Last week, in West Virginia v EPA, the Supreme Court invoked the “major questions doctrine” in determining that the Clean Power Plan issued by the Obama administration was illegal. The major questions doctrine essentially says that for really big decisions, such as requiring shifting our sources of power in order to combat climate change, agency regulations are not sufficient. Congress must specifically legislate on these major questions.
Many have focused on the court’s ambiguous language regarding what qualifies as a major question. To some degree this misses an important point about policymaking in the current climate. The more “major” a question is, the less likely it is that Congress, as it is currently constituted, will be able to pass legislation on it. This is true regardless of how we define “major.”