Taking Stock of West Virginia on its One-Year Anniversary, by Natasha Brunstein - Yale Journal on Regulation

Taking Stock of West Virginia on its One-Year Anniversary, by Natasha Brunstein - Yale Journal on Regulation

This month marks one year since the Supreme Court decided West Virginia v. EPA, in which the Court expressly named and relied on the major questions doctrine for the first time. It is thus an apt time to take stock of West Virginia’s impact, particularly as we may see yet another landmark major questions doctrine decision from the Court by the end of the month in Biden v. Nebraska or Department of Education v. Brown.

Before West Virginia, commentators rightly criticized the major questions doctrine’s ambiguity and inconsistency. In West Virginia, the Court had the opportunity to clarify the doctrine and articulate a framework to guide lower courts. Although one could read West Virginia as an attempt to provide such guidance to lower courts (as Don Goodson and I explained here), it is admittedly far from a model of clarity, which has unsurprisingly led to continued inconsistency in the lower courts.

In a forthcoming article in the Administrative Law Review, I survey how lower federal courts have interpreted West Virginia and applied the major questions doctrine over the last year. My survey reveals that there is no one major questions doctrine in the lower courts. Like the Supreme Court’s cases predating West Virginia, judges have taken vastly different approaches to defining and applying the doctrine—even within the same circuit—illustrating that many judges view the doctrine as little more than a grab bag of factors at their disposal. The cases reflect that lower courts do not feel constrained in how they apply the doctrine, and their applications of the doctrine appear to largely track partisan lines.

***To begin with, in sixteen out of the twenty-one cases, judges ruled in line with their political party appointment. Nine cases involved Democratic appointees upholding Biden administration agency actions, and seven cases involved Republican appointees invalidating Biden administration agency actions. Of the remaining five cases, three of them are hard to categorize but arguably could go either way. In Kaweah Delta Health Care District v. Becerra, Judge Consuelo B. Marshall, a Democratic appointee in the Central District of California, invalidated a Trump-era rule that the Biden administration defended. To my knowledge, this is the only instance of a court relying on the major questions doctrine to invalidate a Trump-era policy that the Biden administration chose to defend. In Kovac v. Wray, Judge Brantley Starr, a Republican appointee in the Northern District of Texas, upheld the Biden administration’s maintenance of the terrorist watchlist, which is not strictly a Democratic policy. And in United States v. Sadrinia, Judge David L. Bunning, a Republican appointee in the Eastern District of Kentucky, upheld the Attorney General’s and Drug Enforcement Administration’s rule under the Controlled Substances Act in the context of a criminal prosecution, which also does not concern a strictly Democratic policy. The two remaining cases involved Republican appointees upholding Biden administration agency actions.