Happy Fourth of July everyone.


Last week, I was in Chicago visiting family. I also had a chance to participate in a panel discussing the Federal Bar Association’s disability inclusion success story as part of the ABA’s Collaborative Bar Leadership Academy. I had a great time doing that. I did not get back until Wednesday late afternoon and spent Thursday and Friday catching up. So, I did not get a chance to put up a blog entry for last week. I don’t often skip a week so to speak. The blog entry for this week is West Virginia v. EPA, here, which is a case everyone is talking about. I thought I would add my own perspective. The case is 89 pages but the reasoning can be broken down pretty easily. The case is not about the ADA at all, but it certainly has relevance because there is an awful lot of administrative regulations, guidances, etc. associated with the ADA and the Rehabilitation Act and related laws. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the EPA rule went too far in the absence of explicit legislative authority; Justice Gorsuch’s opinion discussing when the major question doctrine gets activated and how to go about applying it; Justice Kagan dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.





The facts are really simple. The EPA came up with a rule to require electrical companies to shift to renewables. The EPA analyzed the regulation and decided that the regulation went too far. The Biden administration said there would be new rules issuing. However, that didn’t stop various State Atty. Gen.’s from suing to stop the original rule.



Court’s reasoning that the EPA rule went too far In the Absence of Explicit Legislative Authority (C.J. Roberts)


  1. Extraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices.
  2. Congress typically does not use oblique or elliptical language to empower an agency to make a radical or fundamental change to a statutory scheme.
  3. The major question doctrine took hold because it refers to an identifiable body of law developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.



Justice Gorsuch’s (joined by Justice Alito), Opinion Discussing When the Major Question Doctrine Gets Activated and How to Go about Applying It


  1. Major question doctrine applies when an agency’s claim to power involves a matter of great political significance.
  2. The major question doctrine may apply when seeking to regulate a significant portion of the American economy.
  3. The major question doctrine may apply when an agency seeks to intrude into an area that is a particular domain of state law.
  4. ¶ II 1-3 is not necessarily an exclusive list of factors.
  5. In figuring out whether congressional intent is sufficiently clear, the following factors must be looked to:
    1. the legislative provisions on which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement.
    2. An examination of the age and focus of the statute the agency invokes in relation to the problem the agency seeks to address.
    3. An examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of a statute is entitled to some weight as evidence of the statute’s original charge to an agency.
    4. Skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.



Justice Kagan Dissenting Opinion (Justice Breyer and Justice Sotomayor joining).


  1. The case should not have been decided by the Supreme Court at all because the EPA said they would propose new rulemaking and the rule at issue was never on the table for the future. As such, the majority opinion is nothing more than an advisory opinion on the scope of any new proposed rule by the EPA, which is not something the courts are supposed to do.
  2. The statute at issue allowed for generation shifting as it refers to, “systems.”
  3. The major question doctrine is a new concept and has never been used before by the Supreme Court.
  4. The case the majority relies on is about Chevron deference and not the doctrine of major questions.
  5. The administrative state serves a valuable purpose because members of Congress often don’t know enough and often they know that they don’t know enough to regulate sensibly on an issue.





  1. Everybody is now trying to channel Justice Scalia, both the majority and the dissent do that. Undoubtedly Justice Scalia will go down in history as one of the more influential Justices.
  2. It is unclear just how far this major question doctrine is going to go. I am usually not a fan of the slippery slope argument as it is generally a logical fallacy, but sometimes the worry is justified. For example, when Justice Gorsuch says that the major question doctrine may apply when an agency seeks to regulate a significant portion of the American economy, one has to wonder just how far it goes. After all, virtually all regulations regulate a significant portion of the American economy.
  3. I spent a legislative session working for the Illinois Joint Committee on Administrative Rules. That entity has a dual purpose. First, proofreading the regulations. Second, and more importantly to my mind, assessing whether the regulations exceeded legislative authority. The Joint Committee on Administrative Rules is actually within the legislative branch and not the executive branch. If the Joint Committee on Administrative Rules decided that a set of regulations exceeded legislative authority, then the legislators on that committee could vote as such. Voting that the regulations exceeded legislative authority would put the courts on notice that the regulations were in a bit of trouble. During my tenure there, which admittedly was many many years ago, I don’t recall the legislators of that committee ever voting that a regulation exceeded legislative intent. I do recall agencies backing down occasionally from a proposed regulation when they were advised by Joint Committee on Administrative Rules staff that unless the regulations were changed in such a way, a vote against that particular regulation would occur. One wonders if it isn’t a good idea as a preventive law matter for every legislative body to create a Joint Committee on Administrative Rules after this decision.
  4. The major question doctrine is a way to sidestep the issue of the continuing viability of Chevron deference.
  5. Legislators going forward are going to want to be as specific and explicit as possible when it comes to delegating regulatory authority to executive agencies when it comes to their legislation. I recognize that such specificity is not always easy with respect to the legislative sausage making process so to speak.
  6. I would not be surprised to see the highest courts of various states follow this case. One wonders how such cases will play out with respect to the question of legislative authority in a state where an entity like the Illinois Joint Committee on Administrative Rules exist and that committee did not find that a particular regulation exceeded statutory authority.