"Major Questions" Malarkey: An Arbitrary and Capricious New Doctrine for Vetoing Controversial Agency Rules

Authors

• Lars Noah, University of Florida Levin College of Law

Document Type

Article

Publication Date

2024

Abstract

In 2022, in West Virginia v. EPA, the U.S. Supreme Court officially adopted the “major questions” doctrine. Commentators have already spilled plenty of ink trying to make sense of what this might portend, but so far seemingly everyone has accepted at face value the Court’s framing of the issue that it confronted in that case. This symposium contribution offers a slightly different perspective on the decision and suggests that closer attention to the precise nature of the question posed therein might reveal a distinctive flaw at the heart of the majority’s newfangled clear statement rule—it only sows confusion to conflate fundamental legal questions about jurisdiction (i.e., had Congress empowered an agency to act in a particular regulatory space?) and more policy-laden questions about the substantive merits of a rule (i.e., did the agency act in an arbitrary and capricious fashion?).

Recommended Citation

Lars Noah, “Major Questions” Malarkey: An Arbitrary and Capricious New Doctrine for Vetoing Controversial Agency Rules, 97 St. John’s L. Rev. 597 (2024).