Seizing the Engines of Government Power: The Major Questions Doctrine and Limits of Judicial Review in the Roberts Juristocracy

June 19, 2023 / RYAN M. SWEENEY*

I. Introduction 

Recent headlines about railroads in the United States have reignited discussions about nationalizing the nation’s freight rail companies.[1] Discussions about broad new federal administrative power come at a unique time in American jurisprudence. The current conservative majority on the Supreme Court under Chief Justice John Roberts appears intent on tearing down the so-called “administrative state,” expanding the power of the judiciary in the process. The primary explosive for this judicial demolition is the major questions doctrine—expressly recognized for the first time in a majority opinion in West Virginia v. EPA[2]—which dramatically restructures the separation of powers by asserting nebulously expansive authority to strike down agency actions. If the administrative state is a train, Congress is the train’s owner and chairman of the board, and the President is the conductor, then West Virginia is the Supreme Court piling gravel on the tracks, hog-tying the conductor, robbing the passengers, and blowing up the engine with a stick of dynamite. Yet in another recent decision seeking to extend judicial power, Collins v. Yellen,[3] the Court implicitly recognized an existing statutory means for limiting judicial review of agency actions, which may provide a possible path around the major questions doctrine.

In Section II, this article will examine the Roberts Juristocracy, demonstrating the capricious nature of the current Court. Section III will explain how Collins highlights the Court’s implicit recognition of certain statutory mechanisms that limit judicial review over agency actions. Section IV will discuss some of the implications of the Collins model for practitioners in bypassing major questions review moving forward.

II. The Age of the Roberts Juristocracy

“Juristocracy” means rule or government by the judiciary. Although the principle of judicial review gives U.S. courts “the province and duty … to say what the law is,”[4] that power does not give the judiciary the authority to make law or prevent faithful execution of the law by arbitrary fiat. Like other common-law legal systems, U.S. judges must follow the principle of stare decisis, by which the judiciary seeks to establish consistency and predictability in the law, ensuring that similar facts will yield foreseeable outcomes.[5]

Several recent decisions by the Supreme Court indicate its intent to abandon those principles. In its decisions attacking the authority of administrative agencies, the current conservative majority of the Supreme Court has ostensibly sought to rebalance the separation of powers in line with the Constitution[6]—explicitly discussing the allegedly appropriate rebalancing of these powers only between the legislative and executive branches.[7] But the Roberts majority has done so through questionably vague and unpredictable decisions, creating new legal doctrines out of whole cloth and giving short shrift to the bedrock principle of stare decisis. In these decisions, the Roberts majority has failed to mention or address their practical effect: the judiciary’s seizure of legislative and executive power from the other branches.[8]

A. The major questions doctrine

Existing precedent acknowledged the judiciary’s limited role in reviewing agency decisions. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Court acknowledged that whenever it encountered an agency decision based on a statute that was silent or ambiguous with respect to the specific issue, the judiciary must defer to an agency’s “permissible construction of the statute.”[9] Chevron deference was based on principles of judicial restraint, noting that in encountering a statute that was ambiguous or silent about a specific agency action, “the court does not simply impose its own construction on the statute.”[10]

The major questions doctrine throws judicial restraint out the window. The issue in West Virginia was whether the EPA had authority under Section 111(d) of the Clean Air Act to use generation shifting in setting state limits on carbon dioxide emissions.[11] In holding that the statute did not give EPA the required authority and that its regulatory action was unconstitutional, the majority opinion drafted by Chief Justice Roberts described the major questions doctrine as follows: “Courts expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.… [I]n certain extraordinary cases … the agency must point to ‘clear congressional authorization’ for the power it claims.”[12] Importantly, Chevron is never mentioned in the decision.[13]

According to Professor David M. Driesen, the major questions doctrine “has nothing to do with preserving self-government and everything to do with increasing the reach of the juristocracy.”[14] The rule is light on particulars, vague and broad in its language, and incapable of being used as a meaningful benchmark. The majority did not clearly define what makes a case “extraordinary” or what makes congressional authorization “clear.”[15] Roberts’s attempts to define or break down this rule into its elemental parts wound up using other similarly vague, conclusory terms—“extravagant power over the national economy,” “radical or fundamental change,” “major policy decision”[16]—creating a Russian nesting doll out of the law. What does it mean for an agency’s assertion of power to be “extravagant,” for a regulatory change to be “radical or fundamental,” or for a policy decision to be “major”?[17] The majority is silent on these apparently minor details.

Because of its lack of clarity, West Virginia created tremendous uncertainty about how the federal government will work moving forward. Considering the significant discretion afforded the judiciary in reviewing agency actions, attorneys around the country could be forgiven for wondering whether the Roberts Juristocracy will simply use its major questions wrecking ball to target agency actions that may offend its conservative ideology (e.g., regulations tangentially connected to fighting climate change, including Treasury Department regulations classifying various materials eligible for EV-tax credits, EPA regulations on vehicle emissions standards, or SEC regulations requiring disclosure of financial risks related to climate), or if it will go further to strike down any agency action that is not explicitly directed by Congress in painstaking detail.

B. Seila Law & Collins

A pair of cases decided shortly before West VirginiaSeila Law, LLC v. Consumer Financial Protection Bureau[18] and Collins v. Yellen[19]—dealt an additional blow to the administrative state in a way that demonstrates the capriciousness of the Roberts Juristocracy. In Seila Law and Collins, the Court considered the constitutionality of for-cause removal restrictions on agencies led by a single presidentially appointed officer, the director of the Consumer Financial Protection Bureau (CFPB) in Seila Law and the director of the Federal Housing Finance Agency (FHFA) in Collins.[20] Prior to these cases, Congress had authority to establish agencies led by single individuals that had an additional layer of protection from the executive branch.[21] The Court held that these for-cause removal restrictions were unconstitutional, in doing so shifting the removal power from Congress to the President.[22]

Seila Law established standards for when Congress would be permitted to grant removal protections to agency officials, specifically finding that the single director of the CFPB could not enjoy for-cause removal protection because he “wield[ed] significant executive power.”[23] In Collins, the Court commissioned Professor Aaron L. Nielson as amicus to defend the FHFA’s for-cause provision because the federal parties had declined to contest the circuit court’s findings on the issue.[24] The Court agreed with Professor Nielson that the director of the CFPB exercised more executive power than the director of the FHFA.[25] However, abrogating its explicit standard from Seila Law, the Court wrote that “the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head.”[26] Although Professor Nielson asserted that the Court’s own standard from Seila Law should hold[27]i.e., that an agency must exercise “significant executive power” before the President’s removal authority applies—the Court responded that amicus “[did] not propose any clear standard to distinguish agencies.”[28] This despite the fact that the standard proposed by amicus that the Court found unclear in June 2021 was the Court’s own standard from its decision in June 2020.[29]

III. Collins highlights a possible path around the major questions doctrine

Collins also addressed the question whether an agency granted “expansive authority” by statute violated that statute when it nationalized for-profit companies. After the housing market collapsed in 2008, Congress passed the Housing and Economic Recovery Act (HERA).[30] HERA created a new entity, FHFA, tasked with regulating the for-profit entities Fannie Mae and Freddie Mac, and stepping in as their conservator if necessary.[31] After FHFA placed Fannie and Freddie into conservatorships and negotiated agreements giving preferred ownership shares to the Treasury Department in exchange for capital influxes, private shareholders sued.[32] The shareholders alleged that the new agency exceeded its authority under HERA.[33] The Supreme Court’s answer offers an important implicit acknowledgement of judicial restraint. The Court held that the shareholders’ claim was barred by HERA’s anti-injunction clause, which states: “no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.”[34] The Court found that this clause “sharply circumscribed judicial review of any action that the FHFA takes as a conservator or receiver.”[35] The Court went on to uphold this restraint on judicial review after finding FHFA’s actions were well within HERA’s grant of “expansive authority [to FHFA] in its role as a conservator.”[36]

This finding is consistent with a line of cases establishing the sovereign immunity of the United States and its agencies unless Congress has consented to suit.[37] Congress has waived sovereign immunity to suit in several instances, including the Tucker Act, Federal Tort Claims Act, and the Administrative Procedure Act, but has also provided exceptions to those waivers by enacting more specific statutory provisions limiting judicial review, such as HERA’s anti-injunction clause.[38]

If the Supreme Court planned to find that anti-injunction clauses are unconstitutional under the major questions doctrine, it could have easily done so in Collins. The Court in Collins was composed of the same nine justices as in West Virginia, and Collins was decided after the cases that the West Virginia majority adopted as ex post facto major questions doctrine cases. The cases upholding provisions limiting judicial review were established precedent by the time the Roberts Juristocracy took hold. The Court has a duty to consider the constitutionality of acts of Congress sua sponte.[39] The fact that the Court did not do so in Collins, despite the exact same composition and the precedent necessary to adopt the major questions doctrine just a year later, suggests that it will not disturb Congress’s authority to limit judicial review of agency decisions. Challenging that authority would also require striking down important sections of the longstanding Administrative Procedure Act.[40]

IV. Implications of the Collins model limiting judicial review under the Roberts Juristocracy

Congress has an opportunity to rebalance the separation of powers, recapturing legislative and executive authority that was seized by the ideologues of the Roberts Juristocracy. In passing future legislation delegating broad authority to administrative agencies, legislators and their staffs should make a habit of considering anti-injunction clauses or similar provisions limiting judicial review. Similarly, federal attorneys drafting agency regulations—or engaged in other quasi-legislative, quasi-judicial, or executive actions on behalf of agencies—or defending agency actions from possible major questions review in court would do well to scour the agencies’ authorizing statutes to identify anti-injunction clauses or similar provisions that either directly limit judicial review or can be interpreted as such.

Nevertheless, uncertainties remain. Assumptions of internal consistency may not stop a rogue judiciary that disdains even its own precedent. The Roberts Juristocracy could seek to strike down a future anti-injunction clause as violating the major questions doctrine by distinguishing Collins in some way. For example, the Court might take advantage of the wide discretion offered by its vague new rule by saying that Collins did not deal with an “extraordinary case.” Or the Court may find that the broad statutory direction to FHFA to act as conservator was not so broad as to create an ambiguity requiring interpretation under the major questions doctrine, as in West Virginia. Given the Court’s capriciousness, it could find some as-yet unknown means of striking down a future anti-injunction clause, either using the enormous net of the major questions doctrine or another tenuous legal theory.

V. Conclusion

The Roberts Juristocracy and its newly adopted major questions doctrine pose existential threats for administrative agencies, in addition to posing serious concerns for the American people who rely on the efficient operation of those agencies and the industries they regulate. The Collins model could lay the track necessary for shepherding administrative agencies through the Roberts Juristocracy, limiting judicial review and application of the major questions doctrine. There are certainly many unknowns, not least of which is the extent of the major questions doctrine. But Congress still retains significant authority to limit judicial review, and there are opportunities for creative appellate and regulatory lawyering to find the path forward. It is critical to identify and test potential statutory, litigation, and regulatory solutions that can put our important engines of government and industry back on track.

 

*Lewis & Clark Law School L.L.M. Candidate in Environmental, Natural Resources, and Energy Law

Endnotes:

[1] Becky Sullivan, “What to know about the train derailment in East Palestine, Ohio,” NPR.org, Feb. 16, 2023 (available at https://www.npr.org/2023/02/16/1157333630/east-palestine-ohio-train-derailment); Kari Lydersen, “The Case for Nationalizing the Railroads,” InTheseTimes.com, Feb. 16, 2023 (available at https://inthesetimes.com/article/nationalize-the-railroads-workers-on-strike-biden-wages).

[2] West Virginia v. EPA, 597 U.S. ___ (2022).

[3] Collins v. Yellen, 594 U.S. ___ (2021).

[4] Marbury v. Madison, 5 U.S. 137 (1803).

[5] See Justice Kagan discussion of stare decisis at n. 29, infra.

[6] Justice Gorsuch drafted a concurring opinion in which he explained the rationale for the major questions doctrine was to “protect the Constitution’s separation of powers.” West Virginia, 597 U.S. at ___ (2022) (J. Gorsuch, dissenting). “The Constitution’s rule vesting federal legislative power in Congress,” he wrote, “is … vital because the framers believed that a republic—a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers.’” Id. As journalist Matt Ford pointed out in The New Republic, “Whether Gorsuch appreciated the irony of that statement is unclear.” Matt Ford, “The Supreme Court Conservatives’ Favorite New Weapon for Kneecapping the Administrative State,” NewRepublic.com, Mar. 13, 2023 (available at https://newrepublic.com/article/171093/supreme-court-major-questions-doctrine-administrative-state). Recent reporting on Justice Thomas’s refusal to recuse himself from a case in which his wife was a possible witness and his failure to report extravagant gifts from billionaires—situations which at best might be deemed unchecked ethical lapses and at worst might be called brazen corruption—only serves to drive the point home: Supreme Court justices are the ultimate embodiment of “unaccountable ministers.” Tierney Sneed, “What to know about the Justice Clarence Thomas recusal debate around his wife’s texts,” CNN.com, Mar. 29, 2022 (available at https://www.cnn.com/2022/03/29/politics/clarence-ginni-thomas-election-reversal-texts/index.html); Katherine Hamilton, “Clarence Thomas Sold House To GOP Donor Harlan Crow, Report Says,” Forbes.com, Apr. 13, 2023 (available at https://www.forbes.com/sites/katherinehamilton/2023/04/13/clarence-thomas-sold-house-to-gop-donor-harlan-crow-report-says/?sh=2f3c30f71338).

[7] See generally West Virginia, 597 U.S. at ___ (2022); Collins, 594 U.S. at ___ (2021); Seila Law, LLC v. CFPB, 591 U.S. ___ (2020).

[8] This development is an interesting and concerning volte-face for a conservative legal community that for decades relied on textualism and decried the purported excesses of “activist judges” seeking unrestrained power. To use an analogy familiar to many sports fans, the recent decisions of the Roberts Juristocracy might be called an “ump show.” An ump show refers to a baseball concept, “loosely defined as a moment when an umpire allows himself to exert too much control of the game with heavy-handed decisions.” Joshua Sadlock, “Umpire Jordan Baker Steals Show as Orioles Fall to Red Sox,” BaseballEssential.com, Apr. 18, 2015 (available at https://www.baseballessential.com/news/2015/04/18/umpire-jordan-baker-steals-orioles-fall-red-sox/), last accessed on March 14, 2023. See also Zachary D. Rymer, “In Defense of Umpires: Why Complaints About MLB’s ‘Ump Show’ Problem Miss the Mark,” BleacherReport.com, May 14, 2022 (available at https://bleacherreport.com/articles/10035715-in-defense-of-umpires-why-complaints-about-mlbs-ump-show-problem-miss-the-mark), last accessed March 14, 2023 (an ump show is “when at least one umpire interrupts the flow of a game with a questionable call and/or an attitude that’s just not befitting of the role they’re supposed to be playing. That is, as an independent and unbiased arbiter of the action”).

[9] Chevron v. NRDC, 467 U.S. 837 (1984).

[10] Id.

[11] West Virginia, 597 U.S. at ___ (2022).

[12] Id.

[13] Id.

[14] David M. Driesen, “Major Questions and Juristocracy,” The Regulatory Review, Jan. 31, 2022 (available at https://www.theregreview.org/2022/01/31/driesen-major-questions-juristocracy/).

[15] West Virginia, 597 U.S. at ___ (2022).

[16] Id.

[17] Roberts also wrote that an extraordinary case is one “in which the history and breadth of the authority that [the agency] has asserted, and the economic and political significance of that assertion, provide a reason to hesitate.” West Virginia, 597 U.S. at ___ (2022). In a nation of 330 million people, on a question that arises from tremendously expensive adversarial litigation, isn’t there always an economically and politically significant “reason to hesitate”?

[18] Seila Law, 591 U.S. at ___ (2020).

[19] Collins, 594 U.S. at ___ (2021).

[20] Seila Law, 591 U.S. at ___ (2020); Collins, 594 U.S. at ___ (2021).

[21] Seila Law, 591 U.S. at ___ (2020); Collins, 594 U.S. at ___ (2021).

[22] Though the Court also distinguished the 1935 decision in Humphrey’s Executor v. United StatesSeila Law held that Congress is permitted to include for-cause protection for officers appointed to multi-member bodies like the Federal Trade Commission in 1935. Seila Law, 591 U.S. at ___ (2020); Collins, 594 U.S. at ___ (2021).

[23] Seila Law, 591 U.S. at ___ (2020).

[24] Collins, 594 U.S. at ___ (2021).

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29]Id. Justice Kagan dissented from the single-director agency rule established by the conservative majority in Seila Law. In Collins, she concurred in the judgment but drafted a dissent highlighting the Court’s failure to follow its own precedent limiting the rule of Seila Law to “single-director agencies ‘wield[ing] significant executive power.’”

In thus departing from Seila Law, the majority strays from its own obligation to respect precedent. To ensure that our decisions reflect “evenhanded” and “consistent development of legal principles,” not just shifts in the Court’s personnel, stare decisis … places demands on the winners. They must apply the Court’s precedents—limits and all—wherever they can, rather than widen them unnecessarily at the first opportunity.

Collins, 594 U.S. at ___ (2021) (J. Kagan, dissenting).

[30] Collins, 594 U.S. at ___ (2021).

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Block v. Community Nutrition Institute, 467 U.S. 340 (1984); Marcello v. Bonds, 349 U.S. 302 (1955); Heikkila v. Barber, 345 U.S. 229 (1953); Ludecke v. Watkins, 335 U.S. 160 (1948); Schilling v. Rogers, 363 U.S. 666 (1960); Department of Army v. Blue Fox, Inc., 525 U.S. 255 (1999); Blackmar v. Guerre, 342 U.S. 512 (1952).

[38] J.W. Verret, “Treasury Inc.: How the Bailout Reshapes Corporate Theory and Practice,” 27 Yale J. on Reg. 283 (2010).

[39] Union Pacific Railroad Co. v. United States, 99 U.S. 700 (1878).

[40] Verret, n. 38, supra.

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