West Virginia is a landmark decision for at least two reasons. First, the case inaugurated the Court’s explicit use of the major questions doctrine, solidifying its role as a clear statement rule. Second, the opinion introduced new criteria for designating major federal rules, including the political significance of the matter in question. In West Virginia, the Court considered the magnitude of EPA’s regulation by noting the contentious nature of the debates surrounding a shift from coal to cleaner energy sources, the novelty of EPA’s regulatory approach, and the rule’s potential future implications for agency authority. This analysis represents a significant departure from previous approaches to identifying major questions, which primarily focused on economic significance and regulatory impact. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000); Util. Air Regul. Grp., 573 U.S. at 310. By circumventing traditional tools of statutory interpretation to emphasize the ambiguous notion of political significance, the major questions doctrine post–West Virginia begins to operate on the presumption that the federal agency loses unless it can prove otherwise.
A key aspect of the West Virginia Court’s analysis of political significance was its interpretation of congressional inaction. Chief Justice Roberts’ majority opinion reasoned that, in the decades after it passed the Clean Air Act (CAA), Congress’s repeated failure to pass legislation similar to the CPP signaled its intent not to delegate such sweeping regulatory power to EPA. West Virginia, 597 U.S. at 697 (noting that “the Agency’s discovery [of Clean Air Act Section 111(d)] allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself”). By framing congressional passivity as an expression of dissatisfaction with an agency rule, the Court effectively reinterpreted the legislative process, allowing the absence of statutory endorsement to serve as a proxy for intent. This approach risks undermining the separation of powers by replacing the Constitution’s explicit requirement that Congress act affirmatively to make or repeal laws with judicial inferences drawn from post-enactment congressional inaction.
West Virginia’s implications are particularly troubling in the context of environmental regulation. The CPP was an ambitious attempt to address one of the most pressing crises of our time: climate change. EPA’s authority to regulate greenhouse gas emissions derives from the CAA, a 1970 statute that Congress enacted with unanimous bipartisan support. Congress designed the CAA to give EPA flexible authority to address emerging and evolving threats to air quality, including those the drafters did not specifically foresee when they wrote and passed the statute. Yale Ctr. for Env’t L. & Pol’y, #10: Exploring the Roots of Environmental Law: A Conversation with Tom Jorling & Leon Billings, Yale Univ. (2014). The Supreme Court itself affirmed this broad mandate in 2007, when it concluded that greenhouse gases are “air pollutants” under the Act. Massachusetts v. EPA, 549 U.S. 497, 528–29 (2007). In West Virginia, however, the Court imposed a very narrow interpretation of EPA’s regulatory authority, disregarding both the intent and text of the CAA. This decision was influenced by the Court’s subjective view that the issue was too political, relying—at least in part—on Congress’s failure to act after the law’s passage as evidence of a lack of widespread consensus. West Virginia, 597 U.S. at 697.
Ultimately, the Court’s decision in West Virginia reflects a troubling expansion of the major questions doctrine and the Court’s power, as well as a misguided reliance on congressional inaction as a means of interpreting legislation. The ruling imposes new and potentially insurmountable obstacles for federal agencies seeking to regulate issues of national importance and undermines the constitutional principles of bicameralism and presentment. This article argues that the Court’s attention to congressional silence as a signaling mechanism not only is unconstitutional but also contradicts Congress’s intended design of regulatory statutes like the CAA and procedural frameworks like the Congressional Review Act (CRA), which articulates a clear process for Congress to weigh in on major regulations, thereby reducing the need for judicial speculation regarding congressional intent. If the Court’s true concern lies with Congress’s delegation of power to agencies, the Court can address this issue directly by reconsidering the nondelegation doctrine this term in its review of Consumers’ Research v. FCC, 109 F.4th 743 (5th Cir. 2024), cert. granted, 2024 WL 4864037 (Nov. 22, 2024) (consolidating the case with SHLB Coalition v. Consumers’ Research). This direct approach provides a more honest and transparent doctrinal shift, as opposed to stretching the major questions doctrine in ways that undermine established regulatory and statutory frameworks and the lawmaking process.
The Constitutional Problem
The Court’s reliance on legislative inaction as an interpretative tool in West Virginia raises significant constitutional concerns. The fundamental issue lies in the Court’s departure from the Constitution’s explicit procedural framework for enacting and amending laws. Article I’s requirements for bicameralism and presentment prescribe a rigorous lawmaking process involving the active participation of both houses of Congress and the president. Article I, Section 7 mandates that for a bill to become law, both the House of Representatives and the Senate must pass the law and then present it to the president for approval or veto. U.S. Const. art. I, § 7. These provisions ensure that lawmaking is a “deliberate and deliberative process,” requiring consensus among both chambers of Congress and the executive branch. INS v. Chadha, 462 U.S. 919, 959 (1983). It is only this active legislative process—not the absence of it—that may legally reflect the constitutionally legitimate voice of Congress. Nevertheless, in West Virginia, the Court interpreted Congress’s inaction as a signal of congressional disapproval. West Virginia, 597 U.S. at 697. The Court reasoned that because Congress did not pass any bills that would have implemented greenhouse gas trading programs like the CPP during the early 2000s and 2010s, Congress must have intended to withhold authority from EPA to regulate carbon emissions through such measures. Id. However, this interpretation ignores the equally plausible possibility that Congress assumed that EPA already had the authority to implement this type of regulatory regime and instead preferred to delegate such tasks to an expert agency rather than pursue specific action through legislation.
It is also misleading for the judiciary to infer congressional opinion from legislative failure because such outcomes often result from political compromise, strategic considerations, or legislative dysfunction rather than a collective decision to reject a specific regulatory approach. A bill might fail for reasons unrelated to its substance, such as political trade-offs, procedural hurdles like the Senate filibuster, or external events that shift legislative priorities. Thus, interpreting congressional inaction as indicative of congressional intent risks oversimplifying the nuanced and multifaceted nature of the legislative process.
The bicameralism and presentment requirements of Article I are not mere formalities; they are structural safeguards designed to ensure that laws reflect the will of the people, as expressed through their elected representatives. These provisions demand that both chambers of Congress rigorously debate, negotiate, and approve any proposed legislation. By identifying evidence of intent, political significance, or statutory ambiguity in silence, the Court elevates judicial speculation over the Constitution’s clear procedural rules.
The Congressional Review Act
Enacted as part of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), the Congressional Review Act (CRA) provides a statutory mechanism for Congress to review and potentially nullify major federal agency rules. Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. No. 104-121, §§ 251–258, 110 Stat. 847, 868–74 (codified at 5 U.S.C. §§ 801–808). The CRA arose amid growing concerns over Congress’s increasing delegation of legislative authority to executive agencies throughout the previous 50 years. As federal programs grew more complex, regulatory agencies gained more power, prompting criticism that Congress was ceding its constitutional role as the nation’s primary lawmaking body. This sentiment fueled demands for greater accountability, setting the stage for the passage of the CRA. See 142 Cong. Rec. E571-01, E575 (1996).
Under the CRA, agencies must submit a report on each new rule to both houses of Congress and the Government Accountability Office before the rule can take effect. 5 U.S.C. § 801(a). This report includes a concise summary of the rule, its intended impact, and its legal basis. Once the agency submits the report, Congress has a limited timeframe—typically 60 legislative days—to introduce and pass a joint resolution of disapproval if it opposes the rule. Id. § 802. A special parliamentary procedure accelerates the CRA process by limiting debate and preventing the use of the filibuster in the Senate, ensuring that Congress can quickly address potentially problematic regulations. Id. § 802(d). If both houses approve the resolution, it is sent to the president, who may either sign or veto it. See U.S. Const. art. I, § 7. Overriding a veto requires a two-thirds majority in both chambers. Id. Once Congress successfully overturns a rule, the CRA prohibits the agency from issuing any new rules in “substantially the same form” without explicit congressional authorization. 5 U.S.C. § 801(b)(2).
Congress created the CRA with the understanding that federal agencies often issue rules that address significant regulatory questions, including those that some may consider “major.” See 142 Cong. Rec. E571-01, E575 (1996). The CRA recognizes that agencies, by virtue of their technical expertise and day-to-day involvement in policy implementation, often resolve complex and politically sensitive issues. Id. The scope of these issues, however, can raise concerns about whether the agency is acting within the bounds of its congressionally delegated authority. In this regard, the CRA functions as a corrective mechanism, enabling Congress to intervene when it believes an agency has overstepped. Id. By facilitating swift legislative action, the CRA ensures that Congress retains control over major regulatory decisions, alleviating the need for courts to speculate about congressional intent down the line. The CRA’s design thus presumes—or at least allows—that agencies will regularly engage with major questions and that their rules will nevertheless remain in effect unless Congress takes affirmative steps to disapprove of them. Put differently, the CRA creates a proactive mechanism for Congress to weigh in on administrative decision-making so that courts do not need to speculate about general congressional inaction.
The CRA’s legislative framework starkly contrasts with the Court’s reasoning in West Virginia, which interpreted congressional inaction as evidence that Congress did not intend to grant EPA authority to regulate carbon emissions through a cap-and-trade regime. Under the CRA, silence does not create new law or retroactively endorse a rule; it leaves the agency’s rule intact unless Congress explicitly overturns it. Consequently, Congress’s failure to pass a CRA resolution of disapproval should be interpreted solely as a decision not to legally contest the rule rather than as an affirmation of congressional approval or intent. In fact, the CRA specifically prohibits courts from inferring congressional intent from inaction, but the resilience of this provision against judicial scrutiny is now uncertain following the recent Loper Bright decision, as the Court appears increasingly inclined to limit Congress’s authority to dictate how courts interpret legislative action. 5 U.S.C. § 801(g); Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). Regardless, the CRA continues to provide a clear and specific opportunity for Congress to act within a defined timeframe that comports with the Constitution’s bicameralism and presentment requirements. Congress’s failure to pass a resolution of disapproval is therefore more instructive, if not determinative, of the legislature’s relationship to the rule in question.
Since its enactment, Congress has used the CRA to review hundreds of agency rules. Although successful disapprovals are rare, the CRA’s existence proves that Congress already possesses a formal mechanism for reviewing and rejecting major agency rules that it opposes. This fact complicates the Court’s reliance on legislative inaction as a signal of congressional disapproval in cases like West Virginia. If Congress had objected to the CPP, it had the ability to use the CRA to issue a joint resolution of disapproval. In fact, Congress did precisely that, passing a CRA resolution in 2015 to disapprove of the CPP. S.J. Res. 24, 114th Cong. (2015). However, President Obama vetoed the resolution. See Barack Obama, Memorandum of Disapproval on S.J Res. 24, The White House (Dec. 18, 2015). While the vote to disapprove may have practically reflected congressional sentiment, as a formal legal matter—and as a matter of both statutory design and constitutional law—the CPP became law. Without the president’s signature or a veto override, Congress’s objection carries no legal weight. 5 U.S.C. § 801(g).
In West Virginia, the Court speculated about congressional intent based on Congress’s repeated failure to act on cap-and-trade proposals, but, remarkably, it did not address Congress’s failure to successfully invoke the CRA to disapprove of the CPP—and has never acknowledged or cited the CRA in any of its opinions. West Virginia, 597 U.S. at 697. Of course, under Loper Bright, courts alone have definitive authority to interpret statutes. Loper Bright, 144 S. Ct. at 2266. But if the Court continues to use congressional inaction to grope for statutory meaning, as it did in West Virginia, it should at least attend to the much sharper implication of CRA inaction or positive failure to disapprove the agency’s regulation.
The West Virginia Court thus overlooked the fact that, as a matter of constitutional and statutory law, Congress legally had acquiesced to the CPP. This omission is significant because it demonstrates that Congress had already engaged with the CPP through the CRA process, and the rule successfully endured legislative scrutiny. The CRA challenge failed; therefore, the Court could not infer a constitutionally valid expression of congressional intent against the rule. 5 U.S.C. § 801(g). Notably, acknowledging the CRA process would not foreclose other possible legal challenges to the regulation, such as the Court’s own examination of whether the rule aligns with the authority delegated by the original statute. Loper Bright, 144 S. Ct. at 2257. It would, however, prevent the Court from inferring nondelegation from congressional inaction on significant legal problems that otherwise appear to fit, at least generally, within the scope of an agency’s already delegated power.
The Nondelegation Doctrine
The Supreme Court’s use of the major questions doctrine in cases like West Virginia highlights an underlying tension within administrative law: the uneasy balance between congressional delegation of authority to federal agencies and the constitutional principle that all legislative powers must ultimately reside with Congress. At the core of this tension is the nondelegation doctrine, a long-standing but rarely decisive judicial principle that prohibits Congress from delegating its legislative powers to executive agencies without providing a clear and intelligible principle for how agencies should exercise their delegated authority. J.W. Hampton v. United States, 276 U.S. 394, 409 (1928). To comply, Congress must define clear boundaries when it gives rulemaking power to administrative agencies to ensure that they do not legislate independently. Mistretta v. United States, 488 U.S. 361, 371–75 (1989); Gundy v. United States, 588 U.S. 128, 135–36 (2019).
Although the nondelegation doctrine has been largely dormant since the New Deal era, the Court’s recent decisions signal a resurgence of interest in this principle. Invoking the major questions doctrine in cases like West Virginia can be understood as a reflection of the Court’s growing discomfort with broad congressional delegations of regulatory power, particularly in areas involving significant economic and political consequences. As the West Virginia Court emphasized, for example, “Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’ We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’” West Virginia, 597 U.S. at 723 (quoting E. Gellhorn & P. Verkuil, Controlling Chevron-Based Delegations, 20 Cardozo L. Rev. 989, 1011 (1998-1999); U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 419 (D.C. Cir. 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc)).
While the major questions doctrine has served as a functional surrogate for nondelegation principles, the Court’s engagement with the doctrine itself this term could bring greater clarity—or exacerbate uncertainty—about the limits of agency authority. The outcome of Consumers’ Research v. FCC has the potential to reshape the architecture of modern administrative law, either by reaffirming the status quo under a retooled major questions framework or by fundamentally redefining the constitutional limits of delegation.
In the meantime, the Supreme Court’s increasingly muscular reliance on the major questions doctrine and legislative inaction as signals of congressional intent remains both constitutionally and practically flawed. Joshua Ulan Galperin, Congressional Interpretation, 2025 Wis. L. Rev. (forthcoming 2025). Rather than embracing these speculative approaches, the Court should confront the nondelegation doctrine directly and use this term as an opportunity to rectify the complications arising from its haphazard application of the major questions doctrine. Indeed, the prospect of a more robust nondelegation doctrine may exacerbate challenges for federal agencies, which already function under broad and often vague statutory mandates that demand expertise, discretion, and adaptability. If the Court forces Congress to legislate with far greater specificity—a task that political gridlock often makes infeasible—they may leave agencies in a precarious position: unable to address pressing issues because of statutory ambiguity yet constrained from acting due to stricter judicial enforcement of perceived nondelegation principles. As a result, the tension between judicial oversight, legislative inaction, and executive implementation could create significant governance challenges, potentially impeding the ability of agencies to respond effectively to emerging societal needs. But using the major questions doctrine as a license to interpret post-statutory legislative silence as a legal restriction on agency authority is unjudicial, imprecise, and arguably undemocratic. Id. At the very least, acknowledging the role of the nondelegation doctrine in this context would begin to restore clarity to administrative law and uphold the constitutional principles that govern the separation of powers.
