Two University of Pennsylvania Carey Law School professors have issued statements on the Supreme Court’s decision in West Virginia v. EPA.
Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science:
From the standpoint of many conservatives’ desire to roll back the administrative state, the majority opinion in West Virginia v. EPA did not deliver sweeping symbolic results. The Court did not overturn Chevron. It did not formally reinvigorate the long-dormant nondelegation doctrine used by the Court in the 1930s to strike down protective New Deal legislation. Nevertheless, the Court might well be considered in some ways to have affirmed what is basically the equivalent of the nondelegation doctrine under the guise of the Court’s so-called major questions doctrine. The major questions doctrine did not come out of thin air today, as the majority’s opinion built on a number of prior decisions. But today’s decision did show again how much power the major questions doctrine gives any court seeking to put a roadblock in the way of an administrative agency seeking to use flexibility in a statute to solve important problems. What counts as a “major” question, or what will satisfy a court’s demand for clarity in legislation to pass the doctrine’s test, is no clearer today than it was yesterday. Nor perhaps could it ever be very clear. What the major questions doctrine means appears to be left up entirely to the discretion of judges — much as with the long-disparaged nondelegation doctrine.
Beyond the West Virginia decision’s implications for administrative law generally, the case will hold important implications for the U.S. Environmental Protection Agency (EPA) in seeking to address climate change. Although the Court formally left standing its earlier decision, Massachusetts v. EPA, which held that EPA could address climate-related pollutants from automobiles under the Clean Air Act, and the door seems open to limited forms of controls of stationary sources of pollution by EPA, neither of these options will likely be enough to make dramatic reductions in greenhouse gases through administrative action. Without new congressional legislation giving EPA express authority to address climate change, the biggest outcome of the Court’s decision today may have been to trigger the most major question of all: how to save the planet from the ravages of climate change. On that question, it is hard not to see the Court’s majority assuming for itself the very significant power that it said EPA lacked — only in a way detrimental to climate protection.
Professor of Law Allison K. Hoffman:
While today’s Supreme Court decision in West Virginia v. EPA concerned the Clean Power Plan rule, its announcement of a “major questions doctrine” will reverberate through healthcare care agencies. The Court wrote that in “extraordinary cases” of “economic and political significance,” an agency must point to “more than a merely plausible textual basis” for action. Rather it must show “clear congressional authorization.” In plain terms, with important issues, Congress must delegate clearly. In a dissenting opinion, Justice Kagan referred to the use of this doctrine as a “get out of text free card,” allowing the court to constrain agencies without the hard textual work of scrutinizing what statutes allow.
This decision will clearly hamstring work to promote health done by the Department of Health and Human Services (HHS), which includes the Food and Drug Administration, Centers for Disease Control and Prevention (CDC), the Centers for Medicare and Medicaid Services, and more. To attempt to bolster the majority opinion, Roberts identifies a series of health care cases as major questions doctrine precedent – even though they were not called it at the time — including recent pandemic-related decisions to block the CDC’s eviction moratorium under the Public Health Services Act and the invalidation of the Occupational Safety and Health Administration’s vaccine mandate under its authority to promote workplace safety. The HHS agencies and offices must regulate in novel and evolving circumstances. This decision will impede their ability to do so nimbly.
Coglianese is the Director of the Penn Program on Regulation. He specializes in the study of administrative law and regulatory processes, with an emphasis on the empirical evaluation of alternative processes and strategies and the role of public participation, technology, and business-government relations in policy-making.
Hoffman is an expert on health care law and policy and examines some of the most important legal and social issues of our time, including health insurance regulation, the Affordable Care Act, Medicare and retiree healthcare expenses, and long-term care.