The Major Questions Doctrine West Virginia v. EPA [NLC 2022]

Supreme Court actions during the 2021-2022 term - opinions, grants and denials of petitions for certiorari, and motions docket orders - captured the attention of the legal community. Emblematic of the trend in judicial analysis was West Virginia v. EPA in which, notwithstanding that every brief cited Chevron for or against deference to the agency’s action, the Court’s opinion never mentioned it. Instead, the Court invoked the major questions doctrine to conclude that the Environmental Protection Agency’s regulations had exceeded the authority Congress had granted it in the Clean Air Act. In other decisions as well, the Court applied new degrees of weight to a variety of methodologies, doctrines, and canonical tools in its interpretations of statutes and the authority they grant the agencies assigned to implement them.
This panel explored what this new trend in judicial analysis means for future challenges to agency actions. Is the SEC’s focus on ESG, for example, within the confines of its statutory mandate? Can ERISA fiduciaries favor ESG concerns over earnings and value considerations? Is DOJ acting within its authority when it requires the target seeking to settle an enforcement action to pay, not a statutorily prescribed fine to the Federal Treasury, but non-parties, unrelated to the enforcement action? Is the Department of Education authorized to forgive student loans? Can the Department of Defense discharge military personnel for refusing a COVID vaccine?
Featuring:
Mr. Ian Gershengorn, Partner, Jenner & Block; Former Acting U.S. Solicitor General
Prof. Jennifer Mascott, Assistant Professor of Law & Co-Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University; Former Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
Prof. Tom Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Former Deputy Solicitor General
Mr. Yaakov (Jacob) M. Roth, Partner, Jones Day
Moderator: Hon. Edith H. Jones, U.S. Court of Appeals, Fifth Circuit
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

[@newspin2477]

I'm a total outsider with an interest in legal theories and looking at this from the perspective of the current student loan forgiveness case (it hasn't been ruled on yet, but the Supreme Court has heard the arguments on the case). Jennifer Mascott's comments really hit home to me about basically how the Major Questions Doctrine just effectively gives the supreme court a different avenue to justify whatever decision aligns with their personal viewpoints on any given topic, although I certainly hope this is just a good theory and doesn't actually become a reality.

[@theoriginalkeepercreek]

Thank You.