[June 30, 2022]
Justice Gorsuch,
with whom Justice
Alito joins, concurring.
To resolve today’s case the Court
invokes the major questions doctrine. Under that
doctrine’s terms, administrative agencies must be able
to point to “ ‘clear congressional authorization’ ” when
they claim the power to make decisions of vast
“ ‘economic and political significance.’ ” Ante,
at 17, 19. Like many parallel clear-statement rules in
our law, this one operates to protect foundational
constitutional guarantees. I join the Court’s opinion
and write to offer some additional observations about
the doctrine on which it rests.
I
A
One of the Judiciary’s most solemn
duties is to ensure that acts of Congress are applied in
accordance with the Constitution in the cases that come
before us. To help fulfill that duty, courts have
developed certain “clear-statement” rules. These rules
assume that, absent a clear statement otherwise,
Congress means for its laws to operate in congruence
with the Constitution rather than test its bounds. In
this way, these clear-statement rules help courts “act
as faithful agents of the Constitution.” A. Barrett,
Substantive Canons and Faithful Agency, 90 B. U. L. Rev.
109, 169 (2010) (Barrett).
Consider some examples. The Constitution
prohibits Congress from passing laws imposing various
types of retroactive liability. See Art. I, § 9; Landgraf v. USI
Film Products, 511
U. S. 244, 265–266 (1994). Consistent with this
rule, Chief Justice Marshall long ago advised that “a
court . . . ought to struggle hard against a [statutory]
construction which will, by a retrospective operation,
affect the rights of parties.” United
States v. Schooner
Peggy, 1 Cranch 103, 110 (1801). Justice Paterson
likewise insisted that courts must interpret statutes to
apply only prospectively “unless they are so clear,
strong, and imperative, that no other meaning can be
annexed to them.” United
States v. Heth,
3 Cranch 399, 413 (1806).
The Constitution also incorporates the
doctrine of sovereign immunity. See, e.g., Hans v. Louisiana, 134
U. S. 1, 12–17 (1890). To enforce that doctrine,
courts have consistently held that “nothing but express
words, or an insurmountable implication” would justify
the conclusion that lawmakers intended to abrogate the
States’ sovereign immunity. Chisholm v. Georgia,
2 Dall. 419, 450 (1793) (Iredell, J., dissenting); see Seminole
Tribe of Fla. v. Florida, 517
U. S. 44, 55 (1996). In a similar vein, Justice
Story observed that “[i]t is a general rule in the
interpretation of legislative acts not to construe them
to embrace the sovereign power or government, unless
expressly named or included by necessary implication.” United
States v. Greene,
26 F. Cas. 33, 34 (No. 15, 258) (CC Me. 1827).
The major questions doctrine works in
much the same way to protect the Constitution’s
separation of powers. Ante,
at 19. In Article I, “the People” vested “[a]ll” federal
“legislative powers . . . in Congress.” Preamble; Art.
I, § 1. As Chief Justice Marshall put it, this means
that “important subjects . . . must be entirely
regulated by the legislature itself,” even if Congress
may leave the Executive “to act under such general
provisions to fill up the details.” Wayman v. Southard,
10 Wheat. 1, 42–43 (1825). Doubtless, what qualifies as
an important subject and what constitutes a detail may
be debated. See, e.g., Gundy v. United
States, 588 U. S. ___, ___–___ (2019) (plurality
opinion) (slip op., at 4–6); id.,
at ___–___ (Gorsuch,
J., dissenting) (slip op., at 10–12). But no less than
its rules against retroactive legislation or protecting
sovereign immunity, the Constitution’s rule vesting
federal legislative power in Congress is “vital to the
integrity and maintenance of the system of government
ordained by the Constitution.” Marshall
Field & Co. v. Clark, 143
U. S. 649, 692 (1892).
It is vital because the framers believed
that a republic—a thing of the people—would be more
likely to enact just laws than a regime administered by
a ruling class of largely unaccountable “ministers.” The
Federalist No. 11, p. 85 (C. Rossiter ed. 1961) (A.
Hamilton). From time to time, some have questioned that
assessment.1 But
by vesting the lawmaking power in the people’s elected
representatives, the Constitution sought to ensure “not
only that all power [w]ould be derived from the people,”
but also “that those [e]ntrusted with it should be kept
in dependence on the people.” Id.,
No. 37, at 227 (J. Madison). The Constitution, too,
placed its trust not in the hands of “a few, but [in] a
number of hands,” ibid.,
so that those who make our laws would better reflect the
diversity of the people they represent and have an
“immediate dependence on, and an intimate sympathy with,
the people.” Id.,
No. 52, at 327 (J. Madison). Today, some might describe
the Constitution as having designed the federal
lawmaking process to capture the wisdom of the masses.
See P. Hamburger, Is Administrative Law Unlawful?
502–503 (2014).
Admittedly, lawmaking under our
Constitution can be difficult. But that is nothing
particular to our time nor any accident. The framers
believed that the power to make new laws regulating
private conduct was a grave one that could, if not
properly checked, pose a serious threat to individual
liberty. See The Federalist No. 48, at 309–312 (J.
Madison); see also id.,
No. 73, at 441–442 (A. Hamilton). As a result, the
framers deliberately sought to make lawmaking difficult
by insisting that two houses of Congress must agree to
any new law and the President must concur or a
legislative supermajority must override his veto.
The difficulty of the design sought to
serve other ends too. By effectively requiring a broad
consensus to pass legislation, the Constitution sought
to ensure that any new laws would enjoy wide social
acceptance, profit from input by an array of different
perspectives during their consideration, and thanks to
all this prove stable over time. See id.,
No. 10, at 82–84 (J. Madison). The need for compromise
inherent in this design also sought to protect
minorities by ensuring that their votes would often
decide the fate of proposed legislation—allowing them to
wield real power alongside the majority. See id.,
No. 51, at 322–324 (J. Madison). The difficulty of
legislating at the federal level aimed as well to
preserve room for lawmaking “by governments more local
and more accountable than a distant federal” authority, National
Federation of Independent Business v. Sebelius, 567
U. S. 519, 536 (2012) (plurality opinion), and in
this way allow States to serve as “laborator[ies]” for
“novel social and economic experiments,” New
State Ice Co. v. Liebmann, 285
U. S. 262, 311 (1932) (Brandeis, J., dissenting);
see J. Sutton, 51 Imperfect Solutions: States and the
Making of American Constitutional Law 11 (2018).
Permitting Congress to divest its
legislative power to the Executive Branch would “dash
[this] whole scheme.” Department
of Transportation v. Association
of American Railroads, 575
U. S. 43, 61 (2015) (Alito,
J., concurring). Legislation would risk becoming nothing
more than the will of the current President, or, worse
yet, the will of unelected officials barely responsive
to him. See S. Breyer, Making Our Democracy Work: A
Judge’s View 110 (2010) (“[T]he president may not have
the time or willingness to review [agency] decisions”).
In a world like that, agencies could churn out new laws
more or less at whim. Intrusions on liberty would not
be difficult and rare, but easy and profuse. See The
Federalist No. 47, at 303 (J. Madison); id.,
No. 62, at 378 (J. Madison). Stability would be lost,
with vast numbers of laws changing with every new
presidential administration. Rather than embody a wide
social consensus and input from minority voices, laws
would more often bear the support only of the party
currently in power. Powerful special interests, which
are sometimes “uniquely” able to influence the agendas
of administrative agencies, would flourish while others
would be left to ever-shifting winds. T. Merrill,
Capture Theory and the Courts: 1967–1983, 72 Chi.-Kent
L. Rev. 1039, 1043 (1997). Finally, little would remain
to stop agencies from moving into areas where state
authority has traditionally predominated. See, e.g., Solid
Waste Agency of Northern Cook Cty. v. Army
Corps of Engineers, 531
U. S. 159, 173–174 (2001) (SWANC).
That would be a particularly ironic outcome, given that
so many States have robust nondelegation doctrines
designed to ensure democratic accountability in their
state lawmaking processes. See R. May, The Nondelegation
Doctrine is Alive and Well in the States, The Reg. Rev.
(Oct. 15, 2020).
B
Much as constitutional rules about
retroactive legislation and sovereign immunity have
their corollary clear-statement rules, Article I’s
Vesting Clause has its own: the major questions
doctrine. See Gundy,
588 U. S., at ___–___ (Gorsuch,
J., dissenting) (slip op., at 20–21). Some version of
this clear-statement rule can be traced to at least
1897, when this Court confronted a case involving the
Interstate Commerce Commission, the federal government’s
“first modern regulatory agency.” S. Dudley, Milestones
in the Evolution of the Administrative State 3 (Nov.
2020). The ICC argued that Congress had endowed it with
the power to set carriage prices for railroads. See ICC v. Cincinnati,
N. O. & T. P. R. Co., 167
U. S. 479, 499 (1897). The Court deemed that
claimed authority “a power of supreme delicacy and
importance,” given the role railroads then played in the
Nation’s life. Id.,
at 505. Therefore, the Court explained, a special rule
applied:
“That Congress has transferred such a
power to any administrative body is not to be presumed
or implied from any doubtful and uncertain language. The
words and phrases efficacious to make such a delegation
of power are well understood, and have been frequently
used, and if Congress had intended to grant such a power
to the [agency], it cannot be doubted that it would have
used language open
to no misconstruction, but clear
and direct.” Ibid. (emphasis
added).
With the explosive growth of the
administrative state since 1970, the major questions
doctrine soon took on special importance.2 In
1980, this Court held it “unreasonable to assume” that
Congress gave an agency “unprecedented power[s]” in the
“absence of a clear [legislative] mandate.” Industrial
Union Dept., AFL–CIO v. American
Petroleum Institute, 448
U. S. 607, 645 (plurality opinion). In the years
that followed, the Court routinely enforced “the
nondelegation doctrine” through “the interpretation of
statu tory texts, and, more particularly, [by] giving
narrow constructions to statutory delegations that might
otherwise be thought to be unconstitutional.” Mistretta v. United
States, 488
U. S. 361, 373, n. 7 (1989). In fact, this Court
applied the major questions doctrine in “all corners of
the administrative state,” whether the issue at hand
involved an agency’s asserted power to regulate tobacco
products, ban drugs used in physician-assisted suicide,
extend Clean Air Act regulations to private homes,
impose an eviction moratorium, or enforce a vaccine
mandate. Ante,
at 17; see FDA v. Brown
& Williamson Tobacco Corp., 529
U. S. 120, 160 (2000); Gonzales v. Oregon, 546
U. S. 243, 267 (2006); Utility
Air Regulatory Group v. EPA, 573
U. S. 302, 324 (2014); Alabama
Assn. of Realtors v. Department
of Health and Human Servs., 594 U. S. ___, ___
(2021) (per curiam)
(slip op., at 6); National
Federation of Independent Business v. OSHA, 595
U. S. ___, ___ (2022) (per curiam)
(slip op., at 6).3
The Court has applied the major
questions doctrine for the same reason it has applied
other similar clear-statement rules—to ensure that the
government does “not inadvertently cross constitutional
lines.” Barrett 175. And the constitutional lines at
stake here are surely no less important than those this
Court has long held sufficient to justify parallel
clear-statement rules. At stake is not just a question
of retroactive liability or sovereign immunity, but
basic questions about self-government, equality, fair
notice, federalism, and the separation of powers. See
Part I–A, supra.
The major questions doctrine seeks to protect against
“unintentional, oblique, or otherwise unlikely”
intrusions on these interests. NFIB v. OSHA, 595
U. S., at ___ (Gorsuch,
J., concurring) (slip op., at 5). The doctrine does so
by ensuring that, when agencies seek to resolve major
questions, they at least act with clear congressional
authorization and do not “exploit some gap, ambiguity,
or doubtful expression in Congress’s statutes to assume
responsibilities far beyond” those the people’s
representatives actually conferred on them. Ibid. As
the Court aptly summarizes it today, the doctrine
addresses “a particular and recurring problem: agencies
asserting highly consequential power beyond what
Congress could reasonably be understood to have
granted.” Ante,
at 20.
II
A
Turning from the doctrine’s function to
its application, it seems to me that our cases supply a
good deal of guidance about when an agency action
involves a major question for which clear congressional
authority is required.
First,
this Court has indicated that the doctrine applies when
an agency claims the power to resolve a matter of great
“political significance,” NFIB v. OSHA,
595 U. S., at ___ (slip op., at 6) (internal quotation
marks omitted), or end an “earnest and profound debate
across the country,” Gonzales,
546 U. S., at 267–268 (internal quotation marks
omitted); see ante,
at 17. So, for example, in Gonzales,
the Court found that the doctrine applied when the
Attorney General issued a regulation that would have
effectively banned most forms of physician-assisted
suicide even as certain States were considering whether
to permit the practice. 546 U. S., at 267. And in NFIB v. OSHA,
the Court held the doctrine applied when an agency
sought to mandate COVID–19 vaccines nationwide for most
workers at a time when Congress and state legislatures
were engaged in robust debates over vaccine mandates.
595 U. S., at ___ (slip op., at 5); id.,
at ___ (Gorsuch,
J., concurring) (slip op., at 3). Relatedly, this Court
has found it telling when Congress has “ ‘considered and
rejected’ ” bills authorizing something akin to the
agency’s proposed course of action. Ante,
at 20, 27 (quoting Brown
& Williamson, 529 U. S., at 144). That too may be a
sign that an agency is attempting to “ ‘work [a]round’ ”
the legislative process to resolve for itself a question
of great political significance. NFIB v. OSHA, 595
U. S., at ___ (Gorsuch,
J., concurring) (slip op., at 3).4
Second,
this Court has said that an agency must point to clear
congressional authorization when it seeks to regulate
“ ‘a significant portion of the American economy,’ ” ante,
at 18 (quoting Utility
Air, 573 U. S., at 324), or require “billions of
dollars in spending” by private persons or entities, King v. Burwell, 576
U. S. 473, 485 (2015). The Court has held that
regulating tobacco products, eliminating rate regulation
in the telecommunications industry, subjecting private
homes to Clean Air Act restrictions, and suspending
local housing laws and regulations can sometimes check
this box. See Brown
& Williamson, 529 U. S., at 160; MCI
Telecommunications Corp. v. American
Telephone & Telegraph Co., 512
U. S. 218, 231 (1994) (MCI); Utility
Air, 573 U. S., at 324; Alabama
Assn. of Realtors, 594 U. S., at ___ (slip op., at
6).
Third,
this Court has said that the major questions doctrine
may apply when an agency seeks to “intrud[e] into an
area that is the particular domain of state law.” Ibid.
Of course, another longstanding clear-statement rule—the
federalism canon—also applies in these situations. To
preserve the “proper balance between the States and the
Federal Government” and enforce limits on Congress’s
Commerce Clause power, courts must “ ‘be certain of
Congress’s intent’ ” before finding that it
“legislate[d] in areas traditionally regulated by the
States.” Gregory v. Ashcroft, 501
U. S. 452, 459–460 (1991). But unsurprisingly, the
major questions doctrine and the federalism canon often
travel together. When an agency claims the power to
regulate vast swaths of American life, it not only risks
intruding on Congress’s power, it also risks intruding
on powers reserved to the States. See SWANC,
531 U. S., at 162, 174.
While this list of triggers may not be
exclusive, each of the signs the Court has found
significant in the past is present here, making this a
relatively easy case for the doctrine’s application. The
EPA claims the power to force coal and gas-fired power
plants “to cease [operating] altogether.” Ante,
at 24. Whether these plants should be allowed to operate
is a question on which people today may disagree, but it
is a question everyone can agree is vitally important.
See ante, at
24–25. Congress has debated the matter frequently. Ibid.;
see generally Climate Change, The History of a Consensus
and the Causes of Inaction, Hearing before the
Subcommittee on Environment of the House Committee on
Oversight and Reform, 116th Cong., 1st Sess., pt. I
(2019). And so far it has “conspicuously and repeatedly
declined” to adopt legislation similar to the Clean
Power Plan (CPP). Ante, at
20; see American
Lung Assn. v. EPA, 985
F. 3d 914, 998, n. 19 (CADC 2021) (Walker, J.,
concurring in part, concurring in judgment in part, and
dissenting in part) (cataloguing failed legislative
proposals); cf. Brown
& Williamson, 529 U. S., at 144. It seems that fact
has frustrated the Executive Branch and led it to
attempt its own regulatory solution in the CPP. See 985
F. 3d, at 998, n. 20 (President stating that “ ‘if
Congress won’t act soon . . . I will’ ”); cf. United
States Telecom Assn. v. FCC, 855
F. 3d 381, 423–424 (CADC 2017) (Kavanaugh, J.,
dissenting from denial of rehearing en banc) (noting a
“President’s intervention [may] underscor[e] the
enormous significance” of a regulation).
Other suggestive factors are present
too. “The electric power sector is among the largest in
the U. S. economy, with links to every other sector.”
N. Richardson, Keeping Big Cases From Making Bad Law:
The Resurgent “Major Questions” Doctrine, 49 Conn.
L. Rev. 355, 388 (2016). The Executive Branch has
acknowledged that its proposed rule would force an
“aggressive transformation” of the electricity sector
through “transition to zero-carbon renewable energy
sources.” White House Fact Sheet, App. in American
Lung Assn. v. EPA,
No. 19–1140 (CADC), pp. 2076–2077. The Executive Branch
has also predicted its rule would force dozens of power
plants to close and eliminate thousands of jobs by 2025.
See EPA, Regulatory Impact Analysis for the Clean Power
Plan Final Rule 3–27, 3–30, 3–33, 6–25 (Oct. 23, 2015).
And industry analysts have estimated the CPP would cause
consumers’ electricity costs to rise by over $200
billion. See National Mining Assn., EPA’s Clean Power
Plan: An Economic Impact Analysis 2, 4 (2015). Finally,
the CPP unquestionably has an impact on federalism, as
“the regulation of utilities is one of the most
important of the functions traditionally associated with
the police power of the States.” Arkansas
Elec. Cooperative Corp. v. Arkansas
Pub. Serv. Comm’n, 461
U. S. 375, 377 (1983). None of this is to say the
policy the agency seeks to pursue is unwise or should
not be pursued. It is only to say that the agency seeks
to resolve for itself the sort of question normally
reserved for Congress. As a result, we look for clear
evidence that the people’s representatives in Congress
have actually afforded the agency the power it claims.
B
At this point, the question becomes what
qualifies as a clear congressional statement authorizing
an agency’s action. Courts have long experience applying
clear-statement rules throughout the law, and our cases
have identified several telling clues in this context
too.
First,
courts must look to the legislative provisions on which
the agency seeks to rely “ ‘with a view to their place
in the overall statutory scheme.’ ” Brown
& Williamson, 529 U. S., at 133. “[O]blique or
elliptical language” will not supply a clear statement. Ante,
at 18; see Spector v. Norwegian
Cruise Line Ltd., 545
U. S. 119, 139 (2005) (plurality opinion)
(cautioning against reliance on “broad or general
language”). Nor may agencies seek to hide “elephants in
mouseholes,” Whitman v. American
Trucking Assns., Inc., 531
U. S. 457, 468 (2001), or rely on “gap filler”
provisions, ante,
at 20. So, for example, in MCI this
Court rejected the Federal Communication Commission’s
attempt to eliminate rate regulation for the
telecommunications industry based on a “subtle”
provision that empowered the FCC to “ ‘modify’ ” rates.
512 U. S., at 231. In Brown
& Williamson, the Court rejected the Food and Drug
Administration’s attempt to regulate cigarettes based a
“cryptic” statutory provision that granted the agency
the power to regulate “drugs” and “devices.” 529 U. S.,
at 126, 156, 160. And in Gonzales,
the Court doubted that Congress gave the Attorney
General “broad and unusual authority” to regulate drugs
for physician-assisted suicide through “oblique”
statutory language. 546 U. S., at 267.
Second,
courts may examine the age and focus of the statute the
agency invokes in relation to the problem the agency
seeks to address. As the Court puts it today, it is
unlikely that Congress will make an “[e]xtraordinary
gran[t] of regulatory authority” through “vague
language” in “ ‘a long-extant statute.’ ” Ante,
at 18–20 (quoting Utility
Air, 573 U. S., at 324). Recently, too, this Court
found a clear statement lacking when OSHA sought to
impose a nationwide COVID–19 vaccine mandate based on a
statutory provision that was adopted 40 years before the
pandemic and that focused on conditions specific to the
workplace rather than a problem faced by society at
large. See NFIB v. OSHA,
595 U. S., at ___ (Gorsuch,
J., concurring) (slip op., at 3). Of course, sometimes
old statutes may be written in ways that apply to new
and previously unanticipated situations. See Sedima,
S. P. R. L. v. Imrex
Co., 473
U. S. 479, 499 (1985). But an agency’s attempt to
deploy an old statute focused on one problem to solve a
new and different problem may also be a warning sign
that it is acting without clear congressional authority.
See ante, at
18.
Third,
courts may examine the agency’s past interpretations of
the relevant statute. See ante,
at 20–21. A “contemporaneous” and long-held Executive
Branch interpretation of a statute is entitled to some
weight as evidence of the statute’s original charge to
an agency. United
States v. Philbrick, 120
U. S. 52, 59 (1887). Conversely, in NFIB v. OSHA,
the Court found it “telling that OSHA, in its half
century of existence, ha[d] never before adopted a broad
public health regulation” under the statute that the
agency sought to invoke as authority for a nationwide
vaccine mandate. 595 U. S., at ___ (slip op., at 8); ante,
at 18; see also Brown
& Williamson, 529 U. S., at 158–159 (noting that
for decades the FDA had said it lacked statutory power
to regulate cigarettes). As the Court states today,
“ ‘the want of [an] assertion of power by those who
presumably would be alert’ ” to it is “ ‘significant in
determining whether such power was actually
conferred.’ ” Ante, at
21. When an agency claims to have found a previously
“unheralded power,” its assertion generally warrants “a
measure of skepticism.” Utility
Air, 573 U. S., at 324.
Fourth,
skepticism may be merited when there is a mismatch
between an agency’s challenged action and its
congressionally assigned mission and expertise. Ante, at
25. As the Court explains, “[w]hen an agency has no
comparative expertise in making certain policy
judgments, . . . Congress presumably would not task it
with doing so.” Ibid. (internal
quotation marks and alterations omitted). So, for
example, in Alabama
Assn. of Realtors, this Court rejected an attempt
by a public health agency to regulate housing. 594
U. S., at ___ (slip op., at 5). And in NFIB v. OSHA,
the Court rejected an effort by a workplace safety
agency to ordain “broad public health measures” that
“f[ell] outside [its] sphere of expertise.” 595 U. S.,
at ___ (slip op., at 6).5
Asking these questions again yields a
clear answer in our case. See ante,
at 28–31. As the Court details, the agency before us
cites no specific statutory authority allowing it to
transform the Nation’s electrical power supply. See ante,
at 28. Instead, the agency relies on a rarely invoked
statutory provision that was passed with little debate
and has been characterized as an “obscure, never-used
section of the law.” Ante,
at 6 (internal quotation marks omitted). Nor has the
agency previously interpreted the relevant provision to
confer on it such vast authority; there is no original,
longstanding, and consistent interpretation meriting
judi cial respect. See ante,
at 20–22. Finally, there is a “mismatch” between the
EPA’s expertise over environmental matters and the
agency’s claim that “Congress implicitly tasked it, and
it alone, with balancing the many vital considerations
of national policy implicated in deciding how Americans
will get their energy.” Ante,
at 25. Such a claimed power “requires technical and
policy expertise not traditionally
needed in [the] EPA’s regulatory development.” Ibid. (internal
quotation marks omitted). Again, in observing this much,
the Court does not purport to pass on the wisdom of the
agency’s course. It acknowledges only that agency
officials have sought to resolve a major policy question
without clear legislative authorization to do so.
III
In places, the dissent seems to suggest
that we should not be unduly “ ‘concerned’ ” with the
Constitution’s assignment of the legislative power to
Congress. Post,
at 29 (opinion of Kagan, J.).
Echoing Woodrow Wilson, the dissent seems to think “a
modern Nation” cannot afford such sentiments. Post, at
29–31. But recently, our dissenting colleagues
acknowledged that the Constitution assigns “all
legislative Powers” to Congress and “bar[s their]
further delegation.” Gundy,
588 U. S., at ___ (plurality opinion of Kagan,
J.) (slip op., at 4) (internal quotation marks and
alteration omitted). To be sure, in that case we
disagreed about the exact nature of the “nondelegation
inquiry” courts must employ to vindicate the
Constitution. Id.,
at ___ (slip op., at 5). But like Chief Justice
Marshall, we all recognized that the Constitution does
impose some limits on the delegation of legislative
power. See ibid.; Wayman,
10 Wheat., at 42–43. And while we all agree that
administrative agencies have important roles to play in
a modern nation, surely none of us wishes to abandon our
Republic’s promise that the people and their
representatives should have a mean ingful say in the
laws that govern them. Cf. Rucho v. Common
Cause, 588 U. S. ___, ___ (2019) (Kagan,
J., dissenting) (slip op., at 7) (“Republican liberty
demands not only, that all power should be derived from
the people; but that those entrusted with it should be
kept in dependence on the people” (internal quotation
marks and alteration omitted)).6
So what is our real point of
disagreement? The dissent next suggests that the Court
strays from its commitment to textualism by relying on a
clear-statement rule (the major questions doctrine) to
resolve today’s case. Post,
at 28. But our law is full of clear-statement rules and
has been since the founding. Our colleagues do not
dispute the point. In fact, they have regularly invoked
many of these rules.7
If that’s not the problem, perhaps the
dissent means to suggest that the major questions
doctrine does not belong on the list of our
clear-statement rules. At times, the dissent appears to
dismiss the doctrine as a “get-out-of-text free car[d].” Ibid.
The dissent even seems to suggest that the doctrine
could threaten “the safety and efficacy of medications”
or lead to “the routine adulteration of food.” Post,
at 31. But then again, the dissent also acknowledges
that the major questions doctrine should “sensibl[y]”
apply in at least some situations. Post,
at 14–15. The dissent even favorably highlights one
application of the doctrine that our colleagues
criticized less than a year ago. See post,
at 18 (citing Alabama
Assn. of Realtors, 594 U. S. ___). And, of course,
our colleagues have joined other applications of the
major questions doctrine in the past. See, e.g., King,
576 U. S., at 485–486; Gonzales,
546 U. S., at 267–268. Nor does the dissent really seem
to dispute that a major question is at stake in
this case. As the dissent observes, the agency’s
challenged action before us concerns one of “the
greatest . . . challenge[s] of our time.” Post,
at 21. If this case does not implicate a “question of
deep economic and political significance,” King,
576 U. S., at 486 (internal quotation marks omitted), it
is unclear what might.8
In the end, our disagreement really
seems to center on a difference of opinion about whether
the statute at issue here clearly authorizes the agency
to adopt the CPP. The dissent even complains that I have
failed to conduct an exhaustive analysis of the relevant
statutory language. See post,
at 28, n. 8. But in this concurrence, I have sought to
provide some observations about the underlying doctrine
on which today’s decision rests. On the merits of the
case before us, I join the Court’s opinion, which
comprehensively sets forth why Congress did not clearly
authorize the EPA to engage in a “generation shifting
approach” to the production of energy in this country. Ante,
at 28. In reaching its judgment, the Court hardly
professes to “appoin[t] itself” “the decision-maker on
climate policy.” Post,
at 33. The Court acknowledges only that, under our
Constitution, the people’s elected representatives in
Congress are the decisionmakers here—and they have not
clearly granted the agency the authority it claims for
itself. Ante,
at 31.
*
When Congress seems slow to solve
problems, it may be only natural that those in the
Executive Branch might seek to take matters into their
own hands. But the Constitution does not authorize
agencies to use pen-and-phone regulations as substitutes
for laws passed by the people’s representatives. In our
Republic, “[i]t is the peculiar province of the
legislature to prescribe general rules for the
government of society.” Fletcher v. Peck,
6 Cranch 87, 136 (1810). Because today’s decision helps
safeguard that foundational constitutional promise, I am
pleased to concur.
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