The Major Questions Doctrine in the States

Despite heated debate over its provenance and wisdom, the controversial “major questions doctrine” is now part of the U.S. Supreme Court’s interpretive toolkit. In West Virginia v. Environmental Protection Agency, the Court limited the EPA’s authority to regulate carbon dioxide from power plants. And in Biden v. Nebraska, the Court limited the Department of Education’s authority to reduce federal student debt resulting from hardship caused by Covid-19. In both cases, the Court relied on the major questions doctrine to interpret agency authority narrowly.

Under the major questions doctrine, courts will permit agencies to exercise authority over matters of great economic and political significance only if there is clear congressional authorization for that authority. As used in West Virginia and Nebraska, the doctrine is best read as a clear statement rule: when it applies, agencies are presumed not to have power to regulate unless Congress has clearly stated its intention to vest agencies with the authority they claim. If other clear statement rules are any indication, then the major questions doctrine has the power to alter the federal regulatory landscape dramatically. Commentators have argued persuasively that the major questions doctrine could diminish the power of federal agencies and limit the reach of federal regulation across the administrative state.

But these dire predictions about the consequences of West Virginia and Nebraska consider only half the equation. Just as federal courts are starting to apply the major questions doctrine to federal regulations, state courts have begun to adopt the doctrine into state law, applying the deregulatory tool to state agencies and state regulations. Indeed, just one week after West Virginia, the Arizona Supreme Court became the first state high court to adopt the doctrine.

The migration of the major questions doctrine from the federal courts to state courts is arguably even more momentous than West Virginia and Nebraska. In the absence of federal authority, states normally retain the power to regulate for themselves. But if the major questions doctrine is adopted at the state level, it could be used to disable state regulation as well. The doctrine’s transfer to state courts, therefore, could create dangerous regulatory gaps in which neither federal nor state agencies can regulate effectively.

But state courts have a choice. They are not required to adopt the U.S. Supreme Court’s major questions doctrine. Accordingly, before reflexively adopting the major questions doctrine in imitation of the U.S. Supreme Court, state courts should consider whether the reasons given in support of the doctrine at the federal level apply to their states.

In a forthcoming article for the Washington University Law Review, entitled “The Major Questions Doctrine in the States,” I evaluate the arguments made in support of the federal major questions doctrine in light of state constitutional structures to determine whether these arguments have force in the context of state court statutory interpretation. I conclude that, because of the pervasive differences between state and federal constitutional structures, the reasons supporting the major questions doctrine at the federal level do not necessarily support the adoption of the doctrine at the state level. States should not, therefore, reflexively follow the lead of the U.S. Supreme Court (or of one another) when considering the suitability of the major questions doctrine under state law. Instead, a state considering the doctrine should evaluate the extent to which its institutional structures resemble the assumptions underlying the federal major questions doctrine. Only then should a state court decide whether the major questions doctrine makes sense for its state.

First, a state court should consider how its constitution allocates policymaking power among different state institutions. At the federal level, the major questions doctrine is premised on a formalist vision of the principle of separation of powers. When adopting the major questions doctrine, the U.S. Supreme Court assumed that Congress wants to, and should, make major policy decisions on its own. But not every state shares this vision — indeed, by constitutional design, some state legislatures share policymaking power with other institutions, including the courts and the people themselves. The more a state constitution diffuses policymaking power among competing institutions, the less the legislature can be expected to exercise a monopoly over policymaking power. Moreover, the level of legislative professionalization varies among states; for example, legislatures vary with respect to member salary, frequency and length of legislative sessions, and staff support. While relatively professionalized state legislatures can be expected to participate in policymaking in a significant way, less professionalized legislatures are less able to do so.

Second, a state court should consider whether the major questions doctrine fits with the way that courts in that state interpret statutes generally and, more specifically, the way that they interpret statutes granting agency authority. The major questions doctrine invites courts to discount the text of statutory language in favor of assumptions about the purpose of the statute and the intentions of Congress. By contrast, many states adhere to a more text-based approach to statutory interpretation, driven by statutory directives, judicial practices, or state constitutional provisions. States that adhere more strictly to the text should have a hard time justifying the major questions doctrine. Moreover, some states are more likely than others to defer to an agency’s interpretation of its own regulatory authority — in states that still subscribe to something that looks like Chevron deference, the major questions doctrine would be a poor fit.

Third, state courts should consider whether their state government’s relationship with local governments is analogous to the federal government’s relationship with the states. One recurring justification for the major questions doctrine at the federal level is rooted in federalism — that is, that the doctrine will “return” policymaking authority to the states. But this argument translates to the state level only if the absence of state law devolves policymaking power to local governments. In fact, the power of local governments to set policy varies widely. Some local governments have a relatively robust capacity for initiating policy decisions, for insulating themselves from state intrusion, and for raising and spending revenue. In these states, the federalism justifications for the major questions doctrine make relatively more sense than in states with local governments without robust power and autonomy.

In sum, even if the major questions doctrine makes sense under federal law (a contentious claim), state courts should be cautious before applying it under state law. When state court judges consider adopting the major questions doctrine, they should start by examining their own state institutions, recognizing the significant differences between state and federal constitutional structures. Only then should they decide whether the doctrine makes sense for their individual states. The future is not yet written and the stakes are high. Whether states make the right decision about the major questions doctrine will influence whether they are able to govern effectively in the absence of effective federal regulation.

Evan C. Zoldan is a professor of law, specializing in legislation, administrative law, and civil procedure. He is also a coauthor of a casebook on state and local government law.