Abstract
In West Virginia v. EPA, the Supreme Court held that with respect to regulations that involve “major questions”—meaning questions of “great political or economic significance”—the agency seeking to regulate a major question must successfully identify “clear congressional authorization” for its actions. The major questions doctrine (MQD) essentially creates a new nondelegation doctrine rule. The nondelegation doctrine requires that Congress provide an “intelligible principle” when it delegates policymaking authority to a federal administrative agency; the MQD, in turn, enforces the nondelegation doctrine by requiring Congress plainly and directly to authorize an agency to regulate major questions. It is difficult to understand why Congress must plainly and directly authorize only “major” agency actions as opposed to any and all new regulations. After all, separation of powers concerns exist regardless of the importance of the regulatory authority that an agency seeks to exercise.
When an agency regulates beyond the scope of its delegated statutory authority, the regulations are void and without legal effect (i.e., ultra vires). Unlike the MQD, the ultra vires doctrine applies to any and all administrative regulations. The ultra vires doctrine would provide a better, more logical approach to safeguarding separation of powers principles in the United States. For starters, it would not involve any subjective judicial determinations of whether a new regulation is sufficiently “major” to trigger separation of powers concerns. Second, it would apply across the board—meaning that reviewing courts would always have an obligation to ascertain an agency’s statutory authority to regulate. Finally, and no less important, a more generalized judicial duty to assess whether an agency has statutory authority to regulate before considering whether an agency’s regulations are arbitrary or capricious would better align the nondelegation doctrine with the plain language of the Administrative Procedure Act (APA). Section 706(2)(C) of the APA requires a reviewing court to void regulations if they are “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” This provision tracks, almost precisely, the central concerns of the ultra vires doctrine. To date, however, the federal courts have expended little (if any) effort to enforce it.
This Article argues that the MQD, and the nondelegation doctrine more generally, should be renormalized to follow the plain text of the APA, starting with an initial determination of whether an agency has acted in excess of its congressionally granted authority. If the agency’s regulatory initiative meets this initial baseline requirement, only then should a reviewing court proceed to evaluate whether the agency’s new regulation or policy satisfies the arbitrary or capricious standard set forth in Section 706(2)(A). Simply stated, the power to regulate constitutes a separate, distinct, and antecedent question that a court reviewing an agency action must ask and answer before considering the overall wisdom of the agency’s new regulation or policy (or the lack of it). A principled and coherent approach to the separation of powers should impose a general duty on a federal administrative agency to establish that it possesses delegated authority from Congress to act (just as a federal court must always ascertain whether it has jurisdiction to hear a case on the merits before reaching them). In sum, the bigness or smallness of the regulatory question need not—and should not—prefigure an agency’s constitutional duty to stay within the bounds Congress has established for it.
Recommended Citation
Ronald J. Krotoszynski, Jr. & Hon. A. Richard M. Blaiklock,
Renormalizing the Nondelegation Doctrine,
75
Emory L. J.
1343
(2026).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol75/iss6/1