Major doctrinal shifts are happening in administrative law, said Judge Cornelia “Nina” Pillard of the US Court of Appeals for the District of Columbia Circuit, as she delivered the annual James Madison Lecture.
In her October 18 remarks, Pillard gave a brief history of modern administrative law precedents before turning to the 2022 Supreme Court decision in West Virginia v. Environmental Protection Agency (EPA). The Court decided that the EPA lacked the authority to regulate greenhouse gas emissions. Pillard said the case provides an example of a new strain of originalist interpretation of the nondelegation doctrine, a constitutional principle which disallows legislative bodies from delegating their lawmaking responsibilities to private or executive agencies.
West Virginia also marked the explicit emergence of the major questions doctrine, which holds that Congress must be completely clear in what questions it charges government agencies with answering when those agencies are faced with matters of vast economic or political significance.
“It’s a little problematic for lower courts so far,” Pillard said, “because we don’t have very clear guidance about what makes a question ‘major’ in ways that are easy to understand and apply.”
The Madison Lecture is hosted by the Arthur Garfield Hays Civil Liberties Program.
Selected quotes from Judge Nina Pillard:
“I want to emphasize that acceptance of the constitutional validity of the delegation of agencies doesn’t mean that agencies have a blank check. In 1946, Congress enacted the Administrative Procedure Act, which ensures that agency action is subject to judicial review and public accountability…. The Act requires that agencies make their rules with real-world factual support, detailed legal reasoning on a record available to the public, and agencies have to accept comments from the public and respond to them in a reasoned way.”
“In just the past two years, in addition to West Virginia v. EPA, the Court has used the major questions doctrine to strike down other important rules: an Occupational Safety and Health Administration rule requiring large employers to enforce a vaccine mandate or require employees to wear masks and test for COVID; a Center for Disease Control rule that paused home evictions during COVID if tenants, upon eviction, were likely to move to high-transmission congregate settings; and most recently, President Biden’s use of statutory emergency powers to waive or modify education loan terms.”
Posted November 1, 2023.