Supreme Court ruling threatens federal regulation

In its 6-3 decision in West Virginia v. Environmental Protection Agency, the U.S. Supreme Court has laid the groundwork for future challenges to the authority of any federal agency to issue regulations. The Court struck down an Environmental Protection Agency (EPA) regulation designed to implement a shift from coal-burning power plants to more environmentally friendly power sources in light of the threat of climate change. The Court struck down the regulation based on the “major questions doctrine.”

The “major questions doctrine” is a Court-made doctrine that provides that when regulations have broad “economic and political significance,” they are permissible only when Congress “clearly authorizes” the agency to act.

Although the Supreme Court had cautioned its doctrine would be used only in “extraordinary” circumstances, it has already found two occasions to invoke it this term, once with the EPA and earlier in its shadow docket decision striking down the Occupational Safety and Health Administration’s (OSHA) mandate of workplace COVID-19 vaccinations.

Lower courts are already following suit, particularly in blocking more narrowly tailored vaccine mandates, such as those for federal workers and even for the military, historically the sole preserve of the Commander in Chief.