by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Daniel Lyons of the American Enterprise Institute explores potential implications of the U.S. Supreme Court’s recent decision against the Environmental Protection Agency’s regulatory overreach.
Perhaps influenced by the weightiness of the term generally, early commentary suggests this decision is a major blow to the administrative state. But the major questions doctrine is unlikely to affect most agencies’ day-to-day operations. The Court has long recognized that Congress can—and does—delegate huge swaths of authority to federal agencies. Our modern society is complex, and Congress has neither the time nor the expertise to make every one of the thousands of policy judgments that the government must decide virtually every day. The vast majority of these decisions do not raise issues of “economic and political significance.” So the major questions doctrine is unlikely to affect, for example, the Federal Communications Commission’s (FCC) technical decisions about spectrum management practices or the structure through which broadband subsidies may be distributed.
But we are likely to see the doctrine arise in challenges involving, well, major questions. For example, whether the Communications Act of 1934 gives the FCC authority to impose net neutrality requirements on broadband providers could be a question of economic and political significance. …
… Importantly, the major questions doctrine does not prevent agencies from regulating on significant matter; it only requires that Congress be clear when an agency may do so. For example, the Federal Trade Commission (FTC), which has taken the lead on Big Tech antitrust issues, is authorized by statute to prevent unfair methods of competition and unfair or deceptive acts or practices. This is likely a delegation of power to create competition law—a delegation that is both clear and clearly broad. One may ask whether Congress can delegate such broad authority—a question that implicates the nondelegation doctrine — but that’s distinct from the major questions doctrine, which merely asks whether Congress has in fact done so.