Supreme Court Establishes 'Major Questions Doctrine,' Changing Balance Of Power In US Government

A new series of Supreme Court decisions issued this week has attracted controversy, memes and jokes online, as Americans reconsider the role and structure of the highest court in light of the Dobbs v. Jackson Women’s Health Clinic decision that last week took away the constitutional right to an abortion.

Possibly the most impactful decision of the term, from the perspective of governance, is West Virginia vs. EPA, in which the conservative majority of the Court held 6-3 that the Environmental Protection Agency (EPA) does not have the authority to limit the emissions of power plants.

The Court’s ruling challenges what has been a central pillar of modern American government: The ability of federal agencies to interpret the instructions Congress gives them in laws. The EPA started limiting emissions because it thought the Clean Air Act of 1970 gave it the authority to do so. Other federal agencies make decisions like this every day, because laws rarely cover every single detail of an issue and can sometimes even be vague.

Roberts invokes and embraces the "major questions doctrine" to hold that the Clean Air Act does not permit the EPA the impose carbon emission caps by mandating a shift in energy generation to cleaner sources. https://t.co/EaPGix54LE

— Mark Joseph Stern (@mjs_DC) June 30, 2022

My problem with the major questions doctrine is that the idea makes sense in the abstract, but doesn't as applied to the actual drafting practices of Congress AND there is essentially no clear way to apply it consistently.

But that's not a popular view in the CLM these days!

— Jimmy Buffett Fan, Esq. (@jimmy_esq) June 30, 2022

But the Supreme Court ruled, under a controversial and extra-constitutional justification called the Major Questions Doctrine, that executive branch agencies cannot make decisions on "major questions," and instead it is Congress or the Supreme Court that must decide.

The six conservative justices did not define what makes a question “major” or how specific the language in laws needs to be. The Court’s decision has opened up every federal agency (which are already overseen by Congress) to lawsuits limiting their power.

when all your cites for the scope of the major questions doctrine end with (2021) (slip op.) pic.twitter.com/KjzmwZBLUu

— Henry Gargan (@hgargan) June 30, 2022

Congress must be pinpoint precise about the power it has delegated to federal agencies. So we invented the pinpoint precise "major questions" doctrine to stop it.

— Somil Trivedi (@SomilBTrivedi) June 30, 2022

For conservatives who want a smaller government, the ruling was seen as a win because it limits the power of the informal bureaucracy, what some term the “fourth branch” of American administrative state.

2. We got many pages on “major questions doctrine,” big winner today. Gorsuch: “Under that doctrine’s terms, admin agencies must be able to point to ‘clear congressional authorization’ when they claim the power to make decisions of vast ‘economic and political significance.’”

— Ilya Shapiro (@ishapiro) June 30, 2022

But many were also disturbed or angered by the ruling because it increased the power of another branch — the judiciary. The Supreme Court now has an extensive ability to control the decision-making process of agencies in the executive branch and tell them how to interpret instructions from Congress.

The "major questions" 'doctrine' is immodest judicial activism at its most blatant.

There are no objective criteria. The Supreme Court gave itself the power to nullify executive actions – ones Congress could at any time override – on the basis of its vibes about 'importance.' https://t.co/15diKGQg9H

— Mike Dunford (@questauthority) June 30, 2022

Liberal Justice Elena Kagan’s dissent in the EPA case earned a lot of attention online as the contentious decision made waves online and sparked viral debates on platforms like Twitter.

Final paragraph of Kagan’s dissent: https://t.co/3ZL76TCGtW pic.twitter.com/yUiTgshpru

— Max Chesnes (@MaxChesnes) June 30, 2022

Kagan, dissenting, calling out the antitextualism of the "textualist" majority with an appropriate dose of snark pic.twitter.com/zjuVyNJX6Y

— Steven Mazie (@stevenmazie) June 30, 2022

The Conservatives are textualists until the text confers an authority they don’t like.

In that case, they sweep all that Scalia nonsense aside and roll out the major questions doctrine to say their divination of legislative intent must decide the case. pic.twitter.com/2UwJfjotgV

— southpaw (@nycsouthpaw) June 30, 2022

Another case involved the rights and sovereignty of Native American nations within the United States. In a 5-4 ruling, in which Justice Gorsuch ditched his fellow conservatives to join with the liberal minority, the Court found that Native American law is subordinate to state law.

Really hard to understate just how mad Gorsuch is with Kavanaugh et al. for the Castro-Huerta ruling. pic.twitter.com/d5eacucgN8

— Matt Ford (@fordm) June 29, 2022

Gorsuch continues his fascinating trend of being the biggest defender of Native American sovereignty, although here he finally loses. His writing is characteristically vivid and terse, and the dissent is worth a read. https://t.co/hAXPqtoqxv

— Jonathan Judge (@bachlaw) June 29, 2022

Gorsuch has historically been sympathetic on Native American issues, often siding with his liberal justices when a case about treaty obligations or the legal status of Native Americans comes up.

Gorsuch Gorsuch
Normally On Native
American Issues pic.twitter.com/D2DB1EBZFj

— Jude 🏳️‍🌈🇺🇦🐵🍻🏡📃🗳 (@OregonMapGuy) June 29, 2022

On Thursday, the Court also swore in Ketanji Brown Jackson as an Associate Justice, and finalized the retirement of Justice Stephen Breyer. She is the first Black woman on the Court, and enters the position at a difficult and contentious moment in the Court’s history.

If you think your work environment is toxic, imagine what Justice Ketanji Brown Jackson is walking into.

— Smite⚡️ (@7Veritas4) June 30, 2022

Now on @MSNBC:
Ketanji Brown Jackson is sworn in as a Supreme Court justice, making her the first Black woman on the nation’s highest court. https://t.co/RdYLvfum24 pic.twitter.com/k9o0EbChLR

— MSNBC (@MSNBC) June 30, 2022

Many, including President Joe Biden, have supported looking into reforms to the Court, such as increasing the number of Justices (which is not set by the Constitution) adding term limits or changing the way justices are selected and appointed.

Further, members of the Court have been doxxed in recent days amid widespread outrage about the Court's rulings, even including their credit card info being leaked.