Erica N. White (Arizona State University (ASU), Sandra Day O'Connor College of Law; Center for Public Health Law and Policy) has posted Overcoming the Major Questions Doctrine with Federal Public Health Authorities (Harvard Law & Policy Review, Forthcoming) on SSRN. Here is the abstract:
Emerging with full force in the 2022 U.S. Supreme Court decision West Virginia v. Environmental Protection Agency, the major questions doctrine (MQD) purports to strike down federal administrative agency regulations and rule-making implicating matters of “economic and political significance.” With little guidance from the Court on how and when to apply MQD, there seems to be no limit to what courts consider “significant” in early applications of the doctrine, leading to far-reaching rulings restricting justified federal initiatives concerning climate change, social justice, and public health. However, as demonstrated by the Court’s own precedent, protections and guarantees inherent in the Constitution’s structure often require agency action to give full effect to individual rights and government obligations. Agencies cannot simply cease regulating, absent explicit direction from Congress, pursuant to imprecise grants of authority, even when consequences are “significant.” Courts may defer to agency interpretations of plain statutory language under Supreme Court precedent where regulations (1) enhance individual rights, such as through civil rights statutes, or (2) further congressional directions to mitigate or otherwise address discrete public health and other harms. Ultimately, administrative action and judicial review are intertwined because each are designed to achieve the same constitutional purpose of fully realizing individual rights and governmental guarantees.