secretary may exercise this power “notwithstanding any other provision of law, unless enacted with specific reference to” the Heroes Act.

Congress, in other words, could not have been clearer that it intended for the secretary to have a broad power to provide student loan relief, “as the Secretary deems necessary,” to all student borrowers impacted by a national emergency. And yet Nebraska struck down the student loan forgiveness program despite this unambiguous authorization from Congress.

The Court’s Biden-era decisions also suggest that Biden’s political opponents may be able to invalidate a federal regulation simply by complaining about it.

The major questions doctrine applies when the Court determines that a federal agency’s action touches upon matters of “vast ‘economic and political significance.’” In West Virginia v. Environmental Protection Agency (2022), however, the Court struck down an environmental regulation that never went into effect, and that likely would not have had much economic impact at all had it done so.

The case concerned the Clean Power Plan, Obama-era regulations that, when they were announced in 2015, were believed to be a very ambitious effort to fight climate change. Among other things, they required many power generators to hit certain emission reduction targets by 2030. These regulations never took effect, however, because the Supreme Court temporarily blocked them in a party-line vote in 2016.

By the time the West Virginia case reached the Court in 2022, moreover, the Clean Power Plan looked much less ambitious than it had seven years earlier. Even though Obama’s regulations never took effect, the energy industry reached the Clean Power Plan’s 2030 goals in 2019 — largely because older, dirtier plants are more expensive to operate than cleaner energy sources, so the industry shifted away from these plants even without the government requiring them to do so.

So, by 2022, it was clear that the Clean Power Plan would not have a vast economic impact on the energy industry. It had, however, generated massive political controversy, as the plan was widely opposed both by Republican politicians and by the industry itself. And that may explain why the Supreme Court struck it down despite its relative economic insignificance.

The major questions doctrine, in other words, allows conservative political movements to gin up controversy around a federal policy, and then point to that controversy to justify striking the policy down because of its “political significance.” As Deacon and Litman write, “the Court’s new approach allows political parties — or political movements more broadly — to effectively amend otherwise broad regulatory statutes by generating controversy surrounding an agency policy.”

The Supreme Court has never explained in a majority opinion where the major questions doctrine comes from, or what legal authorities justify creating it. That said, some of the Court’s Republican appointees have written opinions, joined by only a minority of their colleagues, which attempt to defend its existence.

In a concurring opinion published alongside the Court’s decision in NFIB v. OSHA (2022), for example, Gorsuch argued that the major questions doctrine is closely related to a different, equally controversial doctrine known as “nondelegation,” which claims that the Constitution places strict limits on Congress’s power to delegate policymaking authority to federal agencies.

Gorsuch argued both of these doctrines ensure “that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives.” His opinion was joined by Justices Clarence Thomas and Samuel Alito.

One problem with Gorsuch’s argument is that it cannot explain a decision like Nebraska. No one seriously contests that the “power to make the laws” rests with the “people’s elected representatives” in Congress. But it was Congress that enacted the Heroes Act. The Biden administration merely exercised the authority given to it by the people’s representatives.

Gorsuch’s reference to the nondelegation doctrine offers one way around this problem. But the nondelegation doctrine isn’t exactly grounded in well-settled law. From 1789, when the US Constitution first took effect, until 1935, the Supreme Court did not strike down a single law on the grounds that it delegated too much authority to a federal agency. It then struck down two such laws in 1935 — and then never did so ever again.

The Court, moreover, has held time and time again since 1935 that Congress has broad authority to delegate power to federal agencies. As it said in Mistretta v. United States (1989), “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.”

Nor is there any serious argument that the Constitution was originally understood to place significant limits on Congress’s ability to delegate power to federal agencies. As law professors Julian Davis Mortenson and Nicholas Bagley note in a 2020 paper, the very first Congress enacted numerous laws giving vast discretion to executive branch officials. It allowed officials overseeing the Northwest Territory, for example, to “adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district.” And the first Congress delegated the entirety of its power over patents to executive branch officials, allowing the secretary of state, the secretary of war, or the attorney general to grant patents so long as they “deem the invention or discovery sufficiently useful or important.”

Gorsuch’s NFIB opinion, in other words, attempts to justify the major questions doctrine, which has no basis whatsoever in the Constitution, by tying it to another legal doctrine that has no basis in the Constitution.

Meanwhile, in a concurring opinion, joined by no other justice, in the Nebraska case, Justice Amy Coney Barrett offers a completely different justification for the major questions doctrine — analogizing it to a conversation between a parent and a babysitter.

Barrett asks her readers to consider a parent who, as she is walking out the door for a weekend getaway, “hands the babysitter her credit card and says: ‘Make sure the kids have fun.’” She then imagines that the babysitter “takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel.”

Barrett concedes that the babysitter’s action may be justified by the parent’s instructions “in a literal sense,” but that it was nevertheless unreasonable for the babysitter to spend so lavishly on the children temporarily in their care. “If a parent were willing to greenlight a trip that big,” Barrett writes, “we would expect much more clarity than a general instruction to ‘make sure the kids have fun.’”

This is, of course, a metaphor for the major questions doctrine. “Just as we would expect a parent to give more than a general instruction if she intended to authorize a babysitter-led getaway,” Barrett writes, “we also “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”

It’s an interesting argument, but also an imprecise one. Courts typically hold Congress to the precise words it actually enacted into law, unless there is actual evidence in the law itself which suggests that those words should be given a counterintuitive meaning. And, like Gorsuch’s argument in NFIB, Barrett’s Parable of the Babysitter cannot explain the Court’s decision in Nebraska, which Barrett joined.

Indeed, Barrett seems to admit as much in her Nebraska concurrence. While she argues that a babysitter normally should not think they are authorized to go to Disney World, she admits a babysitter might be justified in taking such a trip if there were “obvious contextual evidence that the babysitter’s jaunt was permissible — for example, maybe the parent left tickets to the amusement park on the counter.”

But that is exactly the scenario presented by the Heroes Act! Congress didn’t simply determine that, in the midst of a national emergency, the education department may forgive student loans “as the Secretary deems necessary.” It also waived procedural barriers that would slow this process. It explicitly authorized the secretary to provide relief to many borrowers at the same time. And it said that the secretary may do so even if some other federal law contains language suggesting that they cannot.

The Heroes Act, in other words, is the equivalent of a parent who told a babysitter to “make sure the kids have fun” while simultaneously handing the babysitter a guidebook on Disney vacations, a list of hotels near the park, and a set of Mickey Mouse ears for each of the children.

All of which is a long way of saying that it is difficult to take the major questions doctrine seriously. The Court applies it in a haphazard way. It’s never settled upon an explanation for why this doctrine exists. And, when individual justices have attempted to offer such an explanation, their arguments cannot be squared with the Court’s actual decisions applying the major questions doctrine.

Worse, the doctrine is part of a 40-year cycle where the Court read the power of agencies to set federal policy expansively while the Republican Party was politically ascendant, and then reined in the executive branch once it was controlled by Democrats.

The whole point of decisions like Chevron is that they are supposed to prevent this kind of partisan behavior by judges. By instructing judges to stay out of policy matters that Congress delegated to a federal agency, regardless of whether that agency is led by a Democrat or a Republican, courts ensure that the voters will have the final word on federal policy, rather than a handful of lawyers in robes.

But this Court does not believe in such deference, at least as long as Joe Biden is president.