Under the major questions doctrine, an agency requires clear congressional authorization to regulate on an issue of major national significance. Although a version of the doctrine has existed for several years, its rise in importance is recent. The U.S. Supreme Court invoked the doctrine by name for the first time in 2022 in West Virginia v. Environmental Protection Agency, warning that in certain “extraordinary cases,” the “history and the breadth” and the “economic and political significance” of the agency action may “provide a reason to hesitate” before accepting the agency’s authority. West Virginia has since inspired a wave of scholarship addressing the major questions doctrine’s scope, its theoretical foundations, and its role in administrative law.
After West Virginia, federal district and circuit courts are also deciding major questions cases. This Note examines lower court applications of the major questions doctrine by comparing cases from the U.S. Courts of Appeals for the Fifth and Ninth Circuits. Ultimately, this Note argues that West Virginia enables inconsistency. Since West Virginia, courts in the Fifth Circuit have identified eight agency actions that triggered the major questions doctrine, whereas courts in the Ninth Circuit have identified only one. A circuit split also emerged between the Fifth and Ninth Circuits on whether the doctrine applies to presidential action under the Procurement Act. Moreover, courts are generally inconsistent in how and when they find a major question.
To increase consistency and predictability of the doctrine, this Note proposes that all lower courts apply a two-step test from West Virginia. First, courts should consider whether the agency action is economically and politically significant and, second, courts should consider whether the action is an unheralded or transformative exercise of authority. An affirmative answer to both inquiries should be necessary to find a major question. This test will bring greater consistency to the major questions doctrine in lower courts and encourage courts to carefully assess whether the doctrine applies.
