The Supreme Court Faces a Major Question About Trump’s Second Term
It would be a stretch to say that the major-questions doctrine doomed Democrats’ chances of keeping the White House in the 2024 presidential election. But there is no doubt that the Supreme Court’s newest weapon against federal agencies seriously hamstrung the Biden administration’s ability to follow through on its campaign promises and accomplish several concrete policy goals.
Over the last four years, the conservative supermajority wielded this doctrine against anti-COVID measures, student debt relief, environmental regulations, and more. A major question, so to speak, for the next four years is whether the Supreme Court will wield it with equal fervor against any imaginative policymaking by President-elect Donald Trump.
The major-questions doctrine, in a nutshell, allows the courts to overturn federal rules and regulations if they think Congress didn’t “speak clearly” enough on the matter at hand. It arose gradually over the last three decades from cases where businesses challenged the scope of a federal agency’s authority. The justices sided with tobacco companies in 2000, for example, to rule that the Food and Drug Administration lacked the power to regulate tobacco as a “drug” or “device” because Congress’s actions suggested otherwise.
Writing for the majority, Justice Sandra Day O’Connor explained that “the court must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” She noted that lawmakers appeared to have, for better or for worse, created a separate regulatory scheme at the time to govern how tobacco products are manufactured, distributed, and sold to Americans. (Congress later gave the FDA a more explicit grant of authority over tobacco in 2009.)
Under Chief Justice John Roberts, that basic principle has been applied in a much more aggressive form to quash novel applications of existing federal laws. The court’s conservative majority ruled in 2014 that the Environmental Protection Agency had the power to regulate greenhouse-gas emissions under its existing authority for power plants and other major sources of them. But it refused to allow the EPA to regulate emissions that came from “retail stores, offices, apartment buildings, shopping centers, schools, churches,” and other “smaller sources.”
Justice Antonin Scalia, writing for the majority, said the EPA had claimed too much power. “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism,” he wrote, quoting from the 2000 tobacco case and other precedents. “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
Gone was O’Connor’s reference to “common sense” or her use of legislative history. Scalia’s formulation—that Congress must “speak clearly” for agencies to do something of “vast economic and political significance”—became the canonical version of the doctrine. In the hands of a reliably conservative Supreme Court majority that is generally skeptical, if not hostile, to policymaking efforts by Democratic presidents, those justices seemed to find it increasingly difficult to properly discern what the legislative branch was saying.
The Roberts Court first wielded the major-questions doctrine against the Biden administration in 2021 when the justices overturned a nationwide eviction moratorium that had been imposed by the Centers for Disease Control and Prevention during the COVID-19 pandemic. The moratorium was on fairly shaky legal ground to begin with: The agency had used catch-all language in the Public Health Service Act of 1934 to justify the move, housing policy was not under its jurisdiction, and it imposed the moratorium only after a congressionally authorized one had lapsed. The CDC also foolishly re-enacted it after an unambiguous warning from Justice Brett Kavanaugh that he would join four other justices to block it.
That maneuver appeared to harden the conservative justices’ approach towards the administration. In an unsigned opinion, they wrote that the moratorium’s purported legal authority was a “wafer-thin reed” despite its immense consequences and said that they feared other sweeping orders could follow. “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable?” the majority wrote. “Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?”
After crystallizing the major-questions doctrine in that case, however, the conservative justices soon began to apply it to more ambiguous examples. The Occupational Safety and Health Administration has a mandate from Congress to enact rules to, as its name suggests, promote “safety” and “health” in the workplace. To that end, it enacted a rule in 2021 that required most U.S. workplaces to regularly test their unvaccinated employees or require them to wear masks. This was widely interpreted and sold as a “vaccine mandate”—even by the Biden administration itself.
In National Federation of Independent Businesses v. OSHA, the conservative justices struck down the mandate on major-question grounds. Their logic was a little more tortured this time. Even though the agency had an unambiguous mandate to tackle workplace health risks, COVID-19 didn’t qualify because people could get it outside of work as well. In addition, the justices held that novelty itself now counted against new federal rules for the major-question analysis.
“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace,” the majority wrote in an unsigned opinion. “This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary [of Labor] now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”
The justices struck a similar note in Biden v. Nebraska, where they quashed a major effort by the Biden administration to forgive billions of dollars in student loan debt held by the federal government. The Department of Education had invoked the HEROES Act, which gives the secretary of education broad authority to modify student loans in certain circumstances. Again, the justices rejected any novel interpretations of the statute, even one passed as recently as 2003.
“Prior to the COVID–19 pandemic, ‘modifications’ issued under the Act implemented only minor changes, most of which were procedural,” Chief Justice John Roberts wrote for the court. “Examples include reducing the number of tax forms borrowers are required to file, extending time periods in which borrowers must take certain actions, and allowing oral rather than written authorizations.” This showed, he later explained, that Congress did not envision anything as sweeping as Biden’s proposal.
One thing that might be apparent by now is the years in which these major-questions doctrine rulings occurred: They entirely skipped Trump’s first term in office. Was the Trump administration simply more fastidious about hewing to black-letter regulatory authority from 2017 to 2020 than the Democratic administrations that came before or after it? Given the numerous legal defeats it suffered over the four years it held power, that seems unlikely.
The next four years should provide the courts with ample opportunities to apply the major-questions doctrine to Trump’s regulatory efforts. Perhaps the most obvious example is Schedule F, the president-elect’s planned legal mechanism for wiping out federal civil-service protections for thousands of federal employees. Much of its legal reasoning rests on a provision known as Section 3302, which blandly states that the president can “prescribe rules governing the competitive service.”
Does this provision mean that the president can overwrite Congress’s statutory scheme for protecting federal civil servants from improper political influence? No president has previously used it to carry out ideological purges. Vaporizing entire sections of the federal civil service would also likely have “vast economic and political significance,” as Justice Scalia once phrased it. Congress also doesn’t appear to have “spoken clearly” on the matter—or, to the extent that it did, it spoke in the opposite direction.
It is difficult to predict exactly how the incoming Trump administration will wield existing laws in areas like immigration, healthcare, or environmental policy when it takes office. Some of its efforts to carry out deportations, for example, might rest on more solid statutory ground. But the more novel and unusual its legal arguments may become, and the more “wafer-thin” its legal citations may turn out to be, the more likely it is that courts will use the major-questions doctrine to hold up Trump’s more outside-the-box policy initiatives—that is, of course, unless it was just a tool to bludgeon Democratic presidents all along.