In West Virginia v. EPA, the Supreme Court announced the arrival of the major questions doctrine and used that doctrine to limit the EPA’s ability to address the global climate crisis. It held that judges should resolve major questions—extraordinary questions of economic and political significance—through application of a clear statement rule forbidding major new applications of general policies embodied in legislation.
The West Virginia Court claimed that the separation of powers justifies the major questions doctrine but failed to explain why. The major questions cases, however, strongly suggest that when the Court decides a major question itself rather than letting the executive branch do so, the Court preserves congressional authority to legislate on major questions.
This Article shows that this assumption is wrong. Judicial resolution of major questions interferes with the prerogatives of the enacting Congress and does nothing to preserve the authority of current and future Congresses. Indeed, this Article shows that in cases employing the clear statement rule announced in West Virginia v. EPA the Court usurps the powers of Congress by, in effect, amending legislation. It also interferes with the President’s authority to execute the law. Accordingly, the major questions doctrine undermines, rather than supports the separation of powers.
* University Professor, Syracuse University. I would like to thank William Banks, Jack Beerman, Jenny Breen, Daniel Farber, James Goodwin, Leah Litman, Nina Mendelsohn, the participants in the Syracuse University Faculty Workshops for their helpful comments, and Elizabeth Dannon and Gavin Ratcliffe for research assistance. I take responsibility for any errors.
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