The Power Congress Never Gave

Introduction In enacting a statute, Congress addresses complicated issues affecting modern American society, from the environment to education and health. A statute, however, cannot cover every eventuality. Consequently, federal agencies often possess the discretion to implement a law by filling in details Congress never worked out.

When such an agency claims such broad delegations of authority allow it to take actions affecting the country in particularly important ways, the Supreme Court responds by demanding specific congressional authorization for such important measures.¹

In doing so, the Court seeks to uphold a fundamental principle of our Constitution: the separation of powers among the three branches of government. At the same time, critics of this approach charge that in determining which government actions rise to a sufficiently important level to require such authorization, the Court assumes far too broad a role itself.

The Fix

Federal agencies often act under the aegis of a statute containing very broad language. The legislature often authorizes them to adopt rules and regulations necessary to carry out a statute’s general mandate, even if the language of the statute does not specify precisely what these rules and regulations should say. In such circumstances, the agency exercises its expertise to determine the most appropriate rules in the particular context.

The dispute with the EPA involved another provision of the Clean Air Act that contains very broad language, authorizing the EPA to establish rules and regulations to carry out the general mandate of the statute. This provision has also been the source of controversy. In a different case involving the Clean Air Act, the Supreme Court rejected the EPA’s argument. The Court held that the EPA lacked the power to promulgate specific, broad regulations that would significantly affect the way in which the United States produces electricity.¹

In both cases, the Court held that when an agency seeks to take actions of major economic and political significance, it may not rely on general, broad statutory language. Instead, the agency must have specific authorization from Congress. This principle, called the major questions doctrine, is an important element of our constitutional law.³ There is no doubt, however, that it has created a serious problem that cries for a solution.

Biden’s Student Loans Debt Forgiveness

One reason for the Court’s unease with the EPA’s interpretation probably involves the student loans issue. In this highly anticipated case, the Court unanimously rejected the Biden administration’s argument. According to the HEROES Act, the secretary of education may “waive or modify” any regulations, requirements, or prohibitions in the face of a “national emergency.” The Biden administration argued the student loan program qualified as a “national emergency” and therefore Congress authorized the administration’s student loan forgiveness program through the HEROES Act.²

The Court rejected this interpretation (for reasons explained below). It held that the HEROES Act did not provide sufficient authorization and therefore the Biden’s student loan forgiveness program was not an appropriate implementation of the HEROES Act.

The dispute between the Court and the EPA, as well as the administration and the student loan forgiveness program, demonstrates why the problem of the major questions doctrine is so serious.

Proponents of the Court’s position in the EPA matter believe Congress should take primary responsibility for decisions of major economic and political significance. If representatives in Congress want agencies to take such action, they can authorize them to do so by expressing a clear will to do so.

Critics of the Court’s position, however, argue the opposite. When Congress passes a statute containing very broad language, it often does so because it realizes it cannot anticipate every possible application of a law. A contrary approach would force agencies to take primary responsibility for very significant decisions under the law, without the possibility of receiving specific instructions from the legislature.

It is not difficult to grasp the essence of the resulting dilemma. Supporters of one approach believe the separation of powers requires Congress to take responsibility for major decisions of economic and political significance. Proponents of the other approach believe the executive branch has primary responsibility for decisions of such significance, but they also believe agencies should not be forced to take such decisions when the legislature does not specifically authorize them.

The Greatest Problem

The question that arises most frequently and is most difficult to answer involves determining which particular governmental actions constitute major questions. Not every regulation adopted by an agency represents a significant economic and political decision. The Supreme Court weighs several factors when determining whether an agency acted ultra vires. These include the economic and political significance of the adopted measures, whether the agency attempted to go beyond the scope of its responsibilities, and whether the Court’s understanding of a statute’s provisions is consistent with the overall statutory scheme enacted by Congress. There is not, however, a single, objective standard that permits the Court to determine with a high degree of certainty whether a particular governmental measure constitutes a “major” question or not.³

An example of a regulation that clearly went beyond the authority granted by Congress is difficult to imagine. A regulation adopted by an agency that clearly does not exceed the authority granted by Congress is also difficult to imagine. Courts must consider various factors when determining whether a regulation adopted by an agency exceeds the authority of that agency. This reality creates a dilemma. If judges have too great a role in deciding which governmental measures are significant enough to require specific congressional authorization, the system encourages judges to play an exaggerated role in making important political decisions under the guise of interpreting statutes.³

In principle, one would think that the response to this dilemma would be for Congress to make very specific provisions regarding important economic and political decisions of this sort, in order to ensure that they take place in the manner intended by the legislators who wrote the law. The Constitution, however, does not prohibit agencies from exercising very broad delegations of authority that Congress has actually granted to them.

In practice, therefore, the greater problem involves differentiating between those instances in which an agency legitimately exercises the authority granted to it by Congress, and those instances in which it does not. That is, it is necessary to distinguish between those instances in which a government agency exercises a legitimate right to act under the law, and those in which it does not.

Impact on Congress and the Courts

The major questions doctrine has several effects. By forcing government agencies to obtain specific congressional authorization before undertaking extremely significant economic and political decisions, it shifts some of the responsibility for such decisions from agencies to Congress.¹

On the one hand, this is a positive development, since it places greater responsibility on lawmakers rather than on unelected agencies and administrators. At the same time, however, it creates some difficulties. Under the doctrine, Congress will likely specify more detailed procedures when it adopts statutes. The adoption of such procedures may be extremely difficult. There also may be serious problems with applying the statutory provisions to new situations.

As a result, the courts are again facing the dilemma outlined above. In addition, problems arise for businesses and agencies with applying laws passed in a very general form long ago to new economic and social situations. The doctrine reduces the risk of such problems, but it is unlikely to eliminate them entirely. This fact alone demonstrates the importance of the principle articulated by the Supreme Court in recent cases concerning the actions of the EPA and the Biden administration with regard to student loans.¹ ²

The Separation of Powers

The doctrine raises a fundamental question that goes beyond the immediate problems faced by the agencies and the President’s administration. It is a constitutional problem that concerns the separation of powers among the three branches of the federal government and the authority of each branch. Specifically, the question involves deciding whether the uncertainty resulting from the existence of a potentially broad statute should not lead to restrictions on the executive’s ability to make important economic and political decisions.

Why It Matters As discussed, the principle announced by the Court in its rulings on the EPA and the Biden administration creates a dilemma, and the resolution of this dilemma has significant consequences for the executive branch, Congress, and the court system itself. It is important to remember, nevertheless, that the separation of powers is one of the central foundations of the American political system. One implication of the separation of powers is that in many cases it is up to judges to interpret laws passed by Congress.

Conclusion This fact means that the Court must adopt the most cautious possible approach to resolving the dilemma. Under no circumstances should it allow an agency to claim powers that Congress actually granted it. It should not compel agencies to interpret statutes in ways that violate their provisions. In doing so, however, the Court should not forget that agencies act under the aegis of laws passed by Congress. And therefore, unless there is no doubt about the meaning of a particular provision, the Court should grant agencies the greatest possible latitude in applying that provision to specific, often highly complex circumstances.

1. West Virginia v. Environmental Protection Agency, 597 U.S. 697, 721–35 (2022).

2. Biden v. Nebraska, 600 U.S. 477, 501–07 (2023).

3. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–61 (2000).