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

(Excerpt) In 2022, after years of hinting at the idea, the United States Supreme Court officially adopted the “major questions” doctrine in West Virginia v. EPA. 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 essay 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—as I will argue, 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?).