The major questions doctrine, a relatively new concept observed in significant legal cases, seems to be redefining power structures within U.S. judiciary. As its influence seizes hold, it could potentially allow appointed judges to invalidate any substantial agency action that conflicts with the judges’ philosophical alignment to the president who appointed them. The crux of the doctrine lies in the refusal of courts to accept agencies’ interpretation of statutes on pressing national questions—be it political or economic—in the absence of clear Congress-approved authorization.
In the 2021 case, Alabama Association of Realtors v. Department of Health & Human Services, not only was the major questions doctrine (MQD) unveiled, but it was also put to use. Subsequently, the doctrine has featured in at least three other Supreme Court cases, and in 38 lower court cases. The rise of the MQD could potentially cripple agencies from undertaking substantial regulatory actions as the backseat avenue of Chevron deference waiver begins to fade out simultaneously.
In an illustrative example, the Supreme Court, after its application of MQD in the Alabama Association case, fortified an injunction that barred the Centers for Disease Control and Prevention from reinforcing a national eviction moratorium. This was launched originally as a public health directive in response to the mushrooming eviction levels during the pandemic, which posed larger national health threats. Despite broad statutory language vesting power in such agency actions, the court declared a clear directive from Congress to be mandatory for the execution of actions with far-reaching economic and political inclinations.
The implementation of MQD thereby invalidated an OSHA rule mandating either testing or vaccination for Covid for employees, the Clean Power Plan that necessitated electricity-generating plants to switch to low carbon emission or carbon-free fuel sources, and an attempt by the Department of Education to forgive student loans. Primarily, the MQD casts a shadow of invalidity over agency actions relying on broadly worded statutes.
A study by New York University’s School of Law found that from June 2022 to June 2023, lower court verdicts that invalidated executive branch actions leaned on the MQD in at least 38 cases. The study highlights the unchecked discretion with which lower court judges select factors to apply the doctrine. Moreover, cross-court inconsistency muddles the determinants for whether an action has political significance. Ultimately, the MQD seems to act mainly as a tool for judges to contest any action conflicting with their own political biases. Of the cases concerning Biden Administration agency actions and executive orders, the doctrine was employed in a majority of cases to achieve outcomes in sync with the political party of the presiding presidential appointee.
Given this, one might ponder on the precarious path to maintaining unbiased judicial oversight where power becomes a contestable entity, concentrated within a certain circle but held at the mercy of individual political whims.