October Lunch and Learn Recap: "What's a "Major Question?: Changes in U.S. Supreme Court Administrative Law Rulings and Their Impact on the Federal Bureaucracy" with Dr. John Aughenbaugh
By Rachel Zeeve
What is the major questions doctrine? How might it affect future executive branch policy initiatives? Dr. John Aughenbaugh explored these concepts during an October Lunch and Learn hosted by the VCU Wilder School on Supreme Court administrative law rulings.
Focusing on the 2022 Supreme Court case, West Virginia v. Environmental Protection Agency, Aughenbaugh set the stage for an analysis of judicial review of administrative actions throughout history. In this case, SCOTUS used the major questions doctrine to invalidate EPA efforts to address climate change. Watch the recording.
A history of judicial review
Aughenbaugh provided historical context starting with the Great Depression-era New Deal. Many New Deal programs were challenged, and the resulting Schechter Poultry (1935) case used the non-delegation doctrine to declare major sections of the National Recovery Act unconstitutional.
“What the court said in Schechter Poultry, was that if the United States Congress was going to transfer meaningful legislative authority to the executive branch, it had to do so with guidelines to govern or shape how the agencies use that authority,” said Aughenbaugh. “So, at least initially, it appeared as though the Supreme Court was going to be skeptical of the executive branch utilizing unfettered or unchecked authority to make regulations and enact broad, sweeping policy change.”
However, the passage of the Administrative Procedures Act in 1946 established a process known as informal rulemaking. If agencies followed that process, Congress assumed that they had used the authority correctly. Federal courts followed suit.
“So we see, for instance, a roughly 20- to 25-year period of the Federal courts showing quite a bit of deference to how federal agencies used the authority given by Congress, even if Congress did not give specific guidance or guidelines as was called for in the Schechter Poultry ruling,” said Aughenbaugh.
This started to change in the late 1960s with rulings by the D.C. Circuit Court of Appeals.
“The Federal courts began to use what became known as the ‘hard look doctrine,’ meaning that when agencies were exercising authority given by Congress, federal courts should take a ‘hard look’ at how that authority was being used,” he explained.
In 1984, the Supreme Court chastised the DC Circuit Court in the case of Chevron v. Natural Resources Defense Council and created a two-part test that the federal courts were supposed to use when agencies exercised discretionary authority.
“The first part of the test is relatively straightforward,” said Aughenbaugh. “If Congress's intent was clear in legislation, both the bureaucracy and federal courts were to follow that intent. Step two said that if Congress was unclear with its intent, then federal court should defer to reasonable or permissible agency interpretation of law. And this was considered a very deferential test.”
Chevron became widely accepted as the norm within the federal judiciary. “This gave bureaucrats quite a bit of freedom to address new public policy problems,” Aughenbaugh explained.
Characterizing the major questions doctrine
What led to the major questions doctrine? Dr. Aughenbaugh said that the biggest factor was the change to the Supreme Court’s membership.
“Justices like Scalia, Kennedy, and Ginsburg — all who were very or generally supportive of the Chevron ruling — were replaced by Gorsuch, Kavanaugh and Coney Barrett,” he said. “Those justices came to the court with a fair amount of skepticism about the Chevron precedent. All of a sudden, what was a minority view on the court became a majority view. This is seen pretty clearly in roughly the last year and a half.”
In recent cases, SCOTUS has indicated that when agencies issue regulations that have a large impact on the country, they must have clear authority from Congress. This became known as the major questions doctrine. An example of this trend is West Virginia v. Environmental Protection Agency in 2022.
The EPA wanted to issue new regulations to address climate change, regulate energy sources and encourage clean energy. West Virginia and a number of other States claimed that Congress never gave the EPA that authority, and six of the justices agreed with the challengers.
“Chief Justice John Roberts wrote the majority opinion and relied upon the major questions doctrine,” said Aughenbaugh. “He defined it this way: if a proposed regulation could be reasonably predicted to have a major impact on the public and or the economy, then Congress needs to explicitly grant the authority to the agency to issue the regulation. Otherwise, according to Roberts, an agency would be violating a core principle of constitutional theory. Legislative power rests with Congress, and any delegation of that power to the unelected bureaucracy must be clear and unambiguous.”
Looking to the future
Aughenbaugh examined the implications of the major questions doctrine beyond its impact on the EPA’s efforts to address climate change.
“I think executive branch agencies should understand this — they more than likely will not receive Chevron deference, at least in the short term. Another thing that agencies should take into account — long-standing, hardly-changed authorizing statutes might not be perceived by federal courts as the basis for executive branch policy initiatives.”
West Virginia v. Environmental Protection Agency in 2022 marked a re-emphasis on the separation of powers. “They’re sending a pretty clear message — not only to the bureaucracy — but to Congress,” concluded Aughenbaugh. “If Congress, as representatives of the people, want policy change, then they're going to have to pass legislation to give the executive branch the authority to do so.”
About the speaker:
Dr. Aughenbaugh is an associate professor in the Political Science Department at VCU. Aughenbaugh has taught at VCU since the fall of 2005 and before that, he taught political science courses and was an administrator at Virginia Tech University. Aughenbaugh earned his doctoral degree in Public Administration and Policy and master's degree in Political Science from Virginia Tech.
Aughenbaugh teaches a wide array of American political science courses at VCU, including: Constitutional Law, Courts and Politics, Public Administration and Policy, Administrative Law, Introduction to U.S. Government, and Politics in Film. He has been nominated for and won a number of teaching awards and is frequently asked to comment and has presented lectures on various topics in American political science – especially administrative and constitutional law and the courts. Aughenbaugh also records a podcast with VCU Librarian Nia Rodgers entitled Civil Discourse regarding government documents and related political phenomena.
About the moderator:
RaJade M. Berry-James, Ph.D., is senior associate dean of faculty and academic affairs in the L. Douglas Wilder School of Government and Public Affairs at Virginia Commonwealth University. Dr. Berry-James is an elected fellow of the congressionally chartered National Academy of Public Administration (NAPA) and Vice Chair of the Standing Panel on Social Equity in Governance. She has spent more than 30 years in higher education, having served as Chair of the Faculty, MPA Coordinator, Ph.D. Coordinator, and Director of Graduate Programs for small, large and research-intensive graduate programs. She is also a consultant, specializing in diversity, equity, and inclusion as well as assessment and accreditation in higher education.