The Mechanics of the Major Questions Doctrine

Time and again, federal agencies have sought new regulatory solutions to significant national problems in ancient statutes that do not provide clear congressional authorization. For example, in Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), the FDA scrounged up statutes addressing “drugs” and “devices” to assert regulatory authority over the tobacco industry after Congress refused to confer jurisdiction. Similarly, in Gonzales v. Oregon, 546 U.S. 243 (2006), the U.S. Attorney General refashioned the Controlled Substance Act’s phrase “legitimate medical purpose” with an interpretive rule to bar certain substances from state-authorized assisted suicide. During the COVID-19 pandemic, in Alabama Association of Realtors v. Department of Health and Human Services, 141 S. Ct. 2485 (2021), the CDC improvised a rarely used statute about communicable diseases into a nationwide eviction moratorium after congressional authorization expired. And not long ago, in West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587, 2602 (2022), the EPA repurposed what one of its architects called “an obscure, never-used section” of the Clean Air Act, and the phrase “best system of emission reduction,” to impose requirements on the coal industry after Congress failed to enact similar proposals.

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