


































Block Manuscript_ Law Journal_ Volume 12


Brandeis University Law Journal            2024-2025, Volume 12 

The Canary in the West Virginia Coal Mine: How the Major 
Questions Doctrine Led to the Demise Of Chevron 

By Daniel Block1 
For almost four decades, federal courts ruling on issues of 
administrative law relied on Chevron v. Natural Resource 
Defense Council (NRDC).2 The Chevron Doctrine instructed 
courts to defer to an agency’s reasonable interpretation of 
ambiguous texts.3 In 2000, the Supreme Court began 
sporadically applying a new “Major Questions Doctrine” 
(MQD) that weakened Chevron’s primacy.4 The MQD, while 
not named until West Virginia v. EPA (2022), would 
increasingly undermine basic assumptions of Chevron.5 Two 
years after West Virginia, in Loper Bright Enterprise v. 
Raimondo, the Court found Chevron unworkable, contrary to 
principles of separation of powers, and incongruent with the 
Administrative Procedure Act.6 This article traces the 
twenty-year leadup to West Virginia and Loper Bright, arguing 
that, while the MQD began as a rarely used tool for statutory 
interpretation, the Court’s growing hostility toward agency 
powers led it to expand the MQD into a stringent clear 

6 This paper does not discuss the Court’s decision in Loper Bright, but 
argues that MQD cases led to the Court’s holding that “Congress expects 
courts to handle technical statutory questions.” see Loper Bright Enterprises 
v. Raimondo, 603 U.S. __, 24 (2024). 

5 West Virginia v. EPA, 597 U.S. 697 (2022). 

4 Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 
Va. Law Rev. 1040 (2023) (The “major questions doctrine operates as a 
clear statement rule that directs courts not to discern the plain meaning of a 
statute using the normal tools of statutory interpretation, but to require 
explicit and specific congressional authorization for certain agency 
policies.”). 

3 Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984). 

2 Kent Barnett & Christopher J. Walker, Chevron and Stare Decisis, 31 
George Mason Law Rev. (2024). 

1 Brandeis University, Class of 2025; Brandeis University Law Journal, 
Editor-in-Chief. 

 
 
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statement rule.7 This shift reshaped principles of separation of 
powers, eliminating any need for Chevron deference. 
 

I.  Roadmap 
This article begins with an introduction to Chevron 

deference, highlighting its respect for separation of powers and 
its support for the administration of laws meant to protect 
people and the environment. Then, a historical analysis of 
MQD cases will highlight the Supreme Court’s growing 
opposition to administrative deference. Afterward, a review of 
the first three cases of the “Major Questions Quartet” will show 
how the MQD is underpinned by poorly defined constitutional 
values.8 Then, a close reading of the atextual decision in West 
Virginia v. EPA will argue that the MQD encourages judges to 
draw from their personal beliefs to hold agencies to an 
ambiguous and arbitrarily applied threshold defined by 
“economic and political magnitude.”9 Finally, this article will 
show how the MQD cases turned Chevron’s version of 
separation of powers on its head, rendering the decades old 
precedent unworkable and unconstitutional. 

 
II.  Chevron as Law 

 In 1979, the Environmental Protection Agency (EPA) 
created a “bubble” rule under the Clean Air Act (CAA), 
allowing factories in areas that met the National Ambient Air 
Quality Standards (NAAQS) to treat all pollutant-emitting 
sources within a plant as though they were inside a single 

9 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). 

8 The term “Major Questions Quartet” comes from Mila Sohoni and refers 
to Alabama Ass’n of Realtors v. DHHS, NFIB v. OSHA, Biden v. Missouri, 
and West Virginia v. EPA. see infra note 29. 

7 John F. Manning, Clear Statement Rules and the Constitution, 110 
Columbia Law Rev. 399, 401 (2010) (a clear statement rule “insist[s] that 
Congress express itself clearly when it wishes to adopt a policy that presses 
a favored constitutional value.”). 

 
 
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Brandeis University Law Journal            2024-2025, Volume 12 

“bubble.”10 This meant that emissions could be managed 
collectively, enabling plants to offset increases from some 
pollutant-emitting devices with reductions from others, as long 
as overall emissions remained stable. With the change of 
presidential administrations in 1981, President Reagan’s EPA 
expanded this rule so that it also applied to factories in areas 
that did not meet air quality standards, known as 
“nonattainment” areas.11 By extending the bubble rule to 
include plants in these more polluted regions, the EPA allowed 
factories to receive permits for new or modified equipment 
even if they increased emissions, provided that the net 
emissions from the entire plant did not increase.12 

Arguing that the new policy ran contrary to the CAA’s 
goals of protecting “human health and the environment from 
emissions that pollute ambient, or outdoor, air,” the Natural 
Resources Defense Council (NRDC) filed a petition for review 
in the U.S. Court of Appeals for the District of Columbia.13 
Writing for a unanimous panel, then-Judge Ginsburg noted that 
the raison d’être of the nonattainment provisions of the CAA is 
to ensure reductions in air pollution such that “attainment can 
be achieved… no later than five years from the date the area 
was designated nonattainment.”14 Since the bubble rule could 
only guarantee the maintenance of the status quo, the panel 
ruled that the EPA’s promulgation was an inappropriate 
interpretation of the statute.15 The Chevron Corporation 

15 Id.; 42 U.S.C. § 7502 (a)(2); 42 U.S.C. § 7502 (c)(2). 
14 Natural Resources Defense Council, v. Gorsuch, supra note 13. 

13 42 U.S.C. § 7401; Natural Resources Defense Council, v. Gorsuch, 685 
F.2d 718 (1982). 

12 For more detail on the bubble rule, see Jack L Landau, Economic Dream 
or Environmental Nightmare? The Legality of the “Bubble Concept” in Air 
and Water Pollution Control, 8 Environ. Aff. (1980). 

11 46 Fed. Reg. 16,280, 16,281 (1981). 

10 Saideman Ellen, An Overview of the Bubble Concept, 8 Columbia J. 
Environ. Law (1982). 

 
 

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intervened and petitioned the Supreme Court to grant 
certiorari.16 

Writing for a unanimous Supreme Court against 
NRDC, Justice Stevens determined that, because Congress did 
not articulate a clear meaning of the term “stationary source,” 
and because the EPA’s bubble rule was not “arbitrary, 
capricious, or manifestly contrary to the statute,” the Court 
should defer to the reasoned rulemaking of the EPA.17 Justice 
Stevens’ opinion established a two-prong test that would 
become known as the Chevron Doctrine. Under this doctrine, 
when a court reviews an agency’s actions, it must determine at 
Chevron Step One whether Congress explicitly addressed the 
issue in question. If Congress addressed the issue, the court 
does not defer to the agency and applies the statute as written.18 
If Congress did not directly address the issue, the court 
proceeds to determine at Chevron Step Two whether the 
agency’s interpretation of the statute is “reasonable” and 
“permissible.”19 If the agency’s interpretation meets this 
standard, the court defers to the agency’s interpretation.20 

Following its publication, this two-pronged test became 
the hallmark of Administrative Law. Under Chevron, federal 
courts were instructed to recognize that Congress, which 
generally lacks the expertise to address complex issues with 
finely detailed policy prescriptions, reasonably delegates 
rulemaking authority to agencies.21 This assumption is 
supported by Congress’s role as a generalist body that enacts 
broad statutes outlining overarching policy goals (e.g., 

21 Alli Orr Larsen, Becoming a Doctrine, 76 Fla. Law Rev., 27 (2024); 
Catawba County, N.C. v. E.P.A., 571 F.3d 20 (2009) (explaining that 
“ambiguity… suggests a congressional intent to leave unanswered questions 
to an agency’s discretion and expertise.”). 

20 Id. at 844; Catherine M Sharkey, Cutting in on the Chevron Two-Step, 86 
Fordham Law Rev. (2018). 

19 Id. at 844. 
18 Id. at 842. 
17 Id. at 844. 
16 Chevron U.S.A., Inc. v. NRDC, supra note 3. 

 
 

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promoting vaccinations or preventing pollution), while 
agencies are tasked with implementing these goals by drawing 
from their “experience with how a complex regulatory regime 
functions and with what is needed to make it effective.”22 In 
turn, these agencies, through painstaking administrative 
procedures, utilize their subject-matter competence to fill in the 
policy gaps left by Congress.23 

The Chevron doctrine required judges who, like 
Congress, often lack industry-specific expertise of complex 
issues, to defer to agencies’ reasonable construction of a 
statute.24 Some opponents of Chevron argue that it violates 
basic separation of powers principles because it could appear 
that the Executive Branch usurps both the Legislative Branch’s 
lawmaking authority and the Judicial Branch’s Article III 
charge to interpret statutes.25 Such a reading of Chevron is 
wrong. Chevron upholds the Constitution’s separation of 
powers by affirming Congress’ policymaking authority, 
including its broad discretion to delegate rulemaking to 
administrative agencies within the Executive Branch that are 
charged with enforcing the law.26 Meanwhile, the Judiciary 

26 Elena Kagan, Presidential Administration, 114 Harv. Law Rev. 2376 
(2001) (asserting that “Presidential supervision of administration could 

25 Nathan Alexander Sales & Jonathan H Adler, The Rest Is Silence: 
Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 Univ. 
Ill. Law Rev. (2009); Abigail Moncrieff, Reincarnating the “Major 
Questions” Exception to Chevron Deference as a Doctrine of 
Non-Interference (Or Why Massachusetts v. EPA Got It Wrong), 60 Adm. 
Law Rev. (2008); Randolph J May & Andrew K Magloughlin, NFIB v. 
OSHA: A Unified Separation of Powers Doctrine and Chevron’s No Show, 
74 S. C. Law Rev. (2022). 

24 Transcript of Oral Argument, Loper Bright Enters. v. Raimondo, 35–37 
(2024). 

23 Rybachek v. U.S.E.P.A, 904 F.2d 1276 (1990) (emphasizing the 
importance of deferring to agency expertise when there are conflicting 
readings of a statute); Sierra Club, Inc. v. Bostick, 787 F.3d 1043 (2015) 
(underscoring the importance to defer when the technical expertise of an 
agency leads it to a conclusion “substantia[lly] bas[ed] in fact.”). 

22 Loper Bright Enterprises v. Raimondo, supra note 6 at 10 (Kagan, J., 
dissenting). 

 
 

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remains crucial in this dance of powers by ensuring that agency 
rulings remain within the confines of the relevant policy set 
forth by Congress.27 

Notwithstanding Chevron’s warning to the Legislative 
Branch that statutory ambiguity will be resolved “within the 
bounds of permissible interpretations” and its importance in 
maintaining Americans’ health and safety, the conservative 
Justices of the Supreme Court have deemed it unworkable and 
in need of replacement.28 To understand how the Supreme 
Court arrived at this juncture, it is imperative to interrogate 
how the MQD was the canary in the coal mine, signaling the 
death of Chevron. 

 
III.  The Fall of Chevron 

 Some scholars point to the “Major Questions Quartet” 
as the primary departure from Chevron and adoption of the 
MQD.29 However, a closer look at the Supreme Court’s 
administrative jurisprudence reveals that the seeds for 
overturning Chevron were sown by the “elephants in 
mouseholes” rule initiated in FDA v. Brown and Williamson 
Tobacco Corp and crystallized in Whitman v. American 

29 Mila Sohoni, The Major Questions Quartet, 136 Harv. Law Rev. (2022). 

28 Scalia, supra note 27 at 517; Loper Bright Enterprises v. Raimondo, 
supra note 6 (Kagan, J., dissenting). 

27 Antonin Scalia, Judicial Deference to Administrative Interpretations of 
Law, 1989 Duke Law J. 511 (1989) (explaining that when conducting 
administrative review, courts only need to determine whether “the agency 
has acted within the scope of its discretion.”); Peter M. Shane, Chevron 
Deference, the Rule of Law, and Presidential Influence in the Administrative 
State, 83 Fordham Rev (2014) (showing that Chevron requires courts to 
differentiate lawful from unlawful administrative acts that go beyond any 
plausible intent of Congress.). 

operate to, contrary to much opinion, to trigger, not just react to, agency 
action[.]”); E. Donald Elliot, Chevron Matters: How the Chevron Doctrine 
Redefined the Roles of Congress, Courts and Agencies in Environmental 
Law, 16 Villanova Environ. Law J. (2005) (explaining that the Executive, 
through agencies, is capable of making pertinent and effective policy as 
on-the-ground facts change.). 

 
 

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Trucking Association. This “elephants in mouseholes” rule 
existed within the Chevron framework. It instructed courts to 
consider on rare occasions—along with the ordinary meaning, 
context, and structure of the statute—extratextual ideas of 
separation of powers and nondelegation.30 The newly anointed 
ultra-conservative Supreme Court, however, expanded this 
interpretation, asserting that any regulation approaching a 
politically motivated threshold of “too big” is an 
unconstitutional expression of regulatory power.31 Thus began 
the end of Chevron. 

 
III.A The Canary’s First Warning 
In the 2000 case, FDA v. Brown, the Court addressed 

the Food and Drug Administration (FDA)’s anti-smoking 
regulations. These rules were promulgated under the Food, 
Drug, and Cosmetic Act and aimed to curtail the sale, 
distribution, and advertisement of tobacco products.32 While 
acknowledging the serious public health issue of 
smoking-related illnesses in the United States, the Court denied 
the FDA the authority to regulate tobacco products. The 
Court’s holding was partly based on the FDA’s duty to ensure 
the safety and efficacy of the products it regulates, prohibiting 
the sale of those that would “present a potential unreasonable 
risk of illness or injury.”33 Justice O’Connor reasoned that 
because tobacco could never be used safely, the FDA would be 
statutorily mandated to prevent the sale of tobacco entirely.34 

34 FDA v. Brown & Williamson Tobacco Corp., supra note 32 at 142. 
33 21 U.S. Code § 360f. 
32 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). 

31 Chad Squitieri, Who Determines Majorness?, 44 Harv. J. Law Public 
Policy, 495–497 (2021) (discussing how the MQD allows courts to 
“exercise its own political discretion to determine whether a policy 
question is major,” thus inviting the court into the political arena.); 
Deacon and Litman, supra note 4 at 1050–1052 (describing how the MQD 
encourages the courts to consider controversy generated by special 
interest groups to justify invalidating detested policies.). 

30 Deacon and Litman, supra note 4, at 1040. 

 
 

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However, she found that Congress explicitly forbade a tobacco 
ban, thus failing the Agency’s claim at Step One of Chevron.35 

Justice O’Connor emphasized that Congress had 
devised a distinct regulatory scheme concerning the sale of 
tobacco products, “focus[ing] on labeling and advertising,” 
rather than restrictions.36 Importantly for the Justice, this 
scheme did not mention the FDA, but delegated enforcement 
responsibility to the Federal Trade Commission and Federal 
Communications Commission.37 Justice O’Connor figured that 
by providing precise regulatory instructions to specific 
agencies not including the FDA, Congress intended to preclude 
the agency from regulating tobacco.38 

FDA v. Brown illustrates a growing reluctance by the 
Court to infer implicit delegations of power in cases involving 
“decisions of such economic and political magnitude” that 
could otherwise be reasonably justified by a plain reading of 
statutory text.39 Justice O’Connor argued that in such cases, 
courts should be skeptical as to whether Congress delegated 
broad authority through ambiguous text. While it might be 
good policy to approach major agency rulings that Congress 
has not explicitly addressed with a degree of caution, such a 
legal analysis lacks a clear constitutional or legislative basis. 
Indeed, Justice O’Connor suggested that her decision was 
guided by a degree of “common sense,” which is hardly the 
rigorous legal standard required for interpreting complex 
statutory or constitutional questions.40 This “common sense” 
approach further undermines Chevron’s view that Congress 

40 Id. at 133; Manning, supra note 7 at 410. 
39 Id. at 160. 

38 Id. at 130. It is important to note that the majority did not claim that the 
plain text of the statute precluded FDA, rather their reasoning rested in a 
purposivist reading of extratextual sources.  

37 Id. at 149. 
36 Id. at 155–156. 
35 Id. at 148;156. 

 
 

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regularly makes implicit, and often major, delegations of 
authority through statutory silence.41 

If one were to compare Justice O’Connor’s “common 
sense” understanding of congressional intent with actual 
statutory directives, one would find that the Congressional 
Review Act (CRA) authorizes Congress to nullify agency 
rulemakings of which it disapproves.42 Indeed, the CRA 
explicitly details legislative procedures for reviewing “major” 
rules.43 Given this, the absence of congressional disapproval for 
a rule issued under ambiguous statutory language could 
reasonably signal legislative approval—or at least 
acquiescence—that courts should respect. 

One year after FDA v. Brown, the Supreme Court 
continued to limit agency rulemaking by building on its 
burgeoning clear statement rule in American Trucking. That 
case considered the constitutionality of the EPA’s authority 
under §109(b)(1) of the Clean Air Act (CAA) to set National 
Ambient Air Quality Standards (NAAQS)  without considering 
the financial impacts of implementing such standards.44 
Textually, §109(b)(1) gives EPA the authority to set NAAQS, 
“the attainment and maintenance of which… are requisite to 
protect the public health.”45 Justice Scalia determined that the 
omission of economic considerations in §109(b)(1), and the 
inclusion of it in many other sections of the CAA, 
unambiguously foreclosed the EPA’s ability to consider any 
factors beyond public health.46 Justice Scalia determined that, 
unless Congress explicitly stated otherwise, it is implausible 
that Congress would demand, or even allow, the EPA to 
consider costs that could “cancel[] the conclusions drawn from 
direct health effects.”47 Such a reading of the statute would 

47 Id. at 469. 
46 Whitman v. American Trucking Associations, Inc., supra note 44 at 467. 
45 42 U.S.C. § 7409 (b)(1). 
44 Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001). 
43 Id. at (A)(ii). 
42 5 U.S.C. § 801. 
41 Chevron U.S.A., Inc. v. NRDC, supra note 3 at 843–844. 

 
 

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fundamentally alter the operating framework of the CAA. If 
Congress meant to require the consideration of costs, it knows 
how to write the words “cost-benefit analysis.”48 As Justice 
Scalia concisely put it, “Congress… does not, one might say, 
hide elephants in mouseholes.”49 

To understand American Trucking’s relationship to the 
MQD, it must be read as a limitation of administrative powers. 
Although the EPA was not asserting that it could consider 
economic factors, the Court concluded that the agency could 
not do so even if it wanted. Had Congress intended the EPA to 
have such authority, it would have explicitly said so as it did 
elsewhere in the CAA. In other words, the EPA’s authority to 
set NAAQS is not so broad that it can read the CAA in a way 
that would fundamentally alter the regulatory framework 
established by Congress. When harmonizing this principle with 
FDA v. Brown, it can be argued that, when administrative 
agencies issue rulings of significant political and economic 
magnitude to which Congress did not speak, those rulings 
inherently disrupt the intended regulatory framework. Simply 
put, any “major” agency rulemaking that can be read, textually 
or otherwise, as contradicting congressional intent would fail at 
Chevron Step One. 

American Trucking and FDA v. Brown operate within 
Chevron Step One analysis.50 These rulings required courts to 
consider the breadth of the rulemaking in light of the agency’s 
charge from Congress.51 If the agency’s rulemaking is broader 
than Congress intended or spoke to, then it fails at Step One. 
Importantly, neither of the above cases address what would 
happen if the text of the statute is ambiguous and an agency 

51 FDA v. Brown & Williamson Tobacco Corp., supra note 32 at 159. 
50 Deacon and Litman, supra note 4 at 1021. 
49 Whitman v. American Trucking Associations, Inc., supra note 44 at 468. 

48 Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 232 (2009) ( Stevens, J., 
dissenting); American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 
510 (1981) (stating that “when Congress has intended that an agency 
engage in cost-benefit analysis, it has clearly indicated such intent on the 
face of the statute.”). 

 
 

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rulemaking is not explicitly foreclosed by a direct 
congressional charge. Nor do these cases discuss what would 
happen if Congress intentionally wrote ambiguously to allow 
the agency to determine the best course of action within the 
prescribed regulatory framework and its stated goals. As 
demonstrated below, the Court answers by shuffling the MQD 
between Chevron Step One, Step Two, and a new Step Zero, as 
well as by expanding the indicia for its application.52 This 
inconsistent application allowed the Court to scrutinize not just 
what, but how federal agencies regulate. 

 
III.B The Canary’s Coughing Fit 

 Moving on to a set of cases that further lay the 
foundation for overturning Chevron, Judicial antipathy towards 
agency powers becomes more pronounced as the Supreme 
Court narrows the Administrative State’s regulatory authority. 
These cases show how the Court inconsistently invoked the 
MQD to circumvent otherwise precedent-bound agency 
deference.53 These cases demonstrate how the MQD 
increasingly became a “get-out-of-deference” free card, 
destabilizing the traditional Chevron framework and eventually 
necessitating its elimination.54 
 In Gonzales v. Oregon, the Supreme Court ruled against 
a U.S. Attorney General’s 2001 Interpretive Rule.55 This rule 
claimed that under the Controlled Substances Act, the Attorney 
General (AG) could revoke the licenses of medical 
professionals who prescribed or dispensed controlled 
substances for physician-assisted suicide, even in states where 
such practices were legal.56 The Court determined that while 
the AG had the authority to add, remove, or reschedule 

56 Id. at 249–250. 
55 Gonzales v. Oregon, 546 U.S. 243 (2006). 
54 West Virginia v. EPA, supra note 5 at 28. (Kagan, J., dissenting).  

53 Cass R Sunstein, Chevron Step Zero, Public Law Leg. Theory Work. Pap. 
(2005). 

52 Squitieri, supra note 31 at 475. 

 
 

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substances and ensure compliance, he did not have the 
authority to unilaterally decide the legality of medical 
practices.57  

Part of the analysis supporting this conclusion derived 
from Congress’ delegation of medical policy decisions to the 
Secretary of the Department of Health and Human Services 
(DHHS), rather than the AG.58 The Court suggested that if the 
AG’s proposition were accepted, he would have the authority 
to decide “whether a physician who administers any 
controversial treatment could be” punished.59 This would make 
the AG, rather than the Secretary of DHHS, the ultimate arbiter 
of permitted medical practices — a delegation too “broad and 
unusual” to be made through the implicit language of the 
Controlled Substances Act.60 Finally, the Court noted in dicta 
that the controversial nature of physician-assisted suicide made 
the AG’s claim all the more suspect.61 

Gonzales exhibits two new factors materializing within 
the MQD’s framework. First, the mismatch between an 
agency’s actions and the powers delegated to it by Congress; 
and second, the controversial nature of a regulation. 

The Gonzalez Court argued that the AG could not 
regulate medical uses of controlled substances, since his 
authority was limited to regulating abuses of controlled 
substances.62 On its face, this premise does not seem to 
disregard Chevron’s reverence for an agency’s particular 
expertise. Indeed, Gonzales recognized that Chevron is 
predicated on the assumption that agencies typically make 
decisions within their delegated domain by relying on experts 
in the relevant field.63 When an agency attempts to regulate an 
area in which it traditionally lacks subject-matter expertise, it 

63 Id. at 267. 
62 Id. at 270. 
61 Id. at 267. 
60 Id. at 267–268. 
59 Id. at 268. 
58 Id. at 274. 
57 Id. at 262.  

 
 

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becomes quite doubtful that Congress would delegate that 
authority through ambiguous text.64 However, subsequent 
rulings applied this principle too expansively. While Gonzales 
showed respect for DHHS’s expertise in medical care policy, 
recent cases — particularly Alabama Ass’n of Realtors v. CDC 
and NFIB v. OSHA — exemplify how the “agency mismatch” 
principle has become a tool to denigrate the expertise of 
agencies attempting to address multifaceted issues like climate 
change and COVID-19.65  

The Court’s recognition of an “earnest and profound 
debate” over physician-assisted suicide in the country was 
insufficient on its own to find the AG’s actions 
unconstitutional.66 Rather, the presence of moral controversy 
provided reason to doubt that Congress had, through such 
vague language, authorized the AG to unilaterally prohibit 
physician-assisted suicide.67 As explained in Part IV.C, these 
words, while not binding, foreshadow how some Justices have 
come to undermine Chevron deference and the Administrative 
State by pointing to the presence of controversy, whether it be 
large or small, real or imagined.68 

In Utility Air Regulatory Group v. EPA, the Court 
considered the legality of the EPA’s decision to include 
greenhouse gasses under certain permitting provisions of the 
CAA, particularly the “Prevention of Significant Deterioration” 
(PSD).69 The PSD provisions require “major emitting facilities” 

69 Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014). The other 
provision at the heart of the case, Title V, shares many of the same 
definitions and effects as the PSD provisions, so for clarity's sake, only the 
PSD provisions will be discussed. 

68 Deacon and Litman, supra note 4 at 1063. 

67 Brianne J Gorod, Brian R Frazelle & J Alex Rowell, Major Questions: An 
Extraordinary Doctrine for Extraordinary Cases, 58 Wake For. Law Rev. 
599, 619. 

66 Gonzales v. Oregon, supra note 55 at 249. 

65 Thomas O McGarity, The Major Questions Wrecking Ball, 41 Va. 
Environ. Law Rev. 1, 49–50 (2023). 

64 Id. at 268. 

 
 

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in “areas designated attainment or unclassifiable” to comply 
with emissions limitations and best practices.70 The CAA 
defines “major emitting facilities” as stationary sources with 
the potential to emit 250 tons per year (tpy) of any air 
pollutant.71 Recognizing that greenhouse gasses are emitted at 
much higher rates than other pollutants, the EPA chose to 
enforce its interpretation only against facilities that emit at least 
100,000 tpy of CO2e.72 

The Court held that, even if the EPA did not change the 
numerical definition of “major emitting facilities,” the CAA 
would still preclude the EPA from including greenhouse gasses 
in the PSD provision. Echoing its reasoning in Brown, the 
Court ruled that the EPA is statutorily required to apply the 250 
tpy threshold when establishing rules under the PSD 
provisions. The EPA conceded that this threshold would be 
inappropriate for greenhouse gasses, as it would mandate the 
regulation of millions of smaller sources. As in Brown, such an 
outcome, though plausibly supported by the statute’s plain text, 
would be incompatible with the regulatory framework 
established by Congress. 

The Court reinforced this conclusion by requiring 
“clear congressional authorization” for agencies claiming 
“enormous and transformative” expansions of regulatory 
power.73 This requirement reflects the “elephants in 
mouseholes” rule articulated in American Trucking. The Court 
reasoned that the EPA’s attempt to include greenhouse gasses in 
the PSD framework, which traditionally regulated only a few 
major polluters, would fundamentally alter the statute’s scope. 
While the EPA enjoys authority to regulate greenhouse gasses 

73 Id. at 324. 

72 Utility Air Regulatory Group v. EPA, supra note 69 at 309–310. CO2e, or 
carbon dioxide equivalent, is a standard unit used to compare the emissions 
of different GHGs to CO2 based on their global warming potential.  

71 42 U.S.C. § 7479(1). 
70 Id. at 308. 

 
 

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under the CAA, that authority was deemed insufficiently broad 
to justify such an extensive expansion of the PSD provisions.74  

The Utility Air framework extends the basic rationale of 
FDA v. Brown and American Trucking. Its holding being that, 
without clear congressional authorization, agency rulings of 
political and economic significance disrupt the intended 
regulatory scheme. The primary issue begins when the Court 
states that it “expect[s] Congress to speak clearly if it wishes to 
assign agency decisions of vast economic and political 
significance.”75 Synthesizing this principle with American 
Trucking, it follows that agencies cannot “discover” an 
unheralded power to regulate conferred through the “ancillary 
provisions” of statutes; they must find this power in explicit 
text.76 Here, Utility Air establishes a new Chevron carve-out 
whereby “ambiguous language cannot be invoked to allow an 
agency to exercise its authority in a sufficiently transformative 
way.”77 There are three major issues with this seemingly 
innocuous transformation: (1) how significant a rulemaking 
must be to require a clear statement from Congress; (2) who 
determines when this threshold has been reached; and (3) what 
constitutional compulsion supports the Court’s clear statement 
rule for “major regulations.” 

As the next section will show, the Court answers this 
line of inquiry by arrogating to itself the power to “selectively 

77 Cass R. Sunstein, Chevron as Law, 107 Georget. Law Rev. 1613, 1677 
(2019). 

76 Id.; Whitman v. American Trucking Associations, Inc., supra note 44 at 
458. 

75 Utility Air Regulatory Group v. EPA, supra note 69 at 321. 

74 Massachusetts v EPA, 549 U.S. 497 (2007) (granting EPA authority to 
regulate GHGs.); Cass R Sunstein, There Are Two “Major Questions” 
Doctrines, 73 Adm. Law Rev. 475, 491 (2021) (arguing that the rationale in 
Utility Air “could easily have been used to justify the opposite result in 
Massachusetts v. EPA”. That argument is beyond the scope of this paper, but 
it is at least worth pointing out that the Massachusetts Court gave EPA the 
authority to regulate GHGs, but the Utility Air Court stripped it of 
substantial enforcement power as it relates to certain provisions of the 
CAA.). 

 
 

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demand that explicit legislative language be used to delegate 
the authority to answer those questions that courts determine to 
be major.”78 The Court’s synthesis of the above cases leads it to 
maximalist conclusions that encourage arbitrary judicial 
policymaking excused by an ambiguously-defined threshold of 
“political and economic significance.” 

 
III.C The Canary’s Last Gasps 
If the old MQD existed within the Chevron framework, 

the “Major Questions Quartet” exemplifies how the new MQD, 
enunciated in Utility Air, comes to function as a half-baked 
federalism canon and nondelegation doctrine that undermines 
basic assumptions of Chevron.79 The Quartet’s judicial 
power-grab further turns the Court into a political actor, 
whereby questions of “political and economic significance” are 
not decided by legal reasoning but by a jurist’s policy 
preferences and world view.80 This power of “void for 
majorness” amounts to a political veto in which a jurist, for 
their own political and economic reasons, may determine that a 
policy is “too grand” to stand on ambiguous language.81 By 
applying this doctrine arbitrarily to administrative agencies, the 
Court disrupts forty years of precedent that informed legislative 
processes and agency rulemaking, causing a sea-change in 
Administrative Law and ultimately the demise of Chevron. 

As mentioned in Part II, Chevron put Congress on 
notice that ambiguous statutory text will be interpreted by the 
Executive, whose agencies issue rules “within the bounds of 
permissible interpretation.”82 Under Chevron, the boundaries of 

82 Scalia, supra note 27 at 516. 
81 Id. at 503–509. 

80 Squitieri, supra note 31 at 496. (describing that by voiding laws on 
majorness grounds, courts “act similarly to the President, who for 
idiosyncratically held political reasons may veto a bill…”). 

79 Cass R. Sunstein, supra note 77 at 1669; Sohoni, supra note 29; Alison 
Gocke, Chevron’s Next Chapter: A Fig Leaf for the Nondelegation 
Doctrine, 55 UC Davis Law Rev. 955 (2024). 

78 Squitieri, supra note 31 at 495. 

 
 

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permissible interpretation are not set by the majorness of the 
resulting policy, but by a plain text reading of the statute.83 This 
analysis treats statutory ambiguities as delegating authority to 
agencies, giving them the flexibility to adjust rules as 
knowledge evolves and challenges change.84 The Quartet 
undermines these assumptions that informed Congress’ 
drafting of complex regulatory schemes, skewing outcomes 
against regulation and disrupting the legislative compromises 
that often signal broad delegation.85 

The first three cases of the Quartet considered whether 
different administrative agencies had the authority to prevent 
the spread of COVID-19 through novel regulations.86 In 
Alabama Ass’n of Realtors v. DHHS, the Court held that the 
Center for Disease Control and Prevention (CDC) did not have 
the authority to prevent the spread of COVID-19 by imposing a 
national eviction moratorium.87 In National Federation of 
Independent Business (NFIB) v. Occupational Safety and 
Health Administration (OSHA), the Court held that because 
COVID-19 did not pose an exclusively occupational risk, 
OSHA’s authority to protect workers from dangerous “agents” 
or “toxins” could not extend to a vaccine mandate.88 In Biden v. 
Missouri, the Court agreed with the Government’s assertion 
that the Secretary of DHHS could set health and safety 
conditions, including a COVID-19 vaccine mandate, for 
facilities receiving funding from Medicare and Medicaid.89 

Part of the rationale in the cases in which the 
Government lost relied on a counter-Chevron assumption of the 

89 Biden v. Missouri, supra note 86. 
88 NFIB v. OSHA, supra note 86. 

87 Alabama Ass’n of Realtors v. Dep’t of Health and Human Services, supra 
note 86. 

86 Alabama Ass’n of Realtors v. Dept. of Health and Human Services, 594 
U.S. ___ (2021); NFIB v. OSHA, 595 U.S. __ (2022); Biden v. Missouri, 
595 U.S. __ (2022). 

85 Sohoni, supra note 29 at 286; Squitieri, supra note 31 at 505. 
84 Id. at 517-518. 
83 Id. 

 
 

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purpose of statutory ambiguity. The Court failed to recognize 
that Congress cannot foresee future problems and uses 
ambiguous language to ensure flexibility in agency regulations. 
Instead, it assumed that provisions in decades-old statutes, 
never previously applied expansively, could not be so applied 
without a clear statement from Congress.90 The Court 
emphasized that neither the CDC nor OSHA had previously 
used their emergency rulemaking powers to pause evictions or 
effectuate a vaccine mandate.91  By contrast, in Missouri, the 
Court noted that the Secretary claimed broader authority than 
before because the agency “never had to address an infection of 
this scale and scope.”92 

Although not cited, the only way to reconcile these 
disparate rationales is with the agency mismatch concept from 
Gonzales. One could argue that the CDC and OSHA had never 
established such regulations because doing so would touch on 
matters beyond their subject-matter expertise. DHHS on the 
other hand, was reasonably expanding upon previous 
regulations for healthcare facility operations—something 
undoubtedly within its purview and expertise. This overly 
broad application of Gonzales prevents agencies from adapting 
regulations as circumstances evolve. It further loads the dice 
against agencies trying to address multifaceted crises that touch 
on, but might not be fully encompassed by, their titular 
responsibilities.93 

This raises a fundamental question about why federal 
courts should require a clear statement from Congress to 
support an agency’s claim to regulate issues that involve, but 
are not fully encompassed by, the agency’s core 

93 Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of 
United States Federal Courts in Interpreting the Constitution and Laws, in 
A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 26 (new ed. 
2018). 

92 Biden v. Missouri, supra note 86.  
91 Id. 

90 Alabama Ass’n of Realtors v. Dept. of Health and Human Services, supra 
note 86; NFIB v. OSHA, supra note 86. 

 
 

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responsibilities. The Court answers this by detaching the MQD 
from Chevron and inconsistently attaching it to poorly 
articulated constitutional values of federalism and 
nondelegation. 

III.C.1 Federalist Values 
In the CDC case, the Court found that the agency’s 

actions encroached on typically state-regulated landlord-tenant 
relationships.94 Instead of applying the federalism 
canon—which presumes that federal laws do not override state 
laws without a clear statement from Congress—the Court 
treated the disruption of state law as an indicator of political 
significance.95 By doing so, the Court linked the federalism 
canon to the MQD, creating a superficial constitutional basis 
for requiring a clear statement from Congress. By invoking 
federalist principles rather than applying an already established 
clear statement rule, the Court justified its limitation of 
statutory text by associating one doctrine with another.96 This 
judicial sleight of hand allows the Court to demand an 
unusually high level of statutory clarity, one that undermines 
Congress’s authority to delegate regulatory powers to 
agencies.97 Moreover, later cases show that federalism does not 
appear to be the primary justification for a presumption against 
major administrative powers; rather, it becomes one of a 
myriad of poorly articulated constitutional values used to 
justify the strangling of the Administrative State.98 

 

III.C.2 Nondelegation Values 
The more often-discussed constitutional value 

connected to the MQD’s clear statement rule is that of 

98 Sohoni, supra note 29 at 283. 

97 John F. Manning, The Supreme Court, 2013 Term Foreword: The Means 
of Constitutional Power, 128 Harv. Law Rev. (2014). 

96 Sohoni, supra note 29 at 313. 
95 Id; Manning, supra note 7 at 434. 

94 Alabama Ass’n of Realtors v. Dep’t of Health and Human Services, supra 
note 86 at 6.  

 
 

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nondelegation.99 The nondelegation doctrine derives from the 
Legislative Vesting Clause of Article I and “bars Congress 
from transferring its legislative power to another branch of 
government.”100 On only two occasions, both in 1935, has the 
Supreme Court applied this doctrine to invalidate a statute.101 
While its pedigree remains weak, the MQD today camouflages 
the reemergence of a nondelegation doctrine that provides the 
Court with a framework to decide not just whether Congress 
did delegate certain powers, but whether Congress could do 
so.102  

In a fashion similar to the Court’s justification via 
association of constitutional values in the CDC case, Justice 
Gorsuch justified the application of the MQD in the OSHA 
case by merely associating the MQD with the seldom-invoked 
nondelegation doctrine.103 The Justice explained that the 
nondelegation doctrine precludes Congress from “hand[ing] off 
all its legislative powers to unelected agency officials,” while 
the MQD prevents agencies from “exploit[ing] some gap, 
ambiguity, or doubtful expression in Congress’s statutes to 
assume responsibilities far beyond its initial assignment.”104 
According to Justice Gorsuch, both doctrines “prevent 
government by bureaucracy supplanting government by the 
people.”105 Notably, the main difference between these two 
theories is which branch of government is inappropriately 
extending its authority. The nondelegation doctrine polices 
“improper legislative delegations” from Congress while the 

105 Id. at 6.  
104 Id. 
103 NFIB v. OSHA, supra note 86, at 5 (Gorsuch, J., concurring). 

102 Id.; Loshin and Nielson, supra note 99 at 57; Gocke, supra note 79 at 
995–997. 

101 Cass R Sunstein, Nondelegation Canons, 67 Univ. Chic. Law Rev., 322 
(2000). 

100 Gundy v. United States, 588 U.S. 128 (2019). 

99 Sunstein, supra note 74; Jacob Loshin & Aaron Nielson, Hiding 
Nondelegation in Mouseholes, 62 Adm. Law Rev. (2014); Gocke, supra 
note 79. 

 
 

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MQD polices “abuse[s] of delegated authority” by the 
Executive.106 

When considering the purported constitutional 
compulsions supporting Justice Gorsuch’s nondelegation 
argument, it becomes clear that his framework stands on even 
shakier constitutional grounds than the federalist principles 
supporting the outcome in the CDC case. Unlike the federalism 
canon, the Court has been unable to articulate a workable 
version of the nondelegation doctrine that demarcates when 
statutory ambiguity meant to be resolved by the Executive 
becomes a prohibited delegation of legislative power.107 Justice 
Gorsuch’s theory purports to resolve this dilemma by asserting 
that any statutory ambiguity that results in a “major” policy is 
either an unconstitutional expression of agency powers (MQD) 
or an “unconstitutional delegation of legislative authority” 
(nondelegation).108  

For the Justice, this means that, unless the matter is 
wholly mundane or otherwise interstitial, Congress cannot even 
expressly and specifically delegate decision-making authority 
to an administrative agency.109 This theory of both the MQD 
and nondelegation doctrine turns on the question of when 
exactly an agency policy is mundane and when it is “major.” 
As will be discussed in Part IV, no consistent answer is readily 
available, as the Court has issued “ad hoc, discretionary 
rulings” that “suffer from the appearance” and reality of jurists’ 
basing the outcome of a case on a knee-jerk reaction to 
personally detested or favored policies.110 

110 Sunstein, supra note 101 at 327; Deacon and Litman, supra note 4 at 
1065–1069 (asserting that worldviews align closely with policy preferences 
“judges may be more inclined to perceive issues or policies as politically 
significant if the policies are opposed by the political party that appointed 
that judge.”). 

109 Gocke, supra note 79 at 996; Gundy v. United States, supra note 100. 
108 NFIB v. OSHA, supra note 86, at 6 (Gorsuch, J., concurring).  
107 Loshin and Nielson, supra note 99 at 56. 

106 May and Magloughlin, supra note 25 at 271; Gocke, supra note 79 at 
994. 

 
 

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IV.  The End of Chevron 
 IV.A The Canary’s Death 

Up until this point, the MQD merely warned us of 
Chevron’s death. As demonstrated in West Virginia v. EPA, the 
Court did not listen to the warnings. Instead of leaving the 
MQD behind and deferring to an agency, the Court continued 
to plunge deep into the unnavigable mines of “majorness” until 
its new doctrine finally asphyxiated Chevron.  

In West Virginia v. EPA, the Court determined that the 
EPA’s authority under section 111(d) of the CAA was not so 
capacious as to allow for the Obama-era Clean Power Plan 
(CPP).111 The CPP adopted a “generation shifting” approach to 
greenhouse gas reduction, whereby power plants would need to 
shift “from higher-emitting to lower-emitting production” of 
electricity.112 Rather than attempt to refine the contours of the 
MQD and explain the constitutional compulsions for the clear 
statement rule, the Court’s opinion and Justice Gorsuch’s 
concurrence present a hodgepodge of ideas justifying the 
MQD. The opinion and concurrence attempt to justify the 
Doctrine’s application and provide a broad framework for 
anti-regulatory judges to wage their war against the 
Administrative State. 

This final section is composed of three parts. Part IV.B 
will critique the Court’s atextual justification for applying the 
MQD in West Virginia. Part IV.C will show how the opinion 
and concurrence instruct lower courts to rule against agency 
actions that judges personally find to be too political or too 

112 Id. at 705.  

111 West Virginia v. EPA, supra note 5; 42 U.S.C. § 7411(d). Not wholly 
relevant to this article, but still crucial for context, is the issue of standing in 
the case. The majority and dissent disagreed as to whether any party 
maintained standing in the case, especially given that an entire presidency 
and a half had lapsed since the CPP was initially put into place and stayed. 
Furthermore, the Biden administration claimed that it was not going to 
reinstate the CPP. Indeed, Justice Kagan characterized the ruling as “an 
advisory opinion on the proper scope of the new rule EPA is considering.” 

 
 

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costly. Part IV.D will argue that the Court embraced Justice 
Gorsuch’s version of separation of powers from NFIB v. 
OSHA, thus making the MQD impossible to apply so long as 
Chevron breathed. 

 
IV.B The (A)Textual Justification 
The Court begins its justification for applying the MQD 

by characterizing Section 111(d) of the CAA as an “ancillary” 
and seldom employed provision of the statute.113 This 
characterization sets the rhetorical foundation for the rest of the 
Court’s opinion. 

First, the Court forwards a purposivist argument in 
textualist’s clothing, whereby it establishes an anti-regulatory 
hierarchy of statutory text in which ambiguous provisions 
executed through broad regulation are deemed “ancillary” or 
insufficient to support the agency’s ruling. Second, the Court 
determines that, because the EPA had never interpreted Section 
111(d) in such an expansive manner, it is functionally 
prevented from doing so to address novel issues like climate 
change.114 Finally, the Court jettisons textualism and replaces it 
with a post-hoc anti-regulatory framework that allows the 
inactions of subsequent Congresses to define the scope of 
statutes passed by a previous Congress. 

As in American Trucking, the depiction of certain 
provisions of statutory text as “ancillary” begs the question of 
how the Court knows which provisions are unimportant 
“mouseholes” hiding regulatory elephants.115 The Court 
answers by turning its analysis into a fraught search for 
statutory purpose.116 Indeed, the Court does not determine the 
size of the “mousehole” in Section 111(d) by parsing through 
the language of the provision and situating it within the context 
of the CAA, but by pointing to the remarks made by one 

116 Id. 
115 Loshin and Nielson, supra note 99 at 45–46. 
114 Deacon and Litman, supra note 4 at 1033. 
113 Id. at 703. 

 
 

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architect of the CAA and the EPA’s previous rulings pursuant 
to Section 111(d).117 This form of statutory construction 
disregards the normative textualist theory that legislation is 
often “the result of ‘backroom deals’ and diverse individual 
compromises” rather than solely reflecting the views of a few 
cited legislators.118  

The Court’s framework further ignores Justice Scalia’s 
view that shifting agency interpretations are not indicative of 
an incorrect interpretation but that agencies change the law in 
light of new information and “within the limited range of 
discretion conferred by the governing statute.”119 Both of these 
textualist presumptions would typically render legislative 
history and shifting agency interpretations irrelevant to 
statutory interpretation.120 Notwithstanding its textualist 
commitments, the West Virginia Court misconstrued ambiguous 
text as being no more than a legislative afterthought and 
undeserving of meaningful textual analysis that would likely 
result in a policy disfavored by the majority.121 

The third atextual justification for the MQD in West 
Virginia relies on Congress’s failure to pass comprehensive 
legislation addressing climate change despite knowing that 
greenhouse gas emissions pose an existential threat to 
humanity.122 This justification is incongruent with textualism, 
as it cites inactions of subsequent Congresses as limiting the 
power of broad legislation passed by a previous Congress.123 
This justification also assumes that legislative inaction 
exclusively provides evidence of congressional disapproval, 

123 Deacon and Litman, supra note 4 at 1062. 
122 Id,  at 724. 
121 West Virginia v. EPA, supra note 5 at 703. 

120 Id.; Conroy v. Aniskoff, 507, U.S. 511, 519 (1993). (Scalia, J., 
concurring) (writing that “the greatest defect of legislative history is its 
illegitimacy. We are governed by laws, not by the intentions of 
legislators.”). 

119 Scalia, supra note 27 at 518–519. 
118 Loshin and Nielson, supra note 99 at 52.  
117 West Virginia v. EPA, supra note 5 at 703. 

 
 

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rather than evidence of acquiescence to agency rulemaking or a 
lack of expertise on exactly how issues should be regulated. As 
shown below, the atextualist justifications for applying the 
MQD in this case leads to results that appear to be, or are, 
arbitrary, inconsistent, politically motivated, and contradictory. 

 
IV.C The Political Instruction 

 To understand how the MQD’s application in West 
Virginia promotes arbitrary rulings, one needs to look no 
further than the list of possible indicia for “majorness” put 
forth by Justice Gorsuch in his concurrence. The five indicia 
for majorness that Justice Gorsuch lays out are poorly defined 
and can be interpreted in an infinite variety of ways.124 As the 
Court has noted regarding criminal statutes, poorly defined and 
limitless rules fail to establish clear standards of enforcement, 
leading to arbitrary application.125 While this understanding of 
arbitrariness pertains to statutory enforcement rather than 
rulings made pursuant to unclear reasoning, the principle still 
stands. When one branch of the government, including the 
Judiciary, establishes vague rules, it leads to inconsistent 
applications. This is concerning in the world of administrative 
law because vague rules and standards encourage judges to 
base decisions on their policy preferences. 
 First, Justice Gorsuch suggests that policies of 
“profound political significance” may be implicated in MQD 
analysis.126 As shown above, this comes from FDA v. Brown 
and its progeny. Then, Justice Gorsuch seems to expand this 
theory of majorness, citing Gonzales to show that the presence 
of societal controversy should clue judges into the majorness of 
an agency’s ruling.127 This idea, in effect, allows controversies 

127 Id. 
126 West Virginia v. EPA, supra note 5 at 743. 
125 City of Chicago v. Morales, 527 U.S. 41, 49-50 (1999). 

124 The five indicia of majorness include political controversy, economic 
significance, federalism, nondelegation, and agency mismatch. Because the 
last three have already been fleshed out in Part III.C.1-C.2, the discussion 
here focuses on the first two indicia. 

 
 

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generated by an increasingly partisan and volatile political 
landscape to determine when courts stray from normative 
statutory interpretation.128 If one party achieves its goals 
through the Legislature or Executive, the opposing party need 
not worry, so long as it can generate sufficient controversy. 
This provides antidemocratic results, as the Executive Branch 
is barred from using regulation to “end an earnest and profound 
debate” and legislative inaction is interpreted as opposition to 
the challenged policy.129  

Furthermore, the issue of political controversy allows 
for judicial policy-making. A judge’s interpretation of what is 
sufficiently controversial turns on their political values and 
worldview, which often closely align with the party that 
appointed them.130 This results in an inconsistent adjudication 
of law, in which an individual judge’s political ideology, rather 
than objective modes of statutory interpretation like textualism, 
forms the basis for their rulings.131 
 Closely related to the issue of political controversy is 
that of economic significance. Both the majority opinion and 
Justice Gorsuch’s concurrence take issue with the hefty cost 
associated with the CPP.132 For the conservative Justices, the 
fact that the CPP would result in industries shelling out billions 
of dollars in fines and compliance costs meant that it was major 
and required clear congressional authorization.133 This 
economic analysis is even more ripe for judicial policymaking 
when compared to the political controversy analysis. A policy 
does not need to result in the upending of entire industries to be 
considered economically significant, although that was a 
factually incorrect charge made against the EPA. Rather, it 

133 Id.  
132 West Virginia v. EPA, supra note 5 at 715, 744. 
131 Id. at 1069. 
130 Deacon and Litman, supra note 4 at 1065. 
129 Id. at 1060; West Virginia v. EPA, supra note 5 at 743. 
128 Deacon and Litman, supra note 4 at 1051–1052. 

 
 

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must be deemed too expensive in the eyes of the presiding 
jurist. 

The economic analysis reeks of judicial policymaking, 
as it asks whether the economic impact is too significant in 
relation to the issue in question. This leads to politically 
motivated, or at least politically informed, weighing of 
economic factors. Indeed, the conservative Justices’ hostility 
towards the CPP was based on its potential to raise the price of 
production and home energy, both of which are GOP talking 
points against the shift from nonrenewable to renewable 
energy.134 To be sure, the Justices did not mention the price 
associated with inaction, which in West Virginia would likely 
outweigh the costs of enforcement.135 No matter which way the 
analysis is sliced, any determination of majorness that asks for 
the price tag inevitably results in legislating from the bench, as 
it requires a jurist to choose between competing values and 
costs associated with a given policy. This is undeniably a 
policy determination, and it asks unelected judges to impress 
their own idiosyncratic economic views upon an electorate that 
cannot hold them accountable. 

Notwithstanding the MQD’s opening to judicial 
policymaking, the conservatives on the Court understand 
themselves to be issuing legal, rather than policy, decisions. 
This argument should be taken seriously. To be fair, in almost 
all cases before the Court, the line between legal and political 
decisions is hazy. However, the problem of West Virginia and 
the MQD is that the Court reaches legal conclusions—e.g., that 
Congress did not or could not delegate authority to a given 

135 Solomon Hsiang et al., Estimating Economic Damage from Climate 
Change in the United States, 356 Science 1362 (2017); Adam B. Smith, 
U.S. Billion-Dollar Weather and Climate Disasters, 1980 - Present (NCEI 
Accession 0209268), (2020). 

134 West Virginia v. EPA, supra note 5 at 714; Lisa Friedman, A Republican 
2024 Climate Strategy: More Drilling, Less Clean Energy, The New York 
Times, Aug. 4, 2023; Brian Kennedy Tyson Cary Funk and Alec, What 
Americans Think about an Energy Transition from Fossil Fuels to 
Renewables, Pew Research Center (Jun. 28, 2023). 

 
 

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agency—based on policy preferences—e.g., a policy is too 
expensive, controversial, and the like. The only way to justify 
such conclusions is by endorsing the anti-Chevron view that 
the Judiciary is the exclusive, rather than ultimate, interpreter 
of statutes.  

 
IV.D The Canary Dies 
The first three articles of the Constitution lay out the 

separation of powers. The Legislature makes the laws, the 
Executive enforces the laws, and the Judiciary interprets the 
laws. There are, however, nuances to this basic understanding. 
Of relevance here is Chevron’s view that statutory enforcement 
requires at least some degree of Executive interpretation of 
vague statutory language. As discussed in Part III.C.2, Justice 
Gorsuch understands the MQD to protect against 
nondelegation issues by forbidding the Executive from citing 
ambiguous statutory language to fill in major policy gaps. For 
Justice Gorsuch, any ruling made pursuant to ambiguous 
statutory language that results in policies affecting more than 
day-to-day operations would constitute a forbidden exercise of 
the Executive’s enforcement power. While it remains unclear 
whether all of the conservative Justices are prepared to join 
Justice Gorsuch in the most extreme application of that 
anti-regulatory posture, endorsing the Justice’s 
reconceptualization of separation of powers in NFIB v. OSHA 
is the only way for the conservatives on the Court to coherently 
support the conclusions of West Virginia and eventually Loper 
Bright.136 

136 This article focuses on Justice Gorsuch’s framework of the MQD 
because it appears to be the dominating conceptualization. However, it 
remains worth noting that not all conservative Justices agree that the MQD 
functions as a clear statement rule. Indeed, Justice Barrett understands the 
MQD to support ordinary principles of communication. As Cass Sunstein 
writes, for Justice Barrett, “the MQD is relevant to what the best 
interpretation is, but if Congress is best understood to have said ‘actually I 
meant that sort of [major policy],’ or perhaps better, ‘I meant the sort of 
[major policy] that the relevant agency deemed’ appropriate, then the fact 

 
 

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As mentioned in Part III.C.2, the MQD renders the 
Chevron doctrine incompatible with principles of separation of 
powers. It does so by undermining Chevron’s basic legal 
fiction that statutory ambiguities delegate regulatory authority 
to agencies who define vague terms to determine the scope of 
their regulatory power. The Court’s framework in the MQD 
cases stipulates that only clear congressional authorization can 
be understood to grant agencies expansive powers.137 Taken to 
its most extreme end, this understanding renders Executive 
interpretations of ambiguous text antithetical to the entire 
federal project, and prevents administrative agencies from 
using their subject-matter expertise to fill in policy gaps left by 
Congress.  

The Court’s framework further turns Chevron’s version 
of separation of powers on its head. First, it asserts that 
Congress cannot divest itself of its legislative powers by telling 
an agency to adopt what the agency deems to be, for example, 
the “best,” most “economically feasible,” or “safest” policy.138 
Instead, Congress must articulate policy prescriptions with an 
impractical level of specificity so that agencies know exactly 
what Congress understands to be the “best,” most 
“economically feasible,” or “safest” policy. This framework 
has the deregulatory effect of kicking important issues to a 
Congress that has often purposefully declined to determine 
exactly how issues should be regulated.139 

139 McGarity, supra note 65 at 37 (“it is beyond naïve to suggest that 
allowing federal courts to strike down consequential agency actions taken 
under fresh interpretations of old statutes will cause Congress to suddenly 
spring into action and refresh those statutes or write new statutes to address 
newly emerging problems.”). 

138 Indeed, in West Virginia, the CPP was promulgated pursuant to the EPA’s 
interpretation of the ambiguous statutory phrase “best system of emissions 
reduction.” 

137 West Virginia v. EPA, supra note 5 at 722. 

that a major question is involved is neither her nor there.” see Cass R. 
Sunstein, Two Justifications for the Major Questions Doctrine, 76 Fla. Law 
Rev. 251 (2024). 

 
 

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While purporting to give the electorate a chance to 
decide how it is regulated, this anti-Chevron version of the 
balance of powers undemocratically dispossesses the Executive 
of much of its duty to “take care that the laws be faithfully 
executed.”140 It does so by limiting the Executive Branch’s 
ability to act on issues where Congress’s intent is not explicitly 
clear but can be reasonably gleaned from the text of the statute. 
This limitation undermines the Executive’s duty to execute 
laws by restricting its ability to interpret and apply statutory 
provisions in light of new circumstances, advancing science, 
and novel policy needs.141 Perhaps most problematic for 
Chevron’s version of separation of powers is that the Executive 
cannot resolve statutory ambiguities when they inevitably 
exist.142 Rather, as Chief Justice Roberts wrote in Loper Bright, 
it is the exclusive role of the Judiciary to determine the “single, 
best meaning” of a statute.143 This means judges, who are not 
experts in much beyond law, decide what is the one “best,” 
most “economically feasible,” or “safest” policy.144 

This is a maximalist judicial power grab that justifies 
legislating from the bench by claiming that the Court’s legal 
expertise legitimizes its exclusive authority “over every open 
issue – no matter how expertise-driven or policy-laden – 
involving the meaning of regulatory law.”145 By anointing itself 
as the exclusive, rather than ultimate, interpreter of statutes, the 
Supreme Court rejects any need for agency deference, 
rendering Chevron unworkable, contrary to the separation of 
powers, and in need of overturning. 

145 Id. at 3 (Kagan, J., dissenting).  

144 Id. at 17–18 (“when the best reading of a statute is that it delegates 
discretionary authority to an agency, the role of the reviewing court under 
the APA, is as always, to independently interpret the statute and effectuate 
the will of Congress subject to constitutional limits.”). 

143 Loper Bright Enterprises v. Raimondo, supra note 6 at 22.  

142 West Virginia v. EPA, supra note 5 at 740; Sunstein, supra note 102 at 
323. 

141 McGarity, supra note 65 at 36. 
140 U.S. Const. art. 2, § 3, cl. 5. 

 
 

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V.  Conclusion 

 Over the past twenty years, the Supreme Court has 
transformed the Major Questions Doctrine from a rarely used 
tool of statutory interpretation into a rigid clear statement rule, 
weakly grounded in the Constitution. In doing so, the Court 
undermined the foundational principles of Chevron v. NRDC. 
Most notably, the MQD cases reveal how the Court disregarded 
Chevron’s vision of the separation of powers and the 
appropriate disposition of ambiguous statutory text. As these 
two doctrines sat on increasingly diametrically opposed ends, 
the Court’s desire to constrain administrative powers left 
overruling Chevron as the only logical conclusion. 

This outcome was solidified with Justice Gorsuch’s 
reconceptualization of the separation of powers in OSHA v. 
NFIB and the Court’s endorsement of that approach in West 
Virginia v. EPA. After West Virginia, so little remained of 
Chevron deference that its overruling was essentially a 
formality. To be sure, the seemingly natural progression of 
MQD cases to Chevron’s demise should not be mistaken as 
validation of the Court’s approach. Rather, it highlights the 
Roberts Court’s troubling approach to precedent. As Justice 
Kagan and legal commentators have observed, the Court often 
erodes important precedents by selectively ignoring when they 
should be applied, then calling the original decision into 
question.146 This cycle continues until the Court constructs 
enough self-justified reasoning to formally overrule the 
precedent. The MQD cases exemplify this manipulative 
approach to stare decisis, undermining the stability of bedrock 
legal principles. 

The Court has attempted to frame its manipulation of 
precedent and stare decisis as a long overdue defense of its 
constitutional role, claiming in Loper Bright Enterprises v. 
Raimondo that overruling Chevron safeguards distinctly 

146 Id.; Richard L. Hasen, The Chief Justice’s Long Game, The New York 
Times, June 25, 2023.  

 
 

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“judicial” skills like statutory interpretation. Chief Justice 
Roberts, in particular, has argued that this is simply the Court 
“saying what the law is.”147 As this article makes clear, this 
justification is a smokescreen. The MQD cases — particularly 
Justice Gorsuch’s politics-laden definition of what constitutes a 
“major question” — reveal the Court's repeated forays into 
policymaking. By deciding which issues qualify as “major” 
and dictating their resolution, the Court encroaches on 
policymaking authority that belongs to the Legislative and 
Executive Branches. 

Now, without the judicial guardrail that was Chevron, 
unelected judges are empowered to impose upon the electorate 
their subjective views on matters of vast political and economic 
importance. This invites judicial activism, where administrative 
policies become increasingly susceptible to arbitrary and 
politically motivated interference. This new era of statutory 
interpretation threatens to destabilize critical regulatory efforts, 
with potentially disastrous consequences for governance, 
environmental protection, and the public good. 

147 Loper Bright Enterprises v. Raimondo, supra note 6 at 7.  

 
 

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